Posted on April 23, 2019 by Lindsay Taylor and Elaine Yeo

High Court on native title – can mining leases extinguish native title?

On 17 April 2019, the High Court of Australia determined that mining leases were not a ‘lease’ under s47B of the Native Title Act 1993. This ruling is important because it means that any extinguishing effect of native title by mining leases will be disregarded for the purposes of determining a native title claim.

Generally, when native title is extinguished, it is lost forever. However, the Native Title Act 1993 (Cth) (‘NT Act‘) provides some circumstances when native title is ‘revived’ from extinguishment.

Under s47B of the NT Act, historic extinguishment of native title rights and interests is to be disregarded for the purposes of a native title claim over vacant Crown land. Section 47B does not apply where the area is covered by a freehold estate or ‘a lease‘.

In Tjungarrayi v Western Australia [2019] HCA 12, the issue for the High Court to determine was whether mining leases in Western Australia were a ‘lease’ within the meaning of s47B.

The majority judgment held that they were not. This is because s47B only refers to a ‘lease’ and not a ‘mining lease’. The High Court held that without an express textual reference to a ‘mining lease’, s47B does not apply to the mining leases.

In coming to that conclusion, the majority considered that the ‘evident purpose’ of s47B was to ‘facilitate the grant of native title under the NT Act, notwithstanding historic extinguishment, where the land in question is actually occupied by the native title claimants and the claimed native title would not be inconsistent with extant rights of a holder of the fee simple or a lease.’

The majority also considered that the ‘relatively low level intensity of use and occupation of land‘ by the mining leases should not deny the possibility of a grant of native title to claimants who are in actual occupation of the land.

At the very least, the case establishes that native title rights and interests will survive any historic extinguishment by mining leases in circumstances where the native title claimants occupy vacant Crown land.

The case is the second native title decision by the High Court this year. Last month, the High Court handed down a landmark decision quantifying the amount of compensation for both economic and cultural loss when native title rights and interests are extinguished.

If you would like to discuss further, please contact Dr Lindsay Taylor on 02 8235 9701 or Elaine Yeo on 02 8235 9712.