Federal Court of Australia

Doyle on behalf of the Iman People #4 v State of Queensland (No 2) [2026] FCA 1334

ORDERS

THE COURT ORDERS THAT:

1.    Each of the Separate Questions is answered “No”.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Each of the Separate Questions is answered “No”.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    In proceeding QUD413/2017 (the Iman People #4 claim) and in proceeding QUD497/2023 (the Iman People #5 claim), the applicant applies, pursuant to s 61 of the Native Title Act 1993 (Cth) (the NTA), for a determination of native title over areas of Central Queensland.

2    On 16 May 2025, I made an order in each proceeding setting down seven separate questions (the Separate Questions) for determination by the Court. The Separate Questions are concerned with whether s 47B(2) of the NTA requires that prior extinguishment of native title in respect of particular parcels of land must be disregarded.

3    Apart from the applicant, the only parties that have elected to participate in the hearing of the Separate Questions are the State of Queensland and the State Minister for the State of Queensland (together the State).

4    There are three issues of statutory construction underlying the Separate Questions. They are:

(1)    Whether an area covered by a petroleum lease granted under s 120 of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (the PGA) is “covered by a…lease” within s 47B(1)(b)(i) of the NTA.

(2)    Whether a lease granted under s 120 of the PGA is a “permission or authority…under which the whole or a part of the land or waters in the area is to be used…for a particular purpose” within s 47B(1)(b)(ii) of the NTA.

(3)    Whether a former road, dedicated but not constructed, involves the “creation of any prior interest” within s 47B(2) of the NTA.

5    It is relevant to note that the Iman People #4 claim was filed on 21 August 2017, while the Iman People #5 claim was filed on 14 November 2023.

The Separate Questions

6    On 16 May 2025, I ordered, pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), that the Separate Questions be determined separately from any other question in the proceeding. The Separate Questions were subsequently amended on 18 June 2025.

7    On the second day of the hearing on 17 July 2025, it emerged that there was a further issue that it was necessary to deal with, namely whether s 47B(1)(b)(ii) applied to the petroleum leases. Accordingly, further amendments to the Separate Questions were ordered on 1 September 2025.

8    The final form of the Separate Questions is as follows:

Question 1: Does s 47B of the NTA operate over the Columboola parcels so as to require the prior extinguishment identified in paragraphs 47 to 58 of the [Statement of Agreed Facts] to be disregarded, because:

A.    PL247 and PL458 granted under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (PGA) do not fall within the terms of s 47B(1)(b) of the NTA; and

B.    the area over which Road 1 was established but not constructed falls within the meaning of “the creation of a prior interest” in s 47B(2) of the NTA?

Question 2: Does s 47B of the NTA operate over Lot 128 on BWR838231 so as to require the prior extinguishment identified in paragraphs 65 to 84 of the [Statement of Agreed Facts] to be disregarded, because:

A.    PL267 (as defined in paragraph 27 of the [Statement of Agreed Facts]) granted under the PGA does not fall within the terms of s 47B(1)(b) of the NTA; and

B.    the area over which Road 2 and Additional Road 2 Area (as defined in, respectively, paragraphs 65(d) and 75(c) of the [Statement of Agreed Facts]) were established but not constructed adjacent to portions 102 and 103 on BWR225 falls within the meaning of “the creation of a prior interest” in s 47B(2) of the NTA?

Question 3: Does s 47B of the NTA operate over Lot 30 on USL45304 so as to require the prior extinguishment identified in paragraphs 90 to 100 of the [Statement of Agreed Facts] to be disregarded, because the area over which Eastern Road 3 was established but not constructed falls within the meaning of “the creation of a prior interest” in s 47B(2) of the NTA?

Question 4: Does s 47B of the NTA operate over Lot 26 on USL4767 so as to require the prior extinguishment identified in paragraphs 104 to 108 of the [Statement of Agreed Facts] to be disregarded, because PL267 granted under the PGA does not fall within the terms of s 47B(1)(b) of the NTA?

Question 5: Does s 47B of the NTA operate over Lot 117 on BWR843 so as to require the prior extinguishment identified in paragraphs 114 to 119 of the [Statement of Agreed Facts] to be disregarded, because PL267 granted under the PGA does not fall within the terms of s 47B(1)(b) of the NTA?

Question 6: Does s 47B of the NTA operate over Lot 118 on BWR763 so as to require the prior extinguishment identified in paragraphs 125 to 129 of the [Statement of Agreed Facts] to be disregarded, because PL267 granted under the PGA does not fall within the terms of s 47B(1)(b) of the NTA?

Question 7: Does s 47B of the NTA operate over Lots 3 and 5 on M20827 and Lot 54 on M20820 so as to require the prior extinguishment identified in paragraphs 135 to 142 of the [Statement of Agreed Facts] to be disregarded, because PL267 (as defined in paragraph 27 of the [Statement of Agreed Facts]) granted under the PGA does not fall within the terms of s 47B(1)(b) of the NTA?

9    The applicant and the State are in agreement that, “the only matter remaining for resolution in both the Iman People #4 claim and the Iman People #5 claim is whether s 47B of the NTA operates to disregard the prior extinguishment over the Separate Questions parcels”. The applicant and the State have also informed the Court that determination of the Separate Questions will lead to a consent determination.

10    In Roberts on behalf of the Widjabul Wia-Bal v Attorney-General of New South Wales [2019] FCA 1158 (Roberts), I considered the appropriate construction of s 47B(1)(b)(ii) in the course of determining five separate questions. When the order was made for the hearing of the separate questions, the parties had emphasised the NTA’s preference for consensual resolution and the case-managing judge had been informed that determination of the separate questions was necessary for negotiation of a consent determination.

11    However, in Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General New South Wales [2020] FCAFC 103; 277 FCR 170 (Roberts (FC)), the Full Court held that it had not been appropriate to employ the separate question procedure in the circumstances of the case. The Full Court referred to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, where the High Court held:

[45] The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy…

…

[56] …It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case…

12    The Full Court held at [73]:

This review of the pertinent provisions of the NTA, the changing position of the parties in their agreed facts and Joint Note and the principles relating to the extinguishment of native title and the appropriate use of the separate question procedure demonstrates why that procedure was inappropriate to be employed by the parties in this matter. First, if there was no relevant extinguishment of native title in any of the four Areas concerned, that means there is nothing to disregard under s 47B(2) of the NTA. In that circumstance, it is hypothetical to consider whether the exception to the operation of that section set out in s 47B(1)(b)(ii) applies. Secondly, even if there were a factual foundation for a conclusion that some extinguishment of native title had occurred such that the disregarding provisions of s 47B(2) were engaged, the dispute about the construction of the exception in s 47B(1)(b)(ii) constitutes such a minor and peripheral part of the broad and extensive dispute that exists between the parties in this matter that it is inappropriate to isolate it for determination as a separate question. In this respect, it is to be noted that there is a fundamental dispute about whether the appellant holds native title rights and interests in the claim area. There is also a dispute about whether, and if so to what extent, any native title rights and interests that existed in the claim area have been extinguished. Finally, there is even a dispute about one of the other pre-conditions in s 47B(1), namely whether any members of the native title claim group occupied any of the four Areas when the native title determination application was filed.

13    The circumstances that made it inappropriate to answer the separate questions in Roberts (FC) are not present in this case. The active parties have reached agreement upon all relevant factual issues. They have agreed that native title has been extinguished in the parcels relevant to the Separate Questions. They have agreed upon all issues in the case other than those raised by the Separate Questions. The answers to the Separate Questions will effectively resolve the proceedings. In these circumstances, it is appropriate to proceed to answer the Separate Questions.

The relevant NTA provisions

14    Section 47B of the NTA provides an exception to the principle explained in s 237A that extinguishment of native title rights and interests is permanent and cannot revive even if the act that caused the extinguishment ceases to have effect.

15    Section 47B also provides an exception to the prohibition against making a claimant application where a previous exclusive possession act was done (s 61A(2)) or seeking exclusive possession, occupation, use or enjoyment where a previous non-exclusive possession act was done (s 61A(3)).

16    Section 47B has the heading “Vacant Crown land covered by claimant applications”. Section 47B(1) describes the circumstances in which the section applies:

When section applies

(1)    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.

17    Where s 47B applies, the consequences for a determination of native title are set out in s 47B(2):

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

18    Section 47B(3) of the NTA deals with the effect of s 47B(2) upon the interests of the Crown, statutory authorities and holders of prior interests:

Effect of determination

(3)    If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)    the determination does not affect:

(i)    the validity of the creation of any prior interest in relation to the area; or

(ii)    any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b)    the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

19    Part 15 of the NTA has the heading, “Definitions”. Division 3 has the heading “Leases”, and s 241 provides that, “[t]his Division contains definitions relating to leases”.

20    The expression “lease” is defined in s 242:

(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.

21    Section 245(1) defines the expression “mining lease”:

(1)    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.

22    The expression “mine” is defined in s 253 to include:

(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

…

23    The expression “public work” is defined in s 253:

public work means:

(a)    any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i)    a building, or other structure (including a memorial), that is a fixture; or

(ii)    a road, railway or bridge; or

(iia)    where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or

(iii)    a well, or bore, for obtaining water; or

(iv)    any major earthworks; or

(b)    a building that is constructed with the authority of the Crown, other than on a lease.

Note:    In addition, section 251D deals with land or waters relating to public works.

