12/03/2014 - 11:12

Native title win over BHP mine

12/03/2014 - 11:12

Bookmark

Save articles for future reference.

The High Court has ruled that native title rights are not extinguished by the granting of mining leases, in what indigenous groups have described as a landmark decision which will provide a clear basis for the resolution of other native title disputes.

Yamatji Marlpa Aboriginal Corporation chief executive Simon Hawkins.

The High Court has ruled that native title rights are not extinguished by the granting of mining leases, in what indigenous groups have described as a landmark decision that will provide a clear basis for the resolution of other native title disputes.

The Yamatji Marlpa Aboriginal Corporation (YMAC), acting on behalf of the Ngarla people, had been embroiled in a lengthy legal battle with the state government to have native title rights recognised over 50-year-old mining leases in the Pilbara, owned by a BHP Billiton-led joint venture.

The High Court this morning rejected an appeal by the state government against a 2012 Federal Court ruling, which held that the existence of mining leases over the Mount Goldsworthy iron ore deposits east of Port Hedland did not extinguish the Ngarla people's native title rights over the area.

The state government first granted mining leases at Mount Goldsworthy in 1964 to a joint venture consisting of Consolidated Gold Mines, Cypress Mining and Utah Mining.

The original Mount Goldsworthy mine was closed in 1982, with subsequent mining focused on the adjacent Yarrie mine and the now-closed Nimingarra mine. 

The Mount Goldsworthy operations are now owned by a joint venture consisting of BHP (85 per cent), ITOCHU Corporation (8 per cent), and Mitsui & Co (7 per cent).

In 2007, the Federal Court recognised the Ngarla people's native title rights over most of an 11,000 square kilometre claim of land and water in the Pilbara region.

The determination did not include the Mount Goldsworthy mining leases, which are on traditional Ngarla country.

The Ngarla people went to trial in the Federal Court in 2009 to have their native title rights recognised over these mining leases, arguing that they should be able to fully exercise their rights over the land once the existing mining leases came to an end.

The state government and BHP Billiton argued that the agreement under which the mining leases were first granted in 1964 had extinguished native title rights on all parts of the leases, as the agreement prevented third-party access which would unduly prejudice or interfere with mining operations.

The court ruled that native title rights had been extinguished in the area where the mine, the town and associated works had been constructed.

The Ngarla people appealed that decision to the full Federal Court, which ruled in 2012 that the mining leases did not extinguish the Ngarla people's native title rights.

The state government, supported by BHP Billiton, subsequently appealed this decision in the High Court.

The High Court today ruled that although the joint venture could prevent others from using the land for mining purposes and could use any part of the land for the extraction of iron ore, it did not have an unqualified right to exclude native title claimants from access to the land once it had finished mining.

YMAC chief executive Simon Hawkins applauded the court's decision and said it was disappointing that the state government had challenged the Federal Court's ruling in 2012.

"The full Federal Court had explained how these rights co-exist: native title continues but the mining rights prevail and the native title rights give way," he said.

"After mining has finished, the Ngarla people can fully exercise all their native title rights through the whole area again.

"This case was about whether native title is completely wiped out by the leases or whether they can co-exist in the meantime and beyond the term of the leases.

"The WA government appears to be fixed on trying to extinguish native title at every opportunity, which does not make for a collaborative relationship with traditional owners wanting to close the gap."

Mr Hawkins said the ruling would provide a clear and fair basis for the negotiation and resolution of existing and future native title proceedings.

BHP said in a statement that it welcomed the certainty that the High Court's decision provided with regards to the impacts of native title rights on granted state agreement tenure.

BHP suspended mining at Yarrie last December and announced last month that the operation would remain closed until further notice as a productivity measure, with about half of the mine's 160 staff to be redeployed to BHP's recently opened Jimblebar operation.

The High Court's decision is not open to appeal.

STANDING BY BUSINESS. TRUSTED BY BUSINESS.

Subscription Options