High Court of Australia

Tjungarrayi v Western Australia [2019] HCA 12

KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia

17 Apr 2019

Case Number: P37/2018 P38/2018


Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ


Aboriginals – Native title rights – Extinguishment of rights – Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be "disregarded" for purposes of claim for determination of native title rights and interests over vacant Crown land – Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by "lease" – Where s 242(2) relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence . . . or an authority" – Where native title claim groups sought native title determinations over land including parcels of unallocated Crown land – Where claim areas intersected with areas covered by petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) or mineral exploration licence granted under Mining Act 1978 (WA) ("exploration tenements") – Where native title right to exclusive possession had been extinguished – Whether exploration tenements were "lease[s]" within exclusion in s 47B(1)(b)(i).

Words and phrases – "declared to be or described as a lease", "disregarded", "extinguishment", "historic extinguishment", "in the case only of references to", "lease", "mineral exploration licence", "mining lease", "native title", "non extinguishment principle", "petroleum exploration permit", "principle of non discrimination", "textual reference".

Mining Act 1978 (WA) – Pt IV Div 2.

Native Title Act 1993 (Cth) – ss 47B, 242, 243, 245, 253.

Petroleum and Geothermal Energy Resources Act 1967 (WA) – Pt III Div 2.

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