Native title year in review 2025-2026
What you need to know
- Two recent Federal Court decisions have held that a WA mining lease and a Queensland petroleum lease are each a "lease" for the purposes of section 47B(1)(b)(i) of the Native Title Act 1993 (Cth) (Native Title Act) that prevent historical extinguishment from being disregarded (Gilla on behalf of the Yugunga-nya People v State of Western Australia (No 5) [2026] FCA 1255 (Yugunga-nya) and Doyle on behalf of the Iman People #4 v State of Queensland (No 2) [2026] FCA 1334 (Iman)).
- This issue has been unresolved since the High Court decision in Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 (Tjungarrayi).
- These decisions do not affect existing authorities confirming that exploration licences and permits are not "leases" within the meaning of that term in section 47B(1)(b)(i), but may engage section 47B(1)(b)(ii) in some cases.
What you need to do
- Consider whether any mining or petroleum leases may prevent the application of section 47B in other pending and future native title claims around the country.
- Watch for an appeal from either decision.
Refresher: Section 47B allows historical extinguishment to be disregarded in certain circumstances
Section 47B of the Native Title Act is part of a small suite of provisions that allow historical extinguishment of native title to be disregarded in certain circumstances. It is a beneficial provision that creates an exception to the principle that once extinguished, native title cannot be revived.
Section 47B(1)(b)(i) and (ii) set out two categories of historical acts that prevent the operation of the beneficial provision. They state that section 47B does not apply if, when the claimant application is made, the area is:
- covered by a freehold estate or a lease; or
- 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.
The interpretation of this suite of provisions was much litigated in the early days of the Native Title Act and its 1998 amendments, but Full Court and High Court decisions almost a decade ago settled authority on many issues. We wrote about these decisions in our 2015-2018 editions of Native Title Year in Review.
However, the question of whether the extinguishing effect of mining and petroleum leases could be disregarded under these provisions had been left open. In Tjungarrayi, the High Court held that exploration licences and petroleum exploration permits were not "leases" for the purpose of section 47B(1)(b)(i). The High Court expressly left open whether a mining lease is a "lease" for the purpose of the provision.
Two recent decisions have now addressed that question. They found that mining leases and petroleum leases fall within the exception and prevent the operation of section 47B.
Mining leases in Western Australia (Yugunga-nya)
In Yugunga-nya, Banks-Smith J heard overlapping claims by the Yugunga-nya and Gingirana claim groups. Part of the overlap area included unallocated Crown land (UCL) subject to three mining leases. The Gingirana argued that "lease" in section 47B(1)(b)(i) should be read as "lease (other than a mining lease)".
Her Honour held that "lease" in section 47B(1)(b)(i) includes the mining leases, so that the claim group could not rely on section 47B in relation to the mining lease land. Her Honour's starting point was that nothing in the text of section 47B(1)(b)(i) displaces the section 242(1) definition of "lease", and Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 established that mining leases fall within it.
In the alternative, Her Honour would have found that the mining leases fell within section 47B(1)(b)(ii). The Gingirana conceded that mining was a "particular purpose", but argued that "is to be used" means "is required to be used". Her Honour rejected that argument and held that the task is to identify, objectively, an intention to use the land, on a spectrum between permission and requirement. Given the covenants in section 82 of the Mining Act 1978 (WA), the forfeiture regime and the mining proposal requirements, an intention that the land "is to be used" for mining was apparent, even if mining might never in fact occur.
Petroleum leases and paper roads in Queensland (Iman)
A few weeks after Yugunga-nya, in Iman, Rangiah J considered section 47B in relation to Queensland petroleum leases.
The Court was asked to resolve separate questions in a claimant application. These included whether section 47B required prior extinguishment to be disregarded over land subject to petroleum leases granted under section 120 of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (P&G Act). There was also a question about whether, if section 47B did apply, a paper road (an established road that was never constructed) was a "prior interest" to be disregarded under section 47B(2).
The claim group conceded that a petroleum lease under the P&G Act is a "mining lease" within section 245(1) of the Native Title Act, but argued it is not a "lease" for the purpose of section 47B(1)(b)(i).
Rangiah J considered the High Court decision in Tjungarrayi in detail. His Honour noted that the issue posed a "difficult constructional choice", but ultimately held that the meaning of "lease" in section 47B(1)(b)(i) derives from the definition of "lease" in section 242(1), which includes a mining lease under section 245(1). Accordingly, section 47B(1)(b)(i) encompasses a "mining lease" within the meaning of section 245(1), and section 47B therefore does not apply.
His Honour's reasons were similar to those expressed by Banks-Smith J in Yugunga-nya, and His Honour stated that he became aware of that decision only after having written his reasons in draft. His Honour expressly agreed with Banks-Smith J's reasons for finding that a "lease" in section 47B(1)(b)(i) includes a mining lease.
In the alternative, His Honour held that the exception in section 47B(1)(b)(ii) applied because the petroleum leases are "permissions or authorities" under which "the whole or a part of the land … is to be used … for a particular purpose".
The claim group submitted 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". The Court rejected this and held that the range of activities a petroleum lease holder is authorised to undertake is directed to the ultimate purpose of producing petroleum, and that the production of petroleum is a "particular purpose" within section 47B(1)(b)(ii).
The claim group also submitted that no part of the lease area was "required to be used". The Court rejected the submission that the phrase "is to be used" should be read this way. His Honour held (at [118]):
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 … If a reservation … 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 … 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.
In this case, the terms of the petroleum leases and the provisions of the P&G Act showed the Minister's intention that the land be used to produce petroleum. Whether that intention was carried out, and whether infrastructure had been constructed on the particular parcels, was not relevant.
Paper roads question
Iman also considered whether the extinguishing effect of a road that was established but not constructed (a paper road) could be set aside under section 47B. This turned on the meaning of "prior interest" in section 47B(2).
Section 47B(2) provides that "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".
The parties agreed that establishing the road was a public work that extinguished native title. The Court noted that the extinguishing effect of a paper road had been confirmed by the Full Federal Court in 1998 (Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151).
However, the claim group argued that establishing the road created a "prior interest", with the consequence that such extinguishment must be disregarded. They sought to distinguish the 2003 Full Federal Court decision in Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227; 134 FCR 155 (Erubam Le), that the construction or establishment of a public work is not "the creation of a prior interest in the land". They argued that the Full Court did not consider paper roads, and that establishing a road gives members of the public an enforceable right of free passage over the land.
Rangiah J considered that Erubam Le, which establishes that the construction or establishment of public works does not create a "prior interest in relation to the area", is not distinguishable and must be followed. Accordingly, the extinguishing effect of the establishment of the paper road would not be disregarded under section 47B.
Want to know more?
- Native title connection: what the Courts said in 2025-2026 (30 October 2026)
- Native Title Year in Review 2024-2025 (9 September 2025)
Authors: Andrew Gay, Partner; Libby McKillop, Partner; Leonie Flynn, Expertise Counsel and Junaid Sheikh, Lawyer.
