FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia
[2012] NNTTA 103
•3 October 2012
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 103 (3 October 2012)
Application No: WF12/23
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
FMG Pilbara Pty Ltd (grantee party/applicant)
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NC (deceased) and others on behalf of the Yindjibarndi People (Yindjibarndi #1) (WC03/3) (native title party)
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The State of Western Australia (Government party)
DECISION TO DISMISS SECTION 35 APPLICATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 3 October 2012
Catchwords: Native title – future acts – application for a determination in relation to a miscellaneous licence – whether future act attracts the right to negotiate – whether future act is the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining – meaning of ‘creation of a right to mine’ – whether the right to take water is ancillary to the construction of a borefield, pipeline or water management facility – whether the Mining Act 1978 (WA) is legislation that relates to the management of surface and subterranean water – relationship between future act provisions – Tribunal lacks jurisdiction to determine the application
Legislation:Native Title Act 1993 (Cth), ss 3, 24AA(2), 24AA(4), 24AB(2), 24FA, 24FC, 24GA, 24HA(2), 24MD(6B), 24NA, 24OA, 26(1)(c)(i), 29, 35, 66B, 148(a), 226(2)(c), 253
Mining Act 1978 (WA), ss 8, 20(2)(e), 20(5)(g), 29(2), 48(d), 66(d), 70J(d), 85(1)(c), 91(3)(b), 127, 132(1)(c), 156(1)(d)
Mining Regulations 1981 (WA), reg 37
Rights in Water and Irrigation Act 1914 (WA), s 5C(1)
Cases:Abbott Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371
Federal Commission of Taxation v ICI Australia Limited (1972) 127 CLR 529
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141
FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107
FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 11
Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60
Joye v Beach Petroleum NL (1996) 67 FCR 275
Kennedy v Victoria [1999] FCA 659
Lacey v Attorney-General of Queensland (2011) 242 CLR 573
Lardil Peoples v Queensland (2001) 108 FCR 453
Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2011] NNTTA 80
Mercy O’Loughlin and Others on behalf of the Central East Goldfields People/Western Australia/North Kalguri Mines Pty Ltd & Homestake Gold of Australia Ltd [2000] NNTTA 146
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Neowarra v Western Australia [2003] FCA 1402
NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509
Oriole Resources Ltd/State of Western Australia/Albert Little and Ors on behalf of Badimia [2004] NNTTA 37
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Koara People (1996) 132 FLR 73
Re Tjupan Peoples (1996) 134 FLR 462
Richard Evans and Others on behalf of the Koara People/Western Australia/Quartz Water Leonora Pty Ltd [2002] NNTTA 55
Risk v Williamson (1998) 87 FCR 202
Ron Harrington Smith on behalf of the Thihee Birni Bunna Wiya People; Murray Stubbs on behalf of the United North East People/Western Australia/Glunmurrin Pty Ltd & Anaconda Nickel Ltd [1999] NNTTA 194
Rubibi Community v Western Australia (No 7) [2006] FCA 459
Queensland Construction Materials Pty Ltd v Redland City Council (2010) 175 LGERA 52
Smith v Western Australia (2001) 108 FCR 442
South Australia v Slipper (2004) 136 FCR 259
Tooheys Ltd v Commission of Stamp Duties (NSW) (1961) 105 CLR 602
Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177
Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112
Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd [2007] NNTTA 6
Representative of the Mr Ken Green, Green Legal
grantee party:
Representatives of the Ms Emma Owen, State Solicitor’s Office
Government party: Mr David Crabtree, Department of Mines and Petroleum
REASONS FOR DECISION
Background
On 19 May 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/’NTA’) of a future act, namely the proposed grant of miscellaneous licence L47/368 (‘the proposed licence’) under the Mining Act 1978 (WA) (‘Mining Act’) to FMG Pilbara Pty Ltd (‘the grantee party’).
The proposed licence comprises an area of 962.13 hectares approximately 38 kilometres west of Wittenoom in the Shire of Ashburton. The proposed licence is entirely overlapped by the native title claim of the Yindjibarndi #1 native title claim (WC03/3 – registered from 8 August 2003) (‘the native title party’). The s 29 notice specifies the purposes of the proposed licence as ‘road, borefield, powerline, pipeline, taking water, communication facility, water management facility, minesite accommodation facility.’
On 30 July 2012, being a date more than six months after the s 29 notice was given, the grantee party made a future act determination application pursuant to s 35 of the NTA (‘the s 35 application’). On 31 July 2012, I was appointed by President Graeme Neate as the Member to constitute the Tribunal for the purpose of conducting an inquiry into the s 35 application.
I accepted the s 35 application on 6 August 2012. However, I did so on the basis that the matter raised a preliminary issue that would need to be resolved prior to conducting a substantive inquiry. Specifically, upon considering the application, I formed the view that there was a reasonable prospect that the proposed licence does not attract the right to negotiate and that the Tribunal therefore lacks jurisdiction to determine the application. On 6 August 2012, the Tribunal notified the representatives of the grantee party and the Government party that I had accepted the s 35 application and drew attention to the jurisdictional issue (notice was also given by way of registered post to each of the living persons comprising the applicant in respect of the native title party’s claim). The notice asked parties to indicate at the preliminary conference to be held on 20 August 2012 whether they intended to provide written submissions on the issue. At the conference, both the grantee party and the Government party requested leave to file submissions on the jurisdictional issue, and I set directions accordingly. The Government party’s submissions were lodged on 10 September 2012, followed by the grantee party’s submissions on 11 September 2012.
On 12 September 2012, I became aware of the existence of a supplementary explanatory memorandum to amendments to the Act moved by the Government in the House of Representatives in July 1998 (‘Supplementary EM 1998’) that I considered to be of some assistance towards resolving the issue and which I asked Tribunal staff to circulate among the parties. On 17 September 2012, the Government party filed a set of substituted contentions and reply to the grantee party’s contentions. The grantee party did not file any further submissions.
