Prior extinguishment

Rangiah J

In this proceeding, Rangiah J granted the application made by the Robe River Kuruma Aboriginal Corporation RNTBC (RRKAC), under ss 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth) (NTA), to amend the terms of their native title determination. The respondents were the State of Western Australia and various mineral resource companies, who supported the application.

Background

Pre-BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (BHP v KN)

The native title determination application was first filed in 1998 as two separate applications. The matter was combined in 1999 but divided again in 2016. Native title for one part was decided in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548 (Finlay). The preconditions for native title were agreed to have been satisfied in certain areas, but were held to be extinguished in others by the effect of previous exploration licences and permits. When Finlay was determined, the Native Title Act 1993 (Cth) (NTA) could not apply to such areas, as set by precedent in BHP v KN.

However, the minute of proposed consent determination in Finlay stipulated that all parties agreed that, but for the effect of BHP v KN, exclusive native title rights would exist in those areas. The minute provided that if BHP v KN were overturned, a variation application could be made within an agreed period. Each of the parties to the variation application would need to consent but could oppose on the basis of the merits, except with respect to the agreement of the parties as to ‘occupation’ (under s 47B(1)(c) of the NTA).

Post-BHP v KN

In Tjungarrayi v Western Australia; KN (Deceased) (Tjiwarl and Tjiwarl #2) v Western Australia (2019) HCA 12) (Tjungarrayi) the High Court held that exploration or prospecting licences or permits were not “leases” within the meaning of s 47B(1)(b)(i) of NTA, overturning BHP v KN. Consequently, such licences or permits over claimed land and waters did not prevent parties from disregarding extinguishment under s 47B(2) of the NTA.

Submissions

On the basis of the minute and decision in Tjungarrayi, the RRKAC applied under ss 13(1)(b), 61(1) and s 47B of the NTA to vary the native title determined in Finlay. Specifically, the RRKAC sought recognition of exclusive possession over a significant site known as Marti Marti Yinta.

Both the applicants and the respondents submitted that it was in the interests of justice to vary the determination.

Decision

Rangiah J was satisfied the Tjungarrayi decision caused the determination to cease to be correct. His Honour also agreed that it was in the interests of justice to vary the native title determination, especially as this possibility was contemplated at the time of the determination. For legal consistency, and to recognises Marti Marti Yinta as an area over which the Robe River Kuruma People hold exclusive possession native title (given s 47B applies), judicial approval was given to amend the native title determination.

In this matter, Barker J made orders by consent recognising the native title rights and interests of the Mayala people in relation to an area of approximately 3,800 square kilometres of land and waters in the west Kimberley region of Western Australia. The area covered includes islands, reefs and waters north of Derby, between the Dampier Peninsula and Yampi mainland, extending northwards beyond the 16th parallel and including parts of the Buccaneer Archipelago and King Sound. It is situated between, and delineated by, the external boundaries of the Bardi and Jawi Determination as determined in Sampi and Others (on behalf of the Bardi and Jawi People) v Western Australia and Others (No 2) [2010] FCAFC 99 to the west (on the Dampier Peninsula) and the Dambimangari Determination, as determined in Barunga v State of Western Australia [2011] FCA 518 to the east (on the Yampi Peninsula).

The application was lodged with the National Native Title Tribunal in July 1998 and was amended by orders of the Federal Court in 1999, 2004, 2005 and in May 2018. The May 2018 orders provided that the then applicant be replaced by the current applicant and that the title of the application be changed to its present name. The respondent parties are the State of Western Australia; the Commonwealth of Australia; Maxima Pearling Co Pty Ltd; Clipper Pearls Pty Limited; and Shire of Derby/West Kimberley.

The parties have reached an agreement as to the terms of the determination, which covers most but not all, of the land and waters covered by the application. The application in respect of land and waters excluded from the determination is to be dismissed and no determination made in relation to the land and waters comprised in that area. The 'excluded area' comprises areas of unallocated Crown land which were covered by exploration licence E04/743 as at the date the Mayala application was made. On the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwarl #2) and Others [2018] FCAFC 8, s 47B(2) of the Native Title Act 1993 (Cth) (NTA) cannot apply to those areas. Accordingly, these areas have been removed from the determination area with the intention that a new native title determination application will be made over those areas following this Determination. It also includes areas where the parties agree that native title has been wholly extinguished but which the applicant wished to exclude from the determination area in the event that s 47A or s 47B of the NTA becomes applicable to those areas.

The native title rights and interests recognised in relation to the ‘exclusive area’ shown in green on the maps in Schedule Two is the right to possession, occupation, use and enjoyment as against the whole world. The rights and interests recognised in the ‘non-exclusive area’ shown in yellow on the maps in Schedule Two are the rights to access; take resources; and protect places, areas and things of traditional significance. Sections 47A and 47B of the NTA apply to disregard any prior extinguishment in relation to the areas described in Schedule Five.

Barker J accepted that the connection materials disclose that the members of the Mayala claim group belong to a unique archipelagian society with its own territory, languages, traditional laws and customs and a distinct maritime culture. The Mayala People’s laws and customs have their origins within a period of time long past which is generally referred to as milarnjun or lailai. It was at this time that the physical world, its creatures and human society were created or modified by the activities of spiritual beings that roamed the earth. It was also during this period that the system of rules, prescribed behaviour, ritual and song, which govern the members of the Mayala claim group today and connect them to their country, were ordained. Under these laws and customs, the determination area is, and has been since prior to sovereignty, the traditional country of the members of the Mayala claim group and their ancestors.

His Honour was satisfied that it is appropriate and within power to make the determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. Within 12 months of the date of the orders, a representative of the common law holders of the native title rights and interests shall nominate a prescribed body corporate and indicate whether they intend to have the native title rights and interests held in trust or by an agent.

In this matter Charlesworth J made orders by consent recognising the native title rights and interests of the Manta Rirrtinya people in relation to an area covering approximately 23,000 square kilometres of land and waters situated at the junction of the Little Sandy Desert and the Great Victoria Desert in the Central Desert region of Western Australia. The respondents are the State of Western Australia, the Shire of Laverton, the Central Desert Native Title Services Ltd, Gold Road (North Yamarna) Pty Ltd and the Attorney-General for the Commonwealth (intervening).

The applicant asserts that s 47B of the Native Title Act 1993 (Cth) (NTA) applies to the unallocated Crown land covered by the Manta Rirrtinya application. The parties have agreed that one or more members of the native title claim group occupied (within the meaning of s 47B(1)(c) NTA) the areas referred to in recital F(a) below as at the date that the Manta Rirrtinya application was made, and that, but for the prior extinguishment of the right to possess, occupy, use and enjoy, to the exclusion of all others, the native title rights in those areas would be those in [3] of the Determination, but that on the basis of the decisions of the Full Court of the Federal Court of Australia in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8 and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35, s 47B(2) cannot apply to those areas because the area was at the relevant time covered by those exploration licences.

