NACL of 2002 v MIMIA

The High Court of Australia considered an appeal by NACL of 2002 (the appellant) against a decision of the Full Federal Court, which had affirmed a decision of a single judge of that court. The dispute concerned the appellant's entitlement to a grant of a mining tenement under the *Native Title Act 1993* (Cth) (the Act). The respondent, MIMIA, was the relevant state mining authority.

The central legal issue before the High Court was whether the appellant, as a native title claimant, had established a prima facie case that the grant of a mining tenement to another party would extinguish native title rights and interests in the area. This required the court to determine the proper interpretation of section 24MD(6) of the Act, which provides that a future act (such as the grant of a mining tenement) does not extinguish native title if it is done in accordance with the National Native Title Tribunal's (NNTT) approved future act regime, unless the act would extinguish native title rights and interests.

Callinan and Heydon JJ held that the appellant had failed to establish a prima facie case that the grant of the mining tenement would extinguish native title. Their Honours reasoned that section 24MD(6) of the Act operates as a gateway to the NNTT's future act regime. If the future act is one that would extinguish native title, then the protections afforded by the regime do not apply. The court found that the appellant had not demonstrated that the grant of the tenement would, in fact, extinguish native title rights and interests, and therefore had not satisfied the threshold requirement to engage the protections of the future act regime. The appeal was dismissed.