The High Court has unanimously dismissed an appeal against the decision of the Full Federal Court, and upheld a native title claim by the Ngarla People to land rights in the Pilbara mining region around Mt Goldsworthy. The respondents claimed native title rights including to camp, hunt, fish, conduct rituals and care for sites, which WA argued were extinguished by mining leases granted under the Mt Goldsworthy Agreement that allegedly conferred exclusive possession and were inconsistent with those native title rights. Among other things, the High Court was invited to consider the correctness of De Rose v South Australia [No 2] [2005] FCAFC 110, the first successful native title claim in South Australia, in which the FCAFC held that rights under pastoral leases to construct improvements did extinguish native title, but only over land on which those improvements were constructed.

The central inquiry for the Court, following the test laid down in Ward v Western Australia [2002] HCA 28, was whether the rights granted by the mining leases are inconsistent with claimed native title rights; an ‘objective inquiry requiring the identification of and comparison between two sets of rights’.

The Court held that the mining leases did not grant unqualified rights to exclude any person from the land for any reason or no reason. Instead the leases allowed the joint venture to use the land for mining and purposes associated with mining operations and to prevent any other person from using it for mining purposes. On this basis the Court rejected the first and second branches of WA’s argument: the lease rights were neither inconsistent with native title rights, nor were native title rights extinguished by actual or possible conflicting use in particular places. The Court rejected WA’s third and final argument that native title rights could and had been extinguished by the exercise of statutory rights on the basis that the argument ran contrary to the principles in Wik Peoples v Queensland [1996] HCA 40 and Ward: that inconsistency turns on the manner and exercise of one set of rights, rather than the nature and content of those rights.

Notably, at [60]-[63], the Court criticised the De Rose [No 2] as being flawed by two incorrect assumptions about Ward: first, that Ward permitted deferring the consideration of extinguishment until the manner of exercise of the rights is known, and secondly, that construction of an improvement on leased land affected the existence of native title rights (as opposed to their exercise). The Court also noted that had the leases required the joint venture to use the entirety of the land for mining or associated works, it may have been open to the Court to construe the leases as conferring the power to exclude any person for any reason or no reason which would have extinguished native title.