Native title year in review 2025-2026

What you need to know

• The Full Federal Court in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2025] FCAFC 160 upheld the primary judge's construction of section 26D(1) of the Native Title Act 1993 (Cth), confirming that the phrase "earlier right to mine" can be read in the plural. 
• The WA Government guidance note, Applying for a second renewal of a mining lease made in accordance with the Mining Act 1978, confirms that the second renewal of mining leases is not exempt from the future act provisions of the Native Title Act. This guidance note remains unchanged with no further amendments. 

What you need to do

• Seek legal advice regarding potential Native Title Act implications, particularly in advance of upcoming renewals. 

Recap

• The grant or renewal of mining tenure under the Mining Act 1978 (WA) (WA Mining Act) must comply with the right to negotiate process under Subdivision P of the Native Title Act to be valid to the extent it affects native title.
• However, section 26D disapplies this requirement where a right to mine is created by the renewal, re-grant or re-making of an earlier right to mine.

Full Federal Court affirms plural construction of section 26D

In our Native Title Year in Review 2024-2025 article, "Second mining lease renewals to trigger the right to negotiate: WA guidance causes uncertainty for proponents", we reported on the decision of Jackson J in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729 (Forrest (No 2)). That case concerned the grant of a single mining lease to consolidate an area covered by 31 previously held mining leases, on the same terms, duration and total area.

The primary judge held that the consolidation was a "re-making" under section 26D(1)(a) of the Native Title Act, and that section 23(b) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) applied such that "an earlier right to mine" could be read in the plural. The exemption from the right to negotiate therefore applied. 

The Full Federal Court heard an appeal in March 2025 and dismissed it on 24 November 2025. 

Decision of the Full Federal Court

On appeal, the applicant contended the Native Title Act displaces the presumption in section 23(b) of the Acts Interpretation Act that singular words include the plural, principally by way of an expressio unius inference, where section 24IC(2A) expressly deems consolidations to be renewals, whereas section 26D is silent, suggesting Parliament intended to confine section 26D to the singular.

The Full Court acknowledged the expressio unius argument carried "considerable force", particularly as sections 24IC and 26D were introduced simultaneously and employ similar structure. However, the Court found that the applicant could not identify a substantive policy reason for why consolidations should be excluded from section 26D but permitted under section 24IC. The criteria in section 26D(1)(b)-(e) protect native title holders regardless of whether one or multiple earlier leases are involved, and a contrary reading would produce the anomaly of a consolidated lease being a valid "renewal" under section 24IC(2A) but still requiring the right to negotiate under section 26D. 

Although describing the issue as "finely balanced", the Full Court ultimately held that no contrary intention displaced the section 23(b) presumption, and that reading "earlier right to mine" to include the plural best achieves the purpose of section 26D.

Guidance update 

In 2024, the WA Department of Energy, Mines, Industry Regulation and Safety issued a guidance note, Applying for a second renewal of a mining lease made in accordance with the Mining Act 1978, which confirmed the position that the second renewal of a mining lease under the WA Mining Act is not exempt from the right to negotiate process.

This remains the State's interpretation.

Key insights 

The dismissal of the appeal affirms that "earlier right to mine" in section 26D of the Native Title Act can be interpreted in both the singular and plural, to best achieve the purpose of the Native Title Act.

However, WA guidance indicates that any mining lease approaching a second or subsequent renewal must proceed through the right to negotiate process, unless otherwise exempt from the future act provisions of the Native Title Act. Proponents that do not comply risk refusal of the renewal application and, ultimately, losing land access at the expiry of the current term. 

Want to know more?

• Second mining lease renewals to trigger the right to negotiate: WA guidance causes uncertainty for proponents (9 September 2025)
• Native Title Year in Review 2024-2025 (9 September 2025)

Authors: Andrew Gay, Partner; Cheyne Jansen, Counsel; Ellise O'Sullivan, Senior Associate and Jemima Chan, Graduate.