kN (Deceased) and Others on behalf of the Tjiwarl and Tjiwarl#2 Native Title Claim Groups v BHP Billiton Nickel West Pty Ltd & Ors

The applicants, representing the Tjiwarl and Tjiwarl#2 Native Title Claim Groups, brought proceedings against BHP Billiton Nickel West Pty Ltd and others concerning native title rights and interests. The dispute arose in relation to certain areas of land and waters in Western Australia. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the native title holders had established, to the satisfaction of the court, that they held native title rights and interests in the determination area, specifically in relation to the extinguishment of those rights by the grant of certain mining leases. The court was required to consider the nature and extent of the native title rights claimed and the effect of the legislative provisions governing the grant of those leases on any pre-existing native title.

The High Court's reasoning focused on the interpretation of the *Native Title Act 1993* (Cth) and its interaction with the *Mining Act 1978* (WA). The court examined the evidence presented by the native title claimants regarding their connection to the land and the nature of their traditional laws and customs. Crucially, the court considered whether the grants of the mining leases constituted an act that necessarily extinguished native title rights and interests, or whether those rights could co-exist with the rights granted under the mining leases. The court applied established principles of native title law, including the test for proving native title and the criteria for determining extinguishment, considering the specific terms of the relevant legislation and the nature of the rights conferred by the mining leases.

The High Court dismissed the appeal, upholding the decision of the primary judge. The court found that the native title claimants had not established their native title rights and interests in the determination area, and that any such rights had been extinguished by the grant of the mining leases.