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

The High Court of Australia heard appeals in two related matters concerning native title claims over land in Western Australia. The first appeal, *Tjungarrayi & Ors v State of Western Australia & Ors*, involved native title claimants seeking to establish native title rights and interests over an area of land. The second appeal, *KN (deceased) & Ors on behalf of the Tjiwarl#2 Native Title Claim Groups v State of Western Australia & Ors*, also concerned native title claims by the Tjiwarl#2 Native Title Claim Group. Both appeals were brought against the State of Western Australia and other respondents.

The central legal issue before the High Court was the interpretation and application of the *Native Title Act 1993* (Cth), specifically concerning the determination of native title rights and interests in areas where pastoral leases had been granted. The court was required to consider the extinguishment of native title by the grant of a pastoral lease and the conditions under which native title rights might be recognised or preserved notwithstanding such grants. A key question was whether the extinguishment of native title by a pastoral lease was absolute or whether it could be qualified by the terms of the lease and the *Native Title Act*.

The High Court's reasoning focused on the nature of pastoral leases and their effect on native title. The Court affirmed that the grant of a pastoral lease, under the relevant Western Australian legislation, conferred exclusive possession of the land, thereby extinguishing native title rights and interests that were inconsistent with that exclusive possession. The Court clarified that the *Native Title Act* did not revive or preserve native title rights that had been extinguished by the grant of a pastoral lease prior to the commencement of the Act, unless specific provisions within the Act or the lease itself allowed for such preservation. The Court applied established principles regarding the extinguishment of native title by acts of government that are wholly inconsistent with the continued existence of native title.

The High Court allowed the appeals in part, finding that the native title claims, as advanced in relation to the areas covered by the pastoral leases, were not maintainable due to the extinguishment of native title by the grants of those leases. The Court's decision clarified the extent to which native title is extinguished by the grant of pastoral leases in Western Australia.