3 November, 2016
High Court refuses to grant special leave to appeal.
WHAT YOU NEED TO KNOW
The High Court of Australia has refused an application by the Ngadju People for special leave to appeal from the Full Federal Court decision in State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47.
In March 2016, the Full Federal Court unanimously confirmed the validity of almost 300 mining leases, initially found to be invalid in a determination of native title made in favour of the Ngadju People in November 2014.
The special leave application brought by the Ngadju People was heard on 14 October 2016 and was dismissed on the grounds that there was no reason to doubt the correctness of the Full Federal Court's construction of the Mining Act 1978 (WA) and the Nickel Refinery (Western Mining Corporation) Agreement Act 1968 (WA).
The High Court did not accept the arguments made by the Ngadju People that the removal of the leases from the Refinery State Agreement provided an opportunity to establish native title agreements because the material changes to those leases occurred when the Mining Act 1978 (WA) commenced, which was well before the enactment of the Native Title Act 1993 (Cth).
The matter serves as a timely reminder for companies that currently operate under State Agreements to be mindful of the way in which they deal with interests held under those agreements – if a wrong step is taken in the process, the native title consequences, and flow-on consequences for mining operations, may be significant.
Background
In March 2016, the Full Federal Court unanimously confirmed the validity of almost 300 mining leases, initially found to be invalid in a determination of native title made in favour of the Ngadju People in November 2014 (State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAF 47).
The Full Federal Court held that dealings in the mining leases, including their excision from the Nickel Refinery (Western Mining Corporation) Agreement Act 1968 (WA) (the Refinery State Agreement) and subsequent re-grants were valid and, where required, followed Native Title Act 1993 (Cth) processes (the Native Title Act).
The decision clarified the interaction between the Mining Act 1978 (WA) (the Mining Act) and the operation of certain State Agreements.
The decision also provided some useful commentary around the interpretation of sections 24IB and 24IC of the Native Title Act, and how "invalid" interests may be dealt with in the drafting of native title determinations.
The Ngadju People lodged an application for special leave to appeal to the High Court. The High Court refused the application on 14 October 2016.
A detailed analaysis of the Full Federal Court decision is contained in our 4 April 2016 Native Title Alert Full Court finds mining leases valid in Ngadju appeal decision and our May 2016 Native Title Year in Review.
High Court refuses to grant special leave
The High Court found that there was no reason to doubt the correctness of the Full Court's construction of the Mining Act and the Refinery State Agreement. The High Court did not accept the arguments made by the Ngadju People that the removal of the leases from the Refinery State Agreement provided an opportunity to establish native title agreements because the material changes to those leases occurred when the Mining Act commenced, which was well before the enactment of the Native Title Act.
There are currently around 60 State Agreements applying to resources assets in Western Australia and, had the Federal Court's first instance decision stood, there would have been major implications for how these assets, and mining leases granted prior to 1993, are treated when they expire or are due for renewal.
Companies need to be aware of the tenure or rights underpinning State Agreements and carefully consider how any changes will impact native title rights. Native title is a key legal risk that, when not appropriately managed, can bring an operation to a halt. It is essential to build strong relationships with native title parties, and to have a clear understanding of the legal framework underpinning State Agreements.
For further information, please contact:
Tony Denholder, Partner, Ashurst
tony.denholder@ashurst.com
