FEDERAL COURT OF AUSTRALIA

James v State of Western Australia [2010] FCAFC 77

Citation:		James v State of Western Australia [2010] FCAFC 77

Parties:		JEFFREY JAMES AND OTHERS ON BEHALF OF THE MARTU PEOPLE v STATE OF WESTERN AUSTRALIA AND OTHERS

File number:		(P)WAD 6110 of 1998

Judges:		SUNDBERG, STONE AND BARKER JJ

Date of judgment:		29 June 2010

Corrigendum:		10 August 2010

Catchwords:		NATIVE TITLE – mining leases – effect of grant on native title rights and interests – inconsistency of rights – “past acts” – whether apart from Native Title Act 1993 (Cth) mining leases invalid, but would have been valid if native title did not exist – whether invalidity resulted from Racial Discrimination Act 1975 (Cth) – compensation payable by mining lessee under State law – relevance to whether leases past acts.

Legislation:		Mining Act 1978 (WA) ss 8, 123(2), (4) Native Title Act 1993 (Cth) ss 15(1), 86D(1), 94H, 228 Racial Discrimination Act 1975 (Cth) s 10(1) Titles (Validation) Act and Native Title (Effect of Past Acts) Act 1995 (WA) ss 5, 9

Cases cited:		Ajinomoto Co Inc v NutraSweet Australia Pty Ltd (2008) 166 FCR 530 cited Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 cited Gerhardy v Brown (1985) 159 CLR 70 applied Gowan v Christie (1873) LR 2 Sc&Div 273 cited Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 cited Mabo v Queensland [No 1] (1988) 166 CLR 186 cited Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 cited Western Australia v Ward (2002) 213 CLR 1 considered

Date of hearing:	22 and 24 February 2010

Date of last submissions:	15 March 2010

Place:	Perth

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	83

Counsel for the Applicants:	R Blowes SC

Solicitor for the Applicants:	Malcolm O’Dell, Central Desert Native Title Services Ltd

Counsel for the Respondent:	RJ Webb QC

Solicitor for the Respondent:	Timothy Sharp, State Solicitor for Western Australia

FEDERAL COURT OF AUSTRALIA

James v State of Western Australia [2010] FCAFC 77

CORRIGENDUM

1. In [9], replace the word “July” with the word “January”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Sundberg, Stone and Barker.

Associate:

Dated: 10 August 2010

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	(P)WAD6110 of 1998

REFERRAL OF QUESTION UNDER NATIVE TITLE ACT 1993 (cth)

BETWEEN:

JEFFREY JAMES AND OTHERS ON BEHALF OF THE MARTU PEOPLE

Applicants

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS

Respondents

JUDGES:	SUNDBERG, STONE AND BARKER JJ
DATE OF ORDER:	29 JUNE 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The questions of law stated in the Special Case be answered as follows:

“In relation to each lease [described in paragraph 10 of the Special Case]:

(a) Is the grant of the lease a ‘past act’, as defined in s 228 of the Native Title Act 1993 (Cth), for the purposes of Part 2 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA)?”

Answer: Yes.

(b) “If the answer to that question is ‘yes’, into which of the four categories of past act, as defined in ss 229‑232 of the Native Title Act for the purposes of Part 2 of the TVA, does the lease fall?”

Answer: Category C as defined in s 231 of the Native Title Act.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	(P)WAD6110 of 1998

REFERRAL OF QUESTION UNDER NATIVE TITLE ACT 1993 (cth)

BETWEEN:

JEFFREY JAMES AND OTHERS ON BEHALF OF THE MARTU PEOPLE

Applicants

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS

Respondents

JUDGES:	SUNDBERG, STONE AND BARKER JJ
DATE:	29 JUNE 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

REFERRAL OF QUESTIONS

1 Section 136D of the Native Title Act 1993 (Cth) (the Act) enabled the presiding member of the National Native Title Tribunal (the Tribunal), if he or she considered that it would expedite the reaching of an agreement on any matter the subject of mediation, to refer to the Court a question of fact or law relating to a proceeding that arises during the mediation. Section 86D(1) empowered the Court to determine that question. Subsection (2) enabled the Court to adopt any agreement on facts between the parties reached during the mediation.

2 On 8 September 2009, pursuant to s 136D, the presiding member referred to the Court questions of law that have arisen during a mediation in the present proceeding. Section 136D was repealed by the Native Title Amendment Act 2009 (Cth) on 18 September 2009, and was replaced by s 94H, which is in substantially the same form as s 136D, save that it empowers the person conducting the mediation to make the referral. Section 86D(1) is largely unchanged save that it uses language consistent with the new s 94H. The parties are agreed that we should treat the referral as if made under s 94H. The referral, contained in a Special Case, has been reserved to a Full Court pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth). The Special Case states that the first respondent (the State) has the carriage of the referral.

3 Section 86D(2) permits the Court to adopt “any agreement on facts between the parties, reached during the mediation by the mediator. The facts contained in the Special Case can be summarised as follows:

(1) On 26 June 1996 an application for a determination of native title was lodged with the Tribunal on behalf of the Martu People of the Western Desert area of Western Australia.

(2) The application originally covered 219,000 square kilometres. After lodgement, notice was given in accordance with s 66 of the Act and mediation by the Tribunal commenced in accordance with the Act.

(3) Following amendments to the Act made in 1998, the application became a proceeding in the Court. Mediation by the Tribunal continued, and in relation to the relevant area there has been no order under s 86C that the mediation is to cease.

(4) On 27 September 2002 French J made orders pursuant to s 87 of the Act and an approved determination of native title in relation to a part of the application area that was the subject of an agreement between the parties: James on behalf of the Martu People v Western Australia [2002] FCA 1208.

(5) The application and the proceeding remain on foot in relation to the area not subject to the determination.

