KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No P37/2018
HELICOPTER TJUNGARRAYI & ORS APPELLANTS
AND
STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS
Matter No P38/2018
KN (DECEASED) AND OTHERS (TJIWARL AND TJIWARL #2) APPELLANTS
AND
STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS
Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia
[2019] HCA 12
17 April 2019
P37/2018 & P38/2018
ORDER
Matter No P37/2018
1. Appeal allowed.
2.Set aside the orders of the Full Court of the Federal Court of Australia made on 16 March 2018 in proceeding WAD 444 of 2017 and, in their place, order that the appeal to the Full Court be dismissed.
Matter No P38/2018
1.Appeal allowed.
2.Set aside orders 1 and 2(c) made by the Full Court of the Federal Court of Australia on 1 February 2018 in proceeding WAD 218 of 2017 and, in place of order 1, order that the appeal be allowed in part.
On appeal from the Federal Court of Australia
Representation
S A Glacken QC with S J Wright SC for the appellants in each matter (instructed by Central Desert Native Title Services)
J A Thomson SC, Solicitor-General for the State of Western Australia, with G J Ranson for the first respondent in each matter (instructed by State Solicitor's Office (WA))
Submitting appearances for the third respondent in P37/2018 and the third to tenth, twelfth, thirteenth and sixteenth respondents in P38/2018
No appearance for the second respondent in P37/2018 and the second, eleventh, fourteenth and fifteenth respondents in P38/2018
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia
Aboriginals – Native title rights – Extinguishment of rights – Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be "disregarded" for purposes of claim for determination of native title rights and interests over vacant Crown land – Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by "lease" – Where s 242(2) relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence ... or an authority" – Where native title claim groups sought native title determinations over land including parcels of unallocated Crown land – Where claim areas intersected with areas covered by petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) or mineral exploration licence granted under Mining Act 1978 (WA) ("exploration tenements") – Where native title right to exclusive possession had been extinguished – Whether exploration tenements were "lease[s]" within exclusion in s 47B(1)(b)(i).
Words and phrases – "declared to be or described as a lease", "disregarded", "extinguishment", "historic extinguishment", "in the case only of references to", "lease", "mineral…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Tjungarrayi v Western Australia
Sign in free to access the full text
Details
AGLC
Tjungarrayi v Western Australia [2019] HCA 12
Case
[2019] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals concerning the application of section 47B of the *Native Title Act 1993* (Cth) to native title claims over unallocated Crown land. The appellants, native title claim groups, sought determinations of native title over areas that intersected with petroleum exploration permits and mineral exploration licences. The central dispute revolved around whether these exploration tenements constituted "leases" for the purposes of the exclusion in section 47B(1)(b)(i), which would prevent the "disregard" of historic extinguishment of native title rights.
The primary legal issue before the Court was whether petroleum exploration permits and mineral exploration licences granted under Western Australian legislation were to be considered "leases" within the meaning of section 47B(1)(b)(i) of the *Native Title Act 1993* (Cth). This question was critical because if the tenements were "leases," then section 47B would not apply, and any historic extinguishment of native title would not be disregarded, potentially defeating the claims over those areas. The Court also considered the operation of section 242(2) of the *Native Title Act*, which defines "lease" to include certain licences and authorities in the context of mining leases.
The High Court reasoned that the exclusion in section 47B(1)(b)(i) applied if the area was covered by a "lease." While section 242(2) of the *Native Title Act* extends the definition of "lease" to include licences and authorities in the context of mining leases, this extended definition was not applicable to the exclusion in section 47B(1)(b)(i). The Court held that the exploration tenements were not "leases" for the purposes of section 47B(1)(b)(i) because the condition for the operation of section 242(2) had not been met in relation to that specific exclusion. Therefore, the historic extinguishment of native title was to be disregarded under section 47B.
The appeals were allowed. In one matter, the orders of the Full Court of the Federal Court were set aside, and it was ordered that the appeal to the Full Court be dismissed. In the other matter, certain orders of the Full Court were set aside, and it was ordered that the appeal be allowed in part.
Orders
Orders of the court
Matter No P37/2018
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 16 March 2018 in proceeding WAD 444 of 2017 and, in their place, order that the appeal to the Full Court be dismissed.
Matter No P38/2018
1. Appeal allowed.
2. Set aside orders 1 and 2(c) made by the Full Court of the Federal Court of Australia on 1 February 2018 in proceeding WAD 218 of 2017 and, in place of order 1, order that the appeal be allowed in part.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ
GAGELER J
NETTLE J
GORDON J
(dissent)
Whether the position is otherwise in relation to lands the subject of a mining lease in the narrower sense defined by s 245(1)[19] is an issue that need not be resolved for the determination of these appeals. The only question which needs to be decided is whether the exploration tenements are "leases" within s 47B(1)(b)(i). The exploration tenements in question are leases for the purposes of the NTA only where s 242(2) operates to produce that result, and, as has been seen, the condition of its operation has not been met in the case of s 47B(1)(b)(i).[19]cf Western Australia v Ward (2002) 213 CLR 1 at 162‑163 [299].Conclusion and orders The appeals should be allowed. In Matter No P37 of 2018, the orders of the Full Court of the Federal Court made on 16 March 2018 in proceeding WAD 444 of 2017 should be set aside, and in their place it should be ordered that the appeal to the Full Court be dismissed. In Matter No P38 of 2018, orders 1 and 2(c) made by the Full Court of the Federal Court on 1 February 2018 in proceeding WAD 218 of 2017 should be set aside, and in place of order 1 it should be ordered that the appeal be allowed in part. I agree with the orders proposed by Kiefel CJ, Bell, Keane and Edelman JJ and I agree with their Honours' construction of s 242(2) of the Native Title Act 1993 (Cth) ("the NTA"). I write separately to reject a logically anterior argument of the appellants concerning the construction of s 47B(1)(b)(i) and to address the reasons given by the Full Court of the Federal Court for its construction of s 242(2).Construction of s 47B(1)(b)(i) At its most ambitious, the appellants' argument is that the term "lease" in s 47B(1)(b)(i) is to be read in collocation with that section's reference to a "freehold estate" to connote only a leasehold estate in the land and so to exclude in its entirety the extended definition of "lease" in s 242. The argument is made by invoking the evidently intended beneficial operation of s 47B and is sought to be supported by the reasons expressed in Northern Territory v Alyawarr for preferring the narrower of two textually available constructions of the expression "public purposes" in s 47B(1)(b)(ii)[20].[20](2005) 145 FCR 442 at 494-495 [187]. The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively[21]. Application of that more general principle to the NTA is mandated by the requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that the construction of a provision of a Commonwealth Act that would best achieve the purpose or object of such an Act is to be preferred to each other interpretation. The principle assists in making constructional choices between competing interpretations that are textually available[22].[21]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at 270 [92]; [2016] HCA 50.[22]New South Wales Aboriginal Land Council v Minister Administeringthe Crown Lands Act (2016) 260 CLR 232 at 255-256 [32], explaining R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433, 435; [1984] HCA 14. See also R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 at 388-390; [1980] HCA 2.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ,
GAGELER J,
NETTLE J,