In respect of those parts of the determination area covered by certain exploration licences, the terms of the determination are consistent with the decisions of the Full Court of this Court in Tjiwarl and Ngurra Kayanta. The parties acknowledged the recent grant of special leave to appeal from those judgments to the High Court of Australia. It is also acknowledged that judgment by the High Court on those appeals may give rise to a question as to whether the areas covered by the exploration licences ought properly to fall within [3] of the orders. In that event, the parties agree that an application may be made to vary the determination, with the parties reserving their rights as to the merits of any such application. That aspect of the parties’ agreement is reflected in [E] of the notes to the orders. Sections 47A and 47B of the NTA apply to the parts of the determination area set out in Schedule 5.

The rights and interests in relation to each part of the determination area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others, and in relation to remaining parts of the determination area are non-exclusive native title rights and interests to access the area, take and use the resources for any purpose; engage in spiritual and cultural activities; and maintain and protect places, areas and objects of significance.

Her Honour accepted that the claim group forms a part of the broader society known as the Western Desert Cultural Bloc (WDCB). A binding concept of the WDCB is the Tjukurrpa (‘dreaming’ or ‘law’). It is the central feature of the claimants’ belief system, expressing their understanding of ‘all that is’. Tjukurrpa is the source of the laws and customs to which the claimants adhere. It governs every aspect of their lives, including their religious practices, social rules and systems of land tenure.

Charlesworth J was satisfied that all of the preconditions for the making of an order under s 87 of the NTA were met, and commended the parties at [33] for ‘the conciliatory and efficient manner in which this application for a determination of native title has progressed’. The Court made orders in terms consistent with the parties’ joint minute.

The applicant nominated Wakamurru (Aboriginal Corporation) (ICN: 8860) pursuant to s 56(2)(a) of NTA to hold the determined native title in trust for the native title holders.

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.

In this appeal proceeding North, Dowsett and Jagot JJ constituting the Full Court of the Federal of Australia made the following orders:

In WAD 217 of 2017 the Court ordered that (1) the appeal be allowed, (2) the determination contained in the orders given on 27 April 2017 be amended by (a) deleting miscellaneous licence L53/109 from Part 2, Schedule 4 of the Attachment ‘A’ and (b) inserting miscellaneous licence L53/109 into Part 1, Schedule 4 of attachment ‘A’ and (3) each party pay its or their own costs of the appeal.

In WAD 218 of 2017 the Court ordered that: (1) the appeal be allowed, (2) the determination contained in the orders given on 27 April 2017 be amended by: (a) deleting miscellaneous licences L53/161 and L53/177 from Part 2 Schedule 4 of attachment ‘A’ (b) inserting miscellaneous licences L53/161 and L53/177 into Part 1, Schedule 4 of attachment ‘A’ (c ) removing from Schedule 5 that part of UCL 245 which is covered by exploration licence E57/676, (3) the cross appeal be dismissed, (4) each party bear its or their own costs of the appeal and cross appeal, (5) the appellant file and serve a consolidated determination, reflecting the orders in this matter and WAD 217 of 2017, within 14 days.

[1] After a 15 day hearing in July, August, October and December 2015 Mortimer J gave judgment in Narrier v State of Western Australia [2016] FCA 1519. In the course of doing so the appellants contend that her Honour erred in some respects.

[2] BHP Billiton Nickel West Pty Ltd contends that the primary judge erred in respect of one of the multitude of interests in the land which she was confronted being miscellaneous licence L53/109 relating to an access road. The primary judge held the BHP licence to be invalid because it had been granted without complying with the future act provisions of the Native Title Act 1993 (Cth) (NTA). The Full Court allowed BHP’s appeal on the basis that failure to comply with the future act provisions of the NTA does not affect the validity of the BHP licence.

[3] The State of Western Australia contends that the primary judge erred in respect of two other miscellaneous licences, L53/161 and L 53/177 which both relate to ‘search for groundwater’. The primary judge held these licences to be invalid future acts. The Full Court allowed the State’s appeal because the licences were valid future acts by operation of s 24HA of the NTA which provides for the management of regulation of water or airspace. 

[4] The State further contended that the primary judge erred in respect of an exploration licence, E57/676 granted under s 59 of the Mining Act 1978 (WA) in that her Honour ought to have found that this licence was a ‘lease’ for the purposes of the NTA and that as a result s 47B(1) could not apply to the area of land covered by E57/676. The Full Court allowed this aspect of the State’s appeal holding that E57/676 is a lease for the purposes of the NTA and thus the area which it covers cannot be subject s 47B NTA.

[5] The applicant for the native title claim group by way of cross appeal contended that the primary judge erred in finding certain areas of Crown land, referred to as UCL 239, UCL 14 and UCL 15, were not occupied by the claim group when the application claiming native title were made, which meant that s 47B did not apply to those areas of land. The Full Court dismissed this aspect of the applicant’s cross-appeal because: ‘her Honour made reasonably open findings of fact on the evidence, without any error of principle and in circumstances where her Honour had the substantial advantage of hearing the witnesses and viewing the relevant locations, with the consequences that the findings of fact are not amenable to appellate review.’ 

[6] The applicant also contended that the primary judge erred in not holding that s 47B of the NTA applied to ‘that part of UCL 11 in relation to which the condition of occupation was satisfied’. The Full Court held that this aspect of the applicants’ cross-appeal be dismissed because ‘it is founded on a misunderstanding of the applicant’s own case and her Honour’s findings.’

BHP Licence

[8] It was common ground before the primary judge and in BHP’s appeal that miscellaneous licence L53/109 (referred to as the BHP licence) was a future act that passed the freehold test but in respect of which the State did not comply with the requirements of s 24MD(6B) of the NTA.

[17] Section 24AA(4)(j) refers to s 24MD that provides for acts that pass the freehold test. The freehold test is provided for in ss 24 MA (legislative acts) and 24 MB (non-legislative acts) of the NTA. The BHP licence is a non-legislative act. By s 24MB(1)(b)(i) such an act passes the freehold test if ‘the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it.’ As noted, the BHP licence passed the freehold test and s 24MD applies.

[18] It was also common ground before the primary judge that s 24MD(6B)(b) (which refers to the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility…associated with mining) applied with the consequence that the State was required to comply with the notification and consultation requirements in s 24MD (6B)(c)-(g). In the primary hearing the applicant also attempted to submit that there was non-compliance with s 24MD(6A) however no such case was put in the appeal proceeding. Nor can the case be put on appeal as it would require BHP to have an opportunity to adduce further evidence.

[19] Section 24MD(1) refers to Subdivision P. Section 26 NTA specifies the future acts to which Subdivision P applies. The grant of the BHP licence is not identified in s 26 as an act to which Subdivision P applied because it falls within an exclusion in s 26(1)(c)(i) being a right to mine created for the purpose of construction of an infrastructure facility… associated with mining. Section 24OA provides that: ‘Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.’ 

[20] The Full Court concluded that the primary judges’ conclusion that the BHP licence was invalid because it was granted without compliance with s24MD(6B) was an error and that it follows from section 24MD(1) that the BHP licence is valid. [21] Whilst the primary judge concluded that the context of the NTA read as whole supported the contrary view the Full Court disagreed for nine substantive reasons.

