kN (deceased) and Others on behalf of the Tjiwarl and Tjiwarl#2; Tjungarrayi & Ors v State of Western Australia & Ors

The High Court of Australia heard an appeal concerning native title rights and interests in Western Australia. The appellants, represented by named individuals and others on behalf of the Tjiwarl and Tjiwarl#2 native title claim groups, sought to appeal a decision of the Full Federal Court. The respondents were the State of Western Australia and various other parties, including mining companies and pastoral lessees, whose interests were potentially affected by the native title claims. The core of the dispute revolved around the extinguishment of native title rights by past legislative acts and the nature of the rights that might have survived.

The High Court was required to determine whether the *Mining Act 1978* (WA) and the *Land Act 1933* (WA) had the effect of extinguishing native title rights and interests in relation to certain areas of land. Specifically, the Court had to consider whether the grant of mining tenements and pastoral leases under these legislative regimes constituted an exercise of sovereign power that necessarily extinguished native title, or whether native title rights could co-exist with or be partially preserved in the face of such grants. A further issue was the interpretation of the *Native Title Act 1993* (Cth) in relation to the extinguishment of native title by state legislation.

The Court's reasoning focused on the established principles of native title extinguishment, particularly in light of the High Court's previous decisions. It was held that the *Mining Act 1978* (WA), by authorising the grant of exclusive possession of land for mining purposes, had the effect of extinguishing native title rights and interests in those areas. Similarly, the granting of pastoral leases under the *Land Act 1933* (WA) was found to have extinguished native title rights to the extent that they were inconsistent with the rights granted to the pastoral lessees, particularly the right to exclusive possession. The Court affirmed that the *Native Title Act 1993* (Cth) did not revive extinguished native title rights, and that the extinguishment occurred at the time of the legislative authorisation and grant of the inconsistent rights.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court. The Court concluded that the native title rights and interests claimed by the appellants had been extinguished by the operation of the *Mining Act 1978* (WA) and the *Land Act 1933* (WA) in relation to the areas in question.