Native Title – Tjiwarl Decision: Procedural Rights, Exploration Licences, s 47B and more

In BHP Billiton Nickel West v KN (Deceased) (Tjiwarl and Tjiwarl #2)1 the Full Court of the Federal Court has confirmed the consequences of failing to give procedural rights for future acts, and further developed the law concerning exploration licences and s 47B of the Native Title Act 1993 (Cth) (NTA).

The Full Court’s unanimous decision also provides useful factual guidance on when an area is ‘occupied’ for the purposes of s 47B, and includes a finding on the meaning of the phrase ‘legislation that relates to …’ in the context of s 24HA(2) of the NTA (management or regulation of water and airspace).

Failing to give procedural rights for future acts

The Full Court has found that a failure to comply with the notice and consultation requirements in
s 24MD(6B) of the NTA (acts that pass the freehold test) did not cause a future act to be invalid. The act was valid and had full force and effect against native title interests, notwithstanding the failure to notify and consult. That will be so even in circumstances where native title has been determined to exist.

The Full Court found that procedural rights will only be conditions for validity when the NTA specifically says that validity is subject to those rights. The court identified two types of act that will be invalid if the necessary procedural rights are not given, namely acts to which subdivision P (right to negotiate) applies (per s 24AA(5) and s 25(4)) and acts to which s 24JAA (public housing etc.) applies (per s 24JAA(4)).

The decision overturns the trial judge’s finding (Narrier v State of Western Australia2) that failure to notify and consult under s 24MD(6B) rendered the future act invalid against native title. The decision also effectively overrules the single judge decision in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia,3 and restates the earlier Full Court finding in Lardil Peoples v Queensland4 that procedural rights will only condition the validity of a future act where that consequence is expressly provided.

The Full Court in Tjiwarl briefly mentioned possible remedies of declarations and injunctions to restrain a future act that had not been properly notified and consulted. Earlier, in Lardil, the Full Court also suggested that an injunction may be available in those circumstances. In other words, proponents may still be prevented from undertaking future acts that have not been undertaken in accordance with the procedural rights set out in the NTA.

Exploration licences and s 47B

Section 47B relevantly requires that earlier extinguishment of native title must be disregarded if at the date of claim an area was not covered by freehold or a lease, or covered by a permission or authority conferred by the Crown under which the area is to be used for a particular purpose.

Earlier decisions of the Full Court have focused on whether an exploration licence is a permission or authority under which an area is to be used for a particular purpose. Most recently, the Full Court found in Banjima People v Western Australia5 that an exploration licence under Western Australian mining legislation did not require the relevant area to be used for a particular purpose. Accordingly, s 47B applied, and any prior extinguishment had to be disregarded.

The Tjiwarl appeal was not concerned with that aspect of s 47B; rather, it was argued that an exploration licence amounted to a ‘lease’ under the expanded definition in the NTA, and accordingly, s 47B did not apply to disregard prior extinguishment. Relevantly, s 242(2) provides that in the case of a reference to a mining lease, the expression ‘lease’ also includes a licence or authority.

The Full Court agreed with that submission, finding that an exploration licence under the Mining Act 1978 (WA) amounted to a ‘lease’ and so s 47B did not apply.

The decision in Tjiwarl does not directly conflict with the Full Court’s earlier decision in Banjima, as the courts have come to different conclusions on the basis of alternative criteria. If in future the decision in Tjiwarl is applied, it will effectively render the decision in Banjima obsolete. In other words, if an exploration licence is found to be a ‘lease’, s 47B cannot apply to the area over which it was conferred. The question of whether or not the exploration licence required the area to be used for a particular purpose will be irrelevant.

When an area is occupied for s 47B

Section 47B of the NTA will also only apply to an area that was occupied by a member of the claim group when the claim was made.

The Full Court upheld the trial judge’s findings that, considering the evidence as a whole, occupation was not satisfied by evidence of a claimant:

  • hunting near a parcel just prior to the claim being made
  • visiting an area to have lunch and enjoy some peace and quiet
  • living in a caravan on an area for an eight-month period some 20 years prior to the claim being made
  • visiting an area for the purpose of showing places to an anthropologist, even though he also brought his son and niece to show them the country
  • visiting an area so that photos could be taken of him harvesting bush foods.

The Full Court also upheld the trial judge’s finding that occupation was not satisfied for a parcel on which three houses were situated in circumstances where only two could be said to be occupied by members of the claim group, the third being occupied by other persons. The claimant should have identified which part of the area s 47B was said to apply.

Meaning of ‘legislation that relates to …’

The Full Court in Tjiwarl also considered whether a groundwater licence granted under the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA) was granted under legislation that relates to the management or regulation of surface and subterranean water, for the purposes of s 24HA(2) of the NTA (management or regulation of water and airspace).

The court found that it was, concluding that it was enough for the relevant section to ‘relate to’ the management or regulation of surface and subterranean water. It was not necessary to characterise the whole Act as relating to the management or regulation of surface and subterranean water. The court also found that it did not matter if the relevant provision was part of a statute or delegated legislation.

1. [2018] FCAFC 8
2. [2016] FCA 1519
3. [2017] FCA 803
4. (2001) 108 FCR 453
5. (2015) 231 FCR 456

Published: 19 March 2018

Author: Maria Gittins