24    In Griffiths v Northern Territory (2006) 165 FCR 300, Weinberg J at [691] explained the history of s 47B:

Section 47 was contained in the original NT Act as enacted in 1993. Sections 47A and 47B, along with many other amendments, came into effect on 30 September 1998. Like s 47, these provisions require certain acts of extinguishment to be “disregarded”. These amendments were introduced, in part, as a response to [Wik Peoples v Queensland (1996) 187 CLR 1]. That case revealed the anomalous situation that could occur if Aboriginal people have been living in a particular area for some time, but could not obtain a determination of native title because of some extinguishing event that may have occurred only briefly, and a long time ago. As a result, since the 1998 amendments, claims can be made to, and determinations of native title made in respect of, areas which were formerly the subject of a “previous exclusive possession act”. Such an act would ordinarily have extinguished native title, but for the operation of s 47, s 47A or s 47B.

25    In Banjima People v Western Australia (2015) 231 FCR 456 (Banjima) at [94], the Full Court described the operation of s 47B:

In considering how s 47B(1) operates, it is important to keep in mind that it defines the circumstances in which the preservatory effect of s 47B(2) will apply by prescribing two positive and one negative precondition, each of which must be satisfied. The positive preconditions are that, first, a claimant application, being defined in s 253 as, relevantly, a native title determination application, “is made in relation to an area” (para (a)) and, secondly, when that application is made, “one or more members of the native title claim group occupy the area” (para (c)). The negative precondition is that when the application is made “the area is not” any of the three particular categories specified in s 47B(1)(b).

26    In Tjungarrayi v Western Australia (2019) 269 CLR 150 (Tjungarrayi (HC)), Kiefel CJ and Bell, Keane, and Edelman JJ held at [34] that, “[t]he exclusions in s 47B(1)(b) from the statutory imperative to “disregard” the prior extinguishment of native title should not be construed more widely than is necessary to give effect to their terms”: see also Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group & Anor (2005) 145 FCR 442 (Alyawarr) at [187].

The petroleum leases and relevant provisions of the PGA

27    The Separate Questions are concerned with three Petroleum Leases numbered PL247, PL267 and PL458, issued under s 120(1) of the PGA. It is common ground that they are valid future acts.

28    To explain the leases, it suffices to use PL267 as an example since there is no suggestion that the other leases are relevantly different. Separate Questions 2, 4, 5, 6 and 7 are concerned with parcels that are within the area of PL267.

29    PL267 was granted on 10 August 2011 for a term of 30 years. The lease instrument states that it authorises the holder to explore, develop and store petroleum in accordance with its terms and conditions and the provisions of the PGA relating to petroleum leases. The area of tenure is described as consisting of 60 subblocks and approximately 180 km2 in total. There are no excluded or unavailable areas specified in the instrument.

30    The active parties have agreed that the area covered by PL267 is subject to different types of tenure including:

(a)    1,247 freehold parcels covering a total of 18,282.41 hectares, of which a number of parcels are subject to a registered lease;

(b)    22 leases under the Land Act 1994 (Qld) covering a total of 60.25 hectares;

(c)    41 reserves covering a total of 127.6 hectares;

(d)    197 easements covering a total of 305.24 hectares, and

(e)    13 USL parcels covering a total of 55.2 hectares.

31    It is also agreed that at the date of the Iman People #4 claim, the infrastructure constructed pursuant to, attached to or otherwise held under PL267 included 231 wells, gathering pipes, a gas plant facility, a water gathering system and a communications tower. The wells are connected by pipes.

32    The parcels relevant to the Separate Questions do not contain any petroleum infrastructure. It is also agreed that native title in respect of these parcels has been either wholly or partially extinguished.

Procedural history

33    In the late 1990s, there were three applications filed on behalf of the Iman People. Two of the applications did not proceed to determination. Iman People #1 was dismissed on 1 May 2008, and Iman People #3 was discontinued on 14 May 2002.

34    The third application resulted in a determination of native title by consent on 23 June 2016 in Doyle on behalf of the Iman People #2 v State of Queensland [2016] FCA 743; 335 ALR 201. The Iman People #2 determination covered over 5,016 km2 in Central Queensland.

35    On 21 August 2017, the Iman People #4 claim was lodged and accepted for filing on 23 August 2017. The application initially covered over 16,200 km2.

36    On 6 November 2017, the Iman People #4 claim was separated by Order of the Court into Part A (which was subject to an overlapping claim by the Wadja People) and Part B. On 9 August 2018, the Iman People #4 claim was amended to remove Part A from the claim area.

37    On 14 November 2023, the Iman People #5 claim was lodged over four specified parcels of land. An amended application was filed on 25 January 2024. The four parcels the subject of the Iman People #5 claim had been excluded from the Iman People #4 claim on the basis of prior extinguishment. Following the filing of the Iman People #4 claim, the tenure of those parcels changed, and they were unallocated State land at the date the Iman People #5 claim was filed. The applicant claims that s 47B(2) applies to disregard any prior extinguishment over the four lots comprising the Iman People #5 claim.

38    On 12 September 2024, a determination of native title was made by consent in relation to part of the Iman People #4 claim area in favour of the Iman People in Doyle on behalf of the Iman People #4 v State of Queensland [2024] FCA 1045. The Iman People #4 determination area comprised over 2,044 km2. However, a number of parcels, including 52 parcels which are the subject of the Separate Questions, were excluded from the determination. The applicant also claims that s 47B(2) operates to require any prior extinguishment to be disregarded in relation to these parcels.

The Agreed Facts

39    The applicant and the State tendered a Statement of Agreed Facts pursuant to s 191(3) of the Evidence Act 1995 (Cth).

40    For present purposes, it is relevant to note that the applicant and the State have agreed:

    There are 52 lots in the Iman People #4 claim and four lots comprising the Iman People #5 claim about which the application of s 47B is in dispute (the Separate Questions Areas).

    Subject to the question of extinguishment, the Iman People hold native title in the Separate Questions Areas, so there is no issue left for determination in respect of s 223(1) of the NTA in the Iman People #4 claim and the Iman People #5 claim.

•    The Separate Questions Areas were occupied by one or more members of the native title claim group for the purposes of s 47B(1)(c) of the NTA.

•    Native title was wholly or partially extinguished in the Separate Questions Areas.

•    The only dispute concerns whether s 47B operates with respect to the Separate Questions Areas such that the prior extinguishments are to be disregarded.

    Where any extinguishment is to be disregarded by reason of s 47B, the nature of the native title rights and interests held by the Iman People in the Separate Questions Areas is non-exclusive in relation to water and is otherwise exclusive.

The First Issue: Whether the areas covered by the petroleum leases granted under the PGA are “covered by a…lease” within s 47B(1)(b)(i) of the NTA

41    Section 47B(1)(b)(i) of the NTA provides that s 47B applies if a claimant application is made in relation to an area and when the application is made, the area is not “covered by a freehold estate or a lease”. Section 47B(2) then provides, relevantly, that, “any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded”.

42    Separate Questions 1, 2, 4, 5, 6 and 7 raise the issue of whether a petroleum lease granted under s 120 of the PGA is a “lease” within the meaning of that expression in s 47B(1)(b)(i). The applicant contends that it is not, with the consequence that s 47B(2) applies and requires prior extinguishment of native title rights and interests in relation to the Separate Questions Areas to be disregarded. The State contends to the contrary.

43    The applicant concedes that a petroleum lease under the PGA is a “mining lease” within s 245(1) of the NTA, but contends that the relevant Separate Questions Areas were not covered by a “lease” within s 47B(1)(b)(i) for two reasons. The first is that “lease” in s 47B(1)(b)(i) should be construed as excluding a “mining lease”, such that the provision should be read as, “not…covered by a freehold estate or a lease (other than a mining lease)”. The second is that a petroleum lease under the PGA is not a “lease” within the meaning of s 242(1)(c) of the NTA because a petroleum lease is not, “declared to be or described as a lease” by the PGA.

44    The second argument is seemingly inconsistent with the applicant’s concession that a petroleum lease under the PGA is a “mining lease” within s 245(1). In light of that inconsistency, it is convenient to determine the second argument first.

The argument that a petroleum lease under the PGA is not a “lease” within the meaning of s 242(1)(c) of the NTA

45    The applicant concedes that a petroleum lease under the PGA is a “mining lease” within s 245(1) of the NTA, but then contends it is not a “lease” within s 242(1).

46    Section 245(1) defines “mining lease” to mean, “a lease…that permits the lessee to use the land or waters covered by the lease solely or primarily for mining”. The word “lease” in the definition of “mining lease” takes its meaning from the definition of “lease” in s 242(1). That is apparent from the approach taken by the plurality in Western Australia v Ward (2002) 213 CLR 1 at [298]-[299] and Gageler J in Tjungarrayi (HC) at [47]. Accordingly, the applicant’s concession that a petroleum lease under the PGA is a “mining lease” is inconsistent with its submission that a petroleum lease is not a “lease” within s 242(1).

47    The applicant’s submission makes it necessary to examine whether a petroleum lease under the PGA is a “lease” within s 242(1) and a “mining lease” within s 245(1). More specifically, it is necessary to determine whether, within s 242(1)(c), such a petroleum lease is, “anything that, at or before the time of its creation, is, for any purpose, by a law of…a State…declared to be or described as a lease”.

48    The applicant submits that s 242(1)(c) only refers to a lease “as known to the law”, apparently referring to a lease under the general or common law that grants exclusive possession and creates an interest in land: cf Tjungarrayi (HC) at [35]. That submission can be dealt with shortly.