Native title party representation during the proceedings
At the time the s 35 application was lodged, there was no solicitor on the record for the native title party in the claim proceedings in the Federal Court (WAD6005/03). As of 4 October 2011, the Register of Native Title Claims has included, in lieu of an address for service, the known addresses of each of the living persons comprising the applicant in those proceedings. The Tribunal has for some time been aware of divisions among the persons comprising the applicant and within the native title claim group. As I noted in FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 11, three of the living persons comprising the applicant (Ms Mavis Pat, Ms Aileen Sandy and Ms Sylvia Allen) made application on 5 September 2011 to the Federal Court under s 66B of the Act to remove the remaining living persons (currently Mr Thomas Jacobs, Mr Alum Cheedy and Mr Michael Woodley). Since that time, Ms Pat has withdrawn from the application and a further s 66B application was made in the Federal Court on 15 June 2012 by a number of individuals, including Mr Jacobs, Mr Cheedy and Mr Woodley, to replace the current applicant. The hearing of that application is now scheduled for 2 October 2012.
As I observed in FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107, it is the applicant who has the exclusive right to deal with matters arising under the Act in relation to the claimant application. Accordingly, there is a serious question as to the capacity of the native title party to participate in proceedings such as these in circumstances where there is clearly a dispute between the persons who jointly comprise the applicant preventing them from speaking with one voice. For the purposes of this matter, I adopt the principles noted in [14]-[16] in that determination and the cases cited therein.
On 11 September 2012, the Tribunal received a letter from Ms Christina Araujo, consultant solicitor for Yindjibarndi Aboriginal Corporation (‘YAC’), requesting that the inquiry into the proposed licence be adjourned until the s 66B application filed on 15 June 2012 has been determined. Ms Araujo’s request was made on the basis of YAC’s contention that it had been appointed as agent for the Yindjibarndi #1 claim and is seeking to have that agency reaffirmed once the Federal Court has made its decision in relation to the s 66B application. I have already expressed my views on YAC’s status as agent in relation to the native title party’s claim: see FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of Yindjibarndi People/Western Australia [2012] NNTTA 11. In any event, given the preliminary issues raised by this matter and which form the basis of this decision, it is unnecessary to consider whether I should adopt Ms Araujo’s proposal.
The Issue
The issue to be decided here is whether Subdivision P applies to the grant of a miscellaneous licence under the Mining Act for purposes of constructing infrastructure facilities associated with mining where the licence is also granted for the purpose of ‘taking water’. If such a licence does not attract Subdivision P, then the Tribunal is not entitled to consider the application.
The Tribunal has encountered similar scenario in Richard Evans and Others on behalf of the Koara People/Western Australia/Quartz Water Leonora Pty Ltd [2002] NNTTA 55. However, the jurisdiction issue was not taken or considered. Similarly, the Tribunal has from time to time dealt with applications involving miscellaneous licences which appeared to be for the sole purpose of the construction of an infrastructure facility but did not have regard to whether it had jurisdiction to do so: see for example Mercy O’Loughlin and Others on behalf of the Central East Goldfields People/Western Australia/North Kalguri Mines Pty Ltd & Homestake Gold of Australia Ltd [2000] NNTTA 146; Oriole Resources Ltd/State of Western Australia/Albert Little and Ors on behalf of Badimia [2004] NNTTA 37; Wilma Freddie and Others on behalf of Wiluna/Western Australia/Newmont Wiluna Gold Pty Ltd [2007] NNTTA 6.
In Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2011] NNTTA 80, which concerned a s 35 application made in relation to a miscellaneous licence, the Tribunal observed that the stated purposes for the licence were a ‘Road, Mine Site Accommodation Facility, Workshop and Storage Facility’. There, the Tribunal concluded that, as no party had raised the issue of whether the licence attracted the right to negotiate, the Tribunal should therefore proceed to determine the application, stating (at [1]):
[T]he Government party, being the agency responsible for making the grant and being fully informed as to its purpose, asserts that the right to negotiate provisions are applicable to it and this is a position accepted by the other parties. Ultimately, it is a matter for the Government party to decide whether to make the grant.
I respectfully disagree with that approach. Where a party to proceedings before the Tribunal challenges its jurisdiction, the Tribunal must make due inquiry into whether it has that jurisdiction: Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467, at 473. However, if no such challenge is made, the Tribunal must nevertheless make the findings of fact necessary to establish that it has jurisdiction, including a finding of fact about the purpose of the act in question: Risk v Williamson (1998) 87 FCR 202 (‘Risk’), at 220-221. Hence, where the Tribunal becomes aware of the probable existence of facts that have a bearing on its jurisdiction, it must make a proper inquiry into those facts.
Legislative Framework
The Tribunal’s jurisdiction to make a determination under s 38 of the Act is enlivened when a valid application is made under s 35 in relation to an act to which Subdivision P of Pt 2, Div 3 of the Act applies.
Pt 2, Div 3 of the Act provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions set out in the Division: see 24AA(2) NTA. The Division establishes a hierarchy of provisions that validate future acts. Those provisions are set out in s 24AA(4) as follows:
24AA Overview
...
(4) A future act will also be valid to the extent covered by any of the following:
(a)section 24FA (future acts where procedures indicate absence of native title;
(b)section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);
(c)section 24GD (acts permitting off-farm activities directly connected to primary production activities);
(d)section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);
(e)section 24HA (management of water and airspace);
(f)section 24IA (acts involving renewals and extensions etc. of acts);
(g)section 24JA (acts involving reservations, leases etc.);
(h)section 24KA (acts involving facilities for services to the public);
(i)section 24LA (low impact future acts);
(j)section 24MD (acts that pass the freehold test – but see subsection (5));
(k)section 24NA (acts affecting offshore places).
