Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516

Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516

The disputed pre-1968 mineral leases under the Mining Act 1904 (WA) and mineral leases under the Mineral Lands Act 1892 (WA) did not confer rights inconsistent with the Ngadju native title rights and interests and therefore did not extinguish them; those lease rights merely prevailed while operative. Many asserted extinguishing tenures failed because the State did not prove valid grant or issue, including numerous special leases, conditional purchase leases, homestead farm leases and tenements subject to survey. Gravel pits and water bores were not proved to be major public works. Some grants, including identified valid special leases, freehold overlap with Lot 699, railways as actually...

Jurisdiction
Australia
Judgment Date
21 May 2014
Procedural Posture
Native Title Proceeding / Reasons and Orders on Remaining Extinguishment Issues After Recognition of Ngadju Native Title at First Instance and on Appeal
Outcome
The Court resolved the remaining extinguishment issues and ordered that the native title holders bring forward a minute of proposed determination, with liberty to apply for further brief written submissions within 21 days on limited matters.
Legal Topics
['extinguishment of Native Title Rights and Interests' 'mining Tenements' 'mineral Leases' 'special Leases' 'public Works' 'vested Reserves' 'section 47 B of the Native Title Act 1993 (cth)' 'non Extinguishment Principle']
['native Title' 'property Law' 'mining Law' 'land Law' 'statutory Interpretation'] ['extinguishment of Native Title Rights and Interests' 'mining Tenements' 'mineral Leases' 'special Leases' 'public Works' 'vested Reserves' 'section 47 B of the Native Title Act 1993 (cth)' 'non Extinguishment Principle']

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Procedural Posture

Native Title Proceeding / Reasons and Orders on Remaining Extinguishment Issues After Recognition of Ngadju Native Title at First Instance and on Appeal

Legal Issues

  1. 1 ['Whether mineral leases granted by the State under the Mining Act 1904 (WA) prior to 1968 extinguished Ngadju native title rights and interests.' 'Whether special leases without evidence of a formal lease instrument were validly granted and extinguished native title.' 'Whether roads, gravel pits, water bores, railways and other alleged public works extinguished native title and to what extent.' "Whether various vested reserves, business areas, garden areas, miners' homesteads, tailing areas, conditional purchase leases, homestead farm leases, dredging leases, general purpose leases, temporary reserves, water rights, miscellaneous licences and other interests extinguished native title." 'Whether evidence established occupation of the south-west corner for the purposes of s 47B of the Native Title Act 1993 (Cth).']

Ratio Decidendi

The disputed pre-1968 mineral leases under the Mining Act 1904 (WA) and mineral leases under the Mineral Lands Act 1892 (WA) did not confer rights inconsistent with the Ngadju native title rights and interests and therefore did not extinguish them; those lease rights merely prevailed while operative. Many asserted extinguishing tenures failed because the State did not prove valid grant or issue, including numerous special leases, conditional purchase leases, homestead farm leases and tenements subject to survey. Gravel pits and water bores were not proved to be major public works. Some grants, including identified valid special leases, freehold overlap with Lot 699, railways as actually...

Court Disposition

The Court resolved the remaining extinguishment issues and ordered that the native title holders bring forward a minute of proposed determination, with liberty to apply for further brief written submissions within 21 days on limited matters.

Orders

  • ['Subject to order 2, the native title holders bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.' 'Liberty to apply is reserved, within 21 days of the date of the publication of this order, for any party to make further brief written submissions...