Background
The Iman People sought native-title determinations over areas of Central Queensland in the Iman People #4 and #5 proceedings. The parties agreed that the Iman People otherwise held native title in the disputed parcels, that claim-group members occupied them when the applications were made, and that native title had previously been wholly or partially extinguished. The remaining dispute was whether s 47B of the Native Title Act 1993 (Cth) required that extinguishment to be disregarded.
The Court separately determined seven questions concerning 52 lots in the Iman People #4 claim and four lots in the Iman People #5 claim. The disputed areas were affected by petroleum leases granted under Queensland legislation, former roads that had been established but never constructed, or both. The parties advised that resolving the questions would permit consent determinations in the proceedings.
The Court’s Holding
Rangiah J answered every separate question “No.” The Court held that the petroleum leases were “leases” for purposes of s 47B(1)(b)(i), including because they were mining leases within the Native Title Act. The areas covered by those leases therefore did not satisfy the statutory conditions for disregarding prior extinguishment. The Court also held that, even if the petroleum leases were not leases under that provision, they were permissions or authorities under which land was to be used for the particular purpose of petroleum production, engaging s 47B(1)(b)(ii).
The Court further held that establishing the unconstructed roads did not constitute the “creation of any prior interest” within s 47B(2). Bound by Full Court authority concerning public works, Rangiah J concluded that the roads’ establishment could extinguish native title without creating a prior interest whose extinguishing effect must be disregarded. The Court made no order as to costs.
Key Takeaways
- A Queensland petroleum lease may prevent s 47B from applying because it is a “lease,” including a mining lease, within the Native Title Act.
- A petroleum lease also qualifies as a permission or authority for use of land for a particular purpose, independently excluding the land from s 47B.
- Establishing a public road, even without constructing it, does not create a “prior interest” whose extinguishing effect is disregarded under s 47B(2).
Why It Matters
The decision clarifies that vacant or unallocated Crown land is not necessarily eligible for the restorative operation of s 47B when it remains covered by petroleum tenure. It also confirms that extinguishment caused by establishing an unconstructed public road is treated differently from extinguishment caused by creating a prior proprietary or statutory interest.
For native-title practitioners, the judgment underscores the need to examine the tenure and legal status of each parcel at the application date, as well as the precise character of the historical act that extinguished native title.