Section 24AB(2) specifies that, to the extent that a future act is covered by a particular section in the list in paragraphs s 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.
For present purposes, the relevant provisions are ss 24HA (management of water and airspace) and 24MD (acts that pass the freehold test). The relevant parts of s 24HA are set out as follows:
24HA Management or regulation of water and airspace
...
Leases, licences etc
(2) This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:
(a)is valid (including because of this Act); and
(b)relates to the management or regulation of:
(i) surface and subterranean water; or
...
In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.
Section 24MD relevantly provides that acts that pass the freehold test will be valid subject to Subdivision P.
Section 26 of the Act sets out when Subdivision P will apply to a future act. For the purposes of this inquiry, the relevant subsection is s 26(1)(c)(i):
26 When Subdivision applies
...
Subdivision also applies to certain future acts
(1) This Subdivision also applies to a future act if:
...
(c) subject to this section, the act is:
(i)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 (see section 253) associated with mining; or
...
Section 253 of the Act defines the term ‘infrastructure facility’ as follows:
Infrastructure facility includes any of the following:
(a) a road, railway, bridge or other transport facility;
(b) a jetty or port;
(c) an airport or landing strip;
(d) an electricity generation, transmission or distribution facility;
(e) a storage, distribution or gather or other transmission facility for:
(i)oil or gas; or
(ii)derivatives of oil or gas;
(f) a storage or transportation facility for coal, any other mineral or any mineral concentrate;
(g) a dam, pipeline, channel or other water management, distribution or reticulation facility;
(h) a cable, antenna, tower or other communication facility;
(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purpose of this paragraph.
In South Australia v Slipper (2004) 136 FCR 259, Branson J held (at [84], Finn and Finkelstein JJ agreeing) that the Act is drafted on the basis that the ordinary meaning of the words ‘infrastructure facility’ is relatively narrow and the phrase is used to describe ‘a subordinate part of a particular undertaking or a facility intended to serve or support a particular undertaking.’
Hence, if the act is the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining, then Subdivision P will not apply and the act will attract the consequences set out in ss 24MD(6A) and (6B) .
Grantee party submissions
The grantee party contends that the proposed licence is covered by s 24HA to the extent that it is for the purpose of ‘taking water’ and s 24MD to the extent of the other purposes. In respect of those other purposes, the grantee party argues that Subdivision P does not apply. Alternatively, the grantee party contends that the proposed licence falls within the infrastructure facility exclusion.
In respect of its primary contention, the grantee party submits:
·Pt 2, Div 3 of the Act operates in such a way as to validate a future act to the extent that any of the validating provisions might apply to the act;
·To the extent that it is for the purpose of ‘taking water’, the grant of the proposed licence is a future act consisting of the grant of a lease, licence, permit or authority under legislation that relates to the management or regulation of surface and subterranean water and is therefore ‘covered’ by s 24HA; and
·to the extent that the proposed licence is for purposes other than ‘taking water,’ it is covered by s 24MD (acts that pass the freehold test).
Alternatively, the grantee party submits:
·the purpose of ‘taking water’ is the ‘creation of a right to mine’;
·the inclusion of the purpose of ‘taking water’:
ois ancillary to the purpose of ‘bore field’, ‘pipeline’ and ‘water management facility’ and does not independently attract Subdivision P; or alternatively
ohas no incremental effect on native title rights and interests and is not relevant to the assessment of whether the proposed licence attracts Subdivision P.
Government party submissions
The Government party’s submissions of 10 September 2012 argued that the Tribunal has jurisdiction to determine the application. In its substituted contentions filed on 17 September 2012, the Government party indicates that it now supports the position advanced by the grantee party, though it does so only on the basis of the grantee party’s alternative submission.
The Government party’s substituted contentions argue that the grantee party’s primary submission ‘erroneously assumes that a single future act...may be dissected into different components.’ In the Government party’s view, this would produce ‘an unwieldy result’ in which ‘each “dissectible component” of a future act is subject to potentially different notification procedures, and has potentially different extinguishing effects and compensation arrangements.’ Further, the Government party disputes the grantee party’s characterisation of the MiningAct as legislation that relates to the management or regulation of surface and subterranean water. Instead, the Government party argues that the purpose of ‘taking water’ is simply ancillary to the purposes of ‘bore field’, ‘pipeline’ and ‘water management facility’ and does not of itself attract Subdivision P. In this regard, the Government party adopts the grantee party’s alternative submissions.
Consideration
Neither the Government party nor the grantee party disputes that the Tribunal is not entitled to deal with the application. However, the parties disagree (at least in part) over the basis for that conclusion.
Creation of a Right to Mine
The Government party and the grantee party agree to the extent that, if ‘taking water’ cannot be considered separately from the other purposes for the proposed licence, it falls within the infrastructure facility exclusion in s 26(1)(c)(i). As noted at [15]-[16] above, the exclusion applies where the future act consists of the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining. This calls attention to what constitutes the creation of a right to mine.
Section 253 of the Act defines the term ‘mine’ as follows:
Mine includes:
(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters;
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means.
In its original submissions, the Government party argued that the definition of ‘mine’ in s 253 is inclusive and requires a construction that is consistent with the Mining Act. Although the Government party has since abandoned those submissions, the grantee party’s submissions (which the Government party adopts) presuppose that, for the purposes of the proposed licence, ‘taking water’ constitutes the creation of a right to mine. To the extent that Government party submissions contend that the inclusion of other activities that do not create a right to mine does not bring the act outside the scope of the infrastructure facility exclusion, I discuss them later in this decision. Though the grantee party does not articulate the basis for its conclusion that ‘taking water’ constitutes the creation of a right to mine, it is useful to deal with the arguments presented in the Government party’s original submissions.