(6) The area the subject of the referral (the referral area) is that part of the application area not dealt with in the determination which is or was subject to various mining leases and general purpose leases granted under Part 4, Division 3 (mining leases) and Division 4 (general purpose leases) of the Mining Act 1978 (WA) before 1 January 1994 (when the Act commenced) but on or after 31 October 1975 (when the Racial Discrimination Act 1975 (Cth) (RDA) commenced, and a mining lease issued pursuant to clause 13 of the agreement scheduled to and ratified by the Western Mining Corporation (Throssell Range) Agreement Act 1985 (WA) (mining lease M 271 SA) during the same period. The leases are listed in par 10 of the Special Case.

(7) The application is the only native title determination application covering any part of the referral area.

(8) It is agreed by the parties that each lease, whether it is current or not, is not and was not invalid to any extent, apart from the extent to which it may be, or may have been, invalid because of the existence of native title.

(9) It is agreed by the parties that, apart from the leases, and any rights exercised under the leases, no other rights or interests exist, or have existed, in relation to the referral area that may have extinguished native title rights and interests to any extent.

(10) It is agreed by the parties that, subject to any extinguishment of native title rights and interests due to, or associated with, the grant of the leases, native title rights and interests exist in relation to the whole of the referral area.

(11) It is agreed by the parties that any native title rights and interests not extinguished by the leases are held by the persons described as the common law holders in the determination.

(12) It is agreed by the parties that, if the native title rights and interests in relation to the referral area have not been extinguished to any extent by the leases, those rights and interests comprise the right to possess, occupy, use and enjoy the referral area to the exclusion of all others.

(13) Except in relation to whether, and any extent to which, the leases have extinguished the native title rights and interests, the parties have reached agreement on all matters that are the subject of mediation in relation to the referral area.

4 The questions of law are stated as follows:

In relation to each lease:

(a) Is the grant of the lease a ‘past act’, as defined in s 228 of the Native Title Act 1993 (Cth), for the purposes of Part 2 of the Titles (Validation) and the Native Title (Effect of Past Acts) Act 1995 (WA) (TVA)?

(b) If the answer to that question is ‘yes’, into which of the four categories of past act, as defined in ss 229-232 of the Native Title Act for the purposes of Part 2 of the TVA, does the lease fall?

VALIDATION OF PAST ACTS

5 Division 2 of Part 2 of the Act (ss 13A to 20) validates or allows States and Territories to validate certain acts that took place before 1 January 1994 and would otherwise be invalid because of native title. The acts validated are called “past acts”. The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. The different categories of past act are defined by s 228 to 232. The only category relevant to the present reference is “category C past act”, which is a past act consisting of the grant of a mining lease.

6 Subdivision A of Division 2 (ss 14 to 18) deals with past acts attributable to the Commonwealth. It validates such Acts: s 14. Section 15(1)(d) provides that the non‑extinguishment principle applies to a category C past act that is attributable to the Commonwealth. The non‑extinguishment principle is described in s 238. If the act affects any native title, the native title is nevertheless not extinguished, either wholly or partly: subs (2). If the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act: subs (3). If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency: subs (4). If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect: subs (6). If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent: subs (7). Subsection (8) gives an example of the operation of the section in its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area in relation to which native title exists:

In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires …, the rights and interests again have full effect.

7 Section 17 confers on native title holders an entitlement to compensation for past acts attributable to the Commonwealth.

8 Returning to Division 2, Subdivision B (ss 19 to 20) deals with past acts attributable to a State or Territory. Section 19(1) provides that if a law of a State or Territory contains provisions to the same effect as ss 15 and 16 of the Act, that law may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid. The Titles (Validation) Act and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) contains such provisions and so provides. Section 20 of the Act provides that if a law of a State or Territory validates a past act in accordance with s 19, the native title holders are entitled to compensation if they would be so entitled under s 17, if s 17 applied to acts attributable to the State or Territory.

9 Section 228 of the Act defines “past act”. The only part of this elaborate definition that is relevant for present purposes is subs (2), which provides in part that if:

(a) …

(ii) at any time before 1 July 1994 when native title existed in relation to particular land or waters, any other act took place; and

(b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.

10 The word “act” is defined in s 226 so as to include various acts, amongst them being:

(b) the grant [or] issue … of a licence, permit, authority or instrument;

(d) the creation … of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation.

11 Each of the leases was granted before 1 January 1994 and is an “act” under one or more of these paragraphs of the definition. Because of the agreements recorded in the referral, the only issue is whether apart from the Act, the leases were invalid to any extent because of the existence of native title. It is only if that prima facie invalidity is established that the effect, if any, on native title of the TVA is considered: Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act Case) at 469‑470.

RDA S 10(1)

12 It is common ground that the leases will be invalid only if the RDA brought about that result. The parties are also agreed that the only provision of the RDA that might produce that result is s 10(1), which provides that:

If, by reason of, or a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall by force of this section, enjoy that right to the same extent as persons of that other race, colour, or national or ethnic origin.

13 Section 10(1) operates in two kinds of cases involving State laws. The first is where a State law omits to make the enjoyment of rights universal. There s 10 operates to confer that right on persons of a particular race etc. The State law is not invalidated, because s 10 exhibits no intention to cover the field occupied by the positive provisions of the State law to the exclusion of that law. Rather the section confers a right which is complementary to the right created by the State law. The second case is where the State law imposes a prohibition forbidding the enjoyment of a human right or fundamental freedom enjoyed by persons of another race, or deprives those persons of a right or freedom previously enjoyed by all regardless of race. In those circumstances s 10 confers a right on the persons prohibited or deprived, necessarily resulting in an inconsistency between s 10 and the State law so that s 109 of the Constitution operates to invalidate the State law to the extent of the inconsistency. See Gerhardy v Brown (1985) 159 CLR 70 at 98 per Mason J and Western Australia v Ward (2002) 213 CLR 1 (Ward) at [106]‑[108].

