NETTLE J. The question for decision in these appeals is whether an exploration licence granted under the Mining Act 1978 (WA) or two petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) each constitute a "lease" within the meaning of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth) ("the NT Act"). For the reasons which follow they do not.
Relevant statutory provisions
Non-extinguishment principle
Division 2 of Pt 15 of the NT Act defines a "past act" as, relevantly, an act which occurred before 1 January 1994 when native title existed in relation to particular land and waters. The Division defines four categories of "past act": a Category A past act, which in substance is defined as either the grant of a freehold estate or "a commercial lease, an agricultural lease, a pastoral lease or a residential lease" granted before 1 January 1994 and extant as at 1 January 1994; a Category B past act, which in substance is defined as the grant of a lease (other than a Category A past act or a mining lease) granted before 1 January 1994 and extant as at that date; a Category C past act consisting of the grant of a mining lease; and a Category D past act, which is defined as any past act that is not a Category A, B or C past act.
Section 15 of the NT Act provides in relation to past acts which are attributable to the Commonwealth that, in substance, a Category A past act extinguishes the native title concerned; a Category B past act extinguishes native title to the extent of inconsistency between the act and native title; and a Category C or a Category D past act engages the "non-extinguishment principle".
Division 2 of Pt 15 also defines an "intermediate period act" as, relevantly, an act which took place between 1 January 1994 and 23 December 1996 when native title existed in relation to particular land and waters. The Division then provides for four categories of intermediate period acts: a Category A intermediate period act, which is in substance the grant or vesting of a freehold estate and of certain leases (other than a mining lease); a Category B intermediate period act, which is in substance the grant of a lease that is not a Category A intermediate period act or certain leases including a mining lease; a Category C intermediate period act, which is the grant of a mining lease; and a Category D intermediate period act, which is any intermediate period act that is not a Category A, B or C intermediate period act.
Section 22B of the NT Act provides in relation to intermediate period acts which are attributable to the Commonwealth that, in substance, a Category A intermediate period act extinguishes native title in relation to all land or waters concerned; a Category B intermediate period act extinguishes native title to the extent of inconsistency between the act and native title; and a Category C or a Category D intermediate period act engages the "non-extinguishment principle".
Section 238 of the NT Act defines the "non-extinguishment principle" in effect by means of a set of rules which prescribe the effect on native title rights and interests of acts that are either wholly or partially inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests. Section 238(2) provides in substance that, although an act to which the non‑extinguishment principle applies may affect native title in relation to land or waters, the native title rights and interests are not extinguished either wholly or partially. Sub-sections (3) and (4) of s 238 provide that, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, they continue to exist in their entirety but have no effect in relation to the act and, if the act is partially inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, they continue to exist in their entirety but have no effect in relation to the act to the extent of the inconsistency. Section 238(6) provides in substance that when and if the act or its effects cease to operate, the native title rights and interests again take effect in full. Pertinently, s 238(8) provides that:
"An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re-grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect."
Application of non-extinguishment principle to vacant Crown land
Section 47B was introduced into the NT Act by the Native Title Amendment Act 1998 (Cth) as part of a suite of amendments consequent on this Court's decision in Wik Peoples v Queensland. It was designed to allow native title claimants who are in occupation of vacant Crown land over which native title has been extinguished, but over which there are no longer competing third party rights, to engage the non-extinguishment principle and so claim native title with respect to that land notwithstanding its prior extinguishment. Section 47B(1) provides that:
"This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area."
Section 47B(2) provides, in substance, that, except in the three circumstances identified in s 47B(1), any extinguishment of native title rights and interests by any prior interest in relation to the area claimed in the application must be disregarded. Section 47B(3) provides, in substance, that, although the validity of the prior interest remains unaffected, its effect on the native title rights and interests is to be determined in accordance with the non-extinguishment principle.
"Lease" and "mining lease"
Section 242 of the NT Act defines "lease" as follows:
"(1) The expression lease includes:
(a) a lease enforceable in equity; or
(b) a contract that contains a statement to the effect that it is a lease; or
(c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.
