01 Oct Native Title News
In the decision of Brown v State of Western Australia  HCA 8 (12 March 2014) (Brown) the High Court upheld the Full Federal Court’s ruling that the grant of mineral leases did not extinguish the native title rights and interests in relation to the land subject to the leases.
Significantly, in Brown the High Court has clarified the concept of “inconsistency” in the context of extinguishment of native title rights – overturning the notion of “operational inconsistency” developed by the Full Federal Court in De Rose v State of South Australia (2005) 145 FCR 290. In Brown, the High Court rejected the submission that there could be extinguishment by the exercise of rights granted by or under statute and rather confirmed that:
- inconsistency of rights must be determined by reference to the rights at the time of the grant; and
- that inconsistency is determined by examining the nature and content of the two rights, not by the manner in which either right is exercised.
Applying these principles, the High Court held that the construction of a mine and town, though clearly preventing the exercise of native title rights, had no effect on their existence. Brown accordingly confirms that native title can continue to exist even in places where native title rights cannot be exercised.
Brown has implications for pastoral, mining and other specific purpose leases granted prior to 1975 that do not confer a right of exclusive possession. Holders of such leases should consider whether their leases contain a right of exclusive possession (express or implied), and be aware that improvements and infrastructure on their leases may not necessarily extinguish native title.