In Harvey v Minister for Primary Industry and Resources [2024] HCA 1, the High Court resolved conflicting interpretations of the phrases ‘right to mine’ and ‘infrastructure facility’ under the Native Title Act 1993 (Cth) (NTA). In addition, the decision serves as a reminder to proponents of the importance of following the correct future act process, including the requirement to properly consult with the Traditional Owners of the land.

Background

In 1992, Mt Isa Mines and the Northern Territory entered into an agreement for the McArthur River Project. In 2013, Mt Isa Mines applied for a new mineral lease (ML 29881) under the Mineral Titles Act 2010 (NT) to enable it to construct a new Dredge Soil Emplacement Area (DSEA) on a nearby pastoral lease, which would be a future act affecting the Appellants’ native title. The Appellants sought injunctive relief and a declaration that ML 29881 was invalid due to non-compliance with s 24MD(6B) of the NTA.

Future acts

A future act is invalid to the ‘extent it affects native title’ unless it is ‘covered’ by a provision in Part 2, Division 3 of the NTA. Generally, the right to mine is a future act which results in the right to negotiate under Subdivision P of the NTA. If this negotiation procedure is not followed, the future act is invalid. However, s 24MD(6B)(b) provides a carve out for the creation of a ‘right to mine’ if it is ‘for the sole purpose of the construction of an infrastructure facility associated with mining’. Where this applies, the procedure of notification, objection, and consultation must be followed.

History

It was not in dispute by the parties that the ‘sole purpose’ of ML 29881 would be to authorise the proposed DSEA which is ‘associated with mining’. Instead, the dispute revolved around the applicability of s 26MD of the NTA to ML 29881. The primary judge had held that ML 29881 did not satisfy the words of s 24MD(6B)(b) as the new DSEA did not fall into a defined paragraph of an infrastructure facility.

On appeal, the Full Court of the Federal Court held that s 24MD(6B)(b) and s 26(1)(c)(i) needed to be read in a complementary manner. It held that the infrastructure for which ML 29881 was to be granted would be constructed on land which is separate from the land upon which mining takes place, and it would be used for the shipment of ore. Therefore, it would not create a ‘right to mine’. Further, the Full Court held that the DSEA did not fit within the term of ‘infrastructure facility’ as defined under s 24MD(6B)(b) of the NTA, which was to be construed as an ‘exhaustive list’.

Issues

The current appeal required the High Court to determine what constitutes a ‘right to mine’ under the NTA, and what amounts to an ‘infrastructure facility’ as it is defined under s 253 of the NTA.

High Court judgement

First, in construing the meaning of the phrase ‘right to mine’ under s 26(1)(c)(i) of the NTA, the Court held that it should be ‘construed as a composite term used to denote all those mining tenements which are capable of being issued’. The Court noted that Parliament intended for the phrase to have a broad meaning, and not a reference to a specific authority or permission which a mining lease might convey a right of extraction, which is supported in the language of s 24MD(6B)(b). It was clarified that ML 29881 will be a mineral lease which will not authorise mining, as was understood by the Full Court, but rather is limited to the construction of the new DSEA. The Court clarified that ‘associated with mining’ will have a narrow character to only allow ‘construction of an authorised facility, and no other substantive activity’.

Second, in construing the phrase ‘infrastructure facility’, the Court held that the word ‘includes’ signifies it is not intended to be an exhaustive expression and therefore must also bear its ordinary meaning. As such, the proposed DSEA was an infrastructure facility as term is ordinarily understood.

Accordingly, the appeal was allowed and the High Court held that the grant of ML 29881 is a future act that is the ‘creation of a right to mine for the sole purpose of constructing an infrastructure facility associated with mining for the purpose of s 24MD(6B)(b) of the NTA’ and that the ‘proposed DSEA will be an infrastructure facility for the purposes of the NTA'. As such, the Appellants should be entitled to both freeholder rights under s 24MD(6A) and procedural rights under s 24MD(6B) of the NTA, and the Respondent should be restrained from determining ML 29881 as the appropriate future act process was not followed.

Key takeaways

• The High Court has determined the phrase ‘right to mine’ to mean all mining tenements capable of being issued, and the phrase ‘infrastructure facility’ to be an inclusive definition.

• The decision, supported by other recent cases such as Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9, serves as an important reminder to follow proper legislative procedures for notification, negotiation, and engagement with native title landholders.

• The decision solidifies it was not that the Northern Territory was unable to grant the mineral lease, but rather the future act was invalid due to the failure to follow s 24MD(6B) procedures.