Castledine Gregory Law and Mediation

High Court confirms co-existence of native title rights in WA v Brown


In Western Australia v Brown [2014] HCA 8,  the High Court unanimously held that the grant of mineral leases under a State agreement did not extinguish a native title party’s rights and interests in those areas because they were not wholly inconsistent with the exercise of those rights and interests.


The mineral leases were granted under the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) on 17 February 1966 and, as they preceded the enactment of the Racial Discrimination Act 1975, were considered ‘past acts’ in respect of which common law principles of extinguishment would be applied. Ultimately, the Court held that the joint venturers only had exclusive possession for mining purposes and that third parties including native title parties could access the leased area where this did not prejudice operations. The Court did, however, indicate that any exclusive native title rights to control access to land for any or no purpose would likely be inconsistent with the grant of the mineral leases and would therefore be extinguished.


While the decision in Brown concerns the grant of tenements as past acts under State agreements, the High Court’s statements regarding extinguishment have the following broader implications:

  • in determining whether the grant was inconsistent with native title rights and interests, the Court only had regard to the time of the grant, rather than the manner in which rights pursuant to the grant were in fact exercised, including through the construction of infrastructure or the development of mining, thus declining to follow the Full Federal Court’s decision in De Rose (No 2) v South Australia (2005) 145 FCR 290
  • there is a greater likelihood, when considering extinguishment at common law, to presume the co-existence of native title rights with the rights of a tenement holder, whilst confirming that for certain purposes, the rights of the tenement holder may prevail, and
  • regard may be had to the decision in Brown in considering the effect of grants under the  Mining Act 1978 (WA) which also gives a tenement holder ‘exclusive rights for mining purposes’, rather than exclusive possession for all purposes.  


You can read the decision by following this link: