Tjungarrayi v Western Australia; KN (Deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Edelman JJ.
• Judgment Date: 17 April 2019
• Neutral Citation: [2019] HCA 12
• Docket Number: P37/2018 & P38/2018
• Court: High Court
• Date: 17 April 2019

Helicopter Tjungarrayi & Ors

Appellants

and

State of Western Australia & Ors

Respondents

KN (Deceased) and Others (Tjiwarl and Tjiwarl #2)

Appellants

and

State of Western Australia & Ors

Respondents

[2019] HCA 12

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

P37/2018 & P38/2018

HIGH COURT OF AUSTRALIA

Aboriginals — Native title rights — Extinguishment of rights — Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be “disregarded” for purposes of claim for determination of native title rights and interests over vacant Crown land — Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by “lease” — Where s 242(2) relevantly provides that “[i]n the case only of references to a mining lease, the expression lease also includes a licence … or an authority” — Where native title claim groups sought native title determinations over land including parcels of unallocated Crown land — Where claim areas intersected with areas covered by petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) or mineral exploration licence granted under Mining Act 1978 (WA) (“exploration tenements”) — Where native title right to exclusive possession had been extinguished — Whether exploration tenements were “lease[s]” within exclusion in s 47B(1)(b)(i).

Words and phrases — “declared to be or described as a lease”, “disregarded”, “extinguishment”, “historic extinguishment”, “in the case only of references to”, “lease”, “mineral exploration licence”, “mining lease”, “native title”, “non-extinguishment principle”, “petroleum exploration permit”, “principle of non-discrimination”, “textual reference”.

Mining Act 1978 (WA), Pt IV Div 2.

Native Title Act 1993 (Cth), ss 47B, 242, 243, 245, 253.

Petroleum and Geothermal Energy Resources Act 1967 (WA), Pt III Div 2.

Representation

S A Glacken QC with S J Wright SC for the appellants in each matter (instructed by Central Desert Native Title Services)

J A Thomson SC, Solicitor-General for the State of Western Australia, with G J Ranson for the first respondent in each matter (instructed by State Solicitor's Office (WA))

Submitting appearances for the third respondent in P37/2018 and the third to tenth, twelfth, thirteenth and sixteenth respondents in P38/2018

No appearance for the second respondent in P37/2018 and the second, eleventh, fourteenth and fifteenth respondents in P38/2018

ORDER

Matter No P37/2018

• 1. Appeal allowed.

• 2. Set aside the orders of the Full Court of the Federal Court of Australia made on 16 March 2018 in proceeding WAD 444 of 2017 and, in their place, order that the appeal to the Full Court be dismissed.

Matter No P38/2018

• 1. Appeal allowed.

• 2. Set aside orders 1 and 2(c) made by the Full Court of the Federal Court of Australia on 1 February 2018 in proceeding WAD 218 of 2017 and, in place of order 1, order that the appeal be allowed in part.

1 Kiefel CJ, Bell and Keane And Edelman JJ. Generally speaking, when native title rights and interests are extinguished the extinguishment is permanent 1. The rights and interests do not revive even if the act that caused the extinguishment ceases to have effect 2. However, where any of s 47, s 47A or s 47B of the Native Title Act 1993 (Cth) (“the NTA”) applies, prior extinguishment of native title rights and interests may be “disregarded” for the purposes of a claim to establish native title.

2 In particular, s 47B provides that any historic extinguishment of native title rights and interests is to be disregarded for the purposes of a claim for a determination of native title rights and interests over vacant Crown land. However, by virtue of s 47B(1)(b)(i), the provision does not apply if the relevant area of land is “covered by a … lease”. These appeals raise for consideration the meaning of the word “lease” in this context.

