Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587

Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587

EP 451 and EP 477 were exploration-only petroleum permits and did not constitute "leases" for the purposes of s 47B(1)(b)(i). They also did not require the Part B claim area to be used for petroleum exploration, were subject to further approvals before works or petroleum exploration operations could commence, did not preclude other uses of the unallocated Crown land, and did not constitute permissions or authorities under which the area was to be used for a particular purpose within s 47B(1)(b)(ii). Accordingly, s 47B applied to the application and prior extinguishment was to be disregarded.

Jurisdiction
Australia
Judgment Date
29 May 2017
Procedural Posture
Native Title Proceeding / Determination of Separate Questions in the Course of Negotiating a Consent Determination
Outcome
The Court determined both separate questions in favour of the applicant: the petroleum exploration permits were not leases within s 47B(1)(b)(i), were not permissions or authorities within s 47B(1)(b)(ii), and s 47B applied to the application.
Legal Topics
['native Title Act 1993 (cth) S 47 B' 'disregarding Prior Extinguishment' 'petroleum Exploration Permits' 'meaning of Lease' 'permission or Authority for Public Purposes or a Particular Purpose' 'unallocated Crown Land']
['native Title'] ['native Title Act 1993 (cth) S 47 B' 'disregarding Prior Extinguishment' 'petroleum Exploration Permits' 'meaning of Lease' 'permission or Authority for Public Purposes or a Particular Purpose' 'unallocated Crown Land']

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Procedural Posture

Native Title Proceeding / Determination of Separate Questions in the Course of Negotiating a Consent Determination

Legal Issues

  1. 1 ['Whether each of petroleum exploration permits EP 451 and EP 477 constituted a "lease" for the purposes of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth).' 'Whether EP 451 and EP 477 were permissions or authorities under which the whole or a part of the Part B claim area was to be used for public purposes or for a particular purpose within s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth).' 'Whether s 47B applied so that prior extinguishment of native title rights and interests in the Part B claim area must be disregarded.']

Ratio Decidendi

EP 451 and EP 477 were exploration-only petroleum permits and did not constitute "leases" for the purposes of s 47B(1)(b)(i). They also did not require the Part B claim area to be used for petroleum exploration, were subject to further approvals before works or petroleum exploration operations could commence, did not preclude other uses of the unallocated Crown land, and did not constitute permissions or authorities under which the area was to be used for a particular purpose within s 47B(1)(b)(ii). Accordingly, s 47B applied to the application and prior extinguishment was to be disregarded.

Court Disposition

The Court determined both separate questions in favour of the applicant: the petroleum exploration permits were not leases within s 47B(1)(b)(i), were not permissions or authorities within s 47B(1)(b)(ii), and s 47B applied to the application.

Orders

  • ['Following conferral with the parties and the intervenor file a minute final determination to be made in these proceedings.']