49    The definition of “lease” in s 242(1) includes a lease under the general or common law, but extends beyond such a lease. In Wilson v Anderson (2002) 213 CLR 401, the plurality observed:

[58]    It will be apparent that the expression ‘‘lease’’ as defined in s 242 is wide enough to encompass for the purposes of the NTA statutory interests which may not necessarily amount to a lease as understood by the common law…

[59]    The definition in s 242 of ‘‘lease’’ is of importance in the present proceedings because it demonstrates that the NTA postulates the existence of an interest which, although described as a ‘‘lease’’, is not a lease at common law. Further, the scheme of Div 2B of Pt 2 is premised upon the fact that a ‘‘lease’’ under the NTA may or may not confer a right of exclusive possession. These considerations illustrate the flaw in reasoning that as an interest was described as a ‘‘lease’’ it is to be presumed that a right of exclusive possession was conferred.

50    Accordingly, and contrary to the applicant’s submission, it is apparent that the definition of “lease” in s 242(1) is not confined to its meaning under the general law.

51    The applicant next submits that the requirement in s 242(1)(c) of something that is “declared to be or described as a lease” requires more than mere nominal use of the term “lease”. They observe that in Western Australia v Ward, the plurality’s conclusion that a mining lease under the Mining Act 1978 (WA) was a “lease” under s 242(1)(c) relied upon ss 71 and 79 of the Mining Act 1978 (WA), whereas the PGA contains no equivalent provisions. Sections 71 and 79 respectively authorised the responsible Minister to grant, “a lease to be known as a mining lease”, and deemed a successful applicant, “to be the holder of the lease”. The applicant also submits that a construction of s 242(1)(c) such that it catches an instrument merely named a “lease” would leave no work to be done by the verb “declared”.

52    Section 242(1)(c) of the NTA provides that the expression “lease” includes, “anything that…is, for any purpose, by a law of…a State…declared to be or described as a lease”. The provisions of Part 2 of Chapter 2 of the PGA consistently refer to the authority granted under s 120 as “a lease” or “a petroleum lease”. For example, s 120(1) provides relevantly that, “the Minister must grant the petroleum lease if the Minister is satisfied the requirements mentioned in section 121…have been complied with”. The definition of “petroleum lease” in Schedule 2 states “see section 18(1)(b)”; and s 18(1)(b)(i) states that the types of authority under the PGA include “a petroleum lease…granted under section 120…”. The Oxford English Dictionary Online defines “describe” as, “to use words to convey a mental image or impression of [a thing] by referring to characteristic or significant qualities, features or details”. The ordinary meaning of “described” in s 242(1)(c) encompasses labelling or calling an authority a “lease”. In my opinion, the PGA “described” the authority under s 120(1) as a “lease” within the ordinary meaning of “described” in s 242(1)(c).

53    The State submits, and I accept, that the purpose and context of the definition of “lease” in s 242(1)(c) of the NTA is consistent with the word “described” having its ordinary meaning.

54    The way the definition of “lease” in s 242(1) operates under the NTA can be illustrated in part by reference to Division 2B of Part 2. In Wilson v Anderson, the plurality at [59] observed that the scheme of Division 2B is premised upon the fact that a ‘‘lease’’ under the NTA may or may not confer a right of exclusive possession. Under Division 2B the effect of a “lease” on native title may depend on whether the grant of the lease is a “previous exclusive possession act” or a “previous non-exclusive possession act”. To illustrate what the plurality meant, it suffices to focus upon the effects of an “agricultural lease” and a “pastoral lease”.

55    Section 23B defines “previous exclusive possession act”, which involves the granting or vesting of Scheduled interests, freehold estates and leases that confer exclusive possession on or before 23 December 1996. Under s 23C and relevant State laws made under s 23E, a previous exclusive possession act will have extinguished any native title in relation to the relevant land or waters. The extinguishing effect of such acts is confirmed by ss 20 and 21 of the Native Title (Queensland) Act 1993 (Qld). The grants of leases that may amount to a “previous exclusive possession act” include grants of an “exclusive agricultural lease” and an “exclusive pastoral lease”.

56    The expression “agricultural lease” is defined in s 247(1) as, “a lease that…permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural purposes”. In that definition, “lease” evidently takes its meaning from s 242(1)(c). In s 247A, the expression “exclusive agricultural lease” is relevantly defined as, “an agricultural lease that…confers a right of exclusive possession over the land or waters covered by the lease”; and, under s 247B, a “non-exclusive agricultural lease” is “an agricultural lease that is not an exclusive agricultural lease”. There are equivalent provisions concerning pastoral leases in ss 248, 248A and 248B.

57    Section 23F(2) defines “previous non-exclusive possession act” as, relevantly, the grant of a “non-exclusive agricultural lease” or a “non-exclusive pastoral lease”. Sections 23G and 23I then provide for the relationship between “previous non-exclusive possession acts” and native title, namely non-extinguishment, extinguishment or suspension of native title rights and interests.

58    It may be seen that the scheme of Division 2B of Part 2 concerning the effect of agricultural leases and pastoral leases on native title is premised upon such leases falling within the definition of “lease” in s 242(1)(c). It may also be noted that the definitions of the other types of leases that may be “previous exclusive possession acts” within s 23B, namely a “commercial lease”, “residential lease” and “community purposes lease” are also based on the definition of “lease” in s 242(1)(c): see ss 246, 249, 249A.

59    The scheme of Division 2B of Part 2 is consistent with s 242(1)(c) having a wide operation to capture anything that is labelled or called a “lease” under the law of a Commonwealth, a State or Territory and then dealing with the relationship of such a lease with native title. The legislative intention that the provision has a wide operation is also emphasised by the use of the words “anything” and “for any purpose”.

60    It is also relevant that under s 23B(2)(viii), a “previous exclusive possession act” may be “any lease (other than a mining lease)”. That suggests that a “mining lease” is a “lease” within s 242(1)(c).

61    The definition of “mining lease” in s 245(1) follows a similar pattern to the definitions of the other leases specified in Division 2B of Part 2 by commencing with the statement that it is “a lease” that permits the lessee to use the land or waters for specified purposes. Consistently with an “agricultural lease”, “pastoral lease”, “commercial lease”, “residential lease” and “community purposes lease” mentioned in Division 2B of Part 2, the definition of “mining lease” finds its source in the definition of “lease” in s 242(1)(c).

62    In Commonwealth v Yunupingu (2025) 421 ALR 604; 99 ALJR 519, the High Court observed at [70]:

There was much discussion in Mabo (No 2) of the prerogative power to dedicate or alienate interests in land, which was conceded by the common law to the Crown, and which was exercisable by the executive for and on behalf of the Crown at the time of the acquisition of sovereignty. As noted in Mabo (No 2), however, the prerogative was abrogated by statute in Queensland with the result that the power of the Crown to grant an interest in land became exclusively statutory, as it did in South Australia and elsewhere throughout the Australian colonies in the course of the nineteenth century.

(Footnotes omitted.)

63    There are, of course, many Commonwealth, State and Territory statutory provisions that refer to the grant of interests in land or authorities or permits to use the land as “leases”. The definition of “lease” in s 242(1)(c) operates to pick up anything that has been declared or described by the law of the Commonwealth, a State or Territory to be a “lease”. Division 2B of Part 2 then deals with the effects of such “leases” upon native title. They may extinguish native title, or suspend native title, or prevail over but not extinguish native title. In the context that s 242(1)(c) picks up “leases” and their effect is then determined by Division 2B of Part 2, it is unsurprising that s 242(1)(c) is intended to operate broadly.

64    Under s 242(1)(b), the definition of “lease” also includes a contract that “contains a statement to the effect that it is a lease”. The characterisation of the instrument as a “lease” is determined by language chosen by the parties. That is consistent with a legislative intention that s 242(1)(c) should apply to an authority that is called or labelled a lease under a law of the Commonwealth, a State or a Territory.

65    Under the construction of the expression “described” as merely requiring that a law label or call something a “lease”, the phrase “declared to be” in s 242(1)(c) does have work to do. A law may call something a name other than a “lease” but then “declare” the thing to be a lease. The applicant’s submission that a broad construction of “described” would leave “declared to be” with no work to do cannot be accepted.

66    It can be acknowledged, as the applicant submits, that the definition of “lease” in s 242(1)(c) creates a somewhat arbitrary position where an instrument being described as a “permit” under the law of a State or Territory it is not a “lease”, while an otherwise identical instrument under a law of another State or Territory described as a “lease” is a “lease”. However, being “declared to be or described as a lease” is the criterion the legislature has selected to distinguish certain instruments characterised a “lease” from those that are not.

67    The context does not provide a basis to interpret the expression “described” in s 242(1)(c) as having any meaning narrower than its ordinary meaning. Under Part 2 of Chapter 2 of the PGA, the authority granted under s 120(1) is called or labelled a “lease” or “petroleum lease”. In my opinion, such an authority is “described” as a “lease” and is therefore a “lease” within the meaning of s 242(1) of the NTA.

The argument that a “lease” in s 47B(1)(b)(i) should be construed as excluding a “mining lease”

68    The parties’ submissions concerning whether a “lease” in s 47B(1)(b)(i) should be construed as excluding a “mining lease” focus upon the consideration by members of the High Court in Tjungarrayi (HC) of the meaning of “lease” in that provision. The plurality expressly stated at [38] that the issue did not need to be resolved. Justices Gageler and Gordon concluded at [46] and [135] respectively that a lease within s 242(1), including a “mining lease”, is a “lease” within s 47B(1)(b)(i). However, Nettle J at [77] and [106]-[107] reached the contrary conclusion.

