BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8

FEDERAL COURT OF AUSTRALIA

BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8 Appeal from: Narrier v State of Western Australia [2016] FCA 1519 Narrier v State of Western Australia (No 2) [2017] FCA 104

File numbers: WAD 217 of 2017 WAD 218 of 2017

Judges: NORTH, DOWSETT AND JAGOT JJ

Date of judgment: 1 February 2018

Catchwords: NATIVE TITLE – validity of future acts –non-compliance with procedural requirements in Division 3 of Pt 2 of the Native Title Act 1993 (Cth) (the NTA) – comity – non-compliance with procedural requirements does not make future act invalid – appeal allowed NATIVE TITLE – validity of future acts – s 24HA of the NTA – groundwater licences valid by operation of s 24HA(3) – appeal allowed NATIVE TITLE – extinguishment – exploration licence granted under the Mining Act 1978 (WA) was a "lease" within the meaning of provisions under the NTA – s 47B does not apply to disregard prior extinguishment – appeal allowed NATIVE TITLE – s 47B of the NTA –requirement of occupation of land in s 47B(1)(c) of the NTA – findings of fact on the evidence reasonably open to the primary judge – no error of principle in primary judge's reasons – purported error in primary judge not finding that s 47B applied to part of Crown land where condition of occupation satisfied – ground of appeal misconceived – cross appeal dismissed PRACTICE AND PROCEDURE – application for leave to amend contention to the extent that pleadings insufficiently clear – application for leave to amend denied