[22] First s 10 NTA recognises and protects native title ‘in accordance with this Act’. The provisions of the NTA and the objects specified in s 3(a) to provide for the recognition and protection of native title and s 3(b) to establish ways in which future dealings affecting native title may proceed set the standards for those dealings and how they may be achieved. They are not to be achieved other than in accordance with the provisions of the NTA. 

[23] Second ss 24AA (2) and (4) both use the concept of ‘covered by’ as the criterion for validity. Thus, a future act will be valid if it is ‘covered’ by the nominated provisions, which includes s 24MD. The Full Court agreed with BHP’s submissions that: to be ‘covered by’ a provision means no more than that the particular act in question is an act of the class to which any of the listed sections in s 24AA(4) apply. The Full Court found that contrary to the applicant’s submission there is a difference between s 24AA(5) and (6). Section 24AA(5) identifies that for certain acts to be valid it is necessary to satisfy subdivision P. ‘Section 24AA(6) states that the Division ‘also deals with procedural rights and compensation for the acts.’ The Full Court found that it is apparent that the procedural rights in Division 3 are not said by s 24AA(6) to condition validity and that the requirements of Subdivision P, by contrast are said by s 24AA(5) to condition validity.

[24] Third the Full Court concurred with BHP’s description of the categories of future acts and the statutory scheme thereby established set out in this paragraph in summary:

Subdivision F-N of Part 2 covers various future acts and validation on 3 levels:

future acts that are likely to have the least impact on native title are validated without conditions or further requirements (other than payment of compensation)
future acts that are likely to have a greater impact on native title are validated and an associated notification regime is imposed (Subdivision JAA, Subdivision KA and Subdivision M for example)
two species of future acts that have the greatest impact on native title because they involve a right to mine (or certain types of compulsory acquisition) are validated subject to compliance with the right to negotiate in Subdivision P.

BHP argued that ‘This three-fold classification evinces a legislative intention that future acts that do not involve rights to mine will not be invalidated by a failure to adhere to procedural requirements.’

[25] Fourth the language of the provisions is internally consistent. Thus s 24MD(1) NTA states that if Subdivision M applied to a future act then, subject to Subdivision P, the act is valid. The same structure is evident in a number of other provisions including: s 24GB(5), s 24HA(3), s 24ID(1), s 24JB(1), s 24KA(3), s 24LA(3), s 24LA(3), s 24NA(2).

[27] Fifth the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA – management and regulation of air space and the associated notification requirements. Importantly the Full Court notes that a failure to notify under that regime ‘will not affect the validity of the future act’…‘There is no discernible difference between this provision and other procedural provisions in Div 3 of Pt 2 of the NTA.’

[29] Sixth the role of s 24OA in the statutory scheme is apparent from s 24AB particularly s 24AB(2) which provides that: ‘To the extent that a future act is covered by a particular section in the list in paragraphs s 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.’ Sections 24FA to 24NA are part of a hierarchy. If an act is in an earlier provision it cannot be in a later provision. This is critical because the procedural and other compensation rights in the nominated provisions are different. Section 24 OA is a residual provision which immediately follows the last provision in the hierarchy, s 24NA.

[30] Seventh the text and structure of Subdivision M itself also supports the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in the invalidity of the future act. The Full Court stated that: ‘It is also apparent that the procedural requirements are not expressed to condition validity.’ Section 24MD(6) makes plain that the procedural requirements in ss 24MD(6A) and (6B) only apply if Subdivision P does not apply. The Full Court further stated that: ‘It cannot be said, as the applicant would have it, that such a consequence should be implied in ss 24MD(6A)-(8) because those provisions are a substitute for Subdivision P; the provisions constitute their own regime in respect of which the legislature has not provided for invalidity to the consequence of non-compliance.’

[31] Eighth the Full Court agreed with BHP’s submission that if ‘a failure to comply with the notification requirements in s 24MD96B) renders invalid the relevant future act, then the same must presumably be so of the other procedural requirements in Subdivisions F-N, since there is no meaningful distinction between them.’

[32] Ninth and again with the Full Court concurring with BHP’s submission:

‘A number of procedural requirements in Subdivision F-N afford native title holders or claimants procedural rights sourced outside the NTA. For example s 24MD(6A) gives native title holders the same rights they would have if they instead held ordinary title to land…There is no discernible legislative intention to invalidate future acts in the event that they are in breach of State and Territory laws over which the Commonwealth legislature has no control.’

[33] The Full Court concluded that ‘for these reasons the text, structure and context of the NTA do not support the primary judge’s conclusion about the consequences of non-compliance with these procedural requirements. In particular when the statutory scheme is considered as a whole the primary judge’s analysis of the function of s 24OA cannot be sustained.’

[34] The Full Court disagreed with the primary judge’s conclusion at [1034] that ‘s 24OA provides sufficient statutory indication of a legislative intention that compliance with procedural requirements is a precondition to a future act having force and effect against native title.’ For the reasons provided by the Full Court they asserted that s 24OA supports the contrary conclusion.

[36] The Full Court stated that whilst ‘Her Honour’s perceptions of unfairness are hardly ill founded’…‘the text and structure of the provisions, construed in context, all point to the legislature having intended precisely that which her Honour found objectionable.’ The Court also found that ‘there is some force in her Honour’s observations that the possible remedies of declarations and injunctions to restrain a future act which has not been the subject of the required notification and consultation is “wholly unsatisfactory”’. The Full Court asserted however that ‘the consequence of breach of statutory requirement is always dictated by legislative purpose alone.’ And legislative purpose is determined by reference to ‘the language of the relevant provision and the scope and object of the whole statute.’ See Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 at [388]-[391] citing Tasker v Fullwood [1978] 1 NSWLR 20 at [24].

[37] The Full Court asserted that ‘fidelity to the statute and to the principles of statutory construction, in which legislative purpose is identified from the terms of the legislation construed in context, demand a conclusion contrary to that of the primary judge…Here the scope and objects and context of the NTA as a whole support the conclusion, inescapable once the structure and language of s 24MD(6B) is considered, that the legislature did not intend that an act done in breach of s 24MD(6B) would be invalid.’ The Full Court could not distinguish as the primary judge had, the Full Court decision in Lardil Peoples v Queensland [2001] FCA 414 in so far as failure to comply with the notification and consultation requirements in the future act regime is not sufficient to invalidate the future act itself. See French J as he then was at [58]-[59]; Merkel J at paragraph [72] and Dowsett J at [117]-[120]

[38] The primary judge recognised that her construction was inconsistent with that of the Full Court in Lardil which had been followed by two single judges of the Court in Banjima People v Western Australia and others (No 2) [2013] FCA 868 and Daniel v State of Western Australia [2004] FCA 1388. Her Honour distinguished Lardil on two bases. Firstly, because the observations in Lardil were obiter dicta ([at 1003]) and secondly, as her Honour put it, ‘Lardil was not a case dealing with native title rights and interests which had been recognised as existing.’ The Full Court regarded this to be an error identifying the importance of the doctrine of precedent to the question of whether one Full Court should reconsider a previous Full Court decision: Transurban City Link Ltd v Allan [1999] FCA 1723.