69    The applicant’s argument is based substantially upon the obiter dictum of Nettle J in Tjungarrayi (HC) that a “mining lease” is not a “lease” within s 47B(1)(b)(i) of the NTA and therefore does not operate to prevent the disregarding of extinguishment of native title under s 47B(2). The State’s argument to the contrary is substantially based on the obiter dicta of Gageler J and Gordon J. To give context to these respective opinions, it is necessary to begin by considering what the Full Court of the Federal Court decided and the parameters of the appeal to the High Court.

70    The case was concerned with the application of s 47B(1) of the NTA to areas subject to exploration permits under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and an exploration licence under the Mining Act 1978 (WA) (the exploration tenements). In Attorney-General v Helicopter-Tjungarrayi [2018] FCAFC 35; 260 FCR 247 (Tjungarrayi (FC)), the Full Court of the Federal Court held at [8]-[9], [11] and [36] that s 242(2) of the NTA extends the meaning of “mining lease” and that a “lease” in s 47B(1)(b)(i) includes such a mining lease. The Full Court held at [12]-[13], applying the expanded definition of “mine” in s 253, that the exploration tenements were “mining leases” within s 242(2) (which provides that “[i]n the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given…”) and, accordingly, that s 47B(1)(b)(i) was satisfied. That conclusion was the subject of the appeal to the High Court.

71    It may be noted that the Full Court held that while the exploration tenements were “permissions or authorities” within s 47B(1)(b)(ii), they did not fall within that provision because the permits could not be characterised as ones under which the whole or any part of the claim area is to be used for the particular purpose of exploring for petroleum. There was no appeal against this aspect of the Full Court’s decision. Therefore, while the High Court was directly concerned with the meaning of “lease” in ss 47B(1)(b)(i) and 242, it was not directly concerned with the interpretation and application of s 47B(1)(b)(ii).

72    The High Court held that the Full Court’s reasoning that the exploration tenements were, by the operation of s 242(2), “mining leases”, was erroneous because it failed to recognise that s 242(2) is only engaged where an operative provision of the NTA contains an express textual reference to a “mining lease”. Because s 47B(1) does not contain such a reference to a “mining lease”, s 242(2) does not operate to expand the meaning of “lease” in s 47B beyond the meaning given in s 242(1). As the exploration tenements were not “leases” within s 242(1), they were not “leases” within the meaning of s 47B(1)(b)(i).

73    The plurality also referred to the issue of whether s 47B(1)(b)(i) applies to a “mining lease” as defined in s 245(1) but expressly stated at [38] that the issue did not need to be resolved. Justice Gageler at [46] and Gordon J at [135] concluded that s 47B(1)(b)(i) refers to a “lease” that satisfies the requirements of s 242(1), including a mining lease. Justice Nettle at [77] and [106]-[107] reached the opposite conclusion, namely that a mining lease is not a “lease” within s 47B(1)(b)(i).

74    Justice Nettle accepted that the exploration tenements were “mining leases” within the meaning of s 245(1) and therefore a “lease” within the definition in s 242(1) of the NTA. However, his Honour observed at [89] and [92] that the application of the definition of “lease” must yield to any contrary intention, and concluded that a contrary intention is apparent in s 47B(1)(b)(i).

75    His Honour observed that a number of provisions in the NTA expressly exclude “mining lease” from the expression “lease”. However, his Honour pointed out that the practice of expressly excluding “mining lease” from “lease” is not applied consistently throughout the NTA. Accordingly, express language such as, “a lease (other than a mining lease)”, does not need to be used in order to exclude “mining lease” from “lease” in the NTA.

76    Justice Nettle considered at [91]-[92] that the constructional context of s 47B is principally informed by the non-extinguishment principle in s 238. His Honour posited as an example that the non-extinguishment principle operates by preserving the existence of native title rights and interests in relation to the area of the mining lease, but those native title rights and interests do not have full force and effect until after the mining lease expires: see s 238(8).

77    His Honour at [92] reasoned that if the expression “lease” in s 47B(1)(b)(i) includes a “mining lease”, it would mean that a mining lease (which itself engages the non-extinguishment principle) would prevent the non-extinguishment principle from applying to the creation of any prior interest in vacant Crown land, at least until the mining lease expires. His Honour considered that, textually, this bespeaks a contrary intention that, in s 47B(1)(b)(i), “lease” does not include a “mining lease”.

78    Justice Nettle also considered that the legislative history supports a construction of “lease” in s 47B(1)(b)(i) as excluding a “mining lease”. His Honour noted that from the outset of the NTA, Parliament drew a distinction between, on one hand, leases thought to confer exclusive possession (such as commercial, agricultural and residential leases) which the NTA treats as extinguishing native title, and, on the other hand, mining leases which leave native title intact. His Honour referred to discussion papers, Explanatory Memoranda and Parliamentary debates, as well as the 1997 amendments.

79    His Honour at [102] considered it significant that although native title determination applications cannot be made in relation to an area where a previous exclusive possession act was done (s 61A(2)), they can be made if the previous exclusive possession act was one which s 47B requires to be disregarded: s 61A(4). His Honour concluded at [103] that, “the object… 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”.

80    Justice Nettle reasoned at [104] that given the non-extinguishment principle operates in relation to mining leases and the object of s 47B(1)(b)(i) is to disregard the extinguishment of native title by Category A and B past acts only, it would be illogical if a mining lease (a Category C past act), which does not itself extinguish native title, could prevent extinguishment from being disregarded.

81    Justice Nettle concluded that a “lease” in s 47B(1)(b)(i) does not include a “mining lease”:

[106]    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.

[107]    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.

(Footnotes omitted.)

82    The applicant submits that even though the plurality in Tjungarrayi (HC) decided it was not necessary to consider whether a “lease” in s 47B(1)(b)(i) includes a “mining lease”, some aspects of the plurality’s reasoning support the opinion of Nettle J. Their Honours observed:

[34]    The exclusions in s 47B(1)(b) from the statutory imperative to “disregard” the prior extinguishment of native title should not be construed more widely than is necessary to give effect to their terms. In this regard, s 47B(3)(a)(i) ensures that a successful native title determination, aided by the obligation to “disregard” the prior extinguishment of native title provided for by s 47B(2), will not adversely affect the validity of any prior interest granted by a government in relation to the area.

[35]    The evident purpose of s 47B is to facilitate the grant of native title under the NTA, 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 collocation of “freehold” with “lease” in s 47B(1)(b)(i) is eloquent of the nature of the extant interest in land that is regarded as an obstacle to a successful native title determination with the aid of s 47B. The interest of the holder of a freehold estate or a lease under the general law was sufficient to extinguish native title rights and interests under the common law.

[36]    It makes little sense, in terms of the evident purpose of s 47B, that extant exploration tenements should be an insuperable obstacle to the availability of native title when the grant of the rights characteristically conferred by exploration tenements would not have extinguished native title rights and interests under the common law in the first place. Further, when the grant of an exploration tenement is not treated by the general law as inconsistent with the continued subsistence of ordinary freehold title, it is not to be supposed that the NTA treats native title rights and interests less favourably in the absence of a clear expression of that intention.

[37]    On the other hand, it is in full accord with the evident purpose of s 47B that the relatively low level of the intensity of use and occupation of land characteristically authorised by exploration tenements should not deny the possibility of a grant of native title to native title claimants who are in actual occupation of the land. Further, the rights conferred on the holders of exploration tenements are as capable of co-existing with native title rights and interests as they are with the rights of owners of freehold title under the general law.

[38]    Whether the position is otherwise in relation to lands the subject of a mining lease in the narrower sense defined by s 245(1) is an issue that need not be resolved for the determination of these appeals. The only question which needs to be decided is whether the exploration tenements are “leases” within s 47B(1)(b)(i). The exploration tenements in question are leases for the purposes of the NTA only where s 242(2) operates to produce that result, and, as has been seen, the condition of its operation has not been met in the case of s 47B(1)(b)(i).

(Emphasis added. Footnotes omitted.)

83    The State relies upon the opinions expressed by Gageler J and Gordon J that a “lease” in s 47B(1)(b)(i) does include a “mining lease”.

84    Justice Gageler acknowledged at [44]-[45] that the principle that beneficial legislation is to be construed beneficially legitimately weighs in favour of a construction which gives s 47B wider application if and to the extent that a constructional choice is open on the text of the NTA. His Honour continued:

[46]    To attempt to apply the principle to exclude application of the definition of “lease” in s 242 to the term “lease” in s 47B(1)(b)(i), however, is to stretch the principle too far. To be borne in mind is that “no legislation pursues its purposes at all costs” and that “it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law”. The unqualified use in s 47B(1)(b)(i) of the term defined in s 242 for the purposes of the whole of the NTA is indicative of a legislative choice that the definition in s 242 is to apply.

[47]    Section 242(1)(c)’s inclusion within the definition of “lease” of “anything that, at or before the time of its creation, is, for any purpose … declared to be or described as a lease” by a State law was held in Western Australia v Ward to be sufficient to pick up mining leases granted under the Mining Act 1978 (WA). The consequence of such mining leases being picked up by s 242(1)(c) as “leases” within the meaning of the NTA was that those leases were held in Ward also to be “mining leases” within the meaning of the NTA by operation of the definition of “mining lease” in s 245(1). Neither a mineral exploration licence granted under the Mining Act nor a petroleum exploration permit granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (“the Petroleum Act”) is declared to be or described as a “lease” under Western Australian law. So, s 242(1)(c) does not operate to pick up either such a licence or such a permit as a “lease” within the meaning of the NTA.

