Prior extinguishment issue finally resolved by the High Court 

In our 2017 Native Title Year in Review, we reported on the Full Federal Court decision of BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCFCA 8 relating to the operation of section 47B of the Native Title Act ("Full Court narrows the circumstances in which prior extinguishment can be disregarded: s47B gets the squeeze") and the procedural rights issue ("Full Court resolves recent uncertainty surrounding the validity of grants under the Native Title Act, but High Court may yet hear the issue").

On 17 April 2019, the High Court allowed an appeal on the prior extinguishment issue (Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12).  Special leave to appeal on the procedural rights issue was denied. 

High Court allows  appeal on issue of disregarding prior extinguishment

 Section 47B of the Native Title Act 1993 (Native Title Act) provides that historical extinguishment of native title can be disregarded if, at the time the native title claim is lodged, that area is occupied by the claim group and certain exclusions do not apply.  Those exclusions are:

• the area is covered by a freehold estate or a lease (section 47B(1)(b)(i)); or
• the area is covered by a reservation, proclamation, dedication, condition, permission or authority under which the whole or a part of the land or waters in the area is to be used for a public purpose or for a particular purpose (section 47B(1)(b)(ii)).

In BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCFCA 8, the Full Federal Court overturned the decision of the trial judge and found that exploration licences and petroleum exploration permits were "leases" for the purposes of section 47B of the Native Title Act, so that section 47B would therefore not apply to disregard prior extinguishment.

The High Court overturned the Full Federal Court's decision, and held that the exclusion for "leases" in section 47B(1)(b)(i) of the Native Title Act does not include mineral exploration licences or petroleum exploration permits.  The High Court considered the ordinary and natural meaning of the relevant provisions of the Native Title Act and the evident purpose of section 47B.

Special leave to appeal refused on the procedural rights issue

The Full Federal Court held that failure to comply with the procedural requirements in certain provisions of the Native Title Act in granting tenure and interests will not affect the validity of those grants.  

The High Court refused the Tjiwarl People's application for special leave to appeal the Full Federal Court's decision on this point.

This ends the temporary uncertainty about the relevant procedural rights issue caused by the Federal Court's 2016 decision in Narrier v State of Western Australia [2016] FCA 1519.  In Narrier, the Court 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 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.  In doing so, the Federal Court refused to follow the obiter comments of an earlier Full Court decision in 2001 in Lardil Peoples v Queensland [2001] FCA 414.  

The underlying issue is not that States and Territories regularly disregard the procedural requirements of the Native Title Act.  Rather, working out whether native title may potentially exist is often difficult, as is the assessment as to which of the various future act validation procedures is applicable in the circumstances.