Pleadings, Limited Trials and Extinguishment Principles

DEVELOPMENTS IN LAW [2]
Extinguishment: WA v Brown (Ngarla)
Pleading and proof of resource rights:
Pilki and Birribiluru
Unrepresented party litigation: BWW
PRESENTERS
 Ro b er t B low es S C i s a b ar r i s te r w i t h ov er 3 0 ye a r s o f f ul l t i m e ex p er i e nc e i n
r ep r e s e nt i ng A b o r i g i n al p eo p l e a n d To r r e s St r ai t I s l a nd e r s i n t h e p r ep ar at i o n,
l i t i g at i o n , n eg ot i at i o n a nd m ed i a t i o n o f t h ei r c la i m s to a nd c o nc er ni ng t h ei r u s e o f
l a n d a n d w a te r s i n m a ny p a r t s o f A u s t r a l i a .
 M ic h a e l M e eg an i s t h e P r i nc i p al L eg al Of fic er o f Yam at j i M ar l p a A b o r i g i n al
C o rp o r at i o n (Y M AC ) . M ic h a el h as b e e n p a r t o f a s t r ateg i c te am w hi c h h as ov e r s e e n
c r i t i c al s t r ateg i c a nd n at i v e t i t l e d ev el o p m e nt s w i t hi n Y M AC . M i c h a el h as ov er se e n
m aj o r f ut ur e ac t n eg ot i at i o n s w hi c h h av e b e en o ng o i ng fo r s ev er al ye a r s i n t he
P i l b ar a a nd r e s ul ted o n c o m p re h e n s i v e ag r e em e n t s fo r n at i ve T i t l e c l ai m a nt s fo r
t h e n ex t 5 0 to 7 0 ye a r s . M i c h a el h as al s o m a n ag ed t h e P i l b ar a C o n n ec t i o n P ro j e c t ,
a r g u ab l y t h e mo s t i nte n s e n at iv e t i t l e c o n n ec ti o n p ro j ec t o f i t s ki nd i n Au s t r a l i a ,
w hi c h s e e k s to g ai n r ec o g ni t i o n o f n at i v e t i t l e fo r t r ad i t i o n al ow n er s . M ic h a el h a s
m ai nt ai n ed a l o n g ter m i nter e s t i n m ed i at i o n an d ot h er fo r m s o f c o nfl i c t r e s o lut i o n
a n d h a s c o m bin e d t h at l e a r nin g w i t h m o r e c o ntem p o r ar y t h i n ki ng r el at i ng to
t r a n s fo r m i ng co nfl i c t . M i c h a el h a s i nc o rp o r ated “ Op e n S p ac e Tec h no l o g y ” a n d
E m e r g e nt D es i g n i nto t h e m a n ag em e nt o f hi s l eg al u ni t a n d a s p ar t o f t h e exec ut i v e
te am o f Y M AC . T hi s wo r k h as ex te nd ed to wo r ki ng w i t h Y M AC c l i e nt s w h er e t h e s e
c o nc ep t s ar e u s e d to as s i s t Tr ad i t i o n al Ow n er s to m a n ag e c o nfl i c t c o l l ab o r at ivel y.
A l l t hi s wo r k h a s h a d a p ro fo u nd ef fec t o n M i c h a el ’ s wo r k i n s t r i v i ng to
c o l l a b o r a t i ve l e a d e r s h i p i n a h i g h l y c o m p l ex w o r k i n g e nv i r o nm e n t .
ABSTRACT
 There have been significant developments in native title
jurisprudence regarding the principles of extinguishment by
inconsistent rights and the construction of infrastructure on
mining or pastoral leases: WA v Brown
 Other important recent experience concerns the final
resolution of a claim after generally successful mediation
but where there is narrow sticking point with government
(for example, as the nature and extent of a right to take
resources) or where there is non -government respondent
seeking to challenge a particular aspect of the claim
 These latter experiences involve the use of pleadings to limit
and formulate issues followed by a limited trial
 There are also important less for the way a case is put in
pleadings and prepared for trial
Background to WA v Ward ( Ngarla) – Michael Meegan
Leases

Mt Goldsworthy leases are old 1960s mining leases under the terms of the now repealed Mining
Act 1904 (WA).