14 In the first of the above cases (where the “act” is not invalid), the validation provisions of the Act do not apply, and the extinguishment of native title is determined by applying the inconsistency of incidents test. In the second case (where the “act” is invalid), the validation provisions operate to validate the act, with the consequences set out in the Act: complete extinguishment of native title, partial extinguishment, and (in the case of a category C mining lease) the application of the non‑extinguishment principle.

STATE’S SUBMISSIONS

Nature reserves and mining leases in Ward

15 The State puts its case in two ways. It first contends that none of the leases are “past acts” as defined in s 228 of the Act for the purposes of Part 2 of the TVA. The contention is based on the treatment of nature reserves and mining leases in the reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ (the Court) in Ward.

16 As to nature reserves, the State submits that the Court held that by designating land as a reserve, the executive was asserting the right to say how the land could be used. This was inconsistent with a native title right to say how land could be used or not used: Ward at [219]. The State then says that the Court held that the vesting of a nature reserve after the commencement of the RDA was not invalidated by s 10. Reliance was placed on Ward at [253]‑[254]:

This analysis reveals that the provisions of the Land Act 1933 providing for the vesting of reserves are provisions of State law of the first kind identified by Mason J in Gerhardy and referred to earlier in these reasons. The vesting of a reserve effected pursuant to those provisions, after 31 October 1975, would be valid, but the RDA would supply to native title holders a right of compensation for that which is lost upon vesting.

…

Because the vesting of a reserve after 31 October 1975 was not invalid, it is not a ‘past act’ under Div 2 of Pt 2 of the NTA.

17 The State points out that in Ward at [309] the Court concluded that the grant of a mining tenement was inconsistent with the native title right to control access to land. The State then says that even though, in Ward, that right had already been extinguished by grants of previous pastoral leases, the Court went on to consider at [310]‑[321] whether the RDA would be engaged in any event, in respect of grants after 1975. After referring to the compensation provisions of the Mining Act, which provide for compensation for occupiers and owners of land affected by a mining tenement, the Court said that if the holders of native title were properly described as “occupiers” they would be entitled to compensation under s 123. The RDA would not be engaged, and there would be no invalidity in respect of the mining leases, and to the extent that their grant extinguished native title, that native title would remain extinguished: at [319]. On the other hand, if the holders of native title were not “occupiers”, s 10 of the RDA would be engaged. This would fall within the first category of discriminatory legislation in Gerhardy. The Mining Act would have failed to confer the right to compensation upon holders of native title in circumstances where that right is conferred upon the holders of other forms of title. Section 10 would confer the right to compensation upon the former to the same extent as the Mining Act conferred that right upon occupiers: [320].

18 The State places particular reliance on what was said in Ward at [321]:

It should be emphasised that when the RDA operates in this way, the validity of the grants of the mining leases is unaffected, as is the extinguishing effect that those grants may have on any native title. The grants did not, therefore, constitute category C past acts. The result is that to the extent that the grants of the respective mining leases extinguished native title, that native title is extinguished and in place thereof, the holders of that native title have a statutory entitlement to compensation as described above.

19 The State notes that in Ward the native title holders were not “owners” for the purposes of Mining Act compensation because prior pastoral leases had extinguished their right to control access and so they did not fall within par (c) of the definition of “owner” in s 8 of the Mining Act – persons having “lawful control and management” of land: Ward at [317]. The RDA was not engaged on this basis because the native title holders’ non‑entitlement to compensation was no different from that which would obtain in respect of any holder of rights and interests that did not amount to the lawful control and management of the land: Ward at [317].

20 The State accepts that if native title holders were owners within par (c) of the definition, as the High Court said that in an appropriate case they could be (at [317]), they would be entitled to compensation as owners. The submission continues: “Just as if they had been properly described as ‘occupiers’ (Ward HC at [319]) the effect of the RDA would be to confer an equivalent right to compensation on native title holders, not to invalidate the grant of the mining leases”.

State’s alternative case

21 The second way the State put its case is as follows. The Mining Act opens up for mining both Crown land and private land. Under that Act neither native title holders nor any other title holders have a right to be asked permission to use or have access to land for mining purposes. The Act qualifies the rights of any interest holder and removes from the holder’s bundle of rights any right to control the use of, and exclude access to, the land for mining purposes. Thus the Mining Act does not treat native title holders and non-native title holders differently by extinguishing only the native title right and leaving the non-native title right intact.

State’s summary

22 The State summarises its case as follows:

(a) On the basis that they had the rights to possess, occupy, use and enjoy the land the subject of the leases at the time the leases were granted, the Martu native title holders were arguably “owners” and/or “occupiers” of the land.

(b) They were arguably entitled to compensation under s 123 of the Mining Act as “owners” or “occupiers” of the land for the loss of use and social disruption caused by the grant of the leases.

(c) If the native title holders, as “owners” or “occupiers” were entitled to compensation, the RDA will have no operative effect.

(d) If the native title holders were not entitled to compensation under the Mining Act as “owners” or “occupiers” then there is unequal enjoyment of the (human) right to be compensated for deprivation of property and s 10 will operate to confer a right of compensation on native title holders for the effect on their native title.

(e) Either way, the grants of the leases are not invalidated by the RDA and they are not “past acts”.

23 Although this summary purports to record the effect of the alternative argument summarised at [21] as well as that based on Ward (mining leases and reserves), it seems to us to do so only in relation to the latter.

APPLICANTS’ SUBMISSIONS

State’s reliance on Ward

24 The applicants submit that the State’s reliance on Ward is misplaced. They seek to distinguish Ward on the ground that the mining leases there, though granted after the RDA, were preceded by grants of pre‑RDA pastoral leases which had already extinguished any native title right to control access to and use of the areas. The mining leases were valid and had no identified extinguishing effect on native title.