[39] The Full Court in this appeal proceeding stated that ‘the obiter dicta in Lardil was fully reasoned’…‘and has been followed by two single Judges of this Court’, and therefore the characterisation of the reasoning as obiter dicta was not a proper foundation to depart from the Full Court’s construction. In the Full Court’s view the distinction that the primary judge drew between claimed and established native title was not supported by the NTA. The Full Court cited Lardil at paragraph [120]: ‘if invalidity is the consequence of the non-compliance with the procedural requirements, then that consequence applies to native title claims irrespective of their merits.’ [43] The Full Court found that the fact that the claim to native title in the present case had been established could not affect the question of construction and found the construction in Lardil to be correct.

[44] The Full Court also disagreed with the applicant’s submission that Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 supported the primary judge’s conclusion. The Full Court distinguished the decision in Forrest. In that case the failure to comply with the requirements for the granting of a mining lease under the Mining Act invalidated the mining lease based upon the reasoning in Project Blue Sky.

[45] The Full Court allowed BHP’s appeal and consequently the orders constituting the determination of native title made on 27 April 2017 required amendment to confirm the validity of the BHP licence.

Groundwater licences

[46] The primary judge dealt with miscellaneous licences L53/161 and L53/177 at [1098]-[1120]. Her Honour concluded that these licences were not future acts to which s 24HA(2) applied.

[47] It was common ground that each licence had been granted under s 91 Mining Act 1978 (WA) and regulation 42B(ia) of the Mining Regulations 1981 (WA) for the purpose of ‘search for groundwater.’ [53] By s 24HA(3) NTA such an act is valid.

[53] The primary judge observed at [1113] that by s 24HA(2) ‘the requisite connection must be between the legislation and the management/regulation of surface or subterranean water’. This was not in dispute. However at [1115]-[1119] her Honour concluded that, given s 91(6) of the Mining Act, the legislation requires the prescribed purposes to be ‘directly connected with the mining’ so that the prescription of water related purposes in the regulations also had to be directly connected with mining and thus did not satisfy s 24HA(2). At [1118] her Honour stated: ‘Section 24HA is concerned with the legislation (and administrative or executive acts authorised by the legislation) having a connection with water (in its usual sense as the State submits). It is not concerned with legislation (and administrative or executive acts authorised by the legislation) having a connection with mining.’

[54] The Full Court considered the distinction that her Honour had drawn between the Mining Act and the regulations to be unwarranted. ‘It is s 91 of the Mining Act together with the Regulations which constitute the relevant “legislation” under s 24HA(2), not the Mining Act as a whole. This is because, on the terms of s 24HA(2), the only relevant legislation is the legislation under which the future act has been granted.’ [55] In the Commonwealth v Grunseit [1943] HCA 47 at [82] Latham CJ said: ‘The general distinction between legislation and the execution of legislation is that the legislation determines the content of the law as a rule of conduct or a declaration as to the power, right or duty, whereas executive authority applies the laws in particular cases.’

[57] The issue is whether the legislation under which the future act was granted, wherever the legislation be found and whatever form it may take (Act, regulation, by law ordinance or otherwise) relates to the management or the regulation of identified matters. The Full Court found that if the grant of a lease, licence, permit or authority is under that legislation, s 24HA(2) applies. This construction of s 24HA(2) is supported by extrinsic material.

[58] The State pointed out in its submission that s 24HA was enacted as part of the substantive amendments in the Native Title Amendment Act 1998 (Cth). Point 8 of that 10 point plan was concerned with ‘the ability of governments to regulate and manage surface and subsurface water; off shore resources and airspace, and the rights of those with interests under any such regulatory or management regime would be put beyond doubt.’

[59] The Full Court said that the construction that it prefers accords with the language of s 24HA(2) and the legislative intention: ‘On that basis it matters not where the provision is located, what form it takes, whether it is embedded in laws dealing with other topics or stands alone, or whether it is part of a statute or delegated legislation. Provided the provision under which the future act is granted is legislation and relates to the management or regulation of water, s 24HA(2) is engaged.’

[62] The Full Court then stated that it is readily apparent that the miscellaneous licenses L53/161 and L53/177 were granted under legislation that relates to the management or regulation of subterranean water: ‘Together, s 91(1) and reg 42B(ia) are legislation that relates to the management or regulation of subterranean water because they authorise the grant of a relevant act under which the licence holder may search for groundwater…Legislation which provides for the grant of a licence to search for groundwater directly connected with mining is legislation which relates to the management or regulation of subterranean water.’

[63] It follows that in [1115] of her reasons the primary judge’s question whether the Mining Act related to surface or subterranean water ‘was not posed by s 24HA(2) as this section is not concerned with the character of the Mining Act.…It is only concerned with whether the future act was granted under legislation...Provisions which enable the grant of a licence authorising a search for groundwater directly connected with mining satisfy this description.’

[64] The Full Court allowed grounds one and two of the State’s appeal and held that miscellaneous licences L53/161 and L53/177 are valid by operation of s 24HA(3) of the NTA and the determination made by the primary judge was to be amended accordingly as part of the Court’s orders.

Exploration licence

[65] Although the State identified eight exploration licences granted under s 59 of the Mining Act, the State accepted that only one such licence (E57/676) is affected because the other exploration licences did not exist at the date of one of the claimant applications and the relevant time under s 47B NTA is ‘when the application is made’. The issue was whether contrary to the primary judge’s conclusion, an exploration licence under the Mining Act is a lease for the purposes of the NTA, including s 47B(1)(b)(i) NTA. If so, s 47B(2) NTA, requiring prior extinguishment of native title to be disregarded, cannot operate. 

[67] Division 3 of Part 15 of the NTA concerns leases. [70] If an exploration licence under s 59 of the Mining Act (WA) is a lease for the purposes of the NTA, including s 47B then by s 47B(1)(B)(i) the area the subject of the exploration licence is excluded from the operation of s 47B(1) and thus prior extinguishment under s 47B(2) cannot be disregarded.

[71] The primary judge dealt with the issue at paragraphs [1194]-[1210]. Her Honour held that: ‘Despite the definition given to the verb ‘mine’ in s 253, in my opinion the NT Act defines a mining lease more narrowly, even taking into account s 242(2). It looks to the use of the land, and requires that the land be used “solely” or “primarily” for mining. There is no evidence that the exploration licences in question permitted the licensee to use the land or waters they covered “solely” or “primarily” for mining.’

[72] The Full Court disagreed stating that:

The verb includes “explore or prospect for things that may be mined”. By s 253, this meaning must be given to “mine” in the NTA unless the contrary intention appears. It follows that cognate words such as “mining” are to be construed consistently with the word “mine” (s 18A of the Acts Interpretation Act 1901 Cth).

