This matter before the full Federal Court of Australia Court of Appeal concerned appeals from Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 5871 (Ngurra Kyanta (No 2)) and
Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 9382 (Ngurra Kyanta (No 3)).
The appeal principally concerned sections 47B and s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) (NTA) and whether petroleum exploration permits granted under State legislation are ‘mining leases’, so that s 47B does not apply to the land the subject of those permits. In this matter the Court ordered that the appeal in WAD 442 of 2017 brought by the Attorney-General of the Commonwealth be dismissed and that in WAD 444 of 2017 brought by the State be allowed and that attachment A to the orders of 15 August 2017 be amended as set out in attachment A to the reasons for judgment in this proceeding.
The State’s appeal
[2] In Ngurra Kyanta (No 2) the State contended that two petroleum exploration permits, EP 451 and EP 477, granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the Petroleum Act), are ‘leases’ for the purposes of s 47B(1)(b)(i) of the NTA, so that s 47B does not apply to the land the subject of those permits.
[4] The primary judge held at [53] that he should apply the same reasoning as identified in Narrier v State of Western Australia [2016] FCA 1519, ‘with the result that neither of the petroleum exploration permits in issue before me constitutes a “lease” for the purposes of s 47B(1)(b)(i)’. [5] Subsequently, the Full Court held that this aspect of the reasons in Narrier was wrong. In BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl # 2) [2018] FCAFC 8 (Tjiwarl) North, Dowsett and Jagot JJ held that certain exploration licences granted under the Mining Act 1978 (WA) were leases as referred to in s 47B(1)(b)(i) of the NTA (at [46]-[81]).3
[6] As the notices of appeal and submissions of the parties in these appeals had been filed before the publication of the judgment in Tjiwarl, the parties were requested to provide further submissions dealing with the effect of the Full Court’s judgment. The State, and the other appellant, the Commonwealth, contended that Tjiwarl decided all issues with the consequence that the appeals should be allowed and the primary judge’s orders amended as they proposed. Other than in one respect, the first respondent (the applicant claiming native title on behalf of the claim group), conceded that Tjiwarl was not distinguishable and accepted that the Court would be bound to follow it. Nevertheless, the first respondent otherwise submitted that Tjiwarl was wrong to the extent that it did not decide the issue which it wished to raise and, if it did decide that issue against the first respondent’s contention, Tjiwarl was plainly wrong and should not be followed by this Court.
The issue in contention relates to s 245 NTA. The first respondent proposed that Tjiwarl did not decide whether s 245 NTA, in referring to a mining lease as a ‘lease...that permits the lessee to use the land or waters covered by the lease solely or primarily for mining’, means only an instrument which permits the holder to so use the land to the exclusion of, or so as to limit, other concurrent uses under some other right, title or interest. According to the first respondent, it is only such an instrument which, by reason if its terms and the operation of the legislation under which it is made, excludes other concurrent uses that is a ‘mining lease’ as defined by s 245 of the NTA. The petroleum exploration permits in this case, according to the first respondent, do not satisfy this requirement.
[7] The Full Court disagreed stating that: ‘The first respondent’s submissions do not accord with the subject of s 245 of the NTA, which is the definition of a particular kind of instrument, being a mining lease. The focus of the provision is the activities which the instrument permits the holder (the lessee, a term defined in s 243(2) of the NTA to include the holder of a mining lease) to carry out. The definition of “mining lease” has nothing to do with the capacity of persons other than the lessee to use the land for other purposes under other rights.’
Their Honours continued at [8] and [9]: ‘As explained in Tjiwarl at [72]-[73], because “mine” is defined in s 253 of the NTA to include ‘explore or prospect for things that may be mined’ and s 242(2) provides that 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”, a permit authorising the exploration of land for things to mine is a mining lease. And, as noted, by s 243(2), a person who holds a mining licence, authorisation or permit is taken to be a “lessee”.’
‘For present purposes, what is important to understand is that s 245 is concerned with the permission which the instrument asserted to be a mining lease grants to the lessee. If that instrument grants permission to the lessee to use land “solely or primarily for mining”, the instrument is a mining lease. This is so whether or not the instrument, by reason of its terms or the operation of the legislation under which it is granted, wholly or largely excludes any other use of the land … The NTA contains expansive definitions of “mine”, “mining lease” and, for a “mining lease” of “lessee” which operate to ensure that any instrument which permits the holder of it solely or primarily to “mine” (in its expanded sense which includes explore or prospect) is a “mining lease” for the purposes of the NTA, whether or not such an instrument would be a mining lease for the purpose of the legislation under which the instrument was granted.’
