Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, and Edelman JJ
This matter relates to whether the extinguishment of native title rights and interests by certain mining tenements can be disregarded for the purpose of s47B of the Native Title Act 1993 (Cth) (“the NTA”). The High Court heard two appeals on this issue.
The parties to the proceedings were Helicopter Tjungarrayi and others on behalf of the Ngurra Kayanta People, KN (deceased) and others on behalf of the Tjiwarl People, and the State of Western Australia.
Background
In each of the two native title claims the claim groups argued that the right to exclusive possession could be recognised if the historic extinguishment of that right could be disregarded under s 47B of the NTA. The State argued that s 47B did not apply to the extent that the areas were covered by petroleum exploration permits in the first appeal matter, and a mineral exploration licence in the second appeal matter. The Court collectively referred to both the petroleum exploration permits and exploration licences as “exploration tenements”.
In Narrier v Western Australia [2016] FCA 1519, the primary judge (Mortimer J) held that an exploration licence was not a "mining lease" and, thus, was not a "lease" for the purposes of s 47B(1)(b)(i) NTA. Following the decision in Narrier, the primary judge (Barker J) in Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v Western Australia [No 2] held that each of two petroleum exploration permits was not a mining lease and therefore not a lease.
On appeal from the decision in Narrier, the Full Court of the Federal Court held that the area covered by the exploration licence was held not to be land to which s 47B of the NT Act applied. On appeal from the decision of the primary judge in Tjungarrayi, the Full Court of the Federal Court held that the exploration permits were mining leases and, thus, were leases for the purposes of s 47B(1)(b)(i) NTA.
Legal issues
The majority outlined the legal issue as follows:
[1] Generally speaking, when native title rights and interests are extinguished the extinguishment is permanent. The rights and interests do not revive even if the act that caused the extinguishment ceases to have effect. However, where any of s 47, s 47A or s 47B of the Native Title Act 1993 (Cth) applies, prior extinguishment of native title rights and interests may be "disregarded" for the purposes of a claim to establish native title.
[2] In particular, s 47B provides that any historic extinguishment of native title rights and interests is to be disregarded for the purposes of a claim for a determination of native title rights and interests over vacant Crown land. However, by virtue of s 47B (1) (b)(i), the provision does not apply if the relevant area of land is "covered by a ... lease". These appeals raise for consideration the meaning of the word "lease" in this context.
Relevant provisions
Section 47B (1) identifies that the provision applies when:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not
(i) Covered by a freehold estate or a lease…
Section 242 then provides that the expression lease includes:
(1)
(a) a lease enforceable in equity; or
(b) a contract that contains a statement to the effect that it is a lease; or
(c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.
(2) 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.
Section 245(1) provides:
A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or water covered by the lease solely or primarily for mining.
Section 253 defines “mine” in the following way:
Mine includes:
(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters; or
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means.
Majority reasoning
The majority noted:
It is readily apparent from a review of the rights conferred on holders of exploration tenements that the relatively exiguous rights so conferred are a far cry from the rights characteristic of a lease in the usual sense of the word, particularly the right of exclusive possession [18].
The Court drew attention to the wording of s 242, in particular the condition required for its operation, ‘in the case only of references to a mining lease’. Note majority stated at [31]:
In each matter, the Full Court's reasoning fails to recognise that, according to the ordinary and natural meaning of s 242(2), it is engaged only where the operative provision of the NTA contains an express textual reference to a "mining lease". In each case, the Full Court applied s 242(2) as if the opening words of s 242(2), "[i]n the case only of references to a mining lease", were "[i]n the case of a mining lease".
Consequently, s 242(2) excludes all mining leases that fall within s 242(1) [32].
The majority then examined the purpose of s 47B which their Honours describe as ‘to facilitate the grant of native title under the NTA, notwithstanding historic extinguishment, where the land in question is actually occupied by the native title claimants and the claimed native title would not be inconsistent with extant rights of a holder of the fee simple or a lease’ [35].
Giving consideration to this purpose the majority provided several reasons why the exploration tenements should be disregarded under s 47B. Firstly, ‘it makes little sense…that extant exploration tenements should be an insuperable obstacle… when the grant of the rights characteristically conferred by exploration tenements would not have extinguished native title rights and interests in the first place.’ [36]. Further:
When the grant of an exploration tenement is not treated by the general law as inconsistent with the continued subsistence of ordinary freehold title, it is not to be supposed that the NTA treats native title rights and interests less favourably in the absence of a clear expression of that intention [36].
The majority further found that it was within the purpose of s 47B that the relatively low level of the intensity of use and occupation of land characteristically authorised by exploration tenements should not deny claimants in actual occupation of the land the possibility of recognition of native title rights and interests [37].
Lastly, their Honours provided ‘the rights conferred on the holders of exploration tenements are as capable of co-existing with native title rights and interests as they are with the rights of owners of freehold title under the general law [37].
Decision of Gageler J
His Honour agreed with the proposed orders and reasoning of the majority. Gageler J examined two matters of construction. Firstly, that the intended beneficial operation of s 47B weighs in favour of a construction which gives s 47B a wider application if and to the extent that a constructional choice is open on the text of the NTA.
In relation to s 242(2), Gageler J provided:
Properly construed, all that s 242(2) does is to require that a textual reference in the NTA to a "mining lease" be read as extending to a mining licence issued, or a mining authority given, by or under a Commonwealth, State or Territory law [56].
Accordingly, s 242(2) does not inform the construction of s 47B(1)(b)(i). Because s 47B(1)(b)(i) does not contain a textual reference to a "mining lease", there is no occasion for s 242(2) to expand the meaning of "lease" in s 47B(1)(b)(i) beyond the meaning set out in s 242(1) [57].
Decision of Nettle J
His Honour allowed the appeal and proposed orders very similar to those of the majority. Nettle J examined the non-extinguishment principle and its application to vacant crown land in detail. His Honour went on to analyse the meanings of lease, mine, and mining lease concluding that:
"mining lease" as defined by s 245(1) of the NT Act means a "lease" that permits the lessee to use the land or waters covered by the lease solely or primarily for mining and also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory to use the land or waters covered by the licence or authority solely or primarily for exploring or prospecting for things that may be mined or for extracting petroleum or gas from land or from the bed or subsoil under waters [88].
His Honour continued that:
If "lease" in s 47B(1)(b)(i) included "mining lease", it would mean that a mining lease, which itself engages the non-extinguishment principle, would preclude the application of the non-extinguishment principle to the creation of any prior interest in land which is vacant Crown land, at least until after the mining lease expires [92].
Finally, Nettle J concluded:
Ultimately, s 47B (1)(b)(i) permits of a constructional choice: between a meaning which would allow the non-extinguishment principle to operate in relation to vacant Crown land affected by a mining lease and a meaning which would not. As has now been seen, the former fits with considerations of context, purpose and legislative history [88], while the latter does not [106].
Decision of Gordon J
Her Honour agreed with the orders proposed by the majority. In doing so, Gordon J also examined the principle of non-discrimination under which native title holders are to be treated in the same as holders of freehold [127] and the Second Reading Speech which conveys Parliament’s intention to treat as a non-extinguishing event not only the grant of a mining lease but any mining tenement.
Orders
The appeals were allowed.
The relevant orders of the Full Court of the Federal Court made in the two matters should be set aside, and in their place it should be ordered that the appeal to the Full Court be dismissed.