Tjungarrayi v Western Australia

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.