High Court to finally resolve Future Acts for purposes ancillary to mining under the Native Title Act

Mark Geritz, Sophie-Rose Greer and Eric Jeffery
02 Feb 2023
Time to read: 6 minutes

A recent grant of special leave to appeal in Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66 has left the door open for the High Court to consider the proper scope of the Future Act provisions of the Native Title Act 1993 (Cth) concerning the grant of a mining tenement for a purpose ancillary to or associated with mining.

This successful High Court special leave application (Harvey & Ors v Minister for Primary Industry and Resources & Ors [2022] HCATrans 229), means that the High Court will resolve differing interpretations on the proper meaning of the phrase “right to mine for the sole purpose of the construction of an infrastructure facility… associated with mining” in the context of subdivisions M and P of the Native Title Act (NTA).

Background: the mineral lease, the loading facility, and the native title holders

The Full Federal Court decision on appeal considered the application for a proposed grant of a mineral lease (ML29881) under the Mineral Titles Act 2010 (NT). The appellants in that matter and applicants for special leave in the High Court are holders of native title over the area of land subject to this proposed mineral lease.

If granted, that mineral lease would be contiguous to a mineral lease already held by Mount Isa Mines on which a loading facility is located for the transportation of iron ore by barge for export. The basin and navigation channel leading to the loading facility required dredging to remove silt to ensure that barges had sufficient clearance to continue operating. The purpose of ML29881 was for the construction of a dredge spoil emplacement area where the dredged material could be deposited.

The appellants (in the Full Federal Court) sought to prevent the Northern Territory Minister for Primary Industry and Resources (the Minister) from granting ML29881 without the native title holders being given the procedural rights under section 24MD(6B) of the NTA including the right to object to the grant of ML29881 and have any objections heard by an independent person.

Future Acts under the Native Title Act

“Future Acts” under the NTA are acts that may affect native title rights and interests and that are carried out after 1 January 1994. A Future Act will be valid if it is covered by any of the sections within Part 2, Division 3 of the NTA (Future Act Regime) that are listed in section 24AA(4) of the NTA.

Subdivision M of the Native Title Act (under which section 24MD sits) is a part of the Future Act Regime that deals with Future Acts that pass the “freehold test”. This includes non-legislative acts that can be done in relation to land if the native title holder held freehold title to the land rather than native title rights.

There was no debate that section 24MD applied to the grant of ML29881. However, there are differing procedural rights required to be given to registered native title claimants and native title holders with respect to Future Acts covered by section 24MD. These relevantly include:

  1. under section 26MD(6A) of the NTA, the same procedural rights as the holders of freehold land;
  2. under section 24MD(6B)(b) of the NTA, where the Future Act is the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining, additional procedural rights to object to the Future Act and have those objections heard by an independent person;
  3. under Subdivision P of Part 2, Division 3 of the NTA, where the Future Act is the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility, a right to negotiate.

The issue for the Full Federal Court and the subject of the special leave application to the High Court (present appeal) was whether section 24MD(6B) applied to the grant of ML29881. That is, was the grant of ML29881, the “creation of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining”? It was accepted that the right to negotiate (third procedural right referred to above) did not apply.

Findings of the Full Federal Court - “The creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining”

The Full Federal Court held that for section 24MD(6B)(b) of the NTA to apply two key criteria had to be satisfied:

  1. the Future Act must be the creation of a right to mine; and
  2. the sole purpose of the creation must be the construction of an infrastructure facility associated with mining.

Right to mine

On the first element, the Full Federal Court held that the grant of ML29881 was not the creation of a right to mine. The Court held so, because:

  • taking into account the statutory text, context and purpose, the right to mine in the NTA refers to a future act that confers a right to engage in mining activities, which typically involve the exploration for and extraction of a mineral, petroleum or gas from the ground and encompasses rights for its meaningful exercise. The rights necessary for the meaningful exercise of a right to mine will depend on the nature of the mining activity and will generally include activities such as the evaluation, processing or refining of minerals, the treatment of tailings and the storage of waste;
  • the activities authorised by ML29881 were held to be too remote from the mining activities and could not be regarded as necessary for the meaningful exercise of a right to mine; and
  • the purpose of the ML was to facilitate the shipment of the ore mined, not the mining of the ore itself – which could not be held to be within the ordinary meaning of “mining”.

