Tjungarrayi v Western Australia [2019] HCA 12

Between

Helicopter Tjungarrayi and Others (Appellants) and Western Australia and Others (Respondents) 

KN (deceased) and Others (Tjiwarl and Tjiwarl #2) (Appellants) and State of Western Australia and Others (Respondents).

Judges

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

Judgment 

The High Court held that the historical extinguishment of native title in this case was not permanent, because exploration tenements in portions of land covered by the native title claims were not leases in the meaning of s 47B of the Native Title Act 1993 (Cth) (the NTA).

Background

The Ngurra People and the Tjiwarl People both applied for native title in relation to parcels of unallocated Crown land. Some areas of this land were subject to petroleum exploration permits or mineral exploration licenses (Exploration Tenements). This meant that the native title in these areas was partially extinguished prior to the Native Title Act 1993 (Cth) (the NTA).

Extinguishment of native title is usually permanent. However, s 47B of the NTA says that historic extinguishment may be disregarded for interests in vacant Crown land that is still occupied by the native title claimants, except where this land is covered by a lease. 

Litigation History 

In this case, the High Court heard two appeals from decisions by the Full Court of the Federal Court. 

At first instance, the cases held that the Exploration Tenements were not leases within the meaning of s 47B, and so native title historically extinguished could be revived (BHP Billiton Nickel West Pty Ltd v KN (Deceased) (2018) 258 FCR 521; and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) (2018) 359 ALR.)

On appeal, the Full Court of the Federal Court reversed the decision in both cases, holding that the Exploration Tenements were leases for the purpose of s 47B. This decision was then appealed to the High Court.

Details of Judgment in the High Court

A majority of the High Court held that Exploration Tenements did not count as leases for the purpose of s 47B of the NTA. As a result, they do not prevent native title from being revived on vacant Crown land.

Kiefel CJ, Bell, Keane, and Edelman JJ began by explaining that the extinguishment of native title is usually permanent, but under s 47B of the NTA this may be disregarded in vacant Crown land, unless there is a lease.

For both the Tjiwarl and the Ngurra matters, parts of the claim area intersected with Exploration Tenements, so it was necessary to determine whether these tenements counted as leases and therefore extinguished the native title claims.

The majority looked to the plain and ordinary meaning of the word lease within s 47B of the NTA. They found that Exploration Tenements were not leases for the purpose of that section. 

Gageler J, in a separate judgment, also held that Exploration Tenements were not leases, while rejecting the appellants' argument that only a leasehold estate can prevent revival of native title.

Gordon J, in a separate judgment, analysed the legislation and its history and agreed that the Exploration Tenements were not leases. 

Nettle J held that the Exploration Tenements were not leases, even though no explicit mention of mining leases was necessary, because s 47B had no reference at all to mining leases. 

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