Fortescue Metals Group Limited & Ors v The Commonwealth of Australia

Fortescue Metals Group Limited and others (the applicants) brought an application against the Commonwealth of Australia (the respondent) in the High Court of Australia. The dispute concerned the validity of certain provisions of the *Native Title Act 1993* (Cth) and their purported application to the applicants' mining operations.

The primary legal issue before the High Court was whether the *Native Title Act 1993* (Cth), as amended, validly authorised the extinguishment of native title rights and interests in circumstances where the grant of a mining lease was made prior to the commencement of the *Native Title Act 1993* (Cth) but the mining operations themselves commenced after that date. Specifically, the court had to determine if the extinguishment provisions of the *Native Title Act 1993* (Cth) could operate retrospectively to extinguish native title rights that had not yet been recognised or asserted at the time of the legislative amendment.

Gummow J considered the principles of statutory interpretation and the nature of native title rights. His Honour analysed the legislative history and the express wording of the *Native Title Act 1993* (Cth), particularly sections 237 and 238, which deal with the extinguishment of native title. The court applied the principle that legislative provisions that extinguish fundamental rights, such as native title, must be construed with precision and clarity. His Honour found that the amendments to the *Native Title Act 1993* (Cth) did not have the retrospective effect contended for by the respondent, meaning that the extinguishment provisions did not apply to mining leases granted before the Act's commencement, even if operations commenced later.

The application was dismissed.