Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587

Central Desert Region, Pilbara

Between

Helicopter Tjungarrayi, Richard Yugumbarri, Frances Nangui, Rita Minga, Eugene Laurel, Darren Farmer, Sandra Brooking, Jane Bieundurry and Bartholomew Baadjo (Applicant)

State of Western Australia, Shire of Halls Creek and Central Desert Native Title Services Ltd (Respondents)

Attorney-General of the Commonwealth of Australia (Intervener) 

(WAD 410 of 2012)

Between 

Bobby West and Joshua Booth (Applicant)

State of Western Australia, Shire of Halls Creek and Central Desert Native Title Services Ltd (Respondents)

Attorney-General of the Commonwealth of Australia (Intervener) 

(WAD 326 of 2015) 

Judge

Barker J

Judgment

In Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (Ngurra Kayanta #2) Justice Barker determined the effect of two petroleum exploration permits, with regard to section 47B of the Native Title Act (1993) (Cth), on the Ngurra Kayanta People's claimed native title rights and interests over an area subject to two petroleum exploration permits.

Barker J held that petroleum exploration permits were not leases for the purpose of s 47B so that and therefore s 47B applied and the Ngurra Kayanta People's claim over the relevant area could be considered. 

Background 

On September 28 2006 and 20 April 2011, petroleum exploration permits were granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (PGERA) in the determination area [3]. 

On 30 June 2015, the original application for native title over the determination was filed [9]. On 10 August 2016, in Helicopter Tjungarrayi on behalf of Ngurra Kayanta People v State of Western Australia [2016] FCA 910 (Ngurra Kayanta), the parties agreed that no determination should be made yet regarding the areas subject to the permits granted under the PGERA (Part B).

On 18 October 2016 Barker J made orders by consent requiring the filing of statement of facts and issues, relevant documents and evidence [7] for a further hearing in relation to the Part B area. 

Details of Judgment

This hearing was to determine if section 47B of the NTA applied to the Part B area that was subject to the two petroleum exploration permits and which had been excised from the Ngurra Kayanta determination area.

Section 47B applies so as to disregard any prior extinguishment of native title where a claimant has made an application in relation to an area, at least one member of the native title claim group occupies the area, and the area is not: 

• covered by a freehold estate or a lease (s 47B(1)(b)(i)); or 
• covered by permission or authority under which the whole or part of the land or waters in the area is to be used for public purposes or for a particular purpose (s 47B(1)(b)(ii)).

The State of Western Australia argued that the exploration permits constitute a lease for the purposes of s 47B(1)(b)(i) of the NTA so that s 47B does not apply [3]. They argued that the provision was to be read with section 242(2) of the NTA, which defines the expression 'lease' to include a licence issued under a law of the Commonwealth, State or Territory [12].

The Attorney-General of the Commonwealth of Australia also contended that the  permits are covered by s 47B(1)(b)(ii) of the NTA because the area in question is to be used for a particular purpose, so s 47B does not apply [5].

Barker J noted that the State's arguments could be resolved by having regard to the text, context and statutory purpose of the NTA; they were not to be resolved by reference to broader conceptual or policy issues [54].

The State argued that the term 'lease' under s47B(b)(i), with reference to s 242(2), includes licences, authorities to mine, and exploration licences [12-20].

The applicant argued in contrast that the meaning of 'lease' in section 47B(b)(i) did not extend to include a mining lease [25]. 

Barker J also considered and followed Mortimer J's finding in Narrier v State of Western Australia [2016] FCA 1519 that exploration licences did not fall within the meaning of lease in s 47B(1)(b)(i) of the NTA [27-53].

The Attorney-General of the Commonwealth of Australia argued that s 47B(1)(b)(ii) applied to the area, because each exploration permit is subject to minimum work requirements with defined activities that must be undertaken in a particular timeframe and so in this way they are for a particular purpose [63-64].

The applicant argued in contrast that, per section 38(1) of the PGERA, the petroleum permits are authorised in accordance with the conditions to which they may be subject to [82-83].

Both permits were subject to conditions [84-89]. In Barker J's view these conditions nor the permits themselves do not require that any part of the Part B area be explored or used for the purposes or exploration [90]. Firstly, the permits extended beyond the Part B claim area, so even if there was a requirement to explore the authorised permit area there was no specific obligation that the activity occur within the Part B area [91]. Secondly, the Minister must give approval for the commencement of work in the area. His Honour therefore concluded that it cannot be said that land was to be 'used' under the exploration permits rather than under the Minister's approval [91-93].

Consequently, Barker J concluded that the exploration permits alone did not constitute permission or authorities falling within s 47B(1)(b)(ii) and therefore s 47B applied. 

Barker J then gave the parties the opportunity to suggest what formal orders he should make. The Attorney-General of the Commonwealth of Australia instead appealed Barker J's decision to the Federal Court of Australia Full Court in 2018, and an appeal of that decision was ultimately heard in the High Court of Australia in 2019. 

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