References to mining lease
(2) In the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory." (emphasis added)
Section 243(2) provides in relation to the definition of "lessee" that:
"Lessee of certain mining leases
(2) In the case of a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws), the expression lessee means:
(a) the person to whom the licence mentioned in that subsection was issued, or the authority so mentioned was given; or
(b) any person who, by assignment, succession or otherwise, acquires or enjoys the licence or authority or is entitled to exercise rights under the licence or the authority."
Section 245(1) defines "mining lease", relevantly, as follows:
"A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining."
Section 253 provides for multiple definitions and, relevantly, defines "mine" thus:
"mine includes:
(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters; or
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means."
The NT Act does not define "mining" but s 18A read with s 2(2) of the Acts Interpretation Act 1901 (Cth) provides in effect that, unless the contrary intention appears, where a word or phrase is given a particular meaning in an Act, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. There is nothing in the NT Act which suggests a contrary intention. Thus, for the purposes of "mining lease" the meaning of the participial adjective "mining" corresponds to the verb "mine" as defined by s 253.
Section 246 defines a "commercial lease", relevantly, as:
"(1) A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes." (emphasis added)
Proceedings at first instance
In Narrier v Western Australia, the primary judge (Mortimer J) held that an exploration licence granted under the Mining Act was not a "mining lease" and, thus, was not a "lease" for the purposes of s 47B(1)(b)(i). Following the decision in Narrier, the primary judge in Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v Western Australia [No 2] (Barker J) held that each of two petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act was not a mining lease and therefore not a lease.
Both primary judges held that, despite the definition of "mine" in s 253, s 245(1) defines "mining lease" more narrowly as a mining lease which requires the subject land to be used solely or primarily for mining, and that there was no evidence that the licence or permits in question permitted the holder to use the land or waters solely or primarily for mining.
Proceedings on appeal to the Full Court of the Federal Court of Australia
On appeal from the decision of the primary judge in Narrier, the Full Court of the Federal Court (North, Dowsett and Jagot JJ) held that there was no reason not to give the word "mining" in Div 3 of Pt 15 of the NT Act the meaning which corresponds to "mine" in s 253, and thus that no more was needed to establish that the exploration licence was a mining lease for the purposes of s 245(1) than that the licence permits the licensee to use the land or waters covered by the licence solely or primarily for mining in that sense. The Full Court rejected the native title claim group's contention that s 242(2) operates only upon the words "mining lease" wherever they appear as such. Their Honours held that the purpose of ss 242(2) and 243(2) is to ensure that instruments described as "licences" or "authorities to mine" (which includes exploring or prospecting for things to mine) are taken to be a "mining lease", and thus a type of "lease" for the purposes of the NT Act. Accordingly, the area covered by the exploration licence in question was held not to be land to which s 47B of the NT Act applied.
On appeal from the decision of the primary judge in Tjungarrayi, the Full Court of the Federal Court (North, Jagot and Rangiah JJ) followed that Court's decision in Narrier and held that the exploration permits were mining leases and, thus, were leases for the purposes of s 47B(1)(b)(i).
Meaning of "lease" in s 242(1)
The Full Courts in Narrier and Tjungarrayi were correct in their construction of ss 242, 243 and 245(1). They were right to hold that the combined effect of those provisions is that an exploration permit or licence is a "mining lease" within the meaning of s 245(1) and, therefore, a "lease" within the meaning of s 242. But the Full Court in each case were not correct in holding that "lease" in s 47B(1)(b)(i) includes a "mining lease". As will be explained, "lease" in s 47B(1)(b)(i) is used in the sense of "lease (other than a mining lease)" in the same way that it is used in that sense in several other provisions of the NT Act.
In Western Australia v Ward, a majority of this Court held that a "mining lease" within the meaning of s 245(1) is a "lease" within the meaning of s 242. It was not suggested in these appeals that that point was wrongly decided. What is in issue is whether a "mining lease" within the meaning of s 245(1) includes "a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory" within the meaning of s 242(2).
Other things being equal, it would be open to read the words "in the case only of references to a mining lease" in s 242(2) as having one or other of two meanings: either that, in the case of a mining lease, the expression "lease" includes a "mining lease" and a licence or authority of the kind specified in s 242(2); or that, wherever in the NT Act, other than in the definition of "mining lease" in s 245(1), there is a reference to a "mining lease", the reference is to be read as including a licence or authority of the kind specified in s 242(2). There are, however, at least five features of the NT Act which point in favour of the former construction and against the latter.
