High Court provides greater clarity regarding “inconsistency” and native title rights

Western Australia v Brown [2014] HCA 8 (12 March 2014)

The High Court has upheld a native title claim by the Ngarla People, in a case that involved consideration of common law extinguishment. The Court unanimously found that the rights under the two mineral leases were not inconsistent with the claimed native title rights and interests. Importantly, the case clarifies the concept of “inconsistency” in the context of native title rights.


In 1964, the State of Western Australia entered the Mount Goldsworthy State Agreement with certain joint venturers. Under this State Agreement, the State granted various mineral leases for iron ore. The Ngarla People now claim they held native title in the land relating to two particular leases (the “Leased Land”).

Relevantly, the State Agreement expressly required that the joint venturers allow others to access the Leased Land. The joint venturers therefore did not have a right of exclusive possession.

The joint venturers constructed a mine and town site over part of the Leased Land. The mine operated from 1965 to 1982, during which time open pit mining transformed Mount Goldsworthy (initially 132 metres above sea level) into a pit 135 metres below sea level. Since then, the mine pit has been filled with water, the town completely removed and the land restored.

Alexander Brown and others (on behalf of the Ngarla People) applied for native title determinations regarding the land and waters of the Pilbara region, including the Leased Land. Native title was found to exist in the area, but the trial judge ordered a separate trial to decide whether native title continued to exist in the Leased Land.

The judge found that native title was not wholly extinguished, as the leases did not provide the joint venturers with a right to exclusive possession. However, the judge held that the rights under the leases were inconsistent with the continued existence of the native title rights and interests, in those areas where the mine and town site had been constructed.

On appeal, the Full Court of the Federal Court found in favour of the Ngarla People, that their native title rights were not extinguished at all by the leases or the activities conducted on the Leased Land.

The State appealed to the High Court against this decision.


Five High Court judges delivered a joint judgment that the leases did not extinguish native title.

The leases were granted before the enactment of the Native Title Act 1993 (Cth) and the Racial Discrimination Act 1975 (Cth). Both the Full Court of the Federal Court and the High Court accepted that the question of extinguishment was not governed by statute.

Continued existence of native title depended on whether the rights under the leases were inconsistent with the alleged native title rights and interests, following Western Australia v Ward (2002) 213 CLR 1. This involved a two-step process: identifying the rights and determining inconsistency. The High Court noted that both inquiries were objective.

The High Court stated that inconsistency of rights “must be decided by reference to the nature and content of the rights as they stood at the time of the grant.” Extinguishment of native title depends on inconsistency between the relevant rights, and not between the manner of their exercise.

The joint venturers only had a right to carry out mining and associated activities anywhere on the Leased Land without interference. Thus, the native title holders could exercise all of their rights anywhere on the Leased Land the day after the leases were granted, without breaching any right granted to the joint venturers. Therefore, the two rights were found not to be inconsistent, and native title was not extinguished.


Brown highlights the importance and uniqueness of native title, with the High Court echoing its sentiments in Ward that “It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs ‘to the common lawyer’s one-dimensional view of property as control over access’.”

Brown gave the High Court an opportunity to consider the correctness of De Rose v South Australia (No 2) (2005) 145 FCR 290, which was the first successful native title claim in South Australia. In that case, the Full Court of the Federal Court held that rights to construct improvements under pastoral leases did extinguish native title, but only when those rights were exercised and improvements were constructed. In Brown, the High Court rejected this line of reasoning, suggesting that it arose from a misunderstanding of the Ward case.

Following Brown, it is clear any inconsistency with native title is to be determined at the time of the grant of the potentially inconsistent right. Further, that inconsistency is determined by examining the nature and content of the two rights, not by the manner in which either right is exercised.

Any exercise of a right by the joint venturers (eg construction of the mine and the town) did not affect the existence of native title rights, as had been suggested by De Rose (No 2). Rather, it only affected the exercise of native title rights. The joint venturers’ right to use the land took priority over the native title rights, but only as long as the joint venturers enjoyed and exercised their rights; “when the joint venturers cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected.”

The decision is consistent with Wik and Ward, in that the grant of rights to use land for particular purposes, without a right of exclusive possession, is not necessarily inconsistent with native title, and does not necessarily extinguish it.

It appears that native title can continue to exist, even in places where native title rights cannot be exercised. This protection of native title rights is important, since, as the High Court said, native title cannot be revived once it has been extinguished.

The decision is available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2014/8.html.

Darsha Kumar is a solicitor in King & Wood Mallesons Perth Human Rights Law Group.