BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8

Western desert region, Western Australia

Between: BHP Billiton Nickel West Pty Ltd (Applicant) and KN (deceased) and Tjiwarl and Tjiwarl #2 (First Respondent), the State of Western Australia (Second Respondent), and the Shire of Leonora (Third Respondent) 

Judges: North, Dowsett and Jagot JJ 

Judgment: 

The Court allowed the appeal of BHP Billiton Nickel West Pty Ltd (BHP Billiton) against findings by Mortimer J at first instance that a number of licences granted by the State of Western Australia were invalid. These licences permitted the use of land and water within a large area of land over which the Tjiwarl People were recognised to have native title (see Narrier v State of Western Australia [2016] FCA 1519). 

The Court also dismissed a cross-appeal filed by the Tjiwarl People in which they argued that Mortimer J was wrong to find that certain parts of the determination area was vacant Crown land as per s 47B of the Native Title Act 1993 (Cth) (NTA) and, therefore, not subject to a native title claim. 

Background: 

This case is an appeal of Mortimer J's decision in Narrier v State of Western Australia [2016] FCA 1519. In that case, her Honour recognised the Tjiwarl People's native title rights and interests over a 13,600 square km area of land in the Western Desert region of Western Australia [1].  

Justice Mortimer also held that several licences granted to BHP Billiton by the State of Western Australia, which allowed them to use the land and waters within the determination area claimed by the Tjiwarl People, were invalid for the purposes of s 24HA of the NTA [3]-[4].

Details of the Judgment: 

BHP Billiton's Miscellaneous Licence

Justice Mortimer found that a miscellaneous licence granted to BHP Billiton by the State was an invalid future act under s 233 of the NTA. The miscellaneous licence allowed BHP Billiton to access a road located within an area of land the Tjiwarl People were determined to have native title rights and interests over [2].  

In the Full Court of the Federal Court, BHP Billiton successfully argued that Mortimer J was wrong to hold the miscellaneous licence to be an invalid future act because it met the requirements of the freehold test in s 24AA (Subdivision A) of the NTA [8]. 

On this basis, the Court held that the miscellaneous licence was not an invalid future act for the purposes of the NTA [2]. 

The Groundwater Licences 

Justice Mortimer held that two licences granted to BHP Billiton which allowed them to conduct groundwater searches within the determination area claimed by the Tjiwarl People were invalid future acts under s 233 of the NTA [3].  

The State of Western Australia successfully argued that the groundwater licences were valid under the NTA because of s 24HA(2), which legitimises future acts concerning licences which allow access to—and the taking of—water [3].  

The Full Court held that the exception in s 24HA(2) of NTA applied to the groundwater licences [3], and overturned Mortimer J's decision o nthis point. 

The Exploration Licence

Justice Mortimer held the exploration licence, granted to BHP Billiton by the State under s 59 of the Mining Act 1978 (WA), was invalid under s 47B(1) of the NTA [4].

The State contended, and the Federal Court on Appeal agreed, that Mortimer J should have found this licence to be a lease under the NTA and, therefore, not subject to the restrictions in s 47B(1). 

The Cross-Appeal: 

The Tjiwarl People argued that Mortimer J erred in finding that they did not occupy certain parts of the determination area when they made their native title claim. Her Honour held that those areas were vacant Crown land as defined in s 47B of the NTA and not subject to native title [5]. 

This argument was dismissed by the Full Court, which held that Mortimer J based her decision on reasonably open findings of fact, based on evidence, without any error of principle, and in circumstances where her Honour had the substantial advantage of hearing the witnesses and personally viewing the relevant locations.

Consequently, the Court held that Mortimer J's findings were not amenable to appellate review [5]. 

The Tjiwarl People also contended that Justice Mortimer erred in not holding that s 47B of the NTA applied to the portion of the land in the determination area in which the conditions of occupation were satisfied [6].  

This argument was also dismissed by the Full Court on appeal on the basis that it was based on a misunderstanding of the respondents' own case as well as her Honour's findings [6]. 

Conclusion

The Full Court held that Justice Mortimer erred in finding that several licences granted to BHP Billiton were invalid future acts under the NTA.

Conversely, they upheld her Honour's finding that certain parts of the determination area were vacant Crown land based on the evidence and, therefore, were not subject to a determination of native title [1-5]. 

Related Entries