First, s 242(2) is part of s 242, and so, in form and therefore as a matter of apparently intended effect, it is definitive of a "lease", not a "mining lease". It is as if s 242(2) stated "in the case of a mining lease". In effect, s 242(2) extends the concept of "lease" for the purposes of the NT Act.
Secondly, the use of the expression "in the case only of references to a mining lease" is, in form and so as a matter of apparently intended effect, equally applicable to all references to "mining lease" within the NT Act. That includes the most proximate and obvious reference to "mining lease", in s 245(1). Thus, reading ss 242(2) and 245(1) together in the definitional context in which they appear, and with the aid of the definition of "mine" in s 253 and the effect of s 18A of the Acts Interpretation Act, "mining lease" in the reference to "mining lease" in s 245(1) presents as a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for mining and also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory to use the land or waters covered by the licence or authority solely or primarily for exploring or prospecting for things that may be mined or for extracting petroleum or gas from land or from the bed or subsoil under waters.
Thirdly, s 243(2) refers to "a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws)". Section 243(2) thus necessarily proceeds from the premise that the effect of s 242(2) combined with s 245 is to include a licence within the meaning of "mining lease" and so within the meaning of "lease". If that were not the case, s 243(2) should have been drafted in terms that: "in the case of a reference to a mining lease".
Fourthly, if s 242(2) were not intended to inform the meaning of s 245, there would be little point in the enactment of s 242(2). It was submitted before this Court that, rather than informing the meaning of s 245(1), the purpose of s 242(2) was to ensure that, in those provisions of the NT Act which expressly exclude "mining lease" from "lease", the exclusion should be taken to include a licence or an authority within the meaning of s 242(2): for example, s 23B(2)(c)(viii) defines a previous exclusive possession act as including, inter alia, "any lease (other than a mining lease)"; s 24IC(4)(c) deals with future acts which are permissible lease renewals and refers to a "perpetual lease (other than a mining lease)"; s 43A(2)(a)(i) deals with an exception to the right to negotiate with respect to an area that is, inter alia, covered by a "lease (other than a mining lease)"; s 230(b) defines Category B past acts as the grant of a lease where "the lease is not a mining lease"; s 232A(2)(e)(i) states that an intermediate period act must not be preceded by a "lease (other than a mining lease)" covering the land affected by the act; and s 232B(3)(g) defines a Category A intermediate period act as including a "lease (other than a mining lease)". But the submission makes little sense. Ex hypothesi, but for s 242(2) a licence or an authority within the meaning of s 242(2) would not be included in "mining lease" in s 245(1) or, therefore, in "lease" in s 242(1). There would be little point in enacting s 242(2) if its only purpose were to exclude from the definition of "mining lease" what would not have been in "mining lease" but for the enactment of s 242(2).
Fifthly, the extrinsic materials show that it was intended that "mining lease" include a mining or exploration permit or licence. The Explanatory Memorandum to the Native Title Bill 1993 (Cth) explained the definition of "mine" as follows:
"'mine'
The definition of this term is not an exhaustive one and is wider than what might be thought to be the ordinary meaning of the term. It includes exploring or prospecting for anything that may be mined. It also includes extracting petroleum, gas or water from land or from the bed or subsoil under waters, and quarrying. The definition is also picked up [sic] the derivatives of 'mine' such as 'mining' and 'mined'." (emphasis added)
After the Native Title Bill was first introduced to Parliament, the Government proposed a number of amendments as a result of continued consultation with interested parties and a majority report of the Senate Standing Committee on Legal and Constitutional Affairs. Section 242(2) formed part of those amendments. A Supplementary Explanatory Memorandum which dealt with the amendments stated in respect of s 242(2):
"The addition of subclause (2) provides that for the purposes of mining leases only, licences or authorities to mine are to be treated in the same way as mining leases. This amendment is part of a package of amendments to treat licences and authorities to mine in the same way as mining leases. The related amendments are found in amendments 66 and 67." (emphasis added)
The Supplementary Explanatory Memorandum further stated, with respect to related amendments 66 and 67 concerning the expanded definition of "lessee" in s 243(2):
"This clause defines what is meant by the term 'lessee' for the purposes of this Bill. The addition of subclause (2) makes it clear that for the purpose of a mining licence or authority that is a mining lease because of subclause 227(2) [now s 242(2)] a person holding such a licence or authority is to be regarded as a lessee for the purposes of the Bill. These amendments are also consequential upon the treatment of mining licences and authorities which give similar rights to mining leases in the same manner for the purposes of this Bill."
