Tjungarrayi & Ors v State of Western Australia & Ors; KN (deceased) & Ors on behalf of the Tjiwarl#2 Native Title Claim Groups v State of Western Australia & Ors

[2018] HCATrans 124

[2018] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2018

B e t w e e n -

HELICOPTER TJUNGARRAYI AND JANE BIEUNDURRY AND RICHARD YUGAMBARRI AND FRANCES NANGURI AND RITA MINGA AND EUGENE LAUREL AND DARREN FARMER AND SANDRA BROOKING AND BARTHOLOMEW BAADJO AND JOSHUA BOOTH AND BOBBY WEST

Applicant

and

STATE OF WESTERN AUSTRALIA

First Respondent

SHIRE OF HALLS CREEK

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

Office of the Registry
  Perth  No P5 of 2018

B e t w e e n -

KN (DECEASED) AND OTHERS ON BEHALF OF THE TJIWARL AND TJIWARL#2 NATIVE TITLE CLAIM GROUPS

Applicant

and

STATE OF WESTERN AUSTRALIA

First Respondent

SHIRE OF LEONORA

Second Respondent

ALBION DOWNS PTY LTD

Third Respondent

MARILYN ANNE BERNHARDT AND COLIN LESLIE BERNHARDT (YOUNO DOWNS STATION)

Fourth Respondent

RANGEVIEW ASSET PTY LTD

Fifth Respondent

WEEBO PASTORAL COMPANY PTY LTD

Sixth Respondent

AGNEW GOLD MINING COMPANY PTY LTD

Seventh Respondent

BHP BILLITON NICKEL WEST PTY LTD

Eighth Respondent

BHP BILLITON YAKABINDIE NICKEL PTY LTD

Ninth Respondent

CAMECO AUSTRALIA PTY LTD

Tenth Respondent

MABROUK MINERALS PTY LTD

Eleventh Respondent

MPI NICKEL PTY LTD

Twelfth Respondent

TELSTRA CORPORATION LIMITED

Thirteenth Respondent

TEC DESERT NO 2 PTY LTD

Fourteenth Respondent

TEC DESERT PTY LTD

Fifteenth Respondent

CENTRAL DESERT NATIVE TITLE SERVICES LTD

Sixteenth Respondent

Applications for special leave to appeal

KIEFEL CJ
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 JUNE 2018, AT 9.50 AM

Copyright in the High Court of Australia

____________________

MR S.A. GLACKEN, SC:   If the Court pleases, I appear with MS F.A. NOONAN, for the applicant in matter P18/2018.  (instructed by Central Desert Native Title Services)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   If the Court pleases, I appear with MS C.I. TAGGART, for the first respondent, the State in both matters.  (instructed by State Solicitor’s Office (WA))

MR S.J. WRIGHT, SC:   If the Court pleases, I appear with MR M. O’DELL, for the applicant in matter P5/2018.  (instructed by Central Desert Native Title Services)

KIEFEL CJ:   Mr Solicitor, we would be assisted to hear from you first.

MR QUINLAN:   Can I take your Honours and refer to our submissions by reference to perhaps the Tjiwarl matter.  The relevant materials are in volume 2 of the joint application book for the Tjiwarl matter and our submissions are at page 704.  As we submit in those matters in terms of putting the issues in context, the issue in these appeals is not concerned with whether the relevant instruments, the exploration licence or the exploration permits extinguish native title or whether they confer rights and interests that are inconsistent with the continued enjoyment of native title.  Plainly, they do not.  We are only concerned with the issue of statutory construction in relation to the definitional provision.

It is for that reason, in our respectful submission, can I just note in passing why the alleged impact of the Full Court’s construction by reference to the affidavit material filed by the applicant in P4 is unhelpful, because the decision cannot have any impact where an exploration licence is granted over an area where there is already a determination or where there is already a claim because those are future acts in relation to which the non‑extinguishment principle applies.

The application of section 47B, which is the particular focus of the submissions by the applicants, is dependent, as we note, upon a range of conditions being satisfied as at the particular date, being the date that the application is filed.  Indeed, in terms of the utility of that factual information it is apparent, as was the case in the Tjiwarl Case itself, that as a result of changing land tenures native title claimants can and do take advantage of those provisions by making subsequent applications in relation to areas not covered by the original application where the tenure situation changes.

KIEFEL CJ:   I think it put against you that textually section 47B(1)(b)(i) refers only to a lease, not a mining lease, and that what the Full Court has undertaken is to use the word mining “lease” extended by section 242 and then read that into 47B(1)(b)(i).

MR QUINLAN:   Yes, and in our respectful submission, the crux of the conclusion made by the court is that when one applies the definitions of “lease” as it appears in the legislation which in the case of mining leases includes permits or other authorities, that in essence – and I will take your Honours to the provisions in a moment – “lease” is a set which includes as a subset mining leases.

EDELMAN J:   That is not quite right, is it?  The way it works is there is a definition of “lease”, then there is a sub‑definition of what happens when there are “references to a mining lease”, and then there is a definition of “mining lease” which operates for the purpose of the sub‑definition of “references to a mining lease”.  So you cannot skip the intermediate step.

MR QUINLAN:   No, and we do not seek to skip the intermediate step.  Can I take your Honours to the provisions themselves?  They are perhaps best set out in application book pages 723 to 724 and the relevant provisions commence with section 241 which appears on application book 723 and it is dealing with definitions relating to leases.  Now, the first point that the Full Court made in relation to the definition of “lease” and the expanded definition in section 242(2) is that that is not a definition provision of the words “mining lease”.  It is a definitional provision of the expression “lease”.  So that, in the case of references to “mining leases”, the expression “lease” includes licence or authority.