The claims

3 Each of the present appeals arises out of a claim for a determination of native title by a claim group. In each claim there were, in the terminology of the Land Administration Act 1997 (WA) (“the LAA”), parcels of unallocated Crown land occupied by claim group members 3. In each claim the traditional laws and customs acknowledged and observed by the native title claim group in relation to the claim area conferred rights to possession, occupation, use and enjoyment of the claim area to the exclusion of all others. The right to exclusive possession had been extinguished by acts of partial extinguishment that occurred before the enactment of the NTA, but non-exclusive rights to access, use and remain on the claim area remained recognisable as native title rights.

4 In each claim the claim group argued that the right to exclusive possession could be recognised as a native title right if the historic extinguishment of that right could be disregarded under s 47B of the NTA. The State of Western

Australia countered that s 47B did not apply to the extent that the relevant areas were covered by petroleum exploration permits or mineral exploration licences because each such permit or licence was a “lease” within the exclusion in s 47B(1)(b)(i).

5 In Matter No P37 of 2018 (“the Ngurra matter”), the issue is whether a petroleum exploration permit granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (“the Petroleum Act”) is a “lease” within the meaning of s 47B(1)(b)(i). The issue arose because parts of the claim area intersected with parts of the permit areas covered by petroleum exploration permits EP 451 and EP 477.

6 In Matter No P38 of 2018 (“the Tjiwarl matter”), the issue is whether a mineral exploration licence granted under the Mining Act 1978 (WA) is a “lease” within the meaning of s 47B(1)(b)(i). The issue arose because parts of the claim area intersected with parts of the licence areas covered by several mineral exploration licences. By the time of the appeal to the Full Court of the Federal Court, only mineral exploration licence E57/676 was in issue.

7 For convenience, petroleum exploration permits and mineral exploration licences will be referred to collectively as “exploration tenements”.

Native Title Act

8 Section 47B deals with claims for native title determinations pursuant to s 225 of the NTA relating to vacant Crown land. Section 47B(1) identifies the circumstances in which the provision applies. It is in the following terms:

“This section applies if:

• (a) a claimant application is made in relation to an area; and

• (b) when the application is made, the area is not:

  • (i) covered by a freehold estate or a lease; or

  • (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

  • (iii) subject to a resumption process (see paragraph (5)(b)); and

• (c) when the application is made, one or more members of the native title claim group occupy the area.”

9 By operation of s 47B(2), any previous extinguishment by the creation of any prior interest in relation to the claim area must be disregarded for all purposes under the NTA in relation to the application identified in s 47B(1).

10 Further, s 47B(3) relevantly provides:

“If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

• (a) the determination does not affect:

  • (i) the validity of the creation of any prior interest in relation to the area”.

11 Within Div 3 of Pt 15 of the NTA, s 241 provides that “[t]his Division contains definitions relating to leases”.

12 Section 242 provides:

• “(1) The expression lease includes:

  • (a) a lease enforceable in equity; or

  • (b) a contract that contains a statement to the effect that it is a lease; or

  • (c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

• (2) In the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory.”

13 A licence or authority that would not otherwise be recognised as a lease may be a lease for the purposes of select provisions of the NTA by reason of the operation of s 242(2). So much is expressly recognised by s 243(2). Section 243 provides:

• “(1) Subject to subsection (2), the expression lessee includes any person who, by assignment, succession, sub-lease or otherwise, acquires, enjoys or is entitled to exercise any of the interests under the lease of a lessee (including of a person who is a lessee because of another application or applications of this section).

• (2) In the case of a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws), the expression lessee means:

  • (a) the person to whom the licence mentioned in that subsection was issued, or the authority so mentioned was given; or

  • (b) any person who, by assignment, succession or otherwise, acquires or enjoys the licence or authority or is entitled to exercise rights under the licence or the authority.”

14 Sections 242(2) and 243(2) contemplate that an authority or licence may be identified as “a lease that is a mining lease” for the purposes of an operative provision of the NTA by reference to a mining lease in that provision.

15 Section 245 defines a “mining lease” as one kind of lease. Section 245(1) provides:

“A mining lease is a lease (other than an agricultural lease, a...