The Government party’s initial argument relied on the Tribunal’s findings in Re Tjupan Peoples (1996) 134 FLR 462 (‘Tjupan’) and Ron Harrington Smith on behalf of the Thihee Birni Bunna Wiya People; Murray Stubbs on behalf of the United North East People/Western Australia/Glenmurrin Pty Ltd & Anaconda Nickel Ltd [1999] NNTTA 194 (‘Smith’). In Tjupan, Member Pamela O’Neil observed (at 474) that ‘the use of the word “includes” in s 253 allows the matters listed to be seen as illustrative only of the word defined and may not be taken as covering the field of operation.’ Member O’Neil went on to state that this interpretation of s 253 was supported by a speech given by Senator Evans introducing the Native Title Bill 1993 (Cth) to the Senate for the Government, where he said:
I am reminded further that the definition of “mine” is itself inclusive rather than exhaustive. It does not purport to cover the whole field of possible scope of mine activity. To the extent that State mining legislation has to say on the subject, that would also no doubt be taken into account by a court or tribunal where this matter came as an issue.
In Smith, the Hon E M Franklyn QC held (at [11]) that the words ‘right to mine’, ‘mining’ and ‘mining operations’ used in the Act in the context of a future act by the State of Western Australia, being the grant of a mining tenement under the Mining Act, require a construction consistent with the Mining Act.
Two observations should be made about these decisions. First, it is true that the definition of ‘mine’ in s 253 is inclusive. However, that does not imply that its meaning is ambulatory. Second, the Tribunal has commented that the provisions of Subdivision P are to be construed so that, as far as possible, the Act operates in harmony with the existing State and territory land management regimes, including any mining legislation: Re Koara People (1996) 132 FLR 73 at 80. Even so, there is nothing in the Act to support the conclusion that the words and phrases used in the Act have different meanings depending upon which State or territory legislation is relevant. If such a construction were adopted, it would have the consequence of permitting States and territories to determine when particular provisions of the Act apply, including the right to negotiate. I do not accept that this is what the legislature intended. In this respect, I note that s 3(b) of the Act provides that one of its main objects is ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.’ Allowing State and territory legislation to determine those standards would not accord with that object or the intentions manifested in Pt 2, Div 3 of the Act. That is not to suggest that the meaning given by State and territory legislation to the word ‘mine’ is irrelevant to the interpretation of the word ‘mine’ in the Act. However, it is only relevant insofar as it sheds light on the ordinary meaning or common understanding of the word.
The common law is also relevant to understanding the ordinary meaning of the word ‘mine’. In NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509, High Court noted (at 522) that the meaning of ‘mine’ and ‘mining’, like ‘minerals’, is ‘by no means fixed and is readily controlled by context and subject matter.’ However, the Court went on to state (at 523-524):
[T]here are certain metals, minerals and substances which have been traditionally recovered by underground workings. They have thus become associated in idea with the concept of a mine and the association of ideas has made it inevitable that whatever the form of the excavation that is made for the purpose of winning them, it will be called a mine and the operations will be called mining. This may be an extension of the primary meaning of mining, but it must we think be recognized that, where the context or subject matter does not otherwise require, it forms today one of the natural applications of the word ‘mine’ and ‘mining’. In this sense it is part of the prima facie meaning.
In Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177, Windeyer J observed (at 194) that to the extent the definition of the word ‘mine’ is predicated on the ‘working for the extraction of minerals,’ the use of the term ‘mining’ in that context ‘connotes operations for getting at and getting out minerals.’ This extended meaning is apparent in the definition of ‘mine’ in s 8 of the Mining Act to include ‘any manner or method of mining operations.’
Whatever guidance can be found in State legislation and the common law regarding the ordinary meaning of the word ‘mine’, it is ultimately necessary to consider the words ‘creation of a right to mine’ in their statutory context. In this respect, it is helpful to refer to the reasons for introducing the amendments that resulted in the insertion of the ‘sole purpose’ test in ss 26(1)(c)(i) and 24MD(6B). According to the Supplementary EM 1998 (at 19-20):
New subsection 24MD(6B) will also apply to the grant of a mining lease for the sole purpose of the construction of an infrastructure facility associated with mining (paragraph 24MD(6B)(b)). The grant of a mining lease of this kind is exempt from the right to negotiate (see subparagraph 26(1)(c)(i) which is amended by Government amendment (H46)) but the consequences set out in new subsection 24MD(6B) will apply to grants of this kind in addition to the procedural rights provided in subsection 26MD(6A). The sole purpose test applies to the grant of the right. The fact that an infrastructure facility may, when constructed, also provide services to the local community or others, will not prevent the relevant grant being for the sole purpose of constructing the infrastructure. However if the grant allows both mining and construction of infrastructure it will not pass the sole purpose test.
In this respect, it is apparent that the sole purpose test was not intended to focus solely on ‘construction.’ As the Supplementary EM 1998 goes on to state (at 23) in relation to s 26(1)(c)(i):
The words ‘sole purpose’ have been used to make it clear that the creation of a right to mine with which the infrastructure facility is associated is not removed from the right to negotiate by this amendment.
This statement and the one quoted above suggest that the distinction between ‘mining’ and ‘infrastructure associated with mining’ created by the sole purpose test was intended to ensure that acts which authorise mining (in the sense of extracting or recovering minerals) are not excluded from the right to negotiate.