[76] The Full Court rejected the applicant’s argument that s 242(2) NTA operates only where the words ‘mining lease’ appears in the NTA so that s 47B(1)(b)(i) was not engaged by exploration licence E57/676. [77] The Full Court held that ‘the reference to “lease” in s 47B(1)(b)(i) thus includes any mining lease. And “mining lease” includes any licence to mine. And a licence to mine includes a licence to explore or prospect things to mine.’ The Full Court held that the primary judge ‘erred in concluding at [1207] that a “mining lease” involves a narrower concept than that of the defined verb “mine”.’ [81] For these reasons the Full Court accepted and allowed the State’s grounds of appeal 3 to 7, to the extent they relate to exploration licence E57/676.

Occupation in s 47B(1)(c) of the NTA

For s 47B(2) to apply s 47B(1)(c) requires that when the application is made one or more members of the claim group occupy the area.

[82] The applicant contended in their cross-appeal that the primary judge erred in her approach to s47B(1)(c) by ‘requiring that presence or activity in an area by members be coupled with proof of some further or other more specific sense of purpose or entitlement in order to demonstrate occupation of the area by that presence or activity and that presence or activity not be opportunistic [1236] – [1245]. According to the applicant this placed an unwarranted gloss on the statute that jars with the statutory text and context and fails to recognise that presence and activities are in the context of traditional law and custom.

[83] The Full Court disagreed with the applicant and held that the primary judge had not fallen into error: ‘The submissions for the applicant attempt to take observations in her Honour’s reasons out of context, elevate those observations to the level of principle and then attribute alleged errors of principle to her Honour. The Full Court upheld her Honour’s reasons at [1212] – [1232] as comprehensive and accurate. See paragraphs [83] – [87].

[88] The State submitted that proof of connection does not equate to proof of occupation. The Full Court ‘accepted that where there is a native title right of exclusive occupation that right to exclude strangers from the land indicates occupation, but this does not mean that any form of presence or activity on land establishes occupation (Moses v Western Australia [2007] FCAFC 78 at [216]). [89] The Full Court also set out in its reasons for judgment that the primary judge’s references to ‘opportunistic’ needed to be seen in context. See paragraphs [89]-[92].

[96] The applicant’s cross appeal that the findings of the primary judge with respect to UCL 14/15 (Tjiwarl) were not occupied by one or more members of the claim group as wrong was rejected by the Full Court. [97] The primary judge did not accept the occupation requirement with respect to UCL 239 at [1233]-[1239]. The primary judge accepted the occupation requirement for UCL 245 and UCL 246 and the Full Court concluded that appellate restraint was required because the primary judge observed more evidence with respect to UCL 245 and UCL 246 than she did with respect to UCL 239. The Full Court upheld her Honour’s findings – see paragraphs [98]-[100].

[101] With respect to UCL 14 and UCL 15 the primary judge’s findings were upheld and the applicant’s cross appeal rejected. [102] The Full Court upheld her Honour’s findings with respect to the BHP Billiton sign that had been erected with the involvement of the Aboriginal community to keep non-Aboriginal people out. The applicant asserted that Mr James was involved in the erection of the sign and therefore occupied the land, but the Full Court did not find in favour of the applicant in their cross appeal and argument on this issue. [104]-[106] The Full Court rejected any allegations of error on the primary judge’s part with respect to Mr Muir’s evidence.

[107] Their Honours further considered the applicant’s approach taken to the primary judge’s reasons ‘untenble’ with respect to the final ground for appeal relating to UCL 11 (Yakabindie Homestead). The Full Court upheld her Honour’s findings. [111] The Full Court stated that ‘The applicant never identified for the primary judge which part of UCL 11 was said to be the subject of s 47 B’ with such level of detail which is necessary. The Full Court further stated that: ‘It is apparent that the primary judge took the most beneficial view of the evidence as reasonably possible but was cofounded (sic) [confounded] by the fact that one way or another an applicant must identify the area it contends to be the subject of s 47B.

[112] The Full Court concluded stating that: having given the applicant the opportunity to make further submissions about the issue it was incumbent upon the applicant to give the primary judge sufficient information to a clearly articulated claim to UCL 11 and it did not do so: and on that basis the application for leave to amend was rejected as in the Court’s opinion it would be meaningless as it would still not be known which part of UCL11 was subject to s 47B.

[113] For the reasons provided the Full Court rejected the applicant’s cross appeal and the notice of contention was not pressed by the applicant and the Court felt no need to make comments upon the notice.

Barker J

In this matter, Barker J made a determination recognising the exclusive native title rights and interests of the Ngurra Kyanta people in relation to the Part B areas of the WAD410/2012 (Ngurra Kayanta) and WAD326/2015 (Ngurra Kayanta #2) applications. Both applications cover the same area of land and waters, with Ngurra Kayanta #2 filed to seek the benefit of s 47B of the Native Title Act 1993 (Cth) (NTA).

Ngurra Kayanta was filed in December 2012 and amended in May 2015. Ngurra Kayanta #2 was filed in June 2015. The Part A area was determined by consent in August 2016. The Part B applications were determined together pursuant to s 67(1) of the NTA. The parties to the Part B area were the applicant, the State of Western Australia, the Shire of Halls Creek and Central Desert Native Title Services Ltd.

On 10 December 2015, the Commonwealth intervened due to an issue regarding the entitlement by the State to compensation from the Commonwealth arising under s 53 of the NTA with respect to the application of s 47B to parts of Ngurra Kayanta and Ngurra Kayanta #2.

The only issue remaining between the parties was whether s 47B applied to the area. In May 2017, the Court found that it applied to disregard any prior extinguishment in relation to the whole of the determination area: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587.

The determination was proposed pursuant to s 94A and s 225 of the NTA to take effect once a prescribed body corporate is determined by the Court under s 56 or s 57 of the NTA. The applicant submitted that as all matters in controversy between the parties have been determined, either by way of admissions in pleadings or decision of the Court, the Court could proceed to make a determination of native title in accordance with ss 61, 81, 94A and 225 of the NTA. In the circumstances, the applicant submitted that it was unnecessary for the Court to consider whether s 87 or s 87A might also apply.

Barker J considered that Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859; Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3) [2010] FCA 1515; Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293; and Birriliburu People v State of Western Australia [2016] FCA 671 confirm the Court’s power to make a determination where all issues in the proceeding have been resolved by way of admissions in pleadings and the prior resolution of any outstanding issues. His Honour was satisfied that the determination sought by the applicant should be made. The issue of the applicability of s 87 or s 87A of the NTA was not agitated by the parties, and his Honour found it unnecessary to consider the question of the applicability of those provisions in the circumstances of the case.

The nature and extent of the native title rights and interests recognised are the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. Non-exclusive rights were recognised in relation to water.

The determination requires that the nomination of a prescribed body corporate occur within six months of the determination being made and, in the event there is no nomination, either a further extension of time for this to occur or the matter be listed for further directions.

Rares J

In this matter Rares J determined that the Yindjibarndi people hold exclusive possession native title rights and interests in relation to the claimed area, located in the Pilbara in north-western Western Australia. The area is directly south of the area over which the group holds non-exclusive native title rights and interests: Moses v Western Australia [2007] FCAFC 78 (Moses). Rares J held that it was not an abuse of process for the claim group to seek exclusive native title rights and interests in the claimed area, despite the earlier finding in Moses.