25 In the present case, however, the effect of the mining leases was to extinguish the native title right to control access but not to extinguish the right held by a non‑Aboriginal person. Thus, say the applicants, Ward was not dealing with the present fact situation, is distinguishable and the passage at [321] of Ward set out at [18] is obiter.

26 The applicants contend that the present case is an example of the second Gerhardy category of case. The practical operation and effect of the Mining Act upon the grant of a mining lease is to extinguish only a native title right to control access and leave all non‑native title rights intact. The reason the mining leases in Ward did not fall into this category is that the grants did not extinguish any native title; it had already been extinguished by the pre‑RDA pastoral leases.

What “right” is in question?

27 The applicants take issue with the State’s identification of the “right” of the Martu people that is affected by the grant of the mining leases. It is not the right to be compensated for the deprivation of their property, but the right to own and inherit property. They identify two Gerhardy situations. The first involves a universal extinguishment of rights but native title holders are singled out to be uncompensated for the extinguishment, or to be compensated unequally compared with the rest of the community. The second involves universal compensation for extinguishment of rights, but native title is singled out for extinguishment. In relation to the second situation, the applicants submit that even if the Mining Act provided for equal enjoyment of a right to be compensated for deprivation of property, that would not avoid the operation of s 10(1) in circumstances where a different right is not enjoyed equally. The practical effect of the Mining Act results in the extinguishment only of native title whilst leaving other titles intact.

28 The applicants submit that the proper approach in this case is to do what was approved in Ward at [125], namely to compare the security of possession and enjoyment of native title rights by the native title holders with the security of possession and enjoyment of other forms of title by the holders thereof. On that approach the practical operation and effect of the Mining Act upon the grant of a mining lease is to deny to the holders of a native title right to possession, occupation, use and enjoyment of land the enjoyment of that right to the same extent that persons of another race enjoy that right. Section 10(1) of the RDA thus confers on native title holders that right and the right to own and inherit property to the same extent as enjoyed by persons of another race. That necessarily results in an inconsistency between s 10 and the Mining Act.

RDA and grant of mining tenements

29 Under Part III of the Mining Act a mining tenement can be granted over Crown land and private land. The leases in the present case were granted over Crown land. The applicants submit that the grant of a mining tenement does not extinguish the rights and interests of a non‑native land holder to any extent. This it is said is shown by s 113 of the Mining Act which has at all times provided that when a tenement expires or is surrendered or forfeited, the owner of the land may take possession forthwith. On the other hand, say the applicants, a native title holder of a right of exclusive possession or a right to control access to and use of the area cannot benefit from s 113 to the same extent as any other person because the right of control of access is inconsistent with and extinguished by the grant and not available for the retaking: Ward [309]. Thus, say the applicants, by reason of the Mining Act native title holders enjoy security in their holding of the right to control access to and use of land to a more limited extent than other persons. Section 10 of the RDA is engaged.

30 The applicants contend that the compensation provisions of the Mining Act are not determinative of the questions raised by the referral. They point out that in Ward the native title holders were held not to be “owners” within par (c) of the Mining Act definition because the pastoral leases had already extinguished any “control and management” of land. They say the Court did not consider the situation of native title holders such as the Martu, and there is no ruling on the consequences of what would have been a hypothetical situation of the native title holders being “owners”.

31 The applicants submit that the Mining Act does not contemplate extinguishment or provide for extinguishment to be compensated. They say that the kind of compensation provided is in general related to disturbance of land and temporary interference with rights by the use of the land for mining.

32 The applicants point out that Ward did not decide whether native title owners might be “occupiers” within the Mining Act definition. They claim it is obvious that when at [319] the Court said that “to the extent that the grant of the mining leases extinguished native title, that native title would remain extinguished”, it was not referring to the extinguishment of the right to control access.

33 The applicants contend that Ward at [320] is directed only to compensation; there was no consideration of inequality in the enjoyment of the right to own and inherit property. Thus the Court did not consider the second Gerhardy category.

34 In relation to the passage in Ward at [321] upon which the State so heavily relies, the applicants submit that the reference to the “extinguishing effect” that the mining grants may have on any native title, is to extinguishing effects, if any, which are themselves non‑discriminatory; that is, to circumstances in which there is no inequality in the enjoyment of the right to own property other than the absence of compensation. They say this must be so, for otherwise the passage would be inconsistent with other parts of Ward itself: [108], [113], [309], and with the Native Title Act Case 183 CLR at 451.

35 The applicants submit that even if compensation provided by the Mining Act extended to cover the unequal extinguishing effect of the grant of a mining tenement, that would not avoid the consequence that the extinguishing effect itself is a discriminatory burden falling only on native title holders.

Ward on reserves

36 The applicants rely on what was said in Ward about the effect of the creation of reserves. They say that the reservation of land under the Land Act 1933 (WA) has a similar extinguishing effect to the grant of a mining lease, namely inconsistency with the right of native title holders to decide how the land could or could not be used. It was said that Ward’s treatment at [222] of this as a category two Gerhardy situation is inconsistent with the State’s reading of Ward at [319] and [321].

RDA and creation of reserves

37 The applicants submit that the State derives no assistance from Ward’s treatment of the vesting of reserves. See [16] above. Apart from the question of compensation, the practical effect of the scheme for the vesting of reserves under s 33 of the Land Act is that all interests in land (native title and non‑native title) were brought to an end by the vesting of a reserve. The Land Act offered no compensation to native title holders, though it did for others. Section 10 of the RDA supplied the missing entitlement to compensation. Hence, it was a category one Gerhardy situation, and does not assist the State.

State’s alternative case

38 The applicants take issue with the alternative way in which the State puts its case at [21], essentially on the ground that its major premise, namely that under the Mining Act no landholder in Western Australia has the right to be asked permission to use or have access to land for mining purposes, is false.

