Exploration tenements and prior native title extinguishment – the High Court resets the relationship

Generally speaking, when native title rights and interests are extinguished, the extinguishment is permanent - the rights and interests do not revive even if the act that caused the extinguishment ceases to have effect.

However, the Native Title Act 1993 (Cth) (NTA) allows Courts, in certain circumstances, to determine that native title exists in relation to an area, notwithstanding the prior extinguishment of native title over the area; or to determine that native title claimants are entitled to exclusive native title in relation to an area, notwithstanding the prior partial extinguishment of native title over the area.

One such circumstance, set out in section 47B of the NTA, is where native title is claimed over particular areas that are occupied by members of the applicable native title claim group.  Under the NTA, however, this disregard of historical extinguishment cannot occur if the area in question is covered by particular interests, including freehold estates and leases.

In Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (Ngurra and Tjiwarl matters), the High Court of Australia ruled that the types of interests that could have this effect do not include mining and petroleum exploration tenements. 

In the Ngurra and Tjiwarl matters, the High Court collectively heard two appeals from the following Full Federal Court decisions:

• BHP Billiton Nickel West Pty Ltd v KN (Deceased) (2018) 258 FCR 521; and
• Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) (2018) 359 ALR 256.

The Full Court had held in both cases that mineral exploration licences and petroleum exploration permits were interests that were sufficient to prevent native title extinguishment from being disregarded - because such tenements were properly to be considered "leases" for the purposes of the NTA. 

In reversing this novel approach, the High Court made the point that, as the grant of a petroleum or mining exploration tenement would not extinguish native title rights and interests, Parliament is unlikely to have intended for the presence of such a tenement over an area to be able to prevent the revival of native title in relation to that area.

Disregarding prior extinguishment of native title

Under section 47B of the NTA, any (total or partial) extinguishment of native title rights and interests by the creation of a prior interest in relation to an area must be disregarded where:

• a claimant application is made; and
• when the application is made:
  • the area in question is not covered by, relevantly, a freehold estate or a lease, or by a Crown reservation, permission or authority under which the area is to be used for a public purpose or a particular purpose; and
  • members of the native title claim group occupy the area.

To illustrate, consider the case where the grant of a residential lease over an area 100 years ago has wholly extinguished native title in relation to that area.  Or the grant of a pastoral lease during the same period has extinguished those native title rights and interests in relation to the area that are inconsistent with the interests under the pastoral lease.  And then consider that the residential or pastoral lease has expired.

If a section 47B claim is then made as part of a claimant application, the total or partial extinguishment of native title that was brought about by the grant of the old residential or pastoral lease will be disregarded, and a determination that native title exists will be made, unless (for example) a new freehold estate or lease granted over the area was in force when the claimant application was made.

Issues in dispute and key considerations

The key consideration before the High Court in the Ngurra and Tjiwarl matters was whether Western Australian mining and petroleum exploration tenements were "leases" under the NTA, which therefore prevented the prior extinguishment of native title from being disregarded under section 47B.

Each of the Ngurra and Tjiwarl matters involved claimant applications being lodged over areas where acts of partial extinguishment that predated the enactment of the NTA had extinguished native title rights to exclusive possession of the claim area, but had not extinguished non-exclusive native title rights to access, use and remain on the area.  In both matters, the claimants argued that the prior partial extinguishment of native title should be disregarded, which would enable determinations of exclusive possession native title to be made.

The State argued against this result on the basis that the exploration tenements granted over the relevant areas were "leases".  (For reasons that are unclear, the State does not appear to have argued that the exploration tenements were permissions or authorities granted by the Crown under each of which the tenement area is to be used for a particular purpose.)

Leases under the NTA – is an exploration tenement within the scope?

Section 242(1) of the NTA defines the expression "lease" for the purposes of the NTA.  Section 242(2) then provides that "in the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a [Commonwealth, State or Territory law]".

The High Court disagreed with the Full Court's conclusion that section 242(2) operated to make a mining or petroleum exploration tenement (that is, a statutory licence or authority) a "lease" for the purposes of section 47B.  The High Court held that the use in section 242(2) of the words "in the case only of references to a mining lease" meant that the extended definition would only apply where a provision of the NTA deals with a "mining lease".  As section 47B(1)(b)(i) refers in terms only to a "freehold estate or lease", and not to a "mining lease", section 242(2) could not apply.

Case impact

The High Court did stress that, while the presence of a mining or petroleum exploration tenement might not prevent native title from reviving under section 47B, section 44H of the NTA still applied to ensure that rights under mining or petroleum exploration tenements would prevail over the revived native title rights and interests.

However, the decision is of relevance to the holders of resources tenements and other developers who, because native title did not exist at the date of the grant, did not have to proceed through any "future act" process, as a possible argument for suggesting that native title could not be revived has been removed.  This may mean that the resource tenement holder or developer will have to proceed through a future act process for subsequent renewals or additional approvals for the project that were not foreshadowed at the commencement of the project.  Therefore, as a result of this decision, extra diligence will be required in assessing areas where the extinguishment of native title may be disregarded.