Lease holders fall under BHP umbrella

Leases were issued pursuant to a State Agreement and a State Agreements Act (The Iron Ore (Mt
Goldsworthy Agreement Act) 1962 and 1964. Many amendments over the years.
Leases extend
beyond the Ngarla claim (i.e., into Njamal country).

Leases are still in existence, although mine closed in 1982.

At time mining was active, a major mine (open pit) and town site were constructed.
The open
pit, gorge, or the hole in the ground – depends on what side you represent! remains, but town
closed in 1992 and townsite dismantled. Vegetation rehabilitated.

Townsite covered approximately 3.2 sq. kms and included over 200 homes, roads, shopping centre,
social and sporting facilities, golf course, school, medical centre, warehouse and storeyards,
cinema, police station, airport.

All of mine and infrastructure (including town) covered approximately one -third of the lease
area.

Some potential for further exploration and mining in the remainder of the lease areas .
Ngarla claim/Determination
 L e a s e s a r e i n t h e c o u n t r y o f t h e N g a r l a p e o p l e , l o c a te d e a s t o f Po r t H e d l a n d i n P i l b a r a
r e g i o n o f We s te r n Au s t r a l i a .
 C l a i m m a d e by way o f v a r i o u s p o l y g o n c l a i m s i n 1 9 9 8 a n d t h e n c o m b i n e d .
 C o n s e n t d e te r m i n a t i o n ov e r m a j o r i t y o f c l a i m a r e a ( d e te r m i n a t i o n a r e a A ) , b u t n o
a g r e e m e n t r e a c h e d ov e r a r e a o f M t G o l d s wo r t hy l e a s e s .
S t a te a n d B H P m a i n t a i n e d M t
G o l d s wo r t hy l e a s e s tot a l l y e x t i n g u i s h e d n a t i v e t i t l e . A p p l i c a n t wo u l d n ot c o n c e d e to
e x t i n g u i s h m e n t ov e r t h e s e a r e a s .
 A r e a o f l e a s e s e x c i s e d f r o m d e te r m i n a t i o n ( d e te r m i n a t i o n a r e a B ) , a n d b e c a m e s u b j e c t
of the separate hearing.
 S t a te a n d B H P a g r e e d t h a t , b u t fo r t h e e x t i n g u i s h m e n t , t h e N g a r l a p e o p l e wo u l d h o l d t h e
s a m e n a t i v e t i t l e r i g h t s a s d e te r m i n e d fo r d e te r m i n a t i o n a r e a A .
 We b e l i e v e d c l a i m a n t s h a d n ot h i n g to l o s e , a n d t h a t t h i s c a s e p r e s e n t e d a s a n e x c e l l e n t
v e h i c l e to te s t t h e Fu l l C o u r t ’ s fi n d i n g s i n D e R o s e , t h a t b e i n g t h e e x t i n g u i s h m e n t i m p a c t
o f p a s to r a l i m p r ove m e n t s ( a n d w h i c h h a d b e e n a p p l i e d to m i n i n g i m p r ov e m e n t s ) a t
Fe d e r a l C o u r t l e v e l
The determination area after trial
The determination area after the High Court decision
HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, KIEFEL, GAGELER AND KEANE JJ
STATE OF WESTERN AUSTRALIA
APPELLANT
AND
ALEXANDER BROWN & ORS
RESPONDENTS
Western Australia v Brown
[2014] HCA 8
12 March 2014
P49/2013
ORDER
1.
Appeal dismissed.
2.
Appellant to pay the costs of the first respondents.
On appeal from the Federal Court of Australia
Representation
G R Donaldson SC, Solicitor-General for the State of Western Australia with G J
Ranson for the appellant (instructed by State Solicitor (WA))
B W Walker QC with R W Blowes SC and C L Tan for the first respondents
(instructed by Yamatji Marlpa Aboriginal Corporation)
P D Quinlan SC with J M Bursle for the second respondents (instructed by
Ashurst)
NO RIGHT OF EXCLUSIVE POSSESSION
 For the reasons which have been given, the mineral leases in
issue in this case did not give the joint venturers a right of
exclusive possession. In this respect, the mineral leases were
no dif ferent from the pastoral leases considered in Wik, the
mining leases considered in Ward or the Argyle mining lease
also considered in Ward. The mineral leases did not give the
joint venturers the right to exclude any and everyone from any
and all parts of the land for any reason or no reason .
TEST FOR EXTINGUISHMENT
Whether there is extinguishment depends upon whether the
granted rights are inconsistent with the alleged native title
rights and interests
IDENTIFYING THE RIGHTS
The identification of the relevant rights is an objective inquiry.
This means that the legal nature and content of the rights must
be ascertained. The nature and content of a right is not
ascertained by reference to the way it has been, or will be,
exercised.
DETERMINING INCONSISTENCY