QUESTIONS ANSWERED

39 The effect of the grant of a mining lease under the Mining Act was to extinguish the native title right to control access to the land. That right is inconsistent with the right of access arising under the lease: Ward at [309]. The grant of a mining lease did not extinguish the rights of any non‑native title landholders to any extent. This flows from the nature of a mining lease under the Mining Act. It is not a true common law lease. Rather it is a liberty granted to a person, for a specific length of time, to enter upon land, search for things and take them away: Gowan v Christie (1873) LR 2 Sc&Div 273 at 284; Ward at [285]. This is reflected in s 113 of the Mining Act under which, on the expiration or earlier termination of the lease, the owner of the land may resume possession.

40 Unlike a non‑native title landholder affected by a mining lease, a native title holder of a right to possess, occupy, use and enjoy land to the exclusion of all others cannot enjoy the right conferred by s 113, because the right to control access is inconsistent with and extinguished by the grant and does not revive upon expiration of the lease. Section 237A of the Act defines “extinguish” in relation to native title as permanently to extinguish it, so that it “cannot revive, even if the act that caused the extinguishment ceases to have effect”.

41 In order to determine the question raised by s 10(1) of the RDA, it is necessary to compare the security of possession and enjoyment of native title rights by the native title holders with the security of possession and enjoyment of other forms of title by the holders thereof: Native Title Act Case 183 CLR at 440‑441; Ward at [125]. On that comparison, the practical operation and effect of the Mining Act on the grant of a mining lease is that native title holders do not enjoy their right to own and inherit property (including the right to be immune from the arbitrary deprivation of property) equally with other title holders. We have described the “right” in question in that composite form because that is how it was described by Brennan, Toohey and Gaudron JJ in Mabo v Queensland [No 1] (1988) 166 CLR 186 at 217. However nothing turns on whether it is more accurately rendered as a right to own and inherit property or a right to be immune from the arbitrary deprivation of property.

42 The effect of s 10(1) of the RDA is to confer on native title holders the right to own and inherit property (including the right to be immune from the arbitrary deprivation of property) to the same extent as enjoyed by any other landholder. That right cannot exist so long as the Mining Act has its extinguishing effect. They are inconsistent. This is a category two Gerhardy situation. It is the third situation posited in Ward at [108], where a State law extinguishes only native title and leaves other titles intact. The discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.

43 When one asks the question posed by s 228(2) of the Act – whether “apart from this Act” the grant of the mining lease was invalid to any extent – the answer is that it was, by operation of s 10(1) of the RDA. Accordingly the mining lease is a “past act”. Referred question (a) should be answered “Yes”. It was common ground that on that answer to question (a), question (b) should be answered: “Category C as defined in s 231 of the Native Title Act”.

44 We will now explain in more detail why we have not accepted the State’s submissions recorded at [15]‑[22].

45 The State derives no assistance from its submission based on Ward’s treatment of nature reserves recorded at [16]. In Ward at [250] the Court said:

On its face, the Land Act 1933 does not single out native title rights and interests for different treatment. And leaving aside the question of compensation, there is nothing to suggest that, so far as concerns the vesting of reserves, the practical operation of the Land Act 1933 resulted in the different treatment of native title rights and interests and non‑native title rights and interests.

The Court examined the compensation provisions, and concluded that at the time of vesting a reserve, the only interests in the land which could be affected by the vesting and the holder of which would not be entitled to compensation would be native title rights and interests. That was what led to the conclusion in Ward at [253]‑[254] quoted at [16], that the vesting of nature reserves was a Gerhardy category one situation. The vesting was valid, but s 10(1) of the RDA would provide native title holders with a right of compensation for that lost on vesting.

46 The essence of the State’s submission on Ward’s treatment of mining tenements, recorded at [17], is that having regard to the compensation provisions of the Mining Act, the native title holders were either entitled to compensation as owners or occupiers, in which case the RDA would not operate, or they were not, in which case s 10 of the RDA would confer the right to compensation to the same extent as the Mining Act conferred that right upon other landholders. In other words, the submission has the RDA operating on a category one Gerhardy situation.

47 It is necessary to look more closely at what was said in Ward. At [309] the Court said that if the native title right to control access existed immediately before the grants of the mining leases, then it was extinguished by the grants. This, it was said, would “raise the issue of invalidity of the grant by operation of the RDA and subsequent validation by the NTA and the State Validation Act”. The Court did not pursue this hypothetical scenario because the pre‑RDA pastoral leases had already extinguished the native title right to control access.

48 In our view the Court then left the hypothetical scenario, and did not return to it. We do not accept the State’s characterisation of what the Court thereafter did at [310]‑[321], namely that it “went on to consider whether the RDA would be engaged in any event, in respect of grants after 1975”. Rather we understand the ensuing discussion to be directed back to the facts in Ward, where the mining leases had been preceded by pre‑RDA pastoral leases. That appears clear from [317], where the Court said that the native title holders could not be “owners” within par (c) of the definition in the Mining Act because the pastoral leases had extinguished their right to control access.

49 Having examined the compensation provisions of the Mining Act, the Court said at [319] that if the native title holders were “occupiers” of the land, they were entitled to compensation under s 123 of the Mining Act. The RDA would not be engaged. Therefore there would be no invalidity in respect of the mining leases, “and to the extent that the grant of those mining leases extinguished native title, that native title would remain extinguished”. If, on the other hand, the native title holders were not “occupiers”, s 10 of the RDA was engaged, and would confer on them the right to compensation to the same extent as the Mining Act conferred that right upon “occupiers”. We repeat that the Court was concerned only with “occupiers”, because on the fact situation with which it was at this stage dealing, the native title holders were not “owners” because their right to control access had been extinguished by the pastoral leases.

50 The Court pointed out at [320] that it was dealing with a category one Gerhardy situation. Thus when it concluded with the passage at [321] so heavily relied on by the State (set out at [18]), the phrase “when the RDA operates in this way” is a reference to its application in the category one Gerhardy situation.

