James v State of Western Australia [2010] FCAFC 77

James v State of Western Australia [2010] FCAFC 77

The grant of each lease extinguished the native title right to control access to the land, while the grant of a mining lease under the Mining Act 1978 (WA) did not extinguish the rights of non-native title landholders. That unequal security of the right to own and inherit property engaged s 10(1) of the Racial Discrimination Act 1975 (Cth) as a second Gerhardy category case, making the grants invalid to the extent of inconsistency apart from the Native Title Act 1993 (Cth). Because the grants would have been valid to that extent if native title did not exist, each grant was a past act under s 228, and, being the grant of a mining lease, a category C past act under s 231.

Jurisdiction
Australia
Judgment Date
29 June 2010
Procedural Posture
Referral of Questions of Law Under Native Title Act 1993 (cth) / Full Court Determination of Special Case Referred During National Native Title Tribunal Mediation
Outcome
Questions of law answered in favour of the grants being past acts and category C past acts.
Legal Topics
['past Acts' 'mining Leases' 'extinguishment of Native Title' 'racial Discrimination Act 1975 (cth) S 10(1)' 'non Extinguishment Principle' 'compensation for Mining Tenements']
['native Title' 'mining Law' 'anti Discrimination Law' 'constitutional Law'] ['past Acts' 'mining Leases' 'extinguishment of Native Title' 'racial Discrimination Act 1975 (cth) S 10(1)' 'non Extinguishment Principle' 'compensation for Mining Tenements']

Case Brief

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Procedural Posture

Referral of Questions of Law Under Native Title Act 1993 (cth) / Full Court Determination of Special Case Referred During National Native Title Tribunal Mediation

Legal Issues

  1. 1 ['Whether the grant of each mining lease or general purpose lease was 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).' 'If the grants were past acts, which category of past act applied under ss 229-232 of the Native Title Act 1993 (Cth).' 'Whether, apart from the Native Title Act 1993 (Cth), the leases were invalid to any extent because of the existence of native title by operation of s 10(1) of the Racial Discrimination Act 1975 (Cth).' 'Whether compensation provisions in s 123 of the Mining Act 1978 (WA) avoided invalidity or merely supplied compensation.']

Ratio Decidendi

The grant of each lease extinguished the native title right to control access to the land, while the grant of a mining lease under the Mining Act 1978 (WA) did not extinguish the rights of non-native title landholders. That unequal security of the right to own and inherit property engaged s 10(1) of the Racial Discrimination Act 1975 (Cth) as a second Gerhardy category case, making the grants invalid to the extent of inconsistency apart from the Native Title Act 1993 (Cth). Because the grants would have been valid to that extent if native title did not exist, each grant was a past act under s 228, and, being the grant of a mining lease, a category C past act under s 231.

Court Disposition

Questions of law answered in favour of the grants being past acts and category C past acts.

Orders

  • ['In relation to each lease described in paragraph 10 of the Special Case, the grant of the lease is 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).' 'Each lease falls within Category C as...