High Court sets us straight on scope of infrastructure mining lease provisions of Native Title Act
15 February 2024
Harvey v Minister for Primary Industry and Resources [2024] HCA 1
What you need to know
- The High Court has resolved a longstanding debate over the "infrastructure mining lease" provisions of the Native Title Act 1993 (Cth) (Harvey v Minister for Primary Industry and Resources [2024] HCA 1) by looking back at the 1997 Explanatory Memorandum and applying some old school statutory interpretation.
- The right to negotiate process generally applies to the grant of mining and petroleum tenements unless the carve out for "the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining" applies (the section 24MD(6B) process).
- The High Court said that "right to mine" in the Native Title Act has a broad application which would embrace every sort of mining tenement granted under State and Territory natural resources legislation (noting there is a lot of variation).
- The High Court also interpreted "infrastructure facility" broadly, preferring a definition that includes its ordinary meaning in addition to the example facilities listed in the Act.
- Ultimately, the High Court declared that the Northern Territory Government cannot determine the relevant tenement application until completion of the procedures in section 24MD(6B) of the Act.
What you need to do
- Ensure that you are following the correct future act process for current mining and petroleum tenement applications. The new clarity as to the breadth of the meaning of "right to mine" and "infrastructure facility" may mean that the section 24MD(6B) process should be followed where previously the right to negotiate process has been applied.
- If section 24MD(6B) does apply, proponents will need to ensure that project timeframes provide for the 8 month objection resolution timeframe introduced by the 2021 Native Title Act amendments
Dispute about which Native Title Act process applied to the grant of an ancillary mineral lease for the McArthur River Mine
Background
Harvey v Minister for Primary Industry and Resources [2024] HCA 1 involved a dispute between native title holders and the Northern Territory Department of Primary Industries about which Native Title Act 1993 (Cth) process applied to an application for a mineral lease for the McArthur River Project in the Northern Territory.
The activities proposed by the mineral lease involved enlarging the existing dredge spoil deposition area for the McArthur River Mine, used to deposit spoils from dredging the navigation channel used by vessels accessing the mine's loading facility.
Native Title Act processes
The Native Title Act contains three distinct processes that might apply to the grant of the mineral lease if it affects native title rights and interests. Which process applies turns, in part, on whether the future act involves the creation of a "right to mine".
While such a future act passes the freehold test, the procedural rights accorded to native title claimants and native title holders under each process vary.
|
Future act |
NTA provisions |
NTA process |
|
Creation of right to mine, except one created for the sole purpose of the construction of an infrastructure facility associated with mining |
Subdivision P (Right to Negotiate) applies |
Creation of right to mine, except one created for the sole purpose of the construction of an infrastructure facility associated with mining Subdivision P (Right to Negotiate) applies Right to negotiate process and agreement or NNTT determination |
|
Creation of right to mine for the sole purpose of the construction of an infrastructure facility associated with mining |
S.24MD(6B) applies |
Notice and objection process (including new 8 month timeline) |
|
Creation of interest that is not a right to mine |
S.24MD(6A) applies |
Simple freehold test – same procedural rights as ordinary title holders |
The parties' views on interpretation of the right to mine
In this case, the Department took the view that the mineral lease did not create a "right to mine", and therefore issued notices indicating that the process in section 24MD(6A) of the Native Title Act applied.
The native title holders argued that the process in section 24MD(6B) applied, because the application would involve "the creation of a right to mine for the sole purpose of an infrastructure facility associated with mining". They sought declarations to prevent the grant of the ancillary mineral lease because of a failure to accord them the procedural rights contained in section 24MD(6B).
Decisions at first instance and on Appeal
Both the primary judge and the Full Federal Court found that the ancillary mineral lease did not fall within section 24MD(6B) of the Native Title Act because the right to store dredged material was neither a right to mine nor within the scope of "infrastructure facility" such that the simple freehold test applied.
We wrote about the Full Federal Court's decision in our Native Title Year in Review 2021-2022 article "Mining leases for infrastructure get a judicial work out".