The sole purpose for the creation of the right to mine

On the second element, the Full Federal Court held that the construction of the facility as described would not fit the definition of the term “infrastructure facility” as defined in section 253 of the Native Title Act. The Court held so, because:

  • despite the fact that the definition of “infrastructure facility” is expressed to be inclusive, the strong textual indicators favoured a construction that the definition provided is exhaustive;
  • everything listed in section 253 (sub-sections (a) to (h)) falls within what the Court considered was the ordinary definition of “infrastructure facility”, in accordance with the narrowed definition of “infrastructure” as defined in the Macquarie Australian Dictionary;
  • those items in sub-sections (a) to (h) are highly qualified (eg., “a storage facility for coal, any other mineral or mineral concentrate”), which would be difficult to reconcile with a broad and non-exhaustive interpretation; and
  • the power of the Minister to declare a facility as an “infrastructure facility” (under section 253(i)) is limited to anything “similar to any or all of the things listed at paragraphs (a) to (h)”, further suggests that the legislature intended the definition to be restrictive because, if expansive, that qualifying wording would be unnecessary.

Arguments before High Court for broadening the scope of section 24MD(6B)

As well as arguing that the definition of infrastructure facility is not exhaustive, the appellants in the Full Federal Court (applicants for special leave) argue:

  • that the full Federal Court erred in their narrow construction of the “right to mine” concept;
  • by doing so, the full Federal Court introduced conditions of direct association, physical proximity and degrees of necessary operational integration which the special leave applicants suggest is at odds with the statutory text;
  • the Full Federal Court erred in breaking down section 24MD(6B) into two components when the phrase “creation of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining” was a composite phrase and should be read compendiously. On this argument, any grant for the construction of an infrastructure facility associated with mining is the creation of a right to mine but:
    • where the grant is only for mining or is both for mining and for the construction of an infrastructure facility associated with mining the full right to negotiate applies; or
    • where the grant is solely for the purpose of the construction of an infrastructure facility associated with mining, the rights in section 24MD(6B) will apply instead of the full right to negotiate.

The special leave applicants argue that this position reflects the types of mining tenements granted under State and Territory mining regimes where tenements are granted for mining (or mining and infrastructure) or only for infrastructure purposes.

Arguments before High Court against broadening the scope of section 24MD(6B)

As well as arguing that the definition of infrastructure facility is exhaustive, the respondents argue that:

  • there is no basis to say that every grant of a mining tenement is a right to mine because this means that the words “right to mine” in section 24MD(6B) have no work to do;
  • the legislation has divided the matters that pass the freehold test into three categories, which the respondents say the Full Federal Court correctly recognised:
    • Category 1: Rights to mine other than for the sole purpose of the construction of an infrastructure facility associated with mining (where the right to negotiate will apply);
    • Category 2: Rights to mine which are for the sole purpose of the construction of an infrastructure facility associated with mining (where section 24MD(6B) will apply); and
    • Category 3: Every other grant which does not involve a right to mine at all (where section 24MD(6A) will apply);
  • therefore, there is a legislative choice as to which procedures apply to what kind of grants; and
  • it may be that the grant of ML29881 was for the grant of work associated with mining but that does not create a right to mine which requires the infrastructure to have a closer nexus to the exploration or extraction of the minerals such as storage facilities for matters that are mined.

Key takeaway

The High Court decision will finally give clarity to the interpretation of provisions in the NTA that have always caused some confusion. Further, whether the definition of infrastructure facility in section 253 of the NTA is treated as exhaustive will also have consequences for whether certain compulsory acquisitions of native title are excluded from the right to negotiate. Under the NTA, compulsory acquisitions where the purpose of the acquisition is to provide an infrastructure facility, are also excluded from the right to negotiate. The decision may even have an impact with respect to the grant of pipeline licences which have generally been treated as not being rights to mine and therefore not subject to the right to negotiate.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.