Tjungarrayi v Western Australia [2019] HCA 12

Tjungarrayi v Western Australia [2019] HCA 12

Mineral exploration licences granted under the Mining Act 1978 (WA) and petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) are not 'leases' within the meaning of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth). Section 242(2) extends the meaning of 'lease' only in the context of references to a 'mining lease', not to a general reference to 'lease' such as appears in s 47B(1)(b)(i). Therefore, the prior extinguishment of native title by reason of a mineral exploration licence or petroleum exploration permit must be disregarded under s 47B, and the claimants' rights are not extinguished merely because of the existence of these interests.

Parties
Appellant: Helicopter Tjungarrayi & Ors; Appellant: KN (deceased) and Others (Tjiwarl and Tjiwarl #2); Respondent: State of Western Australia & Ors; Respondent: Third respondent in P37/2018 and third to tenth, twelfth, thirteenth and sixteenth respondents in P38/2018; Respondent: Second respondent in P37/2018 and the second, eleventh, fourteenth and fifteenth respondents in P38/2018
Jurisdiction
Australia
Judgment Date
17 April 2019
Procedural Posture
Appeal / High Court of Australia Judgment on Appeal From the Federal Court of Australia
Outcome
Appeal allowed for both matters
Legal Topics
Extinguishment of Native Title, Interpretation of 'lease' Under Native Title Act, Mining Tenements and Native Title, Statutory Construction, Non Extinguishment Principle
Aboriginal Law Native Title Extinguishment of Native Title Interpretation of 'lease' Under Native Title Act Mining Tenements and Native Title Statutory Construction Non Extinguishment Principle

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Parties

Helicopter Tjungarrayi & Ors

Appellant

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

Appellant

State of Western Australia & Ors

Respondent

Third respondent in P37/2018 and third to tenth, twelfth, thirteenth and sixteenth respondents in P38/2018

Respondent

Second respondent in P37/2018 and the second, eleventh, fourteenth and fifteenth respondents in P38/2018

Respondent

Procedural Posture

Appeal / High Court of Australia Judgment on Appeal From the Federal Court of Australia

Legal Issues

  1. 1 Whether mineral exploration licences or petroleum exploration permits are 'leases' within the meaning of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth)
  2. 2 Proper construction of s 242(2) of the Native Title Act regarding inclusion of licences or authorities as leases for the purposes of Native Title Act

Ratio Decidendi

Mineral exploration licences granted under the Mining Act 1978 (WA) and petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) are not 'leases' within the meaning of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth). Section 242(2) extends the meaning of 'lease' only in the context of references to a 'mining lease', not to a general reference to 'lease' such as appears in s 47B(1)(b)(i). Therefore, the prior extinguishment of native title by reason of a mineral exploration licence or petroleum exploration permit must be disregarded under s 47B, and the claimants' rights are not extinguished merely because of the existence of these interests.

Court Disposition

Appeal allowed for both matters

Orders

  • In Matter No P37/2018: Appeal allowed.
  • 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.