However, it is clear from the language of ss 29(1)(c)(i) and 24MD(6B) that the act must nevertheless consist of the creation of a right to mine. Therefore, to give meaning to those provisions, the words ‘right to mine’ must be construed so as to include the construction of an infrastructure facility associated with mining. That being so, it is reasonable to infer that ‘mine’ in the context of ss 29(1)(c)(i) and 24MD(6B) means (or at least includes) the extraction of substances that may be mined as well as the operations for getting at and getting out those substances. In this respect, the notion of a ‘right to mine’ is linked to the recovery of minerals. As Ryan and Cooper JJ observed in Abbot Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371 (at 379):
The process of recovery includes ... those steps which are taken by a miner before sale, by whatever process, to remove the mineral from that in which it is embedded or with which it is intermixed. Such a process comprehends the refining of minerals or ore to remove impurities naturally occurring in the material as it has been mined. Once the process of separation or refining has been completed, to subject the mineral product to a process or procedure designed purely to facilitate its better use as so separated or refined or to render it more readily or advantageously marketable is not in our view part of the recovery process.
On this basis, a miscellaneous licence will only involve the creation of a right to mine for the purpose of ss 29(1)(c)(i) and 24MD(6B) if it is for the sole purpose of constructing an infrastructure facility associated with recovering the relevant substance. This is consistent with Branson J’s interpretation of ‘infrastructure facility’ in Slipper as ‘a subordinate part of a particular undertaking or a facility intended to serve or support a particular undertaking,’ the undertaking being the extraction and recovery of minerals. In this sense, a ‘right to mine’ for the purposes of the Act extends to activities that support or are ancillary to an existing right to extract or recover minerals. Therefore, an act which authorises or permits the doing of things subsequent to or apart from that process of recovery is not the ‘creation of a right to mine.’
The question then is whether ‘taking water’ can be properly described as an activity that relates to the recovery of a substance that may be mined. Two initial observations can be made. First, no party suggested that water is something that may be mined. Second, if water is capable of being mined, the creation of a right to take water would fall outside the scope of the infrastructure facility exclusion and therefore attract the right to negotiate. Nevertheless, it is necessary to consider whether the definition of ‘mine’ in the Act extends to the extraction or recovery of water.
Relevantly, s 253 provides that ‘mine’ includes to ‘explore or prospect for things that may be mined’ and to ‘extract petroleum or gas from land or from the bed or subsoil under waters.’ The definition of ‘mine’ in s 253 specifically excludes extracting, obtaining or removing sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than extracting, producing or refining minerals from those substances or processing those substances by non-mechanical means. The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (‘EM 1997’) notes (at 9.16) that mining ‘can be described as the extraction of any non-organic natural resource for commercial exploitation.’ However, the Explanatory Memorandum to the Native Title Bill 1993 (Cth) states (at Part B, 104):
The definition of this term [mine] is not an exhaustive one and is wider than what might be thought to be the ordinary meaning of the term. It includes exploring or prospecting for anything that may be mined. It also includes extracting petroleum, gas or water from land or from the bed or subsoil under waters and quarrying. The definition is also picked up in the derivatives of ‘mine’ such as ‘mining’ and ‘mined.’
I will return to the use of such extrinsic materials in statutory construction later in this decision. For the present purposes, it will suffice to note that whereas definition of ‘mine’ in s 253 of the Act specifically includes extracting petroleum or gas, it does not make any reference to ‘extracting water’.
Further guidance can be found in the definition of ‘mining operations’ in s 8 of the Mining Act, where it is defined as:
[A]ny mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes —
(a) the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral; and
(b) operations by means of which salt or other evaporites may be harvested; and
(c) operations by means of which [a] mineral is recovered from the sea or a natural water supply; and
(d) the doing of all lawful acts incident[al] or conducive to any such operation or purposes.
In this regard, it can be observed that water obtained pursuant to a miscellaneous licence granted under the Mining Act will not be disturbed, removed, washed, shifted, crushed, leached, roasted, distilled, evaporated, smelted, refined or dealt with for the purpose of obtaining any mineral therefrom. By the same measure, the exclusion of extracting, obtaining or removing sand, gravel, rocks or soil from the definition of ‘mine’ in s 253 of the Act except where it is done for the purpose of extracting, producing or refining minerals from those substances creates a distinction between natural substances of the kind listed and the minerals recovered from those substances. Equally, paragraph (e) of the definition indicates that the parliament intended ‘mine’ to mean more than to simply take and use raw materials in a mechanically altered state. Accordingly, though it is plausible that groundwater could be recovered for the purpose of selling the water, that does not necessarily mean that its extraction would be regarded as mining. This distinction can be seen in the common law’s treatment of brine or solution mining, in which it is minerals that are considered to be the substance mined rather than the water itself: see for example Federal Commissioner of Taxation v ICI Australia Limited (1972) 127 CLR 529.
A further consideration is the fact that, at common law, water resources are treated quite differently to other natural resources: see Action v Blundell (1943) 152 ER 1223; cf R v Earl of Northumberland (Case of Mines) (1567) 75 ER 472. Although legislation has superseded the common law in relation to water resources in most Australian jurisdictions, the distinction between water and minerals has in large part been preserved. Though Australian law considers both to be public resources, water is treated as something managed for the public benefit, whereas mining legislation has been directed toward enabling the commercial exploitation of mineral resources. As a consequence, water has typically been subject to different legislative regimes than other natural resources. Subdivision H and Subdivision P arguably reflect this distinction. In this regard, it is difficult to see why a miscellaneous licence granted under the Mining Act for the purpose of taking water should be treated any differently to the grant of a licence to take water under s 5C(d) of the Rights in Water and Irrigation Act 1914 (‘RWI Act’).