[48]    As the Full Court correctly recognised in each of the decisions under appeal, if a mineral exploration licence granted under the Mining Act or a petroleum exploration permit granted under the Petroleum Act is to meet the description of a “lease” within s 47B(1)(b)(i), that result could be brought about only through the operation of s 242(2). The determinative issue in each appeal is therefore as to the construction of s 242(2).

(Footnotes omitted.)

85    In the course of reasoning that s 242(2) expands the meaning of “mining lease” only where there is a reference in the NTA to a mining lease, Gordon J expressed the opinion that “lease” in s 47B(1)(b)(i) refers to a “lease” within the meaning of s 242(1). Her Honour stated:

[132]    …Section 47B is “a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court”. Section 47B(1)(b) identifies a field of exclusions from that general proposition. That is, it identifies with precision (in sub-paras (i)-(iii)) those competing interests which exist, at the time that the application for determination of native title is made, that permit the prior extinguishment to continue while that competing interest exists.

[133]    Section 47B(1)(b) employs a drafting technique used throughout the Native Title Act: it starts with what might be described as the most extensive common law rights and interests in land to which the provision is intended to apply – such as freehold estates and leases – and then cascades down to lesser rights and interests – such as licences, permits and authorities. It may be that, on a given set of facts, a particular right or interest is captured by more than one paragraph of a provision. Or, in others, it may be that the particular right or interest is “cut off” at an early stage of the provision (where the paragraphs are cumulative). But if a particular right or interest is not – on the facts of the case – captured by any of the paragraphs of a provision, then it is not captured.

[134]    To extend s 47B(1)(b)(i) to licences and authorities would be to stretch the meaning of “lease”, a greater interest, to encompass a type of interest that is already addressed in s 47B(1)(b)(ii): a “permission or authority” made or conferred by Commonwealth, State or Territory legislation, under which land “is to be used … for a particular purpose”. As stated earlier, it was not contended that the Full Court in the [Tjungarrayi] appeal erred in concluding that a petroleum exploration permit is capable of constituting a permission or authority under which land is to be used for a particular purpose. Indeed, for present purposes, it is sufficient to note that the words “permission or authority” in s 47B(1)(b)(ii) are intended to reflect the fact that less extensive interests, such as a permit or authority, made or conferred in the context of the remainder of s 47B(1)(b)(ii), will be sufficient to defer the fact that historic extinguishment of the native title by any prior interest is to be “ignored”.

[135]    Thus, in that context, s 47B(1)(b)(i) refers to a “lease”, which, by its terms, includes a mining lease that satisfies the requirements of s 242(1). But that reference to “lease” does not, and is not intended to, extend to include the wider meaning of “mining lease” provided in s 242(2).

(Emphasis in original. Footnotes omitted.)

86    The differences between the three sets of reasons may be summarised as follows. Justice Nettle considered that the expression “lease” in s 47B(1)(b)(i) does not take its meaning from the definition of “lease” in s 242 because a contrary intention is apparent from the context, purpose and legislative history. In particular, his Honour pointed to the improbability of a “mining lease”, which itself engages the non-extinguishment principle, precluding the application of the non-extinguishment principle to the creation of any prior interest, at least until after the mining lease expires. Some support for this aspect of Nettle J’s reasoning may be discerned in the reasons of the plurality.

87    Justice Gageler considered that the unqualified use in s 47B(1)(b)(i) of the term “lease” which is defined in s 242 for the purposes of the whole of the NTA is indicative of a legislative choice that the definition in s 242 is to apply. In his Honour’s view, the determinative question was whether the exploration tenements fell within the definition of “lease” in s 242(1)(c).

88    Justice Gordon concluded, by reference to the language and structure of s 47B(1)(b)(i), that the provision includes a mining lease that satisfies s 242(1). Her Honour observed that where the NTA intends to disengage “mining lease” from a “lease”, it tends to do so expressly through the phrases “lease (other than a mining lease)” or “the lease is not a mining lease”. Part of the context referred to by her Honour is that a “permission or authority” in s 47B(1)(b)(ii) is apt to cover “lesser rights and interests”.

89    The question of whether the expression “lease” in s 47B(1)(b)(i) encompasses a “mining lease” as defined in s 245(1) poses a difficult constructional choice.

90    The language of the NTA is strongly against the exclusion of a “mining lease” from s 47B(1)(b)(i). As Gageler J observed in Tjungarrayi (HC) at [46], the unqualified use in s 47B(1)(b)(i) of the expression “lease” which is defined in s 242(1) for the whole of the NTA is indicative of a legislative choice to apply that definition. And as Gordon J observed at [131], where the NTA intends to disengage “mining lease” from a “lease”, it tends to do so expressly through use of the phrases “lease (other than a mining lease)” or “the lease is not a mining lease”: see ss 21(3)(a), 23B(2)(c)(viii), 24IC(4)(c), 43A(2)(a)(i), 232A(2)(e)(i), 232B(3)(g), 246(1), 230(b) and 232C(b)(i). In contrast, the absence of any express exclusion of a “mining lease” in s 47B(1)(b)(i), suggests the absence of any legislative intention to do so.

91    On the other hand, the reasoning of Nettle J provides a compelling analysis of why context, purpose and legislative history favour the view that “lease” in s 47B(1)(b)(i) should be understood as a “lease (other than a mining lease)”. As Nettle J and the plurality pointed out, in light of the evident purpose of s 47B(2), it makes little sense for a mining lease which does not extinguish native title rights and interests under the common law or under the NTA to provide an insuperable obstacle to the availability of native title during the subsistence of the lease.

92    However, I respectfully consider that the force of Nettle J’s reasoning is reduced when the construction of s 47B(1)(b)(i) is considered, as it must be, in light of s 47B(1)(b)(ii).

93    Section 47B(1)(b)(ii) operates to exclude the application of s 47B(2) where, relevantly, the area is covered by a “permission or authority” under which the whole or part of the area “is to be used for…a particular purpose”. Even if s 47B(1)(b)(i) were construed as excluding a mining lease, a mining lease would be a “permission or authority” within s 47B(1)(b)(ii). Whether or not the mining lease falls within s 47B(1)(b)(ii) and operates to prevent s 47B(2) from applying would depend on whether the whole or part of the relevant area is to be used for a particular purpose.

94    In this context, whether a mining lease falls within s 47B(1)(b)(i) has a limited consequence. If a mining lease is a “lease” within s 47B(1)(b)(i), then the application of s 47B(2) is immediately excluded. If a mining lease is not a “lease” within s 47B(1)(b)(i), in many cases, although not all, s 47B(1)(b)(ii) would still operate to preclude the application of s 47B(2).

95    Since s 47B(1) considered as a whole evinces a clear legislative intention that a mining lease will preclude the operation of s 47B(2) in at least some cases, there is less force in Nettle J’s reasoning that such a consequence is unlikely to have been intended under s 47B(1)(b)(i).

96    Under s 47B(1)(b)(ii), some Category D past acts to which the non-extinguishment principle applies may also prevent s 47B(2) from operating. These are what Gordon J described as “lesser rights and interests”. When s 47B is viewed as a whole, one purpose of the provision must be that it should not operate in respect of land encumbered not just by Category A and B past acts but also by some Category D past acts. In that context, it does not seem improbable that the word “lease” in s 47B(1)(b)(i) would take its meaning from the definition in s 242(1) and include a mining lease.

97    In addition, there are circumstances where a “mining lease” may itself operate to extinguish native title. The definition of “mining lease” includes s 245(2), which broadly provides that s 245(3) applies to a city, town or private residence the construction of which was permitted by the lease. Section 245(3) then provides that the mining lease is taken to consist of separate leases, consisting of the area in respect of which s 245(2) is satisfied and the remainder of the area. Section 23B(2)(a)(vii) provides that the grant of such separate leases will be a “previous exclusive possession act”. Further, the grant of such separate leases may be a Category A past act within s 229(3)(b). The non-extinguishment principle will not therefore apply to all mining leases. Accordingly, if, as Nettle J indicated, the purpose of s 47B(1)(b)(i) is to prevent s 47B operating on land encumbered by Category A or B past acts which operate to extinguish native title, that purpose would encompass mining leases that extinguish native title.

98    Another relevant contextual factor is that a “mining lease” falling within s 47B(1)(b)(i) only operates to delay the making of an application for native title and the disregarding of prior extinguishment over the relevant area until the lease is terminated or expires and is not renewed, and does not of itself wholly defeat such an application. A mining lease must come to an end at some point since the mineral or gas to be extracted is a finite resource. It would be more difficult to accept the logic of a mining lease that is subject to the non-extinguishment principle operating to wholly defeat the operation of s 47B(2) than merely delaying its operation.

99    In my respectful opinion, these contextual factors detract from the force of Nettle J’s reasoning for concluding that a “lease” in s 47B(1)(b)(i) does not include a “mining lease”.

100    I have taken into account the further extrinsic material relied on by the applicant to support the reasoning of Nettle J. However, I am not persuaded that such material overcomes the plain language of s 47B(1)(b)(i).

101    I understand the applicant to have advanced an alternative argument that “lease” in s 47B(1)(b)(i) refers to a lease under the general law. However, that submission is inconsistent with the approach of Gageler and Gordon JJ that a “lease” in s 47B(1)(b)(i) takes its meaning from s 242(1). I do not understand the other members of the Court to have determined the issue.

102    In my opinion, the meaning of “lease” in s 47B(1)(b)(i) derives from the definition of “lease” in s 242(1). A mining lease under s 245(1) is necessarily a “lease” within s 242(1)(c). Accordingly, s 47B(1)(b)(i) encompasses a “mining lease” within the meaning of s 245(1).

