2017 review

native title insight 16 May 2018 Native Title Year in Review 2017 - Validity of grants under the Native Title Act

Tjiwarl may go to the High Court

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Full Court resolves recent uncertainty surrounding the validity of grants under the Native Title Act, but High Court may yet hear the issue

BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCFCA 8 

The Full Federal Court has confirmed that failure to comply with the procedural requirements in certain provisions of the Native Title Act 1993 (Cth) in granting tenure and interests will not affect the validity of those grants (BHP Billiton Nickel West Pty Ltd v KN (Deceased) & Ors (Tjiwarl And Tjiwarl #2) & Ors [2018] FCAFC 8).  However, an application has been made for special leave to appeal to the High Court. 

Trial judge's decision in Tjiwarl 

During the trial of their native title claim in 2016, the Tjiwarl people challenged the validity of a number of mining tenures on the grounds that the State's failure to comply with certain future act procedures in the Native Title Act rendered the grant of those tenures invalid.  

This required the Court to decide whether compliance with the relevant future act procedural requirements in the Native Title Act is a pre-condition to a grant being valid for native title purposes. This issue goes to the core of the native title system in Australia and affected the grant of hundreds of interests over almost 20 years.  

In the first instance decision (Narrier v State of Western Australia [2016] FCA 1519), the trial judge held that an act will only be covered by the validating provisions of the Native Title Act if it meets the relevant description of acts to which the provisions can apply and all of the relevant procedures relating to those acts are complied with.  Accordingly, a number of licences (for roads, pipelines and power lines) were held to be invalid because of the State's failure to follow the applicable procedural requirements in the Native Title Act in granting those licences.

The trial judge also found that miscellaneous licences granted under the Mining Act 1978 (WA) to search for water were invalid because they were incorrectly granted by the State in reliance upon section 24HA of the Native Title Act, which applies to grants relating to water management and regulation. 

We reported on the trial judge's decision in our 2016 Native Title Year in Review.

Full Court narrows circumstances in which prior extinguishment can be disregarded 

On 1 February 2018, the Full Court (BHP Billiton Nickel West Pty Ltd v KN (Deceased) & Ors (Tjiwarl And Tjiwarl #2) & Ors [2018] FCAFC 8) upheld BHP's appeal of the trial judge's decision.  

The Full Court held that:

  • failure to comply with certain procedural requirements of the Native Title Act in granting an interest or tenure will not affect the validity of that grant; and
  • section 24HA of the Native Title Act has a wide operation and applies provided the legislative provision under which the grant is made relates to the management or regulation of water (it does not matter if the statute as a whole relates to other topics, such as mining).

The Full Court also made findings about the operation of section 47B of the Native Title Act, which we report on in our article Full Court narrows the operation of section 47B of the Native Title Act.

Operation of the Native Title Act: certainty is returned - it was as we thought after all

The Full Court provided a number of reasons why failure to comply with the procedural requirements in certain provisions of the Native Title Act will not affect the validity of a grant, including:

  • the relevant Native Title Act provisions are generally expressed to the effect that if an act (eg the grant of a tenement or licence) is "covered" by the provision, then it will be valid. They do not say "complies with" or "satisfies" the provision. The procedural requirements are then imposed in relation to those valid acts;  
  • the right to negotiate provisions are expressed quite differently. They provide that "if the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title". Those provisions expressly impose conditions for validity;  
  • the Explanatory Memorandum for the Native Title Amendment Bill 1997 (Cth), which introduced the procedural requirements, states that failure to notify under one of the relevant provisions "will not affect the validity of the future act"; and
  • the text, structure and context of the Native Title Act do not support the trial judge's conclusions about the consequences of non-compliance with the procedural requirements.  In fact, there is nothing in the statutory scheme to support this construction other than perceived unfairness.  The consequences of a breach of a statutory requirement must be dictated by legislative purpose alone determined by reference to the language of the relevant provision and the scope and object of the whole statute.

The Full Court was also critical of the trial judge for not following the obiter comments made by an earlier Full Court in 2001 in Lardil Peoples v Queensland [2001] FCA 414. The Full Court emphasised the importance of the doctrine of precedent and noted that the decision should not have been departed from unless it could be distinguished or was plainly wrong. The Full Court did not find any basis upon which Lardil could be distinguished and, moreover, agreed with the construction in Lardil.

Full Court confirms wide application of section 24HA Native Title Act 

The Full Court also overturned the trial judge's finding that the Mining Act is not legislation that relates to the regulation or management of water.

The Full Court disagreed with the trial judge's characterisation of the Mining Act as legislation relating to mining, rather than water. In fact, the Full Court was critical of any attempt to identify a single, unified purpose of a statute as a whole. Instead, the Full Court said the focus should be on whether the specific provision under which the future act is done relates to the management or regulation of water.  

High Court appeal

The native title holders filed applications for special leave to appeal to the High Court on the significance of procedural rights and whether exploration tenements prevent the application of the provision that would otherwise allow prior extinguishment to be disregarded.  The special leave application will be heard later this year.  

Key points to note
  • The Full Court confirmed a long held understanding about the operation of the Native Title Act that was challenged by the trial judge's decision in 2016.  
  • The High Court's decision on the special leave applications will be highly anticipated by all stakeholders. A decision not to grant special leave would be a strong signal that the High Court agrees with the Full Court's analysis. This would deliver certainty to the holders of hundreds of interests granted around Australia over many years. Importantly, the reverse is not true. A grant of special leave to appeal does not suggest the High Court will overturn the Full Court. However, it will mean that stakeholders will have to live with the uncertainty for another 12 months or more until the appeals can be heard and resolved. 
  • The issue is not that States and Territories disregard the procedural requirements of the Native Title Act and want to continue to do so.  Rather, working out whether native may potentially exist is often difficult, as is the assessment of which of the various of future act validation procedures applies in the circumstances. The Lardil analysis provided room for error. If the Tjiwarl first instance position prevails, the States and Territories will need to give an additional level of vigour to their assessments.
  • Applicants for interests relating to water (eg bores) can continue to rely on the less onerous procedures in section 24HA of the Native Title Act, provided the specific legislative provision under which the tenure is granted relates to water, even if the statute as a whole relates to other topics such as mining. In Western Australia, this includes miscellaneous licences under the Mining Act. The native title holders did not apply for special leave to appeal on this issue.

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