Though it would appear that the extraction or recovery of water cannot of itself be considered ‘mining’, a right to take water may support the extraction or recovery of minerals. For example, the grant of a mining lease under the Mining Act authorises the holder to take and divert water for ‘domestic purposes and for any purpose in connection with mining for minerals on the land’: s 85(1)(c). There is no suggestion that the creation of a right to take water in the context of the grant of a mining lease involves something other than the creation of a right to mine. However, the creation of a right to take water will not of itself involve the creation of a right to mine. Rather, it must be connected to an existing right to mine. Hence, the right to take water must be examined in the context of the other rights created by the act.
The ‘Sole Purpose’ Test
There is no dispute that ‘taking water’ is not an ‘infrastructure facility’ within the meaning of ss 26(1)(c)(i) and 24MD(6B). However, the grantee party contends that the inclusion of the purpose of ‘taking water’ in the proposed licence is simply ancillary to the purpose of ‘bore field’, ‘pipeline’ and ‘water management facility’ and as such does not independently attract Subdivision P. In this respect, the Government party adopts the grantee party’s submissions. As I have already concluded that the grant of a licence for the purpose of ‘taking water’ is not of itself the creation of a right to mine, I do not consider that the inclusion of that right in the proposed licence would attract the right to negotiate, whether or not that purpose is ancillary to the other purposes for the proposed licence. However, the question remains whether the creation of a right to take water in the context of the proposed licence is ancillary to the construction of an infrastructure facility associated with mining and is therefore capable of being validated by reference to s 24MD(6B).
The grantee party’s contention relies on the Federal Court’s decision in Risk, which concerned the compulsory acquisition of native title rights and interests notified prior to the 1998 amendments. In that case, O’Loughlin J accepted that the compulsory acquisition of land for a purpose ancillary to the purpose described in s 26(2) of the old Act did not take the acquisition outside of that purpose. As O’Loughlin J observed (at 217):
[T]he relevant purpose of acquisition, being to confer rights or interests in relation to the land concerned on persons other than the Government party, must be the main purpose. There cannot be any second, independent purpose, although there can be other uses that are adjuncts to the main purpose
The grantee party argues that there is nothing in s 26(1)(c)(i) that requires that an act should be limited to a right to ‘construct’ but not ‘operate’, ‘use’, ‘maintain’ or ‘repair’ the relevant facility. Rather, the right to ‘operate’, ‘use’, ‘maintain’ or ‘repair’ is ancillary to the main essential purpose of the act, which is the construction of an infrastructure facility. Therefore, the grantee party submits that the reasoning in Risk should apply to the ‘sole purpose’ test. This view is supported by reference to the Supplementary EM 1998 at 19-20, where it is said:
The fact that an infrastructure facility may, when constructed, also provide services to the local community or others, will not prevent the relevant grant being for the sole purpose of constructing the infrastructure.
Hence, it is arguable that the parliament intended that the infrastructure facility exclusion would also extend to the right to use the infrastructure once constructed.
In relation to the inclusion of ‘taking water’ among the purpose of the proposed licence, the grantee party argues that those purposes must be construed by reference to the statement provided with the application for the proposed licence in accordance with reg 37 of the Mining Regulations 1981 (WA). Under the heading ‘Bore field, water management facility & taking water’, the reg 37 statement provides as follows:
A number of production bores will be installed within L47/369 for the purpose of abstracting groundwater for various purposes including road construction, dust suppression, and water supply to the mine village.
A hydrogeological investigation to assess borefield requirements will comprise exploratory drilling, test bore installation and bore testing followed by production bore installations.
Each production bore will comprise headworks and an electrical control box.
There is no reference in the reg 37 statement to ‘taking water’. Accordingly, the grantee party submits that the reg 37 statement indicates that the inclusion of the ‘taking water’ was only intended to be ancillary to the purpose of operating production bores.
While the reg 37 statement is indicative of the reasons for including ‘taking water’ in the proposed licence, it is not conclusive of whether that purpose is in fact ancillary to the construction and use of production bores. It is important to note that the question to be answered here is different in significant respects from the situation that was before O’Loughlin J in Risk. There, it was a matter of determining whether the compulsory acquisition was for the purpose described in s 26(2) of the old Act. In the present matter, consideration must be given to the fact that the proposed permit authorises the holder to do such matters and things as are specified in the licence: s 91(3)(b) Mining Act. That being the case, the purposes of the proposed licence must be examined in terms of the rights it creates. In this respect, it is useful to compare the rights created by authorising the holder to construct and operate a ‘bore field’, ‘pipeline’ or ‘water management facility’ and those rights created by authorising the holder to ‘take water’. As the grantee party acknowledges in its submissions, the ordinary meaning of the purposes of ‘bore field’, ‘pipeline’ and ‘water management facility’ conveys an implicit right to ‘take’ water. In this regard, it is impossible to imagine using a bore field without the corresponding right to take the water recovered. However, by authorising the holder to ‘take water’, the proposed permit presumably authorises the holder to take water from any place on the licence, including any existing source of water. In this way, the rights conferred on the holder to ‘take water’ do not necessarily correspond with the purpose of constructing and operating a ‘bore field’, ‘pipeline’ or ‘water management facility’ in a way that would suggest that those rights are ‘ancillary’ to that purpose.
This is similar to the conclusion reached by O’Loughlin J in Risk. There, his Honour found (at 218) that it was unnecessary to acquire native title rights and interests over a buffer zone around the planned development as the land was vacant Crown land and therefore ‘quite capable of being used, as such, as a buffer zone.’ Hence, his Honour held that the Tribunal had erred by concluding that the acquisition of native title rights and interests over the buffer zone was ancillary to the main purpose of the compulsory acquisition. In the present matter, once the purposes of the proposed licence are examined against the rights created, it becomes clear that the purpose of taking water is not ancillary to the construction of an infrastructure facility associated with mining but is in fact an independent or secondary purpose.
