Recent Cases

Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (17 April 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and 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”.