If your mining, pastoral or term lease from the Crown was
granted before 1975, you may be interested to understand the
implications for you of a very recent High Court judgment.
These types of leases will not extinguish native title unless
they allow you to exercise rights of exclusive possession.
They may also have been dealt with in the last few years under
another less recent judgment of the Full Federal Court, De Rose
v South Australia [No 2] (2005) 145 FCR 290, a decision which
the High Court has recently found to have been wrongly decided.
These dealings may have resulted in an assessment that native title
has been extinguished in places where it was not in fact
In this Alert, Partner Jonathan Fulcher and Solicitor Kylie
Panckhurst explain the potential implications of the High
Court's decision for lease holders, and outline what action
they should take going forward.
Western Australia v Brown  HCA
The High Court last week clarified that a pre-1975 lease only
extinguishes native title where the lease gives the lessee
exclusive possession at the time the lease rights were granted.
The judgement of Western Australia v Brown  HCA 8
overturned the earlier decision of De Rose v South Australia
[No 2] (2005) 145 FCR 290 and provides certainty to lease
holders and native title groups alike.
The judgement is relevant for lease holders whose lease pre
dates 1975. Leases granted prior to 1975 are not subject to the
Racial Discrimination Act 1975 (Cth) or the "past
acts", "intermediate period acts" or "previous
exclusive possession acts" provisions of the Native Title
Act 1993 (Cth). In such circumstances, common law determines
whether native title is extinguished.
The Court relied on the two step common law extinguishment test
set out in Western Australia v Ward  HCA 28.
Firstly, the legal nature and content of the rights granted to the
leaseholder and native title holder/claimant must be identified.
The next step is to compare the lease and native title rights to
determine whether they were inconsistent at the time the lease
rights were granted. The Court emphasised that:
the identification and comparison of the rights is an objective
inconsistency between the two sets of rights turns on the legal
nature and content of the rights at the time granted, not on the
manner and exercise of such rights.
If the rights are inconsistent, there will be extinguishment of
the native title rights to the extent of the inconsistency.
What does this mean for lease holders?
This means that:
you will need to get advice about the status of such leases;
as part of that advice, you will need to understand if you have
proceeded on land where native title has not, in fact, been
extinguished in a manner which may have affected that native title
There are ways to fix these things under the Native Title
Act 1993 (Cth) so that you do not adversely affect any
relationships you may have developed with existing indigenous
What action should lease holders take?
Lease holders should review their lease terms. To the extent
that a lease grants exclusive possession rights over the entire
area the decision will not change the status quo that native title
is extinguished. Where the lease does not provide such rights, then
native title rights and interests may need to be considered.
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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