The grantee party argues that ‘taking water’ was included in the proposed licence because the grant of a miscellaneous licence for water under the Mining Act is expressly subject to the Rights in Water and Irrigation Act 1914 (‘RWI Act’). Specifically, the grantee party contends that because s 5C(1) of the RWI Act provides that a person must not ‘take’ water from any underground source except under and in accordance with, among other things, another written law, the grant of a miscellaneous licence for the purpose of a ‘bore field’, ‘pipeline’ or ‘water management facility’ does not of itself entitle the holder to pump water through those facilities within the meaning of the RWI Act. I am not convinced that is the case. If a miscellaneous licence is granted for the purpose of a ‘bore field’, ‘pipeline’ or ‘water management facility’, it is arguable that the grant implicitly authorises the holder of the licence to take water through those facilities. In any event, whatever the effect of the RWI Act, it is necessary to consider what is actually authorised by the grant of the proposed licence rather than statements made by the grantee party concerning the intended exercise of those rights. What is important is that the right to take water authorises the holder of the licence to conduct activities over and above the operation of the proposed infrastructure facilities. In that respect, the right cannot be described as ancillary to the construction of an infrastructure facility associated with mining.
The Government party submits that the fact the proposed licence authorises activities which do not constitute the creation of a right to mine but which are ancillary to a mining operation does not prevent the sole purpose test from being satisfied. However, as discussed above, the right to mine created by the proposed licence is the right to construct infrastructure associated with mining. In that respect, the right to take water cannot be described as being ancillary to a right to mine.
‘Taking water’ and s 24HA
If ‘taking water’ does not involve the creation of a right to mine and is not ancillary to the construction of an infrastructure facility associated with mining, the question is whether the proposed licence is capable of being validated to the extent that it authorises the holder to take water from the proposed licence area.
The grantee party submits that, to the extent that the proposed licence is for the purpose of ‘taking water’, the act is covered by s 24HA(2) of the Act. A future act will be valid pursuant to s 24HA(2) if the following conditions are satisfied:
·the future act consists of the grant of a lease, licence, permit or authority;
·the future act is valid; and
·the grant is made under legislation that relates to the management or regulation of surface and subterranean water, living aquatic resources or airspace.
It is clear that the proposed licence is a ‘lease, licence, permit or authority’ and will be valid once granted. However, the question is whether the Mining Act can be considered legislation that relates to the management of surface and subterranean water.
The grantee party contends that the inclusion of ‘taking water’ amongst the purposes for the proposed licence at once suggests that the Mining Act relates to the management or regulation of surface and subterranean water, in that the licence authorises its holder to take water from the licence area. In its submissions, the grantee party refers to other features of the Mining Act that deal with the management of surface and subterranean water:
·the grant of a right to take water: ss 20(2)(d), 48(d), 66(d), 70J(d) and 85(1)(c) of the Mining Act;
·the prohibition against works near water: ss 20(5)(e), 20(5)(g), 29(2) of the Mining Act;
·the definition of ‘land’ under the Mining Act includes ‘water’: s 8 of the Mining Act;
·the definition of ‘mining operations’ under the Mining Act includes the obtaining of minerals from a ‘natural water supply’: s 8 of the Mining Act;
·the establishment of the warden’s court and the grant to it of jurisdiction to determine all actions, suits and other proceedings concerning water to be used for mining: ss 127 and 132(1)(c) of the Mining Act; and
·the establishment of the offence of preventing, resisting or obstructing the taking or diverting of any water: s 156(1)(d) of the Mining Act.
The Government party submits that s 24HA(2) was not intended to capture legislation such as the Mining Act, which, as its long title suggests, ‘is an Act to consolidate and amend the law relating to mining and for incidental and other purposes.’ The Government party argues that, insofar as the Mining Act deals with water in the manner suggested by the grantee party, it only does so incidentally and cannot be described as legislation that ‘relates to the management or regulation of surface and subterranean water.’
Courts have generally given the phrase ‘relates to’ a wide interpretation. However, courts have also acknowledged that the nature of the relationship conveyed by the term will depend on the context in which it appears: see Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 (at 620); Joye v Beach Petroleum NL (1996) 67 FCR 275 (at 285); Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 (at 123 – 124). As Brennan CJ, Gaudron and McHugh JJ observed in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 (at 313):
Inevitably, the closeness of the relationship required by the expression ‘in or in relation to’ in s 48 of the Act – indeed, in any instrument – must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.
Relevantly, the purpose of s 24HA(2)(i) is to allow for the validation of future acts that consist of the grant of a lease, licence, permit or authority under legislation relating to the management or regulation of surface and subterranean water. Therefore, the question of whether the legislation must deal primarily with the management or regulation of surface and subterranean water has to be viewed in the context of the future act regime as a whole.
As I discuss in further detail below, the future act provisions create different procedural requirements and compensation arrangements in respect of future dealings that affect native title. These requirements are directly related to the rights created or varied by such dealings and the anticipated impact that the creation or variation and exercise of those rights may have on registered native title rights and interests. Consequently, attention should be given to the nature of the rights created by the future act. In this respect, s 24HA(2) does not require that the legislation in question is concerned primarily or even substantially with the management or regulation of surface and subterranean water. Rather, it is only necessary that it creates rights (whether by way of a lease, licence, permit or authority) that relate to the management or regulation of surface and subterranean water. This view is supported by the fact that s 24HA(2) defines ‘management or regulation water’ to include ‘granting of access to water, or taking water.’ In this sense, it is clear that s 24HA(2) was intended to extend to legislation that creates or varies rights in relation to surface and subterranean water, whether or not it is the primary purpose of the legislation. Therefore, it would seem contrary to the purpose of s 24HA(2) if it did not extend to the grant of a licence that authorised the holder to take water from the area of the licence.
