Barker J
In this matter, Barker J considered two separate questions in relation to s 47B applications made on behalf of the Ngurra Kyanta people. The applicant’s argued that the prior extinguishment of native title rights and interests in the native title claim area by two petroleum exploration permits should be disregarded under s 47B of the Native Title Act 1993 (Cth) (NTA). The respondent parties were Central Desert Native Title Services, the State of Western Australia, and the Commonwealth of Australia as intervener.
The first question for determination concerned the Western Australia Government’s submission that the two permits, granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (PGER Act), constitute ‘leases’ for the purposes of s 47B(1)(b)(i) of the NTA, and therefore s 47B does not apply to the application.
The second question was in relation to the argument put by the Commonwealth that notwithstanding the decision of the Full Federal Court in Banjima People v Western Australia [2015] FCAFC 84 (Banjima FC), the exploration permits are not covered by s 47B(1)(b)(ii) because the areas in question are ‘to be used for a particular purpose’.
Question 1
Barker J followed the decision in Narrier v State of Western Australia [2016] FCA 1519 in relation to an exploration licence granted under the Mining Act 1978 (WA). In that matter, Mortimer J held that the licence did not fall within the meaning of ‘lease’ in s 47B(1)(b)(i) of the NTA. Her Honour rejected the State’s argument that if a ‘licence’ falls within the definition of ‘lease’ in s 242(2) of the NTA then a licence to ‘mine’, as defined in s 253, must include an exploration licence, satisfying the exclusion in s 47B(1)(b)(i). Her Honour considered that such a construction distorts the exclusion in s 47B(1)(b)(i), and does not give effect to the text of s 242(2) of the NTA which includes a general definition of ‘lease’ for the purpose of the NTA.
Barker J held that the licences or authorities in question must, as provided for by s 245 of the NTA, license or authorise the use of land or waters ‘solely or primarily for mining’, and it is not open, in that context, to conclude that mining means exploration.
His Honour considered that any ambiguity in the legislative text should be resolved in favour of the result that s 47B is to apply, unless it is clear that the Parliament has excluded the operation of the provision. Barker J found that the exploration permits in question do not constitute mining leases in the manner described in the NTA and do not constitute ‘leases’ for the purposes of s47B(1)(b)(i). Consequently he found that s 47B applied to the application.
Question 2
The Commonwealth contended that the two exploration permits should be distinguished from those found by the Full Court in Banjima FC not to be covered by s 47B(1)(b)(ii) and that they should be considered to comprise a permission or authority whereby the claim area ‘is to be used ... for a particular purpose’.
The Commonwealth submitted that the relevant intention to use the land for a particular purpose is demonstrated if the permits require the use of the area for the particular purpose of petroleum exploration. The Commonwealth argued that the minimum exploration activities required to be undertaken on the land within the permit area within the specified timeframe set out in the PGER Act, satisfy that requirement. To the contrary, Barker J held that the applicant was correct in submitting that the exploration permits are indistinguishable from the exploration licences under the Mining Act that were considered in Banjima FC and Banjima People v State of Western Australia (No 2) [2015] FCAFC 171 (Banjima FC2) to be covered by s 47B.
His Honour found that the permits do not either limit the purposes for which the area could be used, or require that it be used for a particular purpose. The permits did not require that any part of the claim area be explored or used for the purposes of exploration when the claimant application was made, as discussed in Banjima FC at [107]-[108]. There was also no obligation on the permit holders to do any of the things listed in the conditions in the area with which the s 47B application was made.
The applicant contended that the condition in cl 1(2) of the exploration permits, that the permit holder shall not commence any works or petroleum exploration operations except with the written approval of the Minister, means that it cannot be said that land ‘is to be used’ under the permits. The Commonwealth considered that position is inconsistent with the statutory scheme under the PGER Act, and with the terms of the permits, read as a whole. His Honour agreed with the applicant’s construction, holding that any use would be under the Ministerial approval, not the permits. It follows that the conditions requiring Ministerial approval do not fall within s 90(1) of the PGER Act, which specifies that any specified works are to be carried out within six months.
Barker J also found that the exploration permits do not affect or preclude other uses of the claim area. This was evidenced by, for example, that the PGER Act and the Mining Act are not mutually exclusive; tenements under each may be granted in relation to the same land. The land in question is unallocated Crown land and may be dealt with under the Land Administration Act 1997 (WA) (LAA), notwithstanding the exploration permits.
His Honour found persuasive the applicant’s submission that the concept of ‘purpose’ employed in s 47B(1)(b)(ii), in defining that Crown land under claim is not to be treated as ‘Vacant Crown land’ if the land ‘is to be used’ under an instrument, conveys the state of affairs discussed in Western Australia v Ward [2002] HCA 28 at [217]-[242] as to when Crown land is applied to a purpose or use and no other. The grant of an exploration permit over Crown land under the PGER Act, where the land is available for disposition and use under the LAA, is not an act by which the Crown has bound itself to some particular purpose. The land is vacant Crown land or, in the language of the LAA (s 4(1)), unallocated Crown land.
His Honour held that after consideration of the statutory and endorsed conditions of the permits, petroleum exploration is not a particular purpose within s 47B(1)(b)(ii)). Barker J ruled that the exploration permits did not constitute permissions or authorities falling within s 47B(b)(ii) and s 47B applied to the application as a result.