Tjungarrayi v Western Australia [2019] HCA 12: Leases and Extinguishment of Native Title

In a unanimous decision in Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (17 April 2019), the High Court of Australia has, allowed two appeals from decisions of the Full Court of the Federal Court of Australia relating to the validity of certain petroleum exploration permits and mineral exploration licences. 

Background

In this case, both appeals in question arise from native title claims in WA. 

The issue raised in Tjungarrayi & Ors v State of Western Australia & Ors (“Tjungarrayi”) was whether a petroleum exploration permit granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (“the Petroleum Act”) was a "lease" within the Native Title Act 1993 (Cth) (“the NT Act”) section 47B(1)(b)(i).  If it was a “lease”, then section 47B(2) of the NT Act, which requires prior extinguishment of native title to be disregarded, cannot operate. 
In KN (Deceased) and Others on behalf of The Tjiwarl and Tjiwarl No 2 v State of Western Australia & Ors (“Tjiwarl”) the same issue was raised in relation to a mineral exploration licence granted under the Mining Act 1978 (WA). 

Tjiwarl - Initial Proceedings

The first respondent (“the State of WA”) in Tjiwarl submitted that the definition of “lease” in the NT Act section 242 included licences and authorities to mine. By reliance on the definition of “mine” found in the NT Act section 253, it further submitted that a mining exploration licence is a “lease” for the purposes of the NT Act. Justice Mortimer did not accept that submission, considering that it did not give effect to the text of section 242(2), and instead finding that the NT Act defines a "mining lease" narrowly, looking to the use of the land, and requiring that the land be used “solely” or “primarily” for mining. There was no evidence in the case that the exploration licences permitted the licensee to use the land or waters they covered “solely” or “primarily” for mining, and they were not leases within the NT Act section 47B(l)(b)(i). See Narrier v State of Western Australia [2016] FCA 1519 (16 December 2016) and Narrier v State of Western Australia (No 2) [2017] FCA 104 (15 February 2017).

Tjiwarl - Full Federal Court

The Full Federal Court (North, Dowsett & Jagot JJ) disagreed in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL No 2) [2018] FCAFC 8 (1 February 2018). The Court considered that the scheme established by Part 15 Division 3 of the NT Act was clear, and that there was no reason not to give the word “mining”, wherever it appeared in Division 3, the meaning given to “mine” by section 253, which included “. . . to explore or prospect for things that may be mined”. Thus, when section 245 referred to a mining lease being ". . . a lease that permits land to be used solely or primarily for the purpose of mining”, the word “mining” was to be given the same meaning as “mine” in section 253. As a result, a lease that permitted the lessee to use land solely or primarily for exploring or prospecting for things that may be mined was a lease that permitted use of the land "solely or primarily for mining". 

To work out what “lease” and “lessee” meant in section 245, the Court looked to section 242(2) - "references to 'mining lease' include a licence issued or authority given" and section 243(2), in the case of a lease that is a mining lease because of section 242(2), the expression lessee means the person to whom the licence was issued or authority given and their successors.

In the Full Federal Court's view the contrary arguments did not confront the plain words of the statutory scheme and the legislative intention to treat all licences and authorities to mine as leases for the purpose of the NT Act was evident from that scheme. As was the legislative intention to treat the concept of a “mine” or “mining” as encompassing exploring or prospecting for things to mine - a legislative intention supported by the extrinsic material, in particular, the Supplementary Explanatory Memorandum, Native Title Bill 1993 (Cth).

Tjungarrayi - Initial Proceedings

The first respondent in Tjungarrayi, made similar submissions in relation to petroleum exploration permits. Justice Barker considered that the analysis provided by Justice Mortimer in Tjiwarl was not clearly wrong and that it should apply in this case, with the result that the petroleum exploration permits were held not to constitute a “lease” for the purposes of the NT Act section 47B(1)(b)(i). See Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (29 May 2017) and Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938 (15 August 2017).

Tjungarrayi - Full Federal Court

WA's appeal to the Full Federal Court (North, Jagot & Rangiah JJ) in Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta No 2) [2018] FCAFC 35 (16 March 2018) was heard after the Full Court handed down its decision in Tjiwarl ([2018] FCAFC 8). WA contended that Tjiwarl decided all issues with the consequence that the appeals should be allowed. The Full Federal Court held that Tjiwarl correctly reflected the scheme of the NT Act and the same reasoning that applied to mineral exploration licences in that case applied to the petroleum exploration permits in Tjungarrayi. The Court noted that in the NT Act section 253 , “mine” is also defined to include, “. . . extract petroleum or gas from land or from the bed or subsoil under waters”. Therefore, sub-paragraph (a) of the definition, where it refers to “. . . explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c))”, meant 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. The petroleum exploration permits satisfied this requirement because, being grants under the Petroleum Act section 38(1), they permitted 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”. 

Appeal to the High Court - Grounds

The ground of appeal in Tjiwarl was stated as:

• The Full Federal Court erred in holding that exploration licence E57/676 granted under the Mining Act 1978 (WA) is a “lease” within NT Act section 47B(1)(b)(i) . 

The ground of appeal in Tjungarrayi was stated as:

• The Full Federal Court erred in holding that each of petroleum exploration permit EP 451 and EP 477 granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) is a “lease” within NT Act section 47B(1)(b)(i).

The High Court's Decision

Both claim groups appealed to the High Court, by grant of special leave, [see Tjungarrayi & Ors v State of Western Australia & Ors; KN (Deceased) & Ors on behalf of the Tjiwarl#2 Native Title Claim Groups v State of Western Australia & Ors [2018] HCATrans 124 (21 June 2018)].

In a majority decision the High Court held that the extended definition of "lease" in the NT Act section 242(2) only applies where there is a textual reference to a "mining lease". Because the NT Act section 47B(1)(b)(i) contains no textual reference to a "mining lease", section 242(2) does not apply to that provision and accordingly, because the exploration tenements could be leases for the purposes of the NT Act only if, section 242(2) operated to produce that result, the majority decided that the exploration tenements were not "lease[s]" within the meaning of NT Act section 47B(1)(b)(i). See para [54] of Justice Gageler's judgment:

At paras [57] and [58] Justice Gageler said:

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Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (17 April 2019) and Summaries and Short Particulars

Tjungarrayi & Ors v State of Western Australia & Ors; KN (deceased) & Ors on behalf of the Tjiwarl#2 Native Title Claim Groups v State of Western Australia & Ors [2018] HCATrans 124 (21 June 2018)

Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta No 2) [2018] FCAFC 35 (16 March 2018)

BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL No 2) [2018] FCAFC 8 (1 February 2018)

Narrier v State of Western Australia [2016] FCA 1519 (16 December 2016) and Narrier v State of Western Australia (No 2) [2017] FCA 104 (15 February 2017)

Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (29 May 2017) and Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938 (15 August 2017)