The claimed area comprises some areas over which there are current pastoral and mining leases as well as other areas, comprising the Yandeeyara Reserve and other unallocated Crown land. The pastoral leases are held by lessees of stations called Coolawanyah (that extends over the north-western boundary of the claimed area into the Moses land), Mount Florance (that also extends, to the east of Coolawanyah, over the mid-part of the northern boundary into the Moses land), Hooley (that is to the east and north-east of Mount Florance) and Mulga Downs (that is to the south-east of Mount Florance and extends over the southern boundary into Banjima country). The claimed area also extends in the north-east over the Mungaroona Range Nature Reserve 31429, the creation of which, the Yindjibarndi accept, extinguished native title in accordance with the decision in Western Australia v Ward [2002] HCA 28.[1]

Background

On 9 July 2003, this claimant application was filed. In it the applicant claimed, on behalf of the Yindjibarndi, that it is entitled to a determination of exclusive possession native title under s 225 of the Native Title Act 1993 (Cth) (NTA).

In Moses, the Full Federal Court of Australia made an amended determination of native title in respect of a large area of land to the north (the Moses land) of the claimed area (the 2007 determination). The Full Court amended the original determination that Nicholson J had made earlier on 2 May 2005 (Daniel v State of Western Australia [2005] FCA 536) (the 2005 determination). His Honour ordered there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi’s native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J published his substantive reasons for that determination in July 2003 in which he held that the Yindjibarndi held non-exclusive native title rights over the Moses land: Daniel v State of Western Australia [2003] FCA 666.

Three sets of respondents took an active role in these proceedings namely, the first respondent, the State of Western Australia, the second respondent, FMG Pilbara Pty Ltd, Fortescue Metals Group Ltd, and the Pilbara Infrastructure Pty Ltd which are all members of the Fortescue Metals Group (together FMG), and the sixth respondent, Phyllis Harris (née Todd), Lindsay Todd and Margaret Todd (the three individuals collectively are referred to in the judgment as ‘the Todd respondents’). Companies in the Rio Tinto mining group, Hamersley Exploration Pty Ltd and Robe River Mining Co Pty Ltd (the Rio parties), as well as Hancock Prospecting Pty Ltd and Georgina Hope Rinehart (the Hancock parties), and Yamatji Marlpa Aboriginal Corporation participated in the settling of the agreed issues in dispute before the trial and then adopted substantively the same position on those issues as the State.

The 2005 and 2007 determinations

In the proceeding that resulted in the 2005 determination, Nicholson J heard three separate, overlapping claims. The first was a combined claim made by both the Ngarluma people and the Yindjibarndi people, the second was a claim, that his Honour described as the Yaburara Mardudhunera claim, in respect of land and waters to the north of the Moses land and that has no present relevance, and the third was a claim made by a group that called itself the “Wong-Goo-TT-OO” (WGTO) applicant.

Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle. In the 2007 determination, the Full Court made some variations to the 2005 determination.

Relevantly, after the appeal, the 2007 determination provided that the native title rights and interests did not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others. The determination did not include any rights for the Yindjibarndi to control access to, or use of, land and waters in, or to take or use, for commercial purposes, the resources of, the claimed area. Importantly, in 2003 Nicholson J decided that the practice of seeking permission to enter onto Yindjibarndi lands was a matter of respect rather than in recognition of the right to control: Daniel [2003] FCA 666 at [292].

Issues

There were six issues for Justice Rares to address in these proceedings:

The exclusive possession issue – have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession?

Rares J heard from a number of Yindjibarndi witnesses and accepted at [69] that neighbouring groups including Banjima, Eastern Guruma and Nyiyiparli observed the practice of requesting permission to come on to Yindjibarndi country. Rares J also accepted the expert anthropologist report of Dr Palmer.

His Honour stated at [105]: ‘The imperative need to show that “respect” is and was a native title right or interest, under Yindjibarndi law and custom, broadly equivalent to the common law concept of trespass to land (and trespass to goods, if things be taken from the land and waters such as ochre or animals). That understanding demonstrated that the need to show such “respect” under Yindjibarndi laws and customs was in the nature of a real proprietary right equivalent to the common law right of exclusive possession, as did the ancient normative consequence that a transgression was punishable by death or spiritual harm. The Yindjibarndi had and continue to have a normative responsibility to care for and protect their country from unauthorised access to it by a manjangu.’

At [110] Rares J accepted that the evidence establishes a native title right of exclusive possession: ‘[f]or the reasons I have given, I am satisfied that those rights and interests include a right to control access equivalent to the right of exclusive possession in respect of the claimed area.’ Rares J rejected the counterarguments of FMG and the State at [118].

Rares J observed at [126] that: ‘The gradual evolution of law and custom, by adaptation and change, within a traditional system of laws and customs ordinarily will not entail that the society or group within which those laws and customs existed has ceased to acknowledge or observe the traditional laws and customs. Any society of human beings, over time, must adapt and change its social structures, including its laws and customs, to current or more modern conditions when changes in or to earlier conditions and circumstances occur. In doing so, the society can retain a coherence with its traditions, and remain recognisable, or it can transform radically.’

His Honour continued at [132]: ‘I am of opinion that such changes and adaptations, as the evidence reveals have occurred since sovereignty to the traditional laws and traditional customs, relating to a manjangu seeking permission from Yindjibarndi to access or conduct activity on Yindjibarndi country have not affected the essential normative character of those laws and customs or their observance at the present time. The right to control access that the Yindjibarndi assert is, in substance, the same as they have possessed continuously since before sovereignty under their traditional laws and customs.’

The extinguishment issue

In order for the each of ss 47A(2) and 47B(2) to operate to disregard prior extinguishment and preserve native title on particular parts of the claimed area, the Yindjibarndi had to firstly establish that none of the miscellaneous licence and each of the six exploration licences is a permission or authority under which the whole or any part of the land and waters covered by the particular licence ‘is to be used…for a particular purpose’ within the meaning of s 47B(1)(b)(ii) and, secondly, that one or more members of the claim group occupied particular land and waters at the time the application was made on 9 July 2003 within the meaning of ss 47A(1)(c) or 47B(1)(c) of the NTA.

Rares J found that the miscellaneous licence is a permission or authority and was excluded from the operation of s 47B. His Honour stated at [178] that ‘the parties did not address whether non-exclusive native title rights and interests in that corridor have ceased to subsist and, subject to any submissions to the contrary, I would infer that they continue to exist.’

Rares J found at [195] that ‘none of the five exploration licences gave any permission or authority that required any particular part of the licensed land, let alone the whole, to be used for a particular purpose: Western Australia v Brown [2014] HCA 8 at [63]. Each of the five licences gave the licensee an option to come onto, and do limited exploration on, one or more parts of the land, if and when it chose to do so.’ His Honour found at [197] that s 47B applies to the lands covered by the 6 licences and operates to preserve native title rights and interests in those lands and waters.