There is no suggestion in any of the extrinsic materials that the intention was to confine the operation of s 242(2) to express references to "mining lease" in substantive provisions of the Act. All indications are that it was designed to ensure that mining or exploration licences or authorities are treated as mining leases.
It should be concluded that a "mining lease" as defined by s 245(1) of the NT Act means a "lease" that permits the lessee to use the land or waters covered by the lease solely or primarily for mining and also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory to use the land or waters covered by the licence or authority solely or primarily for exploring or prospecting for things that may be mined or for extracting petroleum or gas from land or from the bed or subsoil under waters. And consistently with this Court's decision in Ward, it should be held that a "lease" within the meaning of s 242(1) of the NT Act includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory to use the land or waters covered by the licence or authority solely or primarily for exploring or prospecting for things that may be mined or for extracting petroleum or gas from land or from the bed or subsoil under waters.
Meaning of "lease" in s 47B
It does not follow, however, that "lease" in s 47B(1)(b)(i) includes "mining lease". Like all statutory definitions, the definition of "lease" in s 242(1) yields to contrary intention and here a contrary intention is apparent. Granted, there are a number of provisions in the NT Act which expressly exclude "mining lease" from "lease". In addition to those already mentioned, s 21(3)(a), which was inserted into the NT Act at the same time as s 47B, provides an overview of the validation of intermediate period acts and refers to "a grant of a freehold estate or a lease (other than a mining lease)". And assuming consistency of approach, it would be open to conclude on that basis that, where it is intended in the NT Act to exclude "mining lease" from "lease", "mining lease" is expressly excluded, and, otherwise, "mining lease" is to be taken as included. But the practice of expressly excluding "mining lease" from "lease" when it is intended that it be excluded is not consistent throughout the NT Act.
For example, in s 24LA, which deals with low impact future acts, sub‑s (1)(b)(ii) provides for an exclusion in these terms: "the act does not consist of, authorise or otherwise involve ... the grant of a lease over any of the land or waters". There is no express exclusion of "mining lease" from "lease" but it is apparent from the fact that s 24LA(1)(b)(v) separately excludes "mining (other than fossicking by using hand-held implements)" that it was not intended that "lease" should include "mining lease". In s 24GE, which validates future acts consisting of rights granted to third parties on non-exclusive agricultural or pastoral leases, including a future act which "confers on any person (including the lessee) a right ... to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining)", it is apparent from the fact that s 24GE(1)(d) excludes a future act that is "the grant of a lease" and s 24GE(1)(e) includes a future act that confers a right to extract sand, gravel, rocks or other resources that "lease" does not include "mining lease". There are also provisions such as s 24JAA(1)(b)(i) and s 24JA(2)(d), which refer to "lease" without an express exclusion of "mining lease", where it is obvious that, because those provisions pertain to the construction, operation, use etc of public facilities to benefit Aboriginal peoples or Torres Strait Islanders, and the granting of leases to statutory authorities respectively, those provisions could not apply to mining leases. In sum, in each case, the context dictates that "lease" does not include "mining lease".
The context for the construction of s 47B is principally informed by its engagement of the non-extinguishment principle as prescribed in s 238. As was earlier noted, s 47B(3) provides, in substance, that, although the validity of the creation of a prior interest remains unaffected, its effect on the native title rights and interests in question is to be determined in accordance with the non‑extinguishment principle. And the non-extinguishment principle defined in s 238(3) and (4) provides in substance that, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, they continue to exist in their entirety but have no effect on the act and, if the act is partially inconsistent with the native title rights and interests, they continue to exist but have no effect on the act to the extent of the inconsistency. Section 238(6) has the effect that when and if the act expires or ceases to have effect, the native title rights and interests again take effect in full. And importantly, s 238(8) posits as an example of an act to which the non-extinguishment principle applies the act of granting a mining lease, and explains that, although the native title rights and interests will have no effect on the mining lease, upon its expiration the native title rights and interests will once again have full force and effect.