51 Something must be said about the Court’s description at [319] of the consequences of the native title holders’ hypothetical entitlement to compensation as occupiers – “to the extent that” the grant of the mining lease “extinguished native title”, that native title would remain extinguished. Similarly at [321], in describing the consequences of the RDA’s operation, the Court said that “to the extent that the grants of the respective mining leases extinguished native title, that native title is extinguished”. The extinguishment referred to does not include the right to control access to the land, because that was extinguished by the pastoral leases. The Court had earlier at [308] referred to the generality of the determination of the native title found at first instance making it impossible, subject to the exception of the right to control access, to determine the native title rights and interests that had been extinguished or to identify those that remained. In that context, we agree with the applicants’ submission that the reference in [319] and [321] to “extinguished native title” should be understood as referring to the extinguishing effects, if any, which were themselves non‑discriminatory; to circumstances in which there was no inequality in the enjoyment of the right to own property other than the absence of compensation.

52 As is apparent from the foregoing, insofar as it dealt with mining leases, Ward was a Gerhardy category one case. That appears to have been the way the case was argued. The no‑compensation discrimination was remedied by s 10 of the RDA. The State seeks to attract the assistance of Ward by pigeonholing the applicants’ case in the same way. This appears most clearly from the State’s summary at [22(d)]:

If the native title holders were not entitled to compensation under the Mining Act as “owners” or “occupiers” then there is unequal enjoyment of the (human) right to be compensated for deprivation of property and s 10 will operate to confer a right of compensation on native title holders for the effect on their native title.

But that is not how the applicants’ case is put. Their claim is that the effect of the Mining Act is that the native title holders do not enjoy their rights to own and inherit property equally with other landholders. The Mining Act and the leases granted pursuant to its provisions extinguish the Martu peoples’ right to control access to their land and do not extinguish to any extent the title of other landholders. That is a Gerhardy category two situation. It is not remedied by the provision of compensation. Even if compensation provided by the Mining Act extended to cover the extinguishing effect of the grant of a mining lease, the availability of that compensation would not avoid the consequence that the extinguishing effect itself is a discriminatory burden falling only on native title holders. (We explain at [69]‑[76] why the compensation provided by the Mining Act does not so extend.)

53 The crucial discussion in Ward at [310] to [321] concerns only Gerhardy category one. Save for the general introductory material [106]‑[109] where the two categories are identified, the only place where a category two situation is posed is at [309]. The applicants treat the sentence “This would raise the issue of invalidity of the grant by operation of the RDA and subsequent validation by the NTA and the State Validation Act” as a conclusion rather than the identification of an issue or issues. It seems to us more like the latter. However, the authorities to which the Court referred elsewhere in its reasons, and other passages in Ward itself, show that the “issue” at [309] would be resolved in favour of invalidity, and validation by the Act and the State Validation Act. Thus in Ward at [108] it was said:

a State law, for example, extinguishes only native title and leaves other titles intact; the situation falls in the second category identified by Mason J and the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.

See also the Native Title Act Case 183 CLR at 437 and 451.

54 We do not understand the submission in the State’s written outline recorded at [20]. If the native title holders were “owners” within par (c) of the definition, they would have been entitled to compensation as such. Because they were so entitled, there would be no need for the RDA “to confer an equivalent right of compensation on native title owners”. Ward at [319], the passage relied on by the State in this connection, makes this clear: if the native title holders were occupiers, they would have been entitled to compensation as such, “and the RDA would not be engaged”. This submission appears to have been abandoned in the course of oral submissions. Counsel accepted that if the native title owners were “owners”, they would be entitled to compensation as such, and the RDA would not be engaged.

55 We do not accept the premise on which the State’s alternative case recorded at [21] is based. This is that neither native title holders nor any other title holders have a right to be asked permission to use or have access to land for mining purposes. First, it does not recognise that extinguishment of native title is not brought about by the mere existence of a power to achieve that. There must be an exercise of the power, in the present case by the grant of mining leases. Second, the premise ignores the fact that the right to control access is wholly extinguished in the hands of native title holders, but merely regulated or qualified by a grant of a mining lease over the land of other title holders. Section 113 of the Mining Act makes this clear. See [39]. Third, the premise does not accommodate the comparison mandated by Ward at [125] and the Native Title Act Case 183 CLR at 440‑441 between the security of possession and enjoyment of native title rights by native title holders and the security of possession and enjoyment of other forms of title by the holders thereof. This comparison discloses that although there is equality in that no title holder can enforce a right to control access against the holder of a mining lease, that right is only suspended for a non‑native title holder, but is extinguished in the hands of a native title holder.

OTHER MATTERS

56 In the course of considering its decision, the Court came to the view that there were several matters upon which the parties should make submissions or further submissions. These were notified to the parties and written submissions were filed to deal with them.

Version of s 123 applicable

57 The first matter concerns the form of s 123 of the Mining Act applicable to each of the leases listed in the referral. The section was amended three times during the period covered by the leases (1982 to 1993). The parties have agreed upon a document, annexed to the applicants’ Additional Submission (8 March 2010), showing the version of s 123 that is applicable to each lease and the date of its grant. It is common ground that for the purposes of the referred questions the relevant version of s 123 is that current at the date of the grant of a lease.

58 There are three relevant versions: Version 2 (after Act No 69 of 1981, which commenced on 30 October 1981), Version 3 (after Act No 100 of 1985, which commenced on 31 January 1986) and Version 4 (after Act No 105 of 1986, which commenced on 9 January 1987). It had been thought that an earlier version was applicable, Version 1, but it turned out that this had been amended so as to assume the form of Version 2 by 1 January 1982 when it commenced. Version 1 can be put aside. Of the 54 leases, 34 are Version 4 leases, 9 are Version 3 and 11 are Version 2.