103    After preparing these reasons in draft, I became aware that Banks-Smith J had recently given judgment in Gilla on behalf of the Yugunga-nya People v State of Western Australia (No 5) [2026] FCA 1255. Her Honour also concluded for reasons given at [1033]-[1073] that a “lease” in s 47B(1)(b)(i) includes a “mining lease”. I respectfully agree with her Honour’s reasons.

104    Each of PL247, PL267 and PL458 is a “mining lease” within s 245(1) and therefore a “lease” within s 47B(1)(b)(i). It follows that s 47B(1)(b)(i) is engaged, with the consequence that s 47B(2) does not apply to require any prior extinguishment to be disregarded.

The Second Issue: Whether the Separate Questions Areas are covered by any permission or authority under which “the whole or a part of the land…is to be used…for a particular purpose” within s 47B(1)(b)(ii) of the NTA

105    The State submits that even if the petroleum leases are not “leases” within s 47B(1)(b)(i), s 47B(1)(b)(ii) would be engaged because they are “permissions or authorities” under which, “the whole or a part of the land…is to be used…for a particular purpose”. In case I am wrong in holding that the petroleum leases do fall within s 47B(1)(b)(i), I will proceed to consider the State’s alternative submission.

106    It is not in contest that the petroleum leases are “permissions or authorities”; that they were “conferred by the Crown”; and that when the native title determination application was made, the Separate Questions Areas (save for the parcel dealt with in Separate Question 3) were covered by the petroleum leases. However, the applicant argues, first, that the petroleum leases do not authorise the use of the area “for a particular purpose”; and, secondly, that none of them is a permission or authority under which an area “is to be used”.

107    The applicant submits that the activities authorised by the grant of a petroleum lease are so broad that they do not amount to the authorisation of a “particular purpose”. They submit that because ss 109 to 112 of the PGA permit a range of activities, including conducting geological surveys, constructing and operating pipelines and constructing roads, the range of authorised activities is not “particular”. In response, the State submits that the overall purpose of a petroleum lease is the production of petroleum, which is a “particular purpose”.

108    The applicant also submits that ss 109 to 112 are cast in permissive rather than mandatory terms. They submit that no particular part of the lease areas is “required to be used”. The applicant argues that no infrastructure pursuant to the authority was constructed or operated on any of the Separate Questions Areas at the time the native title determination application was made. They submit that the purpose of the large area for which the petroleum leases were granted was merely to secure an exclusive entitlement to extract petroleum from an underground resource rather than to mandate infrastructure or land uses related to petroleum activities.

109    It is convenient to consider both of the applicant’s arguments together since they concern two parts of a composite phrase and rely upon the same provisions of the PGA.

110    In Roberts, I considered the appropriate construction of s 47B(1)(b)(ii). That judgment was set aside by the Full Court in Roberts (FC) on the basis that it was not appropriate to employ the separate question procedure in the circumstances of the case and the Full Court, accordingly, did not consider the correctness or otherwise of my construction of the provision.

111    In Alyawarr, the Full Court held at [187] in respect of the phrase “a particular purpose” in s 47B(1)(b)(ii):

A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose.

112    In Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148 (Moses), the Full Court held at [179] that the concept of a “particular purpose” contemplates a purpose expressed with much greater specificity than “orderly development” of an area.

113    In Tjungarrayi (FC), the Full Court held at [31] that the purpose of exploring for petroleum was a particular purpose. If the purpose of exploring for petroleum is a particular purpose, then so too must be the purpose of producing petroleum. It will be necessary to examine whether a petroleum lease granted under s 120 of the PGA is for the purpose of producing petroleum.

114    In Roberts, I rejected a submission that the phrase “is to be used” should be read as “is required to be used” for reasons I set out at [37]-[51]. I surveyed the authorities, including Alyawarr at [188], Moses at [170] and Banjima at [114].

115    I also considered Tjungarrayi (FC), where the Full Court held at [31], “[p]rovided the permits involve (as they do in this case) a requirement to use land for that purpose, we do not see how it can be said that the requirement of land which ‘is to be used…for a particular purpose’ remains unsatisfied”. The Full Court also observed at [37] that, “an authority to do some act involving a use of land is not the same as a requirement that land ‘is to be used’”. In these passages, the Full Court confirmed that a requirement to use the land is important in answering the question whether the land “is to be used” for a requisite purpose, but did not suggest that to satisfy s 47B(1)(b)(ii), the permit or authority must necessarily require the land to be used for a purpose.

116    The Full Court went on to conclude at [38]:

The permits in the present case also require some unidentified parts of the land the subject of the permits (which may or may not be in the claim area) to be used for the particular purpose of exploring for petroleum. Given the nature of the actual physical works to the land appear to be relatively confined (two exploration wells) and the land the subject of the permits authorised to be used is large, we are not satisfied that the permits may be characterised as ones under which the whole or any part of the claim area is to be used for the particular purpose of exploring for petroleum. They are permits under which some relatively confined part of the land the subject of the permits, which may or may not be in the claim area, is to be used for that purpose. Each case will turn on its own facts including the nature of the use, the purpose of the use, the extent of the land the subject of the permits, the extent of the claim area and the conditions or terms of the reservation (etc) and the legislation under which the reservation was granted. Beyond this, no more can be said.

117    In Roberts, I summarised my opinion as to the appropriate construction of the phrase “is to be used” at [51]. I adhere to that opinion and will now restate it.

118    In Alyawarr, the Full Court held at [188] that the phrase “is to be used” in s 47B(1)(b)(ii) imports the need to identify an intention that the subject land be used for public purposes or a particular purpose. The intention is the Crown’s intention. In many statutory contexts, the Crown’s intention will be indicated by the intention of the relevant Minister. The intention must be demonstrated on an objective basis, by reference to the relevant legislation and the reservation, etc. (including the nature and purpose of the use, the extent of the land subject to the reservation, etc., the extent of the claim area and the conditions or terms of the instrument). If a reservation, etc. expressly requires land to be used for public purposes or a particular purpose, that provides a powerful indication of the Crown’s intention, but an express requirement is not essential. On the other hand, a mere permission or authority to use land will not, without more, demonstrate the necessary intention. Between these positions, the statutory language or the terms of the reservation, etc. may provide an indication that the Crown’s intention is that the land is to be used for a public or particular purpose. Each case turns upon its own facts and statutory context.

119    It is necessary to examine the terms of the petroleum leases and the PGA to determine whether each of the Separate Questions Areas “is to be used” for a “particular purpose”.

120    PL267 authorises the holder to, “explore, develop and store petroleum in accordance with the terms and conditions of this petroleum lease and the provisions of the Act relating to petroleum leases”. PL267 was granted on 10 August 2011 for a term of 30 years and consists of 60 subblocks and an area of approximately 180 km2. There are no excluded or unavailable areas specified in the instrument. The lease instrument states that the Minister had approved the initial development plan. PL247 and PL458 are not relevantly different.

121    Petroleum leases are dealt with in Chapter 2 of Part 2 of the PGA. Division 1 of Part 2 has the heading “Key authorised activities” and consists of ss 108-116.

122    Within Division 1, s 109(1) provides that the lease holder “may carry out” specified activities in the area of the lease, including exploring for petroleum, certain kinds of testing and evaluation and petroleum production.

123    Under s 110(1), the lease holder may construct and operate petroleum pipelines in the area of the lease.

124    Section 111(1) provides that the lease holder may carry out the processing of petroleum in the area of the lease and construct and operate a facility for the processing, storage or transport of petroleum in the area of the lease.

125    Section 112(1) provides that the lease holder may carry out an activity in the area of the lease if it is reasonably necessary for, or incidental to another authorised activity for the lease.

126    The applicant is right to submit that the provisions of Division 1 of Part 2 do not suggest that any part of the lease area “is to be used” for a particular purpose.

127    However, it is necessary to consider the remainder of Part 2. Division 2 has the heading “Transition from authority to prospect to petroleum lease” and consists of ss 117-125.

128    Section 120(1) provides, relevantly, that the Minister must grant the petroleum lease if the Minister is satisfied the requirements mentioned in s 121 have been complied with.

129    A requirement mentioned in s 121(1)(b) is that the proposed area of the proposed petroleum lease contain commercial quantities of petroleum. A requirement stated in s 121(1)(e) is that the Minister must be of the opinion that the applicant is capable of carrying out the authorised activities. Another requirement stated in s 121(1)(g) is that the applicant has established one of the matters mentioned in s 121(2). The matters in s 121(2) are relevantly:

(a)    commercial petroleum production is, or is likely, within two years after the lease is to take effect; and

(b)    the applicant has entered into a contract or arrangement to supply petroleum produced from the lease area.

130    Under s 123(1), each petroleum lease must state its term and area. Section 123(2) provides that the term must be for at least the plan period for the initial development plan for the lease and end no later than 30 years after the lease takes effect. Under s 123(3)(c), the lease may also state a day by which petroleum production under the lease is to start. Section 123(7) states that the production commencement day may be more than two years after the day of effect only if the Minister is satisfied the holder has entered into a relevant arrangement.

131    Division 4 of Part 2 is entitled “Development plans” and consists of ss 136 to 149.

132    A requirement for a grant set out in s 121(1)(d) is that the Minister has approved the applicant’s proposed initial development plan for the lease. Section 138(1) states that a proposed development plan must provide for matters including an overview of the activities proposed to be carried out during all of the lease term; the nature and extent of activities proposed to be carried out under the lease or proposed lease during each year of the plan; the rate and amount of production proposed from each reservoir of which the applicant is aware; and a schedule for the proposed production during the plan period.