If "lease" in s 47B(1)(b)(i) included "mining lease", it would mean that a mining lease, which itself engages the non-extinguishment principle, would preclude the application of the non-extinguishment principle to the creation of any prior interest in land which is vacant Crown land, at least until after the mining lease expires. Textually, that bespeaks a contrary intention that, in s 47B(1)(b)(i), "lease" does not include "mining lease". This is supported by the legislative history of s 47B.
Historical development of specific sections of NT Act
(i) Mining leases
From the outset of the NT Act, the Parliament drew a distinction between, on the one hand, leases thought to confer exclusive possession, such as commercial, agricultural, pastoral and residential leases - which the NT Act treats as extinguishing native title - and, on the other, mining leases - which leave native title intact. In June 1993, before the introduction of the Native Title Bill, the Government released a discussion paper, entitled "Mabo: The High Court Decision on Native Title", in which it provided reasons for the distinction later drawn in the Bill, and now in the NT Act, between Category A, B, C and D past acts. The paper discussed four broad legislative options to provide for the validation of existing grants of interests in land made after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) came into force and to make native title subject to the grants. They were: (1) legislation to confirm the continued existence of native title in all cases but subject to validated grants, with compensation; (2) legislation to confirm the continued existence of native title where possible but subject to validated grants, with compensation, and recognise the extinguishment of native title where necessary to validate grants, with compensation; (3) the same legislative approach as in (2) but only upon a trigger, possibly a relevant finding of a court or tribunal that the grant is actually invalid; and (4) legislation to provide for the validation of grants but leave for later determination by a court what impact that would have on native title, and provide for compensation in light of that.
The paper opined that options (2) and (3) "would have the merit of minimising the extinguishment of native title resulting from the validation of grants", and could be made to operate as follows: (a) where the native title interest and the grant coexist without the grant extinguishing or affecting the native title; (b) where the grant and the native title interest are able to be made to coexist, which "is possible, for example, with the grant of a mining lease, where provision could be made for the native title to continue to exist subject to the lease for the period of the lease, and then to revive to its pre-lease extent"; and (c) where the grant and the native title interest cannot be made to coexist, for example native title and a grant of freehold.
As to (a), the paper stated that as there is no conflict between the grant and native title there is therefore no need for remedial action. By contrast, as to (c), it was observed that two steps would be necessary: extinguishment of the native title that would have been extinguished but for the operation of the Racial Discrimination Act, and validation of any grants that were wholly or partly invalid by operation of that Act. Most significantly for present purposes, it was observed in relation to (b):
"[T]he native title need not be extinguished. The native title could be confirmed subject to, or restricted by, the grant for the period of the grant, with compensation for that restriction, and the grant validated.
In effect, this approach would modify the common law position set out in Mabo (No 2)[] that a grant inconsistent with native title rights extinguishes those rights. This would therefore involve:
. the Commonwealth or the States and Territories confirming, and providing for the continued existence of, native title notwithstanding certain types of grants made since 1975, but subject to or restricted by those grants and with compensation for that impairment; and
. the States and Territories validating their grants and the Commonwealth its grants.
In addition to the desirability in principle of protecting native title to the maximum extent possible ...
This approach has its most obvious application in relation to mining leases. It is the same as that generally followed when a mining lease is issued over, for example, a freehold property. In the case of other finite leases (eg tourism), however, the general principle could be more difficult to apply." (emphasis added)
Consequent upon the discussion paper, in September 1993 the Government released a paper entitled "Mabo: Outline of Proposed Legislation on Native Title" which outlined key provisions of the proposed Native Title Bill. It grouped past grants, according to type, into three categories (named Categories 1 to 3). Category 1 grants were described as comprised of, inter alia, freehold estates and "a leasehold estate that is a residential, pastoral, tourist or other lease prescribed in regulations made under this Act other than a Category 2 grant". A Category 2 past grant was defined as "mining (including petroleum) grants". The paper emphasised that the validation of Category 2 past grants did not involve the extinguishment of native title, and that the native title holders would be able to reassert their rights when the period of the grant had ended or the grant had been surrendered, rescinded, forfeited or purchased by native title owners. The paper added that, in the case of any mining lease which gave exclusive possession of the lease area, native title rights could not be exercised in the area for the period of the lease, but could be exercised thereafter.
