Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35

Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35

The petroleum exploration permits were mining leases and therefore leases for the purposes of s 47B(1)(b)(i) because, under s 38(1) of the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the expansive definitions in the Native Title Act 1993 (Cth), they permitted the holder to use the land solely or primarily to explore for petroleum, which is mining for NTA purposes. The conditions requiring written ministerial approval before works commenced did not negate that permission or the obligation to carry out minimum works. However, the permits did not engage s 47B(1)(b)(ii) because, although they authorised use of all permit land and required some relatively confined unidentified...

Jurisdiction
Australia
Judgment Date
16 March 2018
Procedural Posture
Native Title Appeal / Full Court Appeal From Helicopter Tjungarrayi on Behalf of the Ngurra Kayanta People V State of Western Australia (no 2) [2017] FCA 587 and Helicopter Tjungarrayi on Behalf of the Ngurra Kayanta People V State of Western Australia (no 3) [2017] FCA 938
Outcome
The Commonwealth's appeal in WAD 442 of 2017 was dismissed. The State of Western Australia's appeal in WAD 444 of 2017 was allowed. No costs order was made.
Legal Topics
['native Title Act 1993 (cth) S 47 B' 'meaning of Lease and Mining Lease' 'petroleum Exploration Permits' 'extinguishment to Be Disregarded' 'use of Land for a Particular Purpose']
['native Title' 'mining and Petroleum Resources' 'statutory Interpretation'] ['native Title Act 1993 (cth) S 47 B' 'meaning of Lease and Mining Lease' 'petroleum Exploration Permits' 'extinguishment to Be Disregarded' 'use of Land for a Particular Purpose']

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Procedural Posture

Native Title Appeal / Full Court Appeal From Helicopter Tjungarrayi on Behalf of the Ngurra Kayanta People V State of Western Australia (no 2) [2017] FCA 587 and Helicopter Tjungarrayi on Behalf of the Ngurra Kayanta People V State of Western Australia (no 3) [2017] FCA 938

Legal Issues

  1. 1 ['Whether petroleum exploration permits EP 451 and EP 477 granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) are leases or mining leases for the purposes of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth).' 'Whether the conditions on the petroleum exploration permits meant that the permits gave no relevant permission to use the land solely or primarily for mining.' 'Whether the exploration permits were permissions or authorities under which the whole or part of the claim area was to be used for a particular purpose within s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth).']

Ratio Decidendi

The petroleum exploration permits were mining leases and therefore leases for the purposes of s 47B(1)(b)(i) because, under s 38(1) of the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the expansive definitions in the Native Title Act 1993 (Cth), they permitted the holder to use the land solely or primarily to explore for petroleum, which is mining for NTA purposes. The conditions requiring written ministerial approval before works commenced did not negate that permission or the obligation to carry out minimum works. However, the permits did not engage s 47B(1)(b)(ii) because, although they authorised use of all permit land and required some relatively confined unidentified...

Court Disposition

The Commonwealth's appeal in WAD 442 of 2017 was dismissed. The State of Western Australia's appeal in WAD 444 of 2017 was allowed. No costs order was made.

Orders

  • ['WAD 442 of 2017: The appeal be dismissed.' 'WAD 444 of 2017: The appeal be allowed.' 'WAD 444 of 2017: Attachment "A" to the orders of 15 August 2017 be amended as set out in Attachment "A" to these reasons for judgment.']