133    Under s 141, the matters that must be considered in deciding whether to approve a proposed development plan include the potential of the area of the proposed petroleum lease for petroleum production and related activities; the nature and extent of the activities; when and where the activities are proposed to be carried out; and whether petroleum production sought under the lease will be optimised in the best interests of the State, having regard to the public interest.

134    Section 147 provides that the Minister may approve or refuse to approve the proposed development plan.

135    Importantly, s 154 provides:

(1)    A petroleum lease holder must start petroleum production under the lease on or before the later of the following—

(a)    the end of 2 years after the lease takes effect;

(b)    any production commencement day for the lease.

(2)    However, subsection (1) does not apply if the development plan for the lease only provides for natural underground reservoir storage.

136    The active parties have not suggested that the development plans for the petroleum leases in this case only provide for natural underground reservoir storage. The terms of the lease instruments indicate that storage is only one of the authorised activities.

137    Section 157 provides that the holder of a petroleum lease must have a development plan for the lease. Section 158(1) requires a petroleum lease holder to comply with the development plan.

138    Section 155(1) provides that a petroleum lease holder must pay the State petroleum royalty and the prescribed annual rent. The requirement to pay royalties serves to explain, at least in part, why the PGA intends that the holder of a petroleum lease should actually produce petroleum.

139    It is true, as the applicant submits, that Division 1 of Part 2 dealing with “Key authorised activities” uses permissive language when describing the activities the lease holder is authorised to do. For example, s 109(1) provides that the lease holder “may carry out” specified activities including producing petroleum. It can be accepted that the provisions of Division 1 do not themselves require the lease holders to do such activities.

140    However, it is apparent from reading Divisions 2 and 4 as a whole that the legislative intention is for the lease holder to use the lease area to actually produce petroleum (other than for leases where only storage is authorised). That intention is made explicitly clear by s 154(1) which provides that a petroleum lease holder must start petroleum production under the lease within the specified timeframe. It is also apparent from other provisions such as ss 121(1)(g) and (2) which require demonstration that commercial petroleum production is likely within two years or the applicant has a contract or arrangement to supply petroleum produced from the lease area. Another example is s 141 which requires that approval of a proposed development plan must take into account the potential of the area for petroleum production.

141    This view is confirmed by the Explanatory Notes for the PGA which state that the requirements of what is now s 121, “are to ensure that a petroleum lease is used for the purpose of producing or storing petroleum”.

142    The applicant’s submission that the purpose of the grant of a large area for the petroleum leases was merely to secure an exclusive entitlement to extract petroleum is inconsistent with the Explanatory Notes which state in respect of what is now s 108, “[a] petroleum lease is for the production of petroleum and is not to be used for retention of a petroleum discovery that is yet to be brought into production”.

143    The applicant submits that the activities authorised by the grant of a petroleum lease (including conducting geological surveys, constructing and operating pipelines and constructing roads) are so broad that they are not a “particular purpose”. However, it is apparent that the range of activities a petroleum lease holder is authorised to undertake are directed to the ultimate purpose of producing petroleum. In my opinion, the production of petroleum is a “particular purpose” within s 47B(1)(b)(ii).

144    The phrase “is to be used” requires consideration of the Minister’s intention in granting the permission or authority, not whether that intention is fulfilled. Accordingly, the applicant’s argument that no production infrastructure had been constructed on the Separate Questions Areas at the date of the applications is not to the point. Further, it is not necessary that each and every part of the lease area is to be used: cf Tjungarrayi (FC) at [37]-[38].

145    The nature and extent of the physical works contemplated under a petroleum lease in order to produce petroleum is not comparable with the quite limited extent of the physical work (which consisted of two exploration wells) and usage of the land contemplated under the exploration tenements in Tjungarrayi (FC). The number of wells authorised under the petroleum leases is unconfined and the lease holders are authorised to, inter alia, construct pipelines, construct a processing, storage and transport facility, construct a produced water processing and storage facility and engage in incidental activities, such as installing powerlines and constructing roads and temporary structures. Section 121(1)(b)(i) requires the Minister to be satisfied that the proposed area of the petroleum lease is appropriate for the authorised activities. The leases authorise all parts of the lease areas to be used over the 30 year life of the leases. It may be noted that s 108(2) of the PGA provides that the authorised activities may be carried out, “despite the rights of an owner or occupier of land on which they are exercised”.

146    Under the scheme of Part 2 of the PGA, when the Minister grants a petroleum lease (leaving aside a lease solely for storage), it must be inferred that the Minister does so with the intention that the lease holder will produce petroleum within a certain timeframe. The production of petroleum is a “particular purpose” within s 47B(1)(b)(ii) of the NTA. A petroleum lease granted under s 120 of the PGA “is to be used” for a particular purpose.

147    Even if PL247, PL267 and PL458 are not “leases” within s 47B(1)(b)(i), s 47B(1)(b)(ii) would be engaged because they are “permissions or authorities” under which, “the whole or a part of the land…is to be used…for a particular purpose”. For that reason, s 47B(2) would have no application.

The Third Issue: Whether a former road, established but not constructed, involves the “creation of any prior interest” within the meaning of s 47B(2) of the NTA

148    Separate Questions 1, 2 and 3 ask whether an area over which a road was established but not constructed falls within s 47B(2) of the NTA.

149    It is common ground that the application of s 47B(2) in respect of the roads in question is not excluded by s 47B(1)(b)(ii).

150    Section 47B(2) provides, relevantly, that, “any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded”. The expression “prior interest” is not defined, but “interest” is given a wide definition in s 253, including, “any other right,…charge, power or privilege over, or in connection with…the land or waters”.

151    The issue in dispute is whether extinguishment “by” the establishment of the roads involved “the creation of any prior interest in relation to the area”.

152    In Wik Peoples v Queensland (1996) 187 CLR 1, Brennan CJ observed at 84-85:

Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

(Footnotes omitted.)

153    Section 47B(2) appears to be directed at disregarding extinguishment of the second kind identified by Brennan CJ.

154    The applicant contends that extinguishment of native title “by” the dedication or establishment of a road involves “the creation of any prior interest”, with the consequence that such extinguishment must be disregarded. The State argues to the contrary. The active parties use the expression “dedicated” interchangeably with “established”. I will generally adopt the expression “established”.

155    Separate Questions 1 and 2 are concerned with the issue of whether areas covered by petroleum leases are captured by s 47B(1)(b)(i) as well as the issue of whether, within s 47B(2), a prior interest is created by the establishment of a road. My conclusion that the petroleum leases fall within s 47B(1)(b)(i) means that s 47B(2) can have no application to the areas described in Separate Questions 1 and 2. It is therefore only strictly necessary to address the roads issue in the context of Separate Question 3, which asks:

Does s 47B of the NTA operate over Lot 30 on USL45304 so as to require the prior extinguishment identified in paragraphs 90 to 100 of the [Statement of Agreed Facts] to be disregarded, because the area over which Eastern Road 3 was established but not constructed falls within the meaning of “the creation of a prior interest” in s 47B(2) of the NTA?

156    However, my answer to Separate Question 3 will be also determinative of the parts of the other Separate Questions that concern the roads issue.

157    Separate Question 3 deals with “Eastern Road 3”. The active parties have agreed that Plan FT144 states that on 28 June 1910, a licensed surveyor certified that he had:

…completed the survey represented by this plan on which are written the bearings and lengths of the lines surveyed by me, and that the survey has been executed in accordance with the existing regulations of the Surveyor-General’s Department.

158    The plan was examined on 23 July 1910 and charted on 28 August 1910. The plan depicts a road which the active parties have described as “Eastern Road 3”. Plan FT257 was examined on 31 July 1920 and charted on 9 August 1920 and depicts a road consistent with Eastern Road 3. On 21 March 1924, a lease of a grazing farm over portion 32 of Plan FT144 was granted and the Schedule to the lease depicts a road consistent with Eastern Road 3. The active parties have agreed that the establishment of Eastern Road 3 occurred no later than 21 March 1924.

159    In Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 (Fourmile), Drummond J (Burchett J agreeing) explained at 168 that Part IV of the Crown Lands Act 1884 (Qld) prescribed a mode by which the Crown was authorised to constitute wastelands of the Crown as a public road. Where land was surveyed and declared available for allocation and development in accordance with the prescribed statutory process and the land included areas clearly identified by official survey plans as roads, there had been a dedication of that area of the land as a public road. His Honour observed that the fact that no roadway was actually formed did not prevent it from having the status of a public road. The Full Court held that the dedication of a road extinguished native title because the dedication created a right for members of the public to traverse the historic roads, and, as a corollary, denied any right to use the land for a purpose which might interfere with that right of free passage.

160    In the present case, the active parties have agreed that the establishment of Eastern Road 3 was a “public work” by or on behalf of the Crown within the meaning of s 253 of the NTA and that its establishment wholly extinguished all native title in the area of the road and, accordingly, in Lot 30 on USL45304. They also agree that Eastern Road 3 was never constructed as a road.

161    In Erubam Le (Darnley Islanders) #1 v State of Queensland (2003) 134 FCR 155 (Erubam Le), the Full Court held at [90] that, “it cannot be said that the construction or establishment of the public works is properly to be characterised as ‘the creation of a prior interest’ in the land”.