Anything turn on different versions?

59 The second matter is whether anything turns on the different versions of s 123. The presently relevant parts of s 123 (namely subss (2) and (4)) are the same in Versions 3 and 4. The table below shows the differences between Version 2 of s 123(2) and (4) on the one hand and Versions 3 and 4 on the other.

Version 2

Version 3/4

(2) The owner and occupier of any land in respect of which a mining tenement has been granted are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them as a result of the grant of the mining tenement or the exercise of the rights conferred thereby.

(2) Subject to this section and to sections 124 and 125 of this Act, the owner and occupier of any land where mining takes place are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining …

(4) Subject to subsection (1) of this section and section 124, where the land concerned is private land, the compensation to be made to the owner and occupier thereof shall be compensation for being deprived of the possession of the surface or any part of the surface of the private land, and for damage to the surface or the part, and to any improvements thereon, that may arise from the exercise of the rights conferred by the mining tenement thereon or thereunder, and for the severance of such land from other land of the owner and occupier, and for rights of way and for all consequential damages.

(4) Subject to subsection (1) and subsection (7) of this section and taking into account the matters referred to in section 124 and section 125, the amount payable under subsection (2) to which an owner or occupier may be found to be entitled may include compensation for –

(a) being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land;

(b) damage to the natural surface of the land or any part of the land;

(d) any loss or restriction of a right of way or other easement or right;

(e) the loss of, or damage to, improvements;

(f) social disruption;

(g) in the case of private land that is land under cultivation, …; and

(h) any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining, and where the use for mining purposes of aircraft over or in the vicinity of any land (whether or not private land) occasions damage that damage shall be deemed to have been occasioned by an entry on the land thereby affected.

60 It will be seen that:

(a) Version 2 of s 123(2) identifies the persons entitled to compensation as the owner and occupier of any land “in respect of which a mining tenement has been granted”, whereas Version 3/4 identifies the owner and occupier of any land “where mining takes place”.

(b) Version 2 of s 123(2) provides that the compensation is for loss and damage suffered “as a result of the grant” of, or “the exercise of the rights” conferred by, the mining tenement, whereas Version 3/4 ties the compensation to loss and damage “resulting or arising from the mining”.

(d) Version 3/4 of s 123(4) is about “the amount payable under subsection (2)” and is not limited to private land.

61 What gave rise to the Court’s request for further submissions were the differences identified in pars (a) and (b) of [60].

62 The State contends that Version 2 comprehensively compensates landowners for all loss and damage they actually suffer from the grant of the lease or the exercise of rights under the lease, irrespective of their race or the nature of their title to the land. The State says that if that is not the case, s 10 of the RDA would apply. If the loss and damage includes a loss of control of use of the land, compensation is payable for that loss including extinguishment.

63 The applicants accept that it is arguable on Version 2 of s 123(2) that compensation is payable for extinguishment in relation to an underlying title, but submit that the contrary is indicated by a reading of the Mining Act as a whole.

64 We have been able to answer the referred questions without resort to the compensation provisions of the Mining Act. However, since the submissions now under consideration have been filed at the Court’s request, we propose to deal with some of them.

65 The compensation prescribed by Version 2 of s 123(4) applies only to the owner or occupier of “private land”. This is defined in s 8 to mean:

(a) freehold land;

(b) land the subject of a conditional purchase agreement; and

66 The compensation to be made to the owner or occupier of private land is for:

(a) being deprived of the possession of the surface or any part of the surface of the land;

(b) damage to the surface or part and to any improvements on the land resulting from mining activities;

(d) rights of way (presumably deprivation of); and

(e) all consequential damages.

67 Special provision is made in s 123(7) for damage caused by mining activities to improvements on land leased for pastoral purposes. The lessee is entitled to compensation for the damage and any damage suffered as a consequence of the damage to the improvements.

68 Apart from the specific provisions for owners and occupiers of private land and for pastoral lessees, compensation is payable under s 123(2) for all loss and damage suffered or likely to be suffered as a result of the grant or the mining activities carried out pursuant to it. The leases in question here are leases of Crown land, and any compensation is payable under subs (2).

69 In our view Version 2 of s 123 does not extend to compensation for extinguishment of an underlying title. First, there is nothing in the Mining Act as a whole that suggests that any extinguishment is intended to result from the grant of a mining tenement. Section 113 points in the other direction. When a mining tenement expires or is surrendered or forfeited, the owner of the land may take possession forthwith, subject to any estate or interest held by any other person other than under the mining tenement. The power conferred by s 21 to resume land other than land the subject of a mining tenement, with compensation being payable for the taking of the land determined in the manner prescribed by the Land Administration Act 1997 (WA), also points against any intention that extinguishment of title would flow from the grant of a mining tenement.

70 We do not consider that searching for a parliamentary intention as to whether, for compensation purposes, the Mining Act in the form it took while Version 2 of s 123 was in force contemplated extinguishment of title resulting from the grant of a mining lease is inconsistent with the fact that native title is partially extinguished by the grant. The inconsistency that results from the comparison between the legal nature and incidents of rights granted by the leases and the native title right to control access is not the result of any intention on the part of those who drafted the Mining Act in 1978. It results from the inconsistency of incidents test mandated by Ward. In determining whether compensation is payable for extinguishment of title, it is in our view appropriate to inquire whether extinguishment was in contemplation at all. That turns on the provisions of the Mining Act.

