Native title update: movement on the future acts regime, prior extinguishment and ILUA registration

The first half of 2018 has been busy in the native title space, with important decisions on the consequences of noncompliance with procedural rights under the future act regime, and whether an exploration tenement will prevent prior extinguishment of native title being disregarded – an issue that is now bound for the High Court and which we will watch closely.

On a less contentious note, the Federal Court has also reaffirmed the prerequisites for registration of certified Indigenous Land Use Agreements (ILUAs) and the key bases for challenging that registration.

Is non-compliance with procedural rights under the future act regime fatal?

The Full Federal Court has held that in most cases a future act (such as the grant of a statutory licence or other authority) will be valid if it is "covered by" a provision of Part 2, Division 3 of the Native Title Act 1993 (Cth) (NTA). In other words, that failure to comply with the "procedural" requirements of those provisions, except in the few cases where validity is expressly conditioned on such compliance, will not result in the future act being invalid. The decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8 has thus reaffirmed the precedent created by the Full Federal Court in The Lardil Peoples v Queensland [2001] FCA 414.

At first instance (Narrier v State of Western Australia [2016] FCA 1519), the primary judge (having sought to distinguish Lardil on grounds ultimately rejected by the Full Court) had held a BHP licence was invalid because it had been granted without providing procedural rights mandated by Subdivision M of Part 2, Division 3 of the NTA. The Full Court allowed BHP's appeal, finding that the statutory scheme pointed to the grant of BHP's licence being valid, notwithstanding any noncompliance with the procedural requirements of section 24MD(6B) of the NTA, because the grant was "covered by" Subdivision M.

Incidentally, the primary judge had also held that two miscellaneous licences granted under the Mining Act 1978 (WA) for groundwater purposes were not future acts which were covered by section 24HA, which applies to a future act consisting of the grant of a licence under legislation that relates to the management or regulation of surface and subterranean water. The State of Western Australia appealed this finding.

In the opinion of the primary judge, section 24HA could not apply as the Mining Act is not legislation that relates to the management or regulation of surface and subterranean water. The Full Court clarified that the "legislation" that needed to deal with the required subject matter was the particular statutory provision under which the licence was granted, not the Act as a whole. As the particular provision related to the management/regulation of subterranean water, the licences were valid future acts under section 24HA(3), notwithstanding that the balance of the statute dealt with mining.

Two applications for special leave to appeal this case to the High Court were heard on 21 June 2018. Special leave was refused in relation to the future act issues on the basis that "there is no reason to doubt the correctness of the conclusion reached by the Full Court". Special leave was granted, however – for both this case and the decision we discuss in the next section – on the interpretation of section 47B of the NTA.

Do exploration permits prevent prior extinguishment being disregarded?

In Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2 [2018] FCAFC 35, the Full Federal Court has taken a novel approach in holding that, as petroleum exploration permits are "leases" for the purposes of the NTA, they prevent the prior extinguishment of native title being disregarded under section 47B(2) of the NTA.

This case was an appeal from a Federal Court decision which (applying Narrier) found that the exploration permits were not properly to be regarded as leases under section 47B(1)(b)(i) of the NTA. The State appealed this finding. Where section 47B applies to land, any prior extinguishment of native title must be disregarded, but the provision cannot apply to land that is "covered by a freehold estate or a lease". The question was whether the exploration permits were "leases" in the relevant sense.

The case was decided shortly after the BHP decision, in which the finding in Narrier had been considered and reversed.

In the Helicopter-Tjungarrayi decision, the Full Court noted that section 245 of the NTA defines a mining lease as "a lease … that permits the lessee to use the land or waters covered by the lease solely or primarily for mining". It is well-known that "mining" under the NTA is defined to include exploring or prospecting for things that may be mined, including petroleum. With this in mind, the Full Court identified a legislative intention to treat all authorities to mine as leases for the purpose of the NTA and found that, as an exploration permit is the authority that permits land to be used for petroleum exploration, it satisfies the section 245 definition of "mining lease". As the Full Court further found that the NTA regards mining leases as a species of lease, the Court found that land covered by a petroleum exploration licence was (for the purposes of section 47B(1)(b)(i)) covered by a lease.

That being the case, the Court held that the State's appeal regarding the exploration permits must be allowed, confirming that exploration permits prevent prior extinguishment being disregarded under section 47B(2) of the NTA.

It will be recalled that, in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (as in a host of previous decisions), the debate was whether exploration licences fell within the exception in section 47B(1)(b)(ii) i.e. were they permissions or authorities under which the licensed area is to be used "for a particular purpose"? One wonders (and doubts) whether Yindjibarndi (or any of those other cases) would have been decided differently had this novel approach of classifying exploration permits as a type of "lease" been argued.

As noted above, whether this new approach represents good law will ultimately be decided by the High Court, which has granted special leave to appeal the decisions in both this and the BHP case.

Registration of certified ILUAs: what are "all reasonable efforts"?

A future act will be valid if the parties to a registered ILUA consent to it. An application to register an ILUA must be either certified by all representative Aboriginal/ Torres Strait Islander bodies for the area (under section 203BE(5) of the NTA) or include a statement that all reasonable efforts have been made to ensure that all persons who hold or may hold native title have been identified, and all of the persons so identified have authorised the making of the agreement.

Bright v Northern Land Council [2018] FCA 752 was a judicial review application of a decision by the Registrar to register an ILUA which had received 19 objections from individuals who claimed that, despite holding native title in the ILUA area, they had not been identified as native title holders and had not authorised the ILUA.

The registration application had been certified. Nineteen objections were received during the three-month notification period that followed the making of the application. As none of the objectors satisfied the Registrar that the identification and authorisation requirements had not been met, the Registrar's delegate proceeded to register the ILUA.

One of the key issues in contention was whether all reasonable efforts had been made to ensure the identification of those who hold, or may hold, native title over the area. The Court held that whether "all reasonable efforts" have been made is a question of fact. In dismissing the application, Justice White recognised that, despite all reasonable efforts being made, there still might be some relevant persons who have not been identified. The question was whether the efforts had been reasonable, not whether there had been people who may hold native title who weren't identified.

This decision is the first of which we are aware dealing with a challenge, by way of judicial review, to the registration of a "certified" ILUA on grounds that include insufficiency of the efforts made to ensure that all actual and potential native title holders were identified. As such, the decision creates welcome precedent for this important area of the law.

Mark Geritz was recently named Native Title Partner of the Year and Projects, Energy and Resources Partner of the Year at the third annual Lawyers Weekly Partner of the Year Awards.