To the same effect, in a statement on 2 September 1993 accompanying the paper, the then Prime Minister, Mr Keating, announced with respect to the main provisions of the proposed Native Title Bill:
"[T]he Bill will not leave up in the air what implications this validation of past grants has for existing native title. It will make clear that for freehold, and for residential, pastoral and tourist leasehold grants, the validation extinguishes any native title rights inconsistent with those grants. For mining leases, and lesser interests over land such as licences and permits, the validation will not extinguish the native title. But the Bill will confirm that any native title is subject to the lease or licence for as long as it runs. I emphasise that this is totally consistent with existing practice in relation to mining leases over other private interests in land." (emphasis added)
So also, in the Second Reading Speech in the House of Representatives, the Prime Minister stated:
"Validation of mining leases will not extinguish native title rights, which can again be exercised in full after the grant, and any legitimate renewals, have expired. This is not discrimination against the mining industry, or some radical departure from existing practice. Let me quote, for example, section 113 of the Western Australian Mining Act. It states:
When a mining tenement expires or is surrendered or forfeited, the owner of the land to which the mining tenement related may take possession of the land forthwith ...
How can we offer native titleholders any less?"
The Explanatory Memorandum to the Native Title Bill further emphasised the intended distinction between mining leases and other leases in a discussion of cl 231 of the Bill, concerning the definition of commercial lease (now s 246(1) of the NT Act), as follows:
"In order to be a commercial lease a lease must permit the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. Such purposes are not defined but are left to be interpreted according to the general law having regard to the particular circumstances of each case.
Subclause 231(2) provides examples of the use of land for business or commercial purposes. Whether such use is the sole or primary use will be a question for determination in the circumstances of each particular case. ...
Ordinarily a mining lease would be a commercial lease but mining leases have been excluded from this definition. Mining leases form a special category ... An agricultural or pastoral lease can still be a commercial lease. The definitions of an 'agricultural lease', 'pastoral lease' and 'residential lease' are not intended to limit what can fall within the definition of a 'commercial lease'." (emphasis added)
(ii) 1997 amendments
As mentioned earlier, s 47B was enacted as part of a suite of amendments introduced into the NT Act primarily to overcome uncertainties arising from this Court's decision in Wik regarding the extent of extinguishment of native title by grants of interest made prior to that decision. One of the principal purposes of the amendments was to introduce Div 2B of Pt 2 of the NT Act in relation to the confirmation of past extinguishment of native title by certain valid or validated acts. As was explained in the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth), it was intended that those provisions would limit uncertainty in relation to the extinguishment of native title by grants of interest:
"The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The effect will be to confirm that native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases. Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted. The amendments will put the matter beyond doubt."
The scheme of Div 2B was to introduce the concepts of "previous exclusive possession acts" and "previous non-exclusive possession acts" and to provide that, if acts to which the Division applies are previous exclusive possession acts, the acts will have completely extinguished native title, and, if acts to which the Division applies are previous non-exclusive possession acts, the acts will have extinguished native title to the extent only of any inconsistency. Those provisions were augmented by s 61A, which provides in substance that, subject to s 61A(4), a claimant application cannot be made over an area where there has been a previous exclusive possession act - thereby reflecting "the fact that such acts have been confirmed as extinguishing native title"; and a claimant application over an area in relation to which there has been a previous non‑exclusive possession act cannot claim exclusive possession in relation to that area - "because such acts of their nature mean that the native title holders can no longer have exclusive possession of the area concerned".
The significance of exclusive possession was further emphasised in a newly introduced Sch 1 to the NT Act, containing lists of leases and other interests considered, on the basis of common law, to have conferred exclusive possession and thereby to have extinguished native title ("Scheduled interest"), and by the inclusion of a Scheduled interest in the definition of a previous exclusive possession act in s 23B(2). Notably, the definition of a Scheduled interest in s 249C expressly excludes mining leases. Most significantly, however, s 61A(4) provides that s 61A operates subject, among other provisions, to s 47B, which, as has been seen, permits the extinguishment by a previous exclusive possession act or a previous non-exclusive possession act to be disregarded where the section applies.