The Full Court stated at [10]: ‘The scheme of Div. 3 of Pt 15 of the NTA, which defines various kinds of leases, does not assist the first respondent. In particular, the fact that certain kinds of leases, in ss 247, 248 and 249A, are defined not only by the activities they permit but also what they say or the purpose for which they are granted, does not support the first respondent’s construction of s 245. As the State submitted, the key to understanding the different definitions is that some leases are defined only by reference to what the instrument permits the lessee to do (including s 245) and others are defined by reference also to either the way in which the instrument describes itself or the purpose of the grant. And, as the State also submitted, it is apparent that where exclusive possession is a necessary element of the rights granted by the instrument, that is expressly identified as, for example, in ss 247A and 248A of the NTA.’
[11] ‘In Tjiwarl, as noted, the instruments were exploration permits under Div. 2 of Pt IV of the Mining Act. Under the Mining Act, these instruments were not mining leases and did not carry the kind of rights under that Act which a mining lease carries. Nevertheless, as held in Tjiwarl at [65]-[81], those instruments were “mining leases” and thus “leases” under the NTA because they permitted the holder to use the land solely or primarily for the purpose of mining (under the expanded definition of “mine” in the NTA). We do not accept that Tjiwarl is wrong. To the contrary, we consider it correctly reflects the scheme of the NTA. We also do not consider that Western Australia v Ward [2002] HCA 28 suggests to the contrary. Ward concerned extinguishment. Tjiwarl and the State’s appeal concern statutory definitions. Those definitions must be given effect according to their terms.’'
The Full Court continued stating at [12]: ‘The same reasoning must be applied to the petroleum exploration permits in the present case. In s 253 of the NTA, “mine” is also defined to include in sub-paragraph (b) of the definition, “extract petroleum or gas from land or from the bed or subsoil under waters”. Thus, sub-paragraph (a) of the definition, which refers to “explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c))”, means that a permit to explore for petroleum is a mining lease if that instrument permits the land to be used solely or primarily for exploring the land for petroleum. Subject to consideration of the effect of the conditions of the permits (on which the first respondent also relied to submit that there is no relevant permission), the petroleum exploration permits satisfy this requirement because, being grants under s 38(1) of the Petroleum Act, they permit the holder “subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area”.’
The Court continued stating that: [13] ‘Accordingly, and contrary to the first respondent’s submissions, it does not matter that the land remains unallocated Crown land available for other uses. Nor does it matter that the permits, reflecting s 117 of the Petroleum Act, contain an endorsement that the activities of other land users and occupiers are “not interfered with to a greater extent than is necessary for the reasonable exercise of the rights and performance of the duties of the holder”. The permits do not permit the lessee to use the land for any purpose other than exploring for petroleum and thus are instruments which permit the use of the land solely or primarily for mining. Nor can it be relevant that the permits cover a large area and, as the first respondent put it, contemplate relatively short term activities within the permit area at particular times. The permits permit the lessee to use the whole of the land only for mining, which is all that s 245 requires.’
The Full Court further emphasised at [14]: ‘The Full Court’s decision in Banjima People v State of Western Australia [2015] FCAFC 84 is not authority to the contrary. Banjima, to the extent relevant, concerned s 47B(1)(b)(ii) of the NTA and the reference in that provision to a permission or authority “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” (as does the Commonwealth’s appeal in this matter, discussed below). In Banjima it was not argued before the primary judge or in the appeal that the various instruments in issue were a lease within the meaning of s 47B(1)(b)(i) (see [87]-[118]).’
[15] ‘Insofar as the first respondent relied on the conditions imposed on the permits, it may be accepted that the permits must be construed as a whole and in the statutory context established by the Petroleum Act. Section 38(1) of that Act is noted above. Section 15(1) is also relevant, and is in these terms:
Subject to this Act and to any condition referred to in section 91B(2), but notwithstanding the provisions of any other Act or law, the authority conferred by section 38, 43D, 48C or 62 upon a permittee, holder of a drilling reservation, lessee or licensee is, by virtue of this Act, exercisable on any land within the permit area, drilling reservation, lease area or licence area, as the case may be, whether Crown land or private land or partly Crown land and partly private.’