162    The applicant argues that Erubam Le is distinguishable because the Full Court did not consider the situation of a creation of legal rights, such as the dedication of a road, without physical construction. They also submit that the Full Court was only concerned with the particular constructed public works involved in that case, and not to the whole universe of “public work” as defined by s 253. The applicant submits there is nothing to preclude the definition of the term “interest” in s 253, from encompassing the rights created by the dedication of a road. The applicant relies upon Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (Murray) where McKerracher J at [2202]-[2204] distinguished Erubam Le. It may be noted that the applicant does not argue that Erubam Le is distinguishable on the basis that it was concerned only with s 47A and not with s 47B.

163    The applicant formally submits that if Erubam Le at [90] represents seriously considered obiter dicta binding on a single judge, it is wrong insofar as it applies to the dedication of a road that has not been physically constructed. They submit that, otherwise, the statutory text in ss 47A(3)(a)(ii) and 47B(3)(a)(ii) preserving the interests of the Crown and any statutory authority in public works would have no work to do. They submit that the establishment of a road creates a prior interest, namely an enforceable right of free passage over the land, in members of the public.

164    In Erubam Le, land on the island of Erub in the Torres Strait was subject to a grant of title to the Erub Island Council to hold the land in trust for the benefit of Islander inhabitants. On the island, there were “public works” within the meaning of s 253 constructed or established prior to 23 December 1996, consisting of a pump, windmill, earth storage dam, fibreglass reservoir, reticulation pipes, school and residential house. In an application for a determination of native title, separate questions were referred to the Full Court as to whether the construction or establishment of the public works extinguished native title rights and interests, and if so, whether s 47A of the NTA required that such extinguishment be disregarded.

165    The relevant public works fell to be considered under Division 2B of Part 2. Section 23B(7) relevantly provides that, an act is a “previous exclusive possession act” if, “it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996”. The applicants submitted that the construction or establishment of the public works was excluded from that definition by s 23B(9) which provides, relevantly, that an act is not a previous exclusive possession act if it is, “the grant or vesting of any thing…”. The applicants’ submission that the construction or establishment of a public work is a “vesting” because the construction of a fixture vests title to that fixture in the owner of the freehold was rejected. The Full Court held at [32] that a public work is neither “granted” nor “vested”, and, in truth, there is no change at all in the fee simple interest, even if the land becomes, as a practical matter, more valuable or more useful. The Full Court considered that this approach was confirmed by the distinction in the NTA between acts that “consist of a grant or vesting” and acts that “consist of the construction or establishment of any public work”.

166    The Full Court held at [37] that the public works extinguished any native title rights and interests in relation to the land on which the public works were situated. However, as the applicants had also contended that s 47A(2) applied to require any extinguishment to be disregarded, the Full Court was required to consider whether the construction or establishment of the public works fell within s 47A(2)(b) as, “the creation of any other prior interest in relation to the area”. The Full Court observed that it was necessary to first determine what the act by which native title is extinguished actually is. The Full Court, consistently with its analysis under s 23B, characterised the act that extinguished native title as the construction or establishment of the public works.

167    The Full Court then concluded:

[89]     Taken in isolation, the definition of “interest” extending, as it does, beyond legal and equitable interests to “any other right” in connection with land, might extend to the right that the owner of land has to deal with things that have become parts of the land such as dams, pumps, houses, pipes and other such things which, in this case, are in the nature of public works. It seems to us however that in the context of the Native Title Act such a consequential or derivative interest cannot fall within the definition, wide though it is, of “interest” and it certainly sits uncomfortably with the notion of “the creation of any other prior interest” for the purposes of s 47A(2)(b).

[90]     We do not need to resolve this question however because, here again, it cannot be said that the construction or establishment of the public works is properly to be characterised as “the creation of a prior interest” in the land. It follows that s 47A(2)(b) does not apply so as to compel the disregarding of the extinguishment brought about by the acts of constructing or establishing the public works.

168    The State submits that the Full Court’s expression “here again” at [90] refers back to its opinion at [32] that for the purposes of s 23B(9), the construction or establishment of public works were not “the grant or vesting of any thing”, and that the Full Court reasoned that therefore the public works did not involve “the creation of any other prior interest” within s 47A(2)(b). Although what the Full Court meant by “here again” is not free from doubt (an alternative construction being that the reference was to the last sentence of [89]), I consider that the State’s analysis is correct. On that analysis, the Full Court held that the construction or establishment of a public work does not create any prior interest in relation to the relevant area.

169    In Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228 (Rrumburriya), Mansfield J was concerned with whether s 47B(2) applied in respect of historically dedicated roads which had never been constructed and had since been closed. His Honour at [416] regarded Erubam Le as having held that, “the extinguishment of native title by the construction or establishment of public works…did not fall within the scope of operation of s 47A(2), in particular because it did not amount to the establishment by the creation of any prior interest”. His Honour rejected a submission that Erubam Le was distinguishable on the basis that Erubam Le was concerned with an extinguishing act under a statutory process, while the instant case was concerned with extinguishment at common law. His Honour considered that by reason of the decision in Erubam Le, the establishment of historic roads is not the creation of any prior interest within the meaning of s 47B(2). His Honour held that Erubam Le was not distinguishable and must be followed.

170    In Narrier v State of Western Australia [2016] FCA 1519 (Narrier), Mortimer J (as the Chief Justice was then) also concluded at [1192], that the dedication of a road did not create a prior interest within s 47B(2). The applicants argued that Erubam Le was distinguishable because the road had been resumed and a resumption in favour of the Crown could constitute the creation of a prior interest. Her Honour rejected that argument on the basis that it was inconsistent with the approach in Fourmile that even though the establishment of a road creates an “enforceable right” of free passage in the members of the public, it does not create an “interest in land” in any sense. Her Honour considered that the right of free passage was not a kind of “interest” with which s 47B(2) is concerned.

171    In Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 (Stuart), White J held at [1007] that s 47A(2) does not require the extinguishing acts of the kind to which s 23B(7) refers (construction or establishment of public works that commenced before 23 December 1996) to be disregarded, citing Erubam Le. His Honour held that the construction or establishment of public works cannot be regarded as the creation of a prior interest within s 47A(2).

172    In Murray, McKerracher J considered the application of s 47A to the extinguishing effect of a former road dedication where the tenure of the land at the time of the application was an Aboriginal reserve. The applicant argued that the establishment of a road is of a different character to the constructed works considered in Erubam Le because it creates an enforceable right of passage in members of the public. His Honour accepted this argument, holding at [2204]:

I agree with the argument for the applicants that Erubam Le is distinguishable. In the current proceedings the creation of the roads created in members of the public the enforceable right of free passage over the land (Fourmile (at 170)), and resulted in the vesting of the roads in the Mt Margaret Road Board under s 158 of the Road Districts Act or s 18 of the Public Works Act 1902. These constitute prior interests because, as argued by the Yilka applicant, the creation of the reserves subsequent to the creation of the roads would have abrogated the common law right of members of the public to use the roads, and the vesting of the reserves in the [Aboriginal Affairs Planning Authority] would have overtaken any prior vesting of the roads.

173    The applicant submits that McKerracher J concluded that the dedication of a road which “created in members of the public the enforceable right of free passage over the land” amounted to the creation of a prior interest within the meaning of s 47A(2)(b) of the NTA. I understand his Honour to have distinguished Erubam Le and decided that prior rights were created by the establishment of the roads in two ways: first, by creating in members of the public an enforceable right of free passage over the road; and, second, by creating rights in the local road authority through vesting of the roads in that authority under two statutory provisions. The second aspect has no analogue in the circumstances of the present case.

174    As to the reasoning in Murray that the establishment of the road created in members of the public an enforceable right of free passage, Mortimer J rejected that argument in Narrier on the basis that it does not create any “interest in land” and the right of free passage is not a kind of “interest” with which s 47B(2) is concerned.

175    It is unnecessary to directly address that conflict because I understand Narrier, Rrumburriya and Stuart to have regarded Erubam Le as indistinguishable on the basis that Erubam Le establishes a principle that the extinguishment of native title by construction or establishment of public works does not create a “prior interest” in relation to the land. Support for this principle is found in s 47B(3) which preserves the status quo of interests arising prior to the date of the application and, in doing so, makes a distinction between acts that constitute the “creation of any prior interest in relation to the area” and “any interest of the Crown in any capacity…in any public works on the land”. This suggests that a prior interest in relation to an area is not created by the construction or establishment of public works on the land.

176    The applicant argues that where the Full Court determined in Erubam Le that, “it cannot be said that the construction or establishment of the public works is properly to be characterised as ‘the creation of a prior interest’ in the land”, the Full Court was only referring to the particular public works in that case, all of which involved works that had been constructed. However, the three cases referred to above have understood the Full Court’s reasoning as applying more generally to public works. The Full Court’s reasoning referred not only to “construction” of public works, but to their “establishment”, which is apt to encompass the establishment of a road. The Full Court drew no distinction between different types of public works. I consider that Erubam Le establishes that the construction or establishment of public works does not create a “prior interest in relation to the area”. Accordingly, Erubam Le is not distinguishable on the basis that establishment of a road creates in members of the public a right of free passage.

177    I am bound to follow Erubam Le. It would therefore be inappropriate to consider the applicant’s argument that the case was wrongly decided.

178    I must conclude that the road described in Separate Question 3 was a public work, and its establishment did not create any prior interest in the area that is to be disregarded under s 47B(2).

179    The same position applies in respect of Separate Questions 1 and 2.

Conclusion

180    For the reasons I have given, each of the Separate Questions must be answered “No”.

Associate:    

Dated:    11 September 2026

SCHEDULE OF PARTIES