Evidently, therefore, the object of the exercise was to exclude mining leases from the range of interests which could stand in the way of the recognition of native title under s 47B. As Senator Campbell stated during the Second Reading Speech for the Native Title Amendment Bill in the Senate, the purpose of s 47B is to enable indigenous people who are in occupation of an area of vacant Crown land over which there are no longer any competing third party rights to claim native title and have the court disregard the previous extinguishment of native title. Similarly, as Senator Minchin, the then Special Minister of State and Minister Assisting the Prime Minister, added in the course of debate:
"[W]here Aboriginal people are on a reserve or occupying vacant crown land over which a past lease has affected either partial or full extinguishment, it is to be disregarded for the purposes of determining the native title claims. I think it is only fair and proper to set aside the common law effect of that past grant in order that Aboriginal people currently occupying that land, either by reserve or vacant crown land, can make a full native title claim regardless of the past extinguishing effect of previous grants."
Conclusions on s 47B(1)(b)(i)
Given that, before the enactment of s 47B, the non-extinguishment principle applied, and that it continues to apply, to land in respect of which native title has not been extinguished by a Category A or B past act but which is affected by a Category C or D past act - by engaging the non-extinguishment principle in relation to Category C and D past acts - and given, further, that the object of s 47B(1)(b)(i) is to disregard the extinguishment of native title by Category A and B past acts in relation to vacant Crown land - and to deal with the "creation of a prior interest" by engagement of the non-extinguishment principle - it would be ex facie illogical if s 47B did not apply to vacant Crown land the subject of a Category C past act. The same reasoning would apply with respect to land the subject of a Category D past act. By contrast, the purpose of s 47B(1)(b)(ii) is to exclude the operation of s 47B in cases of land reserved, proclaimed, dedicated or conditioned for designated public purposes or a particular purpose, which, as the Full Court of the Federal Court has observed, is no doubt intended to minimise the impact of native tile determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. Clearly enough, in such cases, different considerations apply.
Section 47B(1)(b)(i) may also be contrasted with s 44H of the NT Act, which provides in substance that, for the avoidance of doubt, if the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of the NT Act) and requires or permits the doing of any activity, an activity done in accordance with the lease, licence, permit or authority prevails over the native title rights and interests and any exercise of them but does not extinguish them. In that context, despite the reference to both lease, and licence, permit or authority, it appears that "lease" means lease in its defined sense of including a mining lease and therefore an exploration or prospecting permit or licence, and that the reference to licence, permit or authority is to embrace licences, permits or authorities to carry out activities other than mining, exploration or prospecting.
Ultimately, s 47B(1)(b)(i) permits of a constructional choice: between a meaning which would allow the non-extinguishment principle to operate in relation to vacant Crown land affected by a mining lease and a meaning which would not. As has now been seen, the former fits with considerations of context, purpose and legislative history, while the latter does not. Since inconvenient and improbable constructions are not lightly to be imputed to the legislature where an alternative construction is open, it should be concluded that the purpose of s 47B(1)(b)(i) is to prevent s 47B operating on land encumbered by Category A or B past acts and to allow the non-extinguishment principle to operate with respect to vacant Crown land the subject of competing interests that do not extinguish native title or are capable of operating subject to the non‑extinguishment principle.
On that basis, it follows that "lease" in s 47B(1)(b)(i) does not include a "mining lease" - it means "lease (other than a mining lease)" - and, therefore, that "lease" in s 47B does not include a petroleum exploration permit or an exploration licence.
Conclusion and orders
The appeals should be allowed.
In Matter No P37 of 2018, the orders of the Full Court of the Federal Court made on 16 March 2018 should be set aside and in their place it should be ordered that the appeal to the Full Court be dismissed.
In Matter No P38 of 2018, Orders 1 and 2(c) made by the Full Court of the Federal Court on 1 February 2018 should be set aside and in place of Order 1 it should be ordered that the appeal be allowed in part.