Now, our learned friends place emphasis on the words in the case only of references as if the subsection was saying the expression “mining lease” includes licences issued or authorities given.  But that is not the way the section is structured.  The section is structured to focus on the word “lease”, and when one turns to the other provisions of the Act as a whole, it is apparent that “lease” on its own is used to include mining lease in that expanded sense throughout the Act.  So, for example, if your Honours go to section 243, which is at the top of the next page, subparagraph (2):

In the case of a lease that is a mining lease because of subsection 242(2) –

So, clearly the first use of the word “lease” in that subsection is using it as a set which includes as a subset the expanded reach of the word “lease”.

EDELMAN J:   But when will something be because of subsection 242(2)?  In other words, what operation is to be given to the words “In the case only of references to a mining lease”?  What operation does that first part have?

MR QUINLAN:   The operation that that part has is that it is only in relation to leases conferring or instruments conferring a right to mine which includes explore that the provisions of the Act dealing with leases will include those matters.

EDELMAN J:   But you get that from the definition of “mining lease” in 245(1).  You would not need to say “in the case only of references to a mining lease”.  It is a very odd expression.

MR QUINLAN:   You would not get that from 245(1), your Honour, for this reason.  The effect of 242(2), the purpose of it, in my respectful submission, is to reflect the fact that under the various legislation in States and Territories, instruments conferring rights to mine are called different things.  Sometimes they are called leases, as in the case of a mining lease.  Sometimes they are called mining permits or mining authorities.  The purpose of the section is to make clear that, whatever it is called, whether it is called a lease, a licence, an authority, a permit, for the purposes of the Native Title Act it is a lease because otherwise ‑ for example, if I took your Honour to 245:

A mining lease is a lease . . . that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

If one took an instrument under a State law that was called an authority to do all of the things that a mining lease under Western Australian law can do, that definition would not apply to it, so that all the other provisions of the Act in relation to leases and mining leases would not apply to that.  So that one reads “lease” as it appears the second time in 245 to include licences issued, authorities given, et cetera.

EDELMAN J:   Why would that explanation not be picked up by 242(c), that in other words the descriptions of a licence under the law of a State or Territory as a lease would be picked up by that subprovision?

MR QUINLAN:   It in fact works the other way around, so that 242(1)(c) – is that the provision that your Honour is referring to?

EDELMAN J:   Yes.

MR QUINLAN:   That is where under the State or the Commonwealth or the Territory law a thing is referred to or described as a lease.

EDELMAN J:   Yes.

MR QUINLAN:   One needs nothing more. But something which is a mining permit, for example, under the Petroleum Act, is not described as a lease for the purposes of State law. It cannot fall within the definition of “lease” within the meaning of 242(1). It could not fall in the definition of “lease” within the meaning of 245 without the Act having said that in that context “lease” means “licence”, et cetera.

In fact, in my respectful submission, insofar as 242(1)(c) has work to do in this case, it reinforces the conclusion of the Full Court because, for the purposes of the Native Title Act licences and authorities are declared to be leases, and so the expression “lease” on its own includes:

anything that . . . for any purpose, by a law of the Commonwealth . . . [is] declared to be or described as a lease.

So, if it were needed, in our respectful submission, that picks up the fact that “lease” throughout the Act is used as a set which includes as a subset “mining lease”, which itself includes as a subset authorities or other permissions.

KIEFEL CJ:   Mr Solicitor, the discussion this morning, like the decisions below, might be thought to point out the fact that there are differences, there could be differences of opinion about the construction of these provisions.  I noticed that in your outline in your argument it is not suggested that the resolution of these differences is not important to native title law and questions of certainty about these issues.  You have really rested your submission upon the fact that the Full Court should be taken to have applied ordinary principles of construction.  That does not overcome the fact that there are difficulties of construction attending these provisions.

MR QUINLAN:   We say, in our respectful submission, that the Court below and the judgments of the courts in both matters properly resolves those construction issues without the need for this Court to intervene because it does not raise a broader construction issue in relation to the matter.  In fact ‑ ‑ ‑

KIEFEL CJ:   I suppose the point is that ordinary processes of construction can point up different outcomes. 

MR QUINLAN:   Yes, they can and, in our respectful submission, in terms of resolving using ordinary principles of construction a matter of construction such as this, that is, properly been done by the Full Court in these two matters which does not require intervention by this Court.  The ultimate outcome, in our respectful submission, that is contended for is, in effect, that as we pointed out and as the judgment points out, replete through the Act are references to “a lease (other than a mining lease)”, where it is clear throughout other parts of the Act that “lease” as a term is intended to encompass what the Act defines as included in a mining lease except for section 74 – 47B.

In our respectful submission, the fact that the conclusion reached by the court is the one which is most consistent with the context of the Act as a whole in using mining lease as a subset of lease points to the resolution of the matter having been properly and correctly dealt with by the court.  If your Honours please.

KIEFEL CJ:   There will be a grant of special leave in this matter.  What do the parties estimate in terms of time?

MR GLACKEN:   Your Honours will appreciate there are the two related matters, P5 and P18.

KIEFEL CJ:   Yes, I am sorry, in both matters, P5 and P18.

MR GLACKEN:   We would estimate that each…..subject to any intervention, the Commonwealth might intervene as a right, which the Commonwealth can, but even then I think it is comfortable that it is a one‑day matter.

KIEFEL CJ:   It is a relatively short point.  Would you agree Mr Solicitor?

MR QUINLAN:   Both matters easily within one day, your Honour.

KIEFEL CJ:   Yes, thank you.  Would the parties please ensure that their instructors obtain a copy of the directions from the Deputy Registrar, Ms Musolino.

AT 10.05 THE MATTER WAS ADJOURNED