The Full Court distinguished Banjima for tor the following reasons:
[21] The instruments in Banjima were granted in a different statutory context and on different terms, as is apparent from [83]-[86] of the Full Court’s reasons. In Banjima, ss 46 and 63 of the Mining Act provided that the licences were subject to a condition that the holder “will explore for minerals and will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless the holder has lodged in the prescribed manner a programme of work in respect of that use and the programme of work has been approved in writing by the Minister or a prescribed official”. Apart from the general reference to “will explore for minerals” (an obligation which the instruments disclosed could be fulfilled without entering upon let alone using the land), the instruments in Banjima did not require works to be carried out on the land and prohibited the use of all ground disturbing equipment without approval. On this basis, and in the context of the question whether the instruments satisfied s 47B(1)(b)(ii) of the NTA (where the question is whether “...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”) the Full Court in Banjima said at [108] that “on the evidence to which the court was taken, there was no relevant permission or authority in existence at any relevant time for one category of use potentially permitted or authorised by each licence”. In the present case, where the permits require works to be carried out, albeit not before and in accordance with the Minister’s approval in writing, and in the context of s 245 of the NTA (where the question is whether the instrument “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”), the reasoning in Banjima is inapplicable.
[22] Other aspects of Banjima must not be overlooked. The Full Court did not have the exploration licences before it, as noted at [85]. The Full Court had to infer that no mechanical equipment had been approved for use on any part of the land (at [86]). The Full Court was dealing with an argument that the words “is to be used” in s 47B(1)(b)(ii) meant “is permitted or authorised to be used” (at [87]). It was doing so in the face of evidence that the exploration under the instruments could be undertaken by aerial survey rather than use of the land (at [109]). Most importantly of all, perhaps, is that [108] of the Full Court’s reasons (relied upon by the first respondent and the primary judge) cannot be read in isolation.
The Full Court emphasised that: [23] ‘As noted, s 245 is not concerned with the concept of land which “is to be used”. It is concerned with permission to use land. The Commonwealth’s submissions, albeit directed to its appeal about s 47B(1)(b)(ii), felicitously undermine the first respondent’s argument.’
[25] The Court did not accept the first respondent’s submission that the permits gave no permission to the lessee to use the land solely or primarily for mining but, rather, gave rise to “only potentially permitted uses”.[26] The State’s appeals were allowed and the primary judge’s orders amended as necessary. As the State did not seek an order for costs no order for costs was made.
The Commonwealth’s appeal
[27] The Commonwealth’s appeal, as in Banjima, concerns s 47B(1)(b)(ii) of the NTA: [28] ‘It will be apparent from the discussion above that we disagree with the reasons of the primary judge at [92]-[95] in which his Honour concluded that conditions 1(1) and 1(2), as in Banjima, meant that it could not be said that any land “is to be used” under the permits. For the reasons given above, Banjima is distinguishable as on the facts of the present case, land is to be used under the permits because the permits require actual physical works to land to be carried out.’
[29] The remaining issues were what land is to be used and is any such use for a particular purpose? The first respondent otherwise submitted that the requirements of s 47B(1)(b)(ii) are not satisfied first because, as the primary judge appears to have accepted at [90]-[91], the permits do not require any actual physical works to land within the claim area and second because, as the primary judge also appears to have accepted at [98], exploration for petroleum is not a use for a “particular purpose” within the meaning of s 47B(1)(b)(ii) of the NTA. [30] The second issue, related to the concept of a use for a particular purpose.
The Full Court did not accept that the cases cited in [98] of the primary judge’s reasons, Banjima at [111], Banjima People v State of Western Australia (No 2) [2015] FCAFC 171 at [25], [33] and [39], Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [187], or Griffiths v Northern Territory of Australia [2007] FCAFC 178 at [160], support the conclusion that under the permits land is not to be used for a particular purpose.
[31] The present proceeding was deemed to be different. By s 38(1) of the Petroleum Act the permits authorise the holder to ‘explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area’. The purpose of exploring for petroleum is a particular purpose, and is capable of involving the use of land. Provided the permits involve (as they do in this case) a requirement to use land for that purpose, we do not see how it can be said that the requirement of land which ‘is to be used...for a particular purpose’ remains unsatisfied.
At [32]: ‘The first issue, relating to the concept of “the area” as it appears in s 47B(1)(b)(ii), involves more complex issues. As the Commonwealth submitted, while the word “area” in s 47B should be construed as having the same meaning wherever it is used, the land within such an “area” for the purposes of the provision is not necessarily the same. This is because “area” is described by reference to different criteria, including in s 47B(1)(a) by reference to the claimant application, in s 47B(1)(b)(i) in relation to the area not covered by a freehold estate or lease, in s 47B(1)(b)(ii) in relation to the area not covered by a relevant reservation (etc), in s 47B(1)(b)(iii) in relation to the area not subject to a resumption process, and in s 47B(1)(c) in relation to an area which was occupied by the claim group when the claim was made. Some of the complexities associated with the repeated use of the word “area” in s 47B were explored in Banjima at [93]-[99]. In particular, at [96] in Banjima, the Full Court explained why the “area” as it appears in ss 47B(1)(b) and (c) cannot mean the whole of the claim area as referred to in s 47B(1)(a).’
