Grants of miscellaneous licences which fail to comply with future act processes under the Native Title Act have no force and effect against native title

By Liz Wreck – Lawyer at Hunt & Humphry.

On 16 December 2016, in Narrier v State of Western Australia [2016] FCA 1519 (commonly referred to as the “Tjiwarl Decision”), Justice Mortimer held that the granting of miscellaneous licences without giving notice to the native title claimants constituted non-compliance with the future act procedural requirements of the Native Title Act 1993 (Cth) (NT Act). Such non-compliance invalidates the grants as future acts, meaning that the grants have no force and effect against native title.

In doing so, her Honour declined to apply the obiter reasoning of the Full Federal Court in The Lardil Peoples v Queensland [2001] FCA 414.

Lardil decision

In Lardil the Court said that a failure to comply with the future act procedural provisions (other than the right to negotiate) did not result in the invalidity of the future act in question if native title is later found to exist.[1]

Lardil concerned an authorisation for laying a buoy mooring within an area subject to a native title claim without notifying the native title claimants.

The Court refused to grant an application made by the registered native title claimants for an injunction to prevent the laying of the buoy mooring. French J (as he then was) appeared to accept that the relevant requirement to give prior notification to registered native title claimants did not appear to condition the validity of the future act to which it applies.

Tjiwarl Decision

In Tjiwarl Her Honour noted that prior notice of conduct or decisions is a cornerstone of the content of procedural fairness.[2] Further, she noted that in Tjiwarl, unlike Lardil native title rights and interests were held to exist.

The practical effect of the Tjiwarl Decision is that seven miscellaneous licences which failed to comply with future act processes under the Native Title Act were held to be invalid in the sense that they have no force or effect on native title rights or interests.

As a separate issue, Justice Mortimer also held that two miscellaneous licences which had been granted to search for groundwater pursuant to section 91 of the Mining Act 1978 (WA) are not within the scope of section 24HA of the NT Act. This section imposes an obligation to give notification to registered native title claimants/holders and an opportunity to comment in lieu of the general “right to negotiate” which applies where an exception like section 24HA is not applicable. Her Honour’s rationale was that section 24HA is only concerned with legislation (and administrative or executive acts authorised by legislation) which relates to surface or subterranean water and the Mining Act is not legislation relating to water.

So, although notification was given before grant, the appropriate future act procedural provision with which the State should have complied was the general “right to negotiate”. As a result of this conclusion the two licenses for search of ground water were held to be invalid in the sense that they have no force or effect on native title rights or interests.

Impact on mining proponents

This decision could have serious consequences for mining proponents holding tenements which were granted in areas where native title exists in circumstances where the State did not comply with the applicable future act procedural provisions of the NT Act, in particular, by not giving prior notice to registered native title claimants/holders or by not observing the “right to negotiate”.

[1] The obiter reasoning in Lardil has been applied in Daniel v Western Australia [2004] FCA 1388 and Banjima People v Western Australia (No 2) [2013] FCA 868.

[2] at [1039].

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