The native title holders appealed to the High Court.
High Court overturns Full Federal Court and adopts a broad interpretation of section 24MD(6B) of the Native Title Act
On appeal, the High Court considered which of the three alternative processes outlined above applied to the proposed grant of the mineral lease.
The High Court looked at two issues:
- the meaning of "creation of a right to mine"; and
- the meaning of "infrastructure facility".
We discuss their conclusions below, along with our observations about the potential implications of this decision.
Right to mine
The High Court said that "right to mine" in the Native Title Act has a broad application which would embrace every sort of mining tenement granted under State and Territory natural resources legislation.
Having looked at the range and variety of tenements available, it held at [66] (our emphasis):
In its particular statutory context, the phrase "right to mine" should be construed as a composite term used to denote all those mining tenements which are capable of being issued under State and Territory natural resource laws. The Native Title Act uses such a phrase precisely because it is sufficiently descriptive of the very many different types of mining tenements that can be created under State and Territory natural resource laws and of the very many different names by which such tenements are identified.
The High Court went on to say that the right to negotiate process generally applies to the grant of such tenements (if they are "future acts") unless the carve out for "the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining" applies (the section 24MD(6B) process).
Infrastructure facility
The High Court also adopted a broad interpretation of "infrastructure facility", with the effect that the "carve out" from the right to negotiate process is wider than suggested by the Full Federal Court.
The issue in dispute was whether the ordinary meaning of "infrastructure facility" applied in addition to the categories of infrastructure specified in section 253 of the Native Title Act.
The High Court said that it did include the ordinary meaning, and that the dredge spoil deposition area the subject of this dispute was clearly an infrastructure facility within the ordinary meaning of that term.
Insights
The terms "right to mine" and "infrastructure facility" are frequently considered in practice. The High Court's very clear guidance has resolved a longstanding debate.
First, the High Court put great emphasis on the Native Title Amendment Bill 1997 Explanatory Memorandum and its express statement that the term should have its ordinary meaning in addition to the listed facilities. It was critical of the Full Federal Court for disregarding this.
Secondly, the High Court noted that section 253 of the Native Title Act contains 75 definitions and only seven of these use the word "includes" (most use "means"). It said at [76] (our emphasis):
Throughout s 253 Parliament has thus made choices about how to express a given definition and uses the word "includes" in contrast to the word "means". The function served by using the word "includes" in contrast to the word "means" in a definition, as it was put in Corporate Affairs Commission (SA) v Australian Central Credit Union, "is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases.
Thirdly, the Court's understanding of the operation of the Native Title Act was informed by the State and Territory mining legislation to which it applies.
End result – section 24MD(6B) applies
Ultimately, the High Court declared that the Northern Territory Government cannot determine the relevant tenement application until completion of the procedures in section 24MD(6B) of the Act.
Implications – better check the processes assumed to apply to current tenement applications
The impact of this broad meaning of "right to mine" is a presumption that either the right to negotiate or the section 24MD(6B) process will apply to the grant of interests under state or territory mining or petroleum legislation.
Following the High Court's decision, there does not seem to be room for the application of the simple freehold test to such interests. Given that State regulators have tended to apply a more conservative interpretation of "infrastructure facility" than the High Court, it is worth testing assumptions that the right to negotiate applies to current tenement applications for non-extractive uses.
Reminder about 2021 amendments to section 24MD(6B)
Section 24MD(6B) originally included a two month notification and objection process and an option for objections to be heard by an independent person or body. An objection could only be referred for hearing by the native title party, leaving many objections potentially unresolved.
The 2021 amendments to the Native Title Act (Native Title Legislation Amendment Act 2021 (Cth)) included a new section 24MD(6B)(f) that requires the Government party to refer an objection for hearing, but not until eight months after notification. This makes the section 24MD(6B) process potentially longer than the six month period in the right to negotiate process.
Want to know more?
Mining leases for infrastructure get a judicial work out (11 July 2022)
Authors: Clare Lawrence, Partner; and Leonie Flynn, Expertise Counsel.
