Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta #2) [2018] FCAFC 35

Central Desert Region, Pilbara

Between: 

(WAD 442 of 2017)

Attorney-General of the Commonwealth of Australia (Appellant) AND

Helicopter Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) State of Western Australia (Respondents) 

Between: 

(WAD 442 of 2017)

State of Western Australia (Appellant) AND

Helicopter Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2), Shire of Halls Creek, Commonwealth of Australia (Respondents)

Judges: North, Jagot and Rangiah JJ

Judgment 

The Full Court considered this appeal of Barker J's decision in Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (Ngurra Kayanta #2) which dealt with the question of whether section 47B of the Native Title Act (1993) (Cth) (NTA) applied to the Ngurra Kayanta People's claim over on an area where two petroleum exploration permits had been granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA). Barker J had held that s 47B did apply and the claim could proceed towards a determination being made in Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 3) [2017] (Ngurra Kayanta #3).

In this appeal the Full Court overturned Barker J's decision in Ngurra Kayanta #2 and that Barker J's orders for a determination of native title in Ngurra Kayanta #3 should be amended.

Background

In Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (Ngurra Kayanta #2), Barker J had concluded that section 47B of the Native Title Act 1993 (Cth) (NTA) applied to the claim on the grounds that petroleum exploration permits in the determination area did not constitute a 'lease' within in the meaning of s 47B of the NTA. 

Following Justice Barker's decision in Ngurra Kayanta #2, the Ngurra Kayanta People's native title was recognised in Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938.

Details of Judgment 

The Attorney-General of the Commonwealth of Australia and State of Western Australia Ngurra appealed Ngurra Kayanta #2 on the basis of BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (Tjiwarl), which had more recently decided that certain exploration licences granted under the Mining Act 1978 (WA) were leases for the purpose of s 47B of the NTA [46]. 

The State's appeal

Here, the State argued that the petroleum exploration permits over the area constituted a lease for the purpose of section 47B of the NTA.

The respondents conceded that Tjiwarl was not distinguishable, but submitted that the decision was wrong and should not be followed. The respondents also submitted that petroleum permits were not mining leases as defined by s 245 of the NTA and that the meaning of 'lease' in s 47B should not be extended to include petroleum permits.

The Full Court disagreed with the respondents, stating that the expanded definition of 'mine' in s 253 of the NTA is intended to mean 'explore or prospect for things that may be mined' [72]. Hence, the Full Court concluded that a permit to explore for petroleum is a mining lease for the purposes of the NTA [12]. 

The State's appeal was allowed, with Justice Barker's orders in Ngurra Kayanta #2 to be amended [26].

However, this decision was later appealed in the High Court in Tjungarrayi v Western Australia [2019] HCA 12, where it was reversed and Barker J's decision in Ngurra Kayanta #2 upheld. 

The Commonwealth appeal

The Commonwealth's appeal was based on the grounds that the permits satisfied the requirement within s 47B of the NTA that the land be used for a 'particular purpose'. The respondents in contrast submitted that because the permits were for exploration and did not require any physical works to be done to the land, they were not for a  'particular purpose' and did not satisfy s 47B of the NTA [30].

The Full Court, agreeing with the respondents, held that the permits could not be characterised as to be using the land for a particular purpose and dismissed the Commonwealth's appeal [35-39]. As was held in Banjima People v State of Western Australia [2015] FCAFC 84, an authority to do some act involving a use of land is not the same as a requirement that land 'is to be used' [37]. 

The State's appeal was allowed and the Commonwealth's dismissed. The Full Court overruled Barker J's decision in Ngurra Kayanta #2.

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