 The question of inconsistency of rights can always be decided
at the time of the grant of the allegedly inconsistent rights.
 questions of extinguishment must be resolved as a matter of
law, not as a matter of fact. Hence, inconsistency arises "at
the moment when those [inconsistent] rights are conferred ".
 As counsel for the native title holders put the point in
argument in this Court, inconsistency is that state of af fairs
where "the existence of one right necessarily implies the
non-existence of the other".
NO INCONSISTENCY
 That the rights were not inconsistent can readily be
demonstrated by considering the position which would have
obtained on the day following the grant of the first of the
mineral leases. On that day, the native title holders could
have exercised all of the rights that now are claimed
anywhere on the land without any breach of any right which
had been granted to the joint venturers. That being so, there
was not then, and is not now, any inconsistency between the
rights granted to the joint venturers and the claimed native
title rights and interests.
NO EXTINGUISHMENT BY DEVELOPMENT
 In the end, then, the State's narrower alternative argument
reduces to the practical observation that two persons cannot
occupy the one place. When the joint venturers built a house
in the town, native title holders could not (for example) hunt
and gather on the land which that house occupied. And the
rights which the joint venturers had, and exercised, took and
continue to take priority over the rights and interests of the
native title holders for so long as the joint venturers enjoy and
exercise those rights. Any competition between the exercise
of the two rights must be resolved in favour of the rights
granted by statute. But when the joint venturers cease to
exercise their rights (or their rights come to an end) the native
title rights and interests remain, unaf fected.
IDENTIFYING AND PROVING
BROADLY STATED NON -EXCLUSIVE RIGHTS
 Following Akiba the robustness of broadly stated non exclusive rights is apparent and the existence of such rights is
to be considered
 Its not about what the old people did, what the modern
generation do, what resources are present or not present; or
about the opportunities that may or may not exist now or then
 Its “all about traditional law and custom ”
 Why plead narrowly stated highly specific rights if the
relationship of people to country under their laws and
customs is broadly one of ‘ownership’ – “its our country and
what’s on it is ours”
 Recent CDNTS test case in Birriliburu and Pilki claims
PLEADED RIGHTS AND EXTINGUISHMENT
 Extinguishment can only be of singular rights - because two
rights are inconsistent or they are not. Similarly, legislation
directed to the prohibition of a particular activity by which a
right may be exercised does on extinguish it: Akiba.
 A native title right of exclusive possession is extinguished by
any grant or a right of access but full non -exclusive native
rights (unconstrained access and unconstrained right to take
resources) might only be extinguished by the grant of a right
of exclusive possession or respectively by a statutory absolute
prohibition against any access and all access; or against the
taking of any resources and all resources.
PLANNING, PLEADING AND PROVING
 What about:
 the right of possession, occupation, use and enjoyment of that part
as against the whole world
 the right to access, to remain in and to use for any purpose;
 the right to access and to take resources for any purpose;
 (the right to maintain and protect places and objects of significance)
 And what about “water”
NARROWING ISSUES, LIMITED TRIALS, &
UNREPRESENTED RESPONDENTS
BULA RN U, WA LUWARRA A N D WA NG KAYUJURU
BRIEF OBSERVATIONS ON PROCESS
 Unrepresented respondents, particularly those who claim that
their interests that may af fected by a determination of native
title are native title interests
 Such respondents, once joined, are parties for all purposes,
including for consenting to or withholding consent from a
determination and for participating fully in a hearing
 Such a party is entitled to respect and to the usual
indulgences af forded to unrepresented parties regarding the
strictness of pleadings the rules of evidence and so on
 Thus it is a significant step in a native title proceeding to deal
with joinder issues in relation to such a party. The potential
for substantial delays and additional cost is significant

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