71 Although subs (4) deals only with private land, the heads of compensation there set out at least overlap with the more generally expressed formulation in subs (2). Being deprived of the possession of the surface of the land (item (a) at [66]) is probably “loss and damage suffered as a result of the grant of the mining tenement”. Damage to the surface and to any improvements resulting from mining activities (item b) will be “loss and damage suffered … as a result of the exercise of the rights conferred” by the mining tenement. Items (c), (d) and (e) may well be covered by “all loss and damage suffered … as a result of the grant … or exercise of the rights conferred thereby”. It is not necessary to come to a concluded view as to the exact extent of the overlap or whether any heads of subs (4) compensation are not recoverable under subs (2). Subsection (4) is probably the more ample provision. But to the extent that it is more generous, the compensation is entirely related to the temporary deprivation of possession of the surface of the land and damage to the surface and to any improvements thereon that arise from the exercise of the rights conferred by the lease. There is no suggestion that compensation is available for extinguishment or partial extinguishment of any underlying title. It would be strange indeed if the more confined subs (2) extends to what is not covered by subs (4). Accordingly, although any compensation payable by the mining lessees in the present case will be assessed under subs (2) and not under subs (4), the fact that subs (4) would not compensate for extinguishment of underlying title is an indication that subs (2) does not so compensate.

72 Third, the fact that compensation is payable to the owner or occupier by the holder of the mining tenement (and not by the grantor of the mining leases) supports the view that the Mining Act does not contemplate the payment of compensation for extinguishment, for one would expect that would be payable by the entity that brought about the extinguishment, namely the State, and not by the tenement holder.

73 The changes made by Act No 100 of 1985 (Versions 3/4) are plainly directed to ensuring that compensation does not extend beyond loss or damage suffered as a result of mining activities themselves. Where a provision is ambiguous, it is sometimes appropriate to resort to a later amendment for assistance in ascertaining the meaning of the earlier provision. Although we think the words “as a result of the grant” in Version 2 of s 123(2) are directed to “being deprived of the possession of the surface” head of compensation in subs (4), and the words “the exercise of rights conferred [by the grant]” are directed to compensation for damage to the surface and any improvements, we accept that Version 2 is ambiguous. Nevertheless there have been frequent warnings that care must be exercised to ensure that the words in the later provision have not been inserted to remove possible doubts as to the meaning of the former. See Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 at 212, Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382 and Ajinomoto Co Inc v NutraSweet Australia Pty Ltd (2008) 166 FCR 530 at [96]‑[99].

74 We consider it probable that the 1985 amendments were intended to remove possible doubts as to the extent of the compensation available under the earlier provision. Accordingly we are not at liberty to resort to the terms of Version 3/4 in ascertaining the meaning of Version 2.

75 On Version 3/4 the State contends that because the mining that causes the loss and damage is carried out pursuant to the mining leases, the expression “loss and damage … resulting or arising from the mining” extends to compensation for the grant of the mining lease as well as the exercise of rights attached to the lease. We do not accept this reading of the provision. In our view there is no suggestion in the language that compensation is to be provided for extinguishment of any rights or interests underlying the mining tenement that might result from the grant. This is underlined by the fact that the amendments made by the legislation that produced Version 3/4 replace the very words of Version 2 that initially suggest that such compensation might be available – the ambiguous words.

76 The discussion in Ward at [316] spoke of “loss of use of the land” and “social disruption”, which “may be particularly apposite in respect of any compensation for native title holders”, but said nothing to suggest that compensation might extend to extinguishment of native title rights. The Court’s discussion of Version 3/4 was plainly directed to compensation for disturbance caused by mining operations. It did not consider Version 2, because “Nothing was said to turn on the changes …”.

Are Martu people occupiers?

77 The third matter is whether the Martu people are occupiers for the purposes of s 123. The parties were agreed that it is unnecessary to decide this question, though for slightly different reasons. The applicants’ reason was that the RDA validity question in the referral can be answered on the basis of assumptions adverse to them about the nature and extent of compensation provided by the Mining Act. If the Martu people are not entitled to compensation as occupiers, the RDA will confer a right to compensation – a category one Gerhardy situation: Ward at [320]. The State’s reason was that either the Mining Act provides native title holders with the same compensation as other title holders, or s 10 of the RDA provides it.

78 As was pointed out in Ward at [318], native title holders cannot satisfy the definition of “occupiers” as persons in actual occupation under any lawful title granted by or derived from the owner of the land. The Crown is not apt to be described as the “owner” of land the subject of native title, and that title is not “granted or derived from the Crown”. The difficulty is created by the fact that the definition is inclusive.

79 Whether the Martu people are “occupiers” may require findings of fact and depend upon the time at which the question is to be answered. It cannot be answered on the facts contained in the Special Case.

Are Martu people owners?

80 The fourth matter is whether the Martu people are owners for the purposes of s 123. In Ward at [317] it was accepted that native title holders may, in an appropriate case, fall within par (c) of the definition of “owner”, as persons having “the lawful control and management” of land. Because the pastoral leases had extinguished their right to control access, the claimants there did not have “lawful control and management” of the land.

81 As with “occupiers”, it is not necessary to decide whether the Martu people are entitled to compensation as “owners”. Either they are “owners” within par (c) of the definition or s 10 of the RDA requires compensation to be provided. The latter will be a category one Gerhardy situation.

Payer of compensation

82 The last matter is whether the fact that the payer of compensation is the holder of the mining lease (and not the grantor of the mining lease) has any significance for the answer of the referred questions. The State submits that it has no bearing on the answers. The applicants submit that it has no relevance save that the fact that the payer of compensation is the holder of the lease supports its contention that the Mining Act does not contemplate the payment of compensation for the extinguishment of rights: see [72]. We note in passing that in 1998, after all the mining leases had been granted, s 125A was inserted in the Mining Act. In substance it provides that if compensation is payable to native title holders for or in respect of the grant of a mining tenement, the holder of the tenement is liable to pay the compensation.

CONCLUSION

83 For the purposes of Part 2 of the TVA, the grant of each lease is a “past act” as defined in s 228 of the Act. Each lease is a category C past act as defined in s 231 of the Act. The questions in the Special Case should be answered accordingly.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Stone and Barker.

Associate:

Dated: 29 June 2010

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