BT v NSW, BT v Telstra, NSW v BT

The High Court of Australia heard appeals in three related matters: *BT v NSW*, *BT v Telstra*, and *NSW v BT*. The central dispute concerned the extent to which the Commonwealth *Native Title Act 1993* (Cth) (NTA) extinguished native title rights and interests in relation to certain telecommunications infrastructure and associated land. The appellants, BT and Telstra, argued that the construction and operation of their telecommunications infrastructure, including underground cables and above-ground facilities, constituted acts that extinguished native title. The respondent, NSW, contended that the NTA did not extinguish native title in relation to these acts, or alternatively, that any extinguishment was limited.

The High Court was required to determine whether the grant of certain interests in land to BT and Telstra, and the subsequent construction and operation of telecommunications infrastructure, constituted "future acts" under the NTA. Specifically, the Court had to consider whether these acts were of a kind that would extinguish native title, and if so, whether the procedural requirements of the NTA had been met. A key issue was the interpretation of s 24GD of the NTA, which deals with the validation of certain future acts, and whether the acts in question fell within its scope. The Court also considered the nature of the rights and interests granted to BT and Telstra, and whether these were inconsistent with the continued existence of native title.

In their joint judgment, Gleeson CJ and McHugh J held that the grants of interests in land to BT and Telstra, and the construction and operation of the telecommunications infrastructure, were indeed "future acts" within the meaning of the NTA. They found that these acts were of a kind that would extinguish native title, as they involved the grant of rights to use and occupy land in a manner inconsistent with native title rights. However, the Court determined that the acts were validated by s 24GD of the NTA, as they were of a kind that would have been validly done under the *Radiocommunications Act 1992* (Cth) or state legislation if native title had not existed. The Court reasoned that the purpose of s 24GD was to validate such acts, even if they had not strictly complied with the NTA's procedural requirements, provided they were of a type that would have been lawful absent native title.

The High Court therefore allowed the appeals, finding that the native title rights and interests in question had been extinguished by the validated future acts.