There were two further substantive issues in relation to whether the 2012 exploration licence extinguished native title. First, whether the grant of that licence was valid notwithstanding the failure of the State to give the applicant notice under ss 29(2)(b)(i), (7) and 32 of the NTA that the proposed act of granting the licence may have attracted the expedited procedure under s 32 of that Act. That question arises because ss 24OA and 28 had the effect that, ordinarily, a failure to comply with ss 29 and 32 of the Act rendered a future act invalid to the extent that it affected native title. Secondly, whether the grant of the 2012 licence is a valid future act or other interest for the purposes of s 225(d) of the Act and, if so, how it should be recorded in the determination of native title.

His Honour found at [216] that the State’s failure to give the Yindjibarndi notice in November 2011 in accordance with ss 29(7) and 32 of the NTA of its proposal to utilise the expedited procedure, rendered the 2012 licence wholly invalid pursuant to ss 24OA and 28(1)(c), to the extent that the 2012 licence affected the Yindjibarndi’s native title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [93] per McHugh, Gummow, Kirby and Hayne JJ.

In the event that his Honour’s conclusion and ruling as to the validity of the licence is wrong, or the 2012 licence does not affect the Yindjibarndi’s native title, Rares J also concluded at [226] that ‘there would be no inconsistency between the Yindjibarndi’s non-exclusive native title rights and interests and the rights of FMG under the 2012 licence.’

The occupation issue – have the Yindjibarndi established that one or more members of the claim group occupied the four parcels of unallocated Crown Land (UCL) within the meaning of s 47B(1)(c ) at the time the application was filed?

Rares J found at [265] that ‘the evidence of regular maintenance of the witnesses’ spiritual connection to Yindjibarndi country by the visits to it and the exercise of traditional rights, rites and practices, amounted to occupation of each of areas 1, 2, 3 and 4, as well as the Reserve, by one or more Yindjibarndi within the meaning of ss 47A(1)(c) and 47B(1)(c). That is because each such visit evinced substantively the individual Yindjibarndi visitor’s exercise of their traditional (and possessory) rights over not just the particular named place where they camped or attended, but also over both any on country routes that they used to get there and the whole of the surrounding locale where they believed the spirits with whom (or which) they were communicating were: Banjima People v State of Western Australia [2015] FCAFC 84 at [104]-[105].’ His Honour was also satisfied that one or more Yindjibarndi was or were ‘established’ in each of areas 1, 2, 3 and 4 and the Reserve in the sense explained in Moses at [216].

The abuse of process issue[2] – if issue 1 is answered in the positive, are the Yindjibarndi precluded from obtaining an exclusive possession determination of native title because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land?

In July 2015 the State brought an interlocutory application seeking further and better particulars from the applicant in relation to their witness statements. During that hearing, the State explained that it proposed to argue at the final hearing, set down to commence on country on 7 September 2015, that the Yindjibarndi were estopped from seeking, or would be engaging in an abuse of process if they sought to claim, an exclusive right to control access to the claimed area, in light of the determination of non-exclusive rights and interests in Daniel. Neither issue had been set out in the State’s contentions or the agreed issues, which had merely not admitted the existence of the asserted exclusive possession native title right. The State then filed a further interlocutory application seeking leave to amend its statement of contentions.

His Honour considered it in the interests of justice to grant leave to the State and FMG to amend their contentions as the issues raised matters of public importance in the administration of the NTA and in respect of the certainty of determinations of native title and land tenure under that Act [330]. Rares J noted that if the abuse of process issue been decided in favour of the State and FMG, his Honour would have asked for submissions as to why the Court ought not to order that each of the State and FMG pay the Yindjibarndi’s costs of the preparation of all their evidence on that question [331]-[332].

His Honour considered it ‘important to appreciate that a determination of native title under s 225 is essentially declaratory of what the Court has found to be the factual and legal position as to what interests exist in the determination area...A determination under s 225, and an application under s 13(1), do not themselves, or in some other way, initiate a process to create or extinguish native title or other rights or interests’ at [349]. The Native Title Act itself is structured on the basis that, by reason of the power to revoke or vary an approved determination of native title, such a determination is not necessarily final, even though, ordinarily, it will be [377].

Rares J further noted that the grounds for an application to revoke or vary an approved determination of native title in s 13(5) include not only that subsequent events have occurred that cause the determination no longer to be correct, but also that the interests of justice require such a variation or revocation [373].

Since the decision in Moses, the developing common law of native title led to the Full Federal Court of French, Branson and Sundberg JJ in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) finding that ‘if control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of native title rights and interests as exclusive’ at [127].

The evidence and argument before Nicholson J in Moses proceeded on an understanding of the facts and law that did not address the Full Court’s development or exposition of the law relating to the right to control access in Griffiths, decided nearly three months after the 2007 determination in Moses.

His Honour stated at [366] that ‘a determination under s 225 expresses a conclusion about rights and interests that exist over particular land and waters, but does not express any necessarily binding conclusion about the general rights and interests (including native title) of any persons with particular rights and interests in land and waters other than those the subject of the determination.’ At [368]: ‘Thus, a non-exclusive determination does not determine, necessarily, the content of the traditional laws and customs of a claim group so as to deny or preclude their recognition as supporting a claim to exclude others from, or control access to, different land or waters in respect of which no partial extinguishment had occurred…Accordingly, there would be no necessary inconsistency between two determinations of native title over different land and waters where the same claim group had exclusive rights over one determination area, but only non-exclusive ones over another. The inconsistency, would arise not because of a difference in the claim group’s acknowledgment and observance of their traditional laws and customs by which they had a connection with the land or waters in the two separate determination areas, but because of the governmental acts creating partial or complete extinguishment of native title in one of the areas but not in the other.’

Rares J concluded at [358]: ‘I am of opinion that in the particular circumstances of this matter it is not an abuse of the process of the Court for the Yindjibarndi to litigate their claim of a right to control access to, or exclude others from, the claimed area, despite the apparent inconsistency of that claim with pars 4(a) and 7(k) of the 2007 determination and Nicholson J’s factual findings that underpinned those paragraphs.

In relation to the issue estoppel question, FMG accepted that Rares J was bound to reject its argument by reason of the decision in Dale v Western Australia [2011] FCAFC 46 [355]. FMG could not rely on a finding in the proceedings before Nicholson J, to which it was not a party or a privy to a party, as creating an issue estoppel in this proceeding. Issue estoppel requires, as Dixon J said in Blair v Curran [1939] HCA 23, in a passage that French CJ, Bell, Gageler and Keane JJ described as a classic expression of the primary consequence of its operation (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]): ‘[a] judicial determination directly involving an issue of fact or of law [that] disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.’

The Todd issue – are the Todd respondents members of the Yindjibarndi claim group?

The Todd issue arose in a context that involved an internal division that emerged relatively recently within the Yindjibarndi people over whether they should co-operate with FMG developing and operating what is now the Solomon Hub mine. On one side were those opposed to co-operating with FMG, who had a voting majority within YAC (which held the Moses land on trust, under the 2005 and 2007 determinations) led by Michael Woodley, while on the other side were the minority within YAC, who, with FMG’s financial support, established Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) in 2010. Notably, so far as appeared in the evidence before His Honour, prior to the Todd respondents becoming involved in the circumstances described below, all the members of both YAC and WMYAC, many of whom were members of both corporations, were Yindjibarndi and recognised each other as Yindjibarndi. That is because each of YAC and WMYAC had a rule requiring that, to be a member of the respective corporation, a person had to be Yindjibarndi.