The Full Court emphasised that: [33] ‘Nothing in Banjima or Banjima (No 2) supports the proposition that merely because the reservation (etc) extends beyond the claim area, s 47B(1)(b)(ii) is incapable of being satisfied. If [91] of the primary judge’s reasons is to be understood as endorsing this proposition, then The Full Court disagreed with it. The focus of the section is whether any part of the claim area is covered by a reservation (etc) under which that land is to be used for a public purpose or particular purpose. To answer that question, however, the relevant instrument must necessarily be considered in its entirety.’
The Full Court further explained that: [34] ‘The difficulty is this: In some cases, the reservation (etc) may co-extend with the land in the area of a claim. In other cases, the reservation (etc) may extend beyond the area of the land in the claim. And in yet other cases, the reservation (etc) may cover only part of the area of the land in the claim and not cover any other land. Section 47B(1)(b) is a negative stipulation focusing on the land within the claim area which is not covered by or subject to any of the identified circumstances. Insofar as s 47B(1)(b)(ii) is concerned, the identified circumstance is that land in the claim area not be covered by a reservation (etc) of the requisite character. The character of a reservation (etc) which engages the negative stipulation is one under which the whole or any part of the land in the claim area is to be used for public purposes or for a particular purpose. The character of a reservation is not affected by the “whole or part” criteria. Those criteria make clear only that the negative stipulation is engaged if the relevant kind of reservation affects any part or the whole of the claim area. The reservation either does require that land is to be used for a particular purpose or it does not. Thus, it is not possible to posit that a reservation (etc), on the one hand, may require all of the land covered by the reservation to be used for a particular purpose and, on the other hand, not require the land within the claim area covered by the reservation to be used for a particular purpose. These propositions cannot co-exist.’
At [35]: ‘The question then is ultimately one of characterisation of the reservation. [36] The Commonwealth contended that these facts mean that the whole of the land the subject of the permits is to be used for a particular purpose so that, necessarily, all parts of the land (including the claim area) are also to be used for that purpose. As The Full Court stated earlier: if the former proposition is correct, the latter necessarily follows. The Full Court accepted that the permits satisfy the requirement of permitting the lessee to use the land solely or primarily for mining and thus are mining leases engaging s 47B(1)(b)(i) but this did not mean that the Full Court necessarily accepted that the permits are to be characterised as instruments under which the whole of the land the subject of the permits is to be used for a particular purpose. Further, the fact that the Full Court accepted that land is to be used under the permits for a particular purpose also does not mean that it necessarily accepted the Commonwealth’s proposition. Indeed, but for the way in which the arguments in the appeal were developed, The Full Court would not have dwelled on the concepts of “is to be used” or “particular purpose” separate from the claim area because the requirements of s 47B(1)(b)(ii) are best approached as a composite, the question being whether the reservation (etc) is one under which the whole or any part of the land in the claim area is to be used for a public purpose or a particular purpose. The focus of s 47B(1)(b)(ii) is whether any land in the claim area is to be used for a public purpose or a particular purpose or not.’
[37] The Full Court did not accept that the permits in the present case engaged s 47B(1)(b)(ii). This was not because the permits extended to land outside the claim area but rather because the full Court did not accept the Commonwealth’s characterisation of the permits as instruments under which the whole of the land the subject of the permits is to be used for the particular purpose of exploring for petroleum. [38] The permits in the present case authorised the use of all of the land subject to the permits (including the claim area but excluding the blocks into which access is prohibited) for the particular purpose of exploring for petroleum.
[39] The Full Court noted finally that at [96]-[97] of his reasons the primary judge said his conclusions were supported by Ward at [217]-[242] so that land is used for a particular purpose if it is either required to be so used or other uses are excluded. The Full Court stated that: ‘We agree with the Commonwealth that the discussion in Ward concerns a different context and that the operation of s 47B(1) of the NTA is to be determined on the ordinary meaning of the language used, construed in the context of the NTA as a whole and not otherwise.’
Justices North, Jagot and Rangiah ordered that the Commonwealth’s appeal should be dismissed and that given that the first respondent did not seek any order for costs, no orders for costs were made.
1 See What’s New in Native Title - May 2017.
2 See What’s New in Native Title - August 2017.
3 See What’s New in Native Title - Jan-Feb 2018.