This proceeding involved earlier stages in the battle to control both YAC and those who comprise the applicant. The Todd respondents are part of a large family who would be entitled to be admitted as members of YAC if the Todd respondents succeed in establishing that they are Yindjibarndi persons. The votes of the Todd respondents’ family members would likely be decisive in bringing about a change of control of YAC and the claim group, as the WMYAC members have attempted, unsuccessfully, to do in the past.

Rares J did not find the Todd respondents to be part of the claim group. His Honour preferred ‘the evidence of the applicant’s witnesses to those called by the Todd respondents on the issue of whether the Todd respondents and their direct ancestors were, or were recognised as, Yindjibarndi’ at [504]. His Honour found it persuasive that none of the Yindjibarndi elders, or anyone else, in the authorisation meetings for both the present proceedings and those before Nicholson J ever suggested that the Todd respondents or their family were part of the claim group [515].

The relief issue – what other native title rights and interests are the Yindjibarndi people entitled and how should the native title holders be described?

The parties did not address any submissions about the way in which the Yindjibarndi’s native title rights and interests, other than those relating to their right to control access, should be described. Since his Honour’s finding that the Yindjibarndi have that right may affect the way in which the determination needs to be expressed, his Honour directed that the parties consult, if need be with the assistance of a native title Registrar, to prepare a draft determination. In the event that no agreement on those matters can be achieved, it will be necessary to have a further hearing. Rares J did not consider it appropriate to change the description of the persons holding the group rights comprising the native title from that used by Nicholson J and approved by the Full Court in Moses at [362] and [375], namely that: ‘“Yindjibarndi People” are Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.’

In light of His Honour’s finding that the Todd respondents are not Yindjibarndi, he considered that it may be best to make a declaration to that effect under s 21 of the Federal Court Act 1976 (Cth). However, it may be that such a declaration could be included under s 225(a) of the NTA. His Honour gave the parties the opportunity to consider this issue and, if need be, deal with it at a further hearing [519].

At [521], his Honour also noted that the parties should consider, before the making of any final order, whether there are errors of fact or issues that have not been considered. If there are, they should file brief submissions identifying those so that they can be addressed in order to avoid unnecessarily complicating any appeal.

[1] The mining interests are held by FMG, the Hancock parties and the Rio parties. FMG has an operating iron ore mine, known as the Solomon Hub mine, located in UCL 7 within the claimed area.

[2] Only the State and FMG pursued the abuse of process issue.

On 26 July 2017 the traditional owners of the north western part of Cape York Peninsula saw the Federal Court of Australia make orders that finalised three native title claims (QUD6158/1998, QUD392/2014, QUD780/2016) by consent. The three determinations are related to the extent that they recognise native title held by persons either comprising, or belonging to, the Northern Cape York Peninsula Regional Society.

On 29 October 1997, the Ankamuthi People lodged three separate applications with the National Native Title Tribunal (NNTT). By order of the Court on 21 July 1999 the three applications were combined to become application QUD6158/1998 (Ankamuthi People #1).

In 2014 the Court made orders determining the traditional rights and interests of the Northern Cape York #1 native title holding group constituted by the Angkamuthi Seven Rivers, the McDonnell Atampaya and the Gudang/Yadhaigana people: Woosup on behalf of the Northern Cape York #1 Native Title Claim Group (No 3) [2014] FCA 1148.

On 20 June 2014 a determination that native title exists was made by consent over the land and waters covered by the native title determination application QUD156/2011. On 30 October 2014 a determination that native title exists was made by consent over the land and waters covered by the native title determination application QUD157/2011.

The time frame within which this application was progressed to a proposed consent determination was short. The parties took less than one year to reach the position where they asked the Court to make orders under s 87 of the NTA. The respondent parties to the application are the State of Queensland, Cook Shire Council, Torres Shire Council, Old Mapoon Aboriginal Corporation, Alcan South Pacific Pty Ltd, RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited.

The determination area comprises part of Lot 8 on SP252492 north of the Ducie River and south of Palm Creek. The Court recognised the exclusive native title rights to possession, occupation, use and enjoyment of the area to the exclusion of all others, and in relation to water, the non‑exclusive rights to hunt, fish and gather from the water of the area, take and use the natural resources of the water in the area, and take and use the water of the area, for cultural, personal, domestic and communal purposes. The applicant relied on the provisions of s 47A of the NTA to disregard prior extinguishment to part of the DOGIT land held by the Old Mapoon Aboriginal Corporation. The Court in having regard to Dr Redmond’s reports, found that the requirement in s 47A(1)(c) that, at the time the application was made, one or more members of the claim group occupied the area, was satisfied. 

The determination area does not include any part of the land or waters which are subject to the agreement known as the Western Cape Communities Co-existence Agreement. The Court determined that the native title must be held in trust by the Ipima Ikaya Aboriginal Corporation RNTBC.

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.

North, Barker and White JJ

In this matter, North, Barker and White JJ considered whether the appellant, the Inman people native title claim group, should pay the costs of the first respondent, the State of Queensland in relation to the appeal brought on their behalf in Doyle on behalf the Iman People #2 v State of Queensland [2016] FCA 13.

On appeal, it was unsuccessfully argued on behalf of the claim group that s 8 of the Native Title (Queensland) Act 1993 (Qld) was invalid insofar as it purported to validate, with retrospective effect, the past extinguishment of native title over certain parcels of land in Queensland. The appellants sought to rely on the Metwally principle (University of Wollongong v Metwally (1984) 158 CLR 447) to argue that the extinguishing acts were invalidated by s 109 of the Constitution by virtue of their inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth), and it was not open to the State of Queensland to retrospectively validate those acts. North, Barker and White JJ dismissed the appeal, stating that the Metwally principle did not preclude the Queensland Parliament from enacting a law attaching legal significance to events in the past which had been invalid or ineffective at the time they occurred.

The State submitted that an order for costs should be made in its favour on the grounds that the appellant’s argument on appeal had been plainly untenable and by instituting and carrying on the appeal, the appellant had acted unreasonably and caused the State to incur unnecessary expense.

Their Honours determined that although in retrospect the case was not likely to be successful; they were not convinced that the appellant’s argument was so untenable that it was unreasonable for the appellant to pursue it. Their Honours noted that they were ‘conscious of the need to avoid the wisdom of hindsight when considering whether arguments on appeal which were unsuccessful should be regarded as untenable’ at [10]. The Court rejected the State’s submission that a passage in Gomeroi People v AttorneyGeneral of New South Wales (No 2) [2016] FCAFC 116 indicated that on an appeal, s 85A(1) of the Native Title Act 1993 (Cth) should be displaced and the ordinary rule that costs should follow the event should apply. The Court considered it appropriate that there be no order as to costs.