Whether taken together or considered individually, the provisions referred to by the grantee party and listed at [44] clearly indicate that the Mining Act manages or regulates water, including by granting access to water and by authorising the taking of water. In addition to those provisions, I also note s 162(2)(m) of the Mining Act, which specifically authorises the Governor to make regulations requiring the holders of mining tenements to provide information to the Director General of Mines ‘in respect of boring operations for water or water obtained while boring for other purposes as may be prescribed.’ In light of those reasons, I find that a miscellaneous licence granted under the Mining Act for the purpose of ‘taking water’ is covered at least in part by s 24HA(2).
Relationship between future act provisions
If it is accepted that the grant of a miscellaneous licence under the Mining Act for the purpose of ‘taking water’ is capable of being validated by reference to s 24HA(2), the question becomes whether that purpose can be treated separately from the other purposes for which the proposed licence is to be granted or whether the proposed licence will merely be invalid to the extent that it includes the purpose of ‘taking water’. The answer to that question will depend on whether the validating provisions in Pt 2, Div 3 of the Act have a cumulative effect on the validity of a future act or must be considered separately.
The grantee party submits that the use of the words ‘to the extent covered by any of the following’ in s 24AA(4), which sets out the hierarchy of validating provisions in Pt 2, Div 3 of the Act, requires an assessment of the extent to which any section might apply to a future act. The grantee party submits that this interpretation is consistent with s 24AB(2) of the Act, which provides that, to the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list. Therefore, the grantee party argues that, to the extent that the proposed licence includes the purpose of ‘taking water’, s 24HA validates the proposed licence. Insofar as any additional rights included in the proposed licence affect native title and are more than ancillary to the purpose of ‘taking water’, those additional rights may require validation by reference to other provisions in Pt 2, Div 3. However, in the grantee party’s submission, it is only those additional rights that must be considered.
The Government party submits that a future act cannot be ‘dissected’ into different components. In the Government party’s submission, this could potentially result in a single future act being subject to different notification procedures and having different consequences in terms of extinguishment and compensation. The Government party also contends that the grantee party’s submission ‘overlooks the work intended to be done’ by s 24AB(2), the effect of which is ‘to ensure that if a future act fits within more than one of the provisions in the list in s 24AA(4), the first applicable provision in the list becomes the only applicable provision.’
The language used in ss 24AA(4) and 24AB(2) is by no means conclusive. On one interpretation, the fact that s 24AA(4) provides that ‘a future act will...be valid to the extent covered by any of the following’ suggests that a future act will be valid only to the extent that one or more of the sections listed in paragraphs s 24AA(4)(a) to (k) applies to the act. However, the words in s 24AA(4) could also suggest a future act will be valid to the extent that it is covered by any one of the sections listed but will be invalid to the extent that it is not covered by that particular section. This interpretation draws some support from s 24AA(2), which provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of Pt 2, Div 3, and invalid if not. In this respect, the use of the words ‘to the extent that a future act is covered by a particular section’ in s 24AB(2) is not particularly instructive either way.
Previous decisions of the Federal Court and the Tribunal do not provide much further assistance on this point. In Lardil Peoples v Queensland (2001) 108 FCR 453 (‘Lardil Peoples’), the Full Court of the Federal Court gave consideration to the statutory framework of the future act regime. In that matter, French J (as he then was) described the relationship between the validity provisions in Pt 2, Div 3 of the Act in the following terms (at [23]):
Subdivisions E to N inclusive of Div 3 provide for the validity of various classes of future act, their consequences for native title and the rights of native title holders and registered native title claimants in relation to them. Broadly speaking, to the extent that a future act is covered by one subdivision, it is not covered by any subdivision that succeeds it in Div 3 (s 24AB(2)).
Justice Dowsett gave a similar overview of the interaction between the different parts of the future act regime, noting (at [92]) that ‘[s]ection 24AB, in effect, prescribes that these validating provisions stand in a hierarchy so that if one validates a particular act, those lower in the hierarchy will not do so.’ Significantly, Dowsett J added that this effect of s 24AB is ‘of some importance because the consequences of validation may differ, depending upon which provision confers it.’
It is necessary then to consider the meaning of the phrase ‘to the extent’ and, more broadly, the relationship between ss 24AA(4) and 24AB(2) in the context of the purpose and overarching structure of the future act regime. In this respect, it is important to bear in mind the objects of the Act set out in s 3, especially ss 3(a) and (b) which are, respectively, ‘to provide for the recognition and protection of native title’ and ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.’ The procedural rights set out in Pt 2, Div 3 are an important element of the protection of native title and that protection ‘is not to be narrowly construed’ (see Smith v Western Australia (2001) 108 FCR 442, [23]; FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141, [18]). However, equal weight should be given to s 3(b) as an expression of statutory purpose. As the Full Court commented in Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 (Harris) (at [27]):
There is, in our opinion, a discernible legislative intent in these provisions of Div 3 ... that shows that, depending upon who is to do the future act and depending on the impact the act will have on established native title rights or on native title rights that may possibly exist in the lands or waters affected by the act, persons with determined or possible native title interests in the land are to have carefully graded rights to be notified beforehand and are also to have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act.
Notwithstanding Dowsett J’s observation in Lardil Peoples (at [108]) that there does not appear to have been a ‘consistent underlying intention’ to extend procedural rights to registered native title claimants in respect of all future dealings affecting native title, the future act regime can nevertheless be seen as erecting standards for such dealings by setting out procedural requirements for the validation of certain kinds of future acts and by defining the consequences that flow from the validation of such acts.
Viewed in the context of the procedural rights and other consequences that arise from the application of particular provisions of Pt 2, Div 3, it is clear that s 24AB(2) was inserted into the Act to ensure that an individual future act will not be subject to different regimes where it meets the requirements of more than one of those provisions. This view is supported by the EM 1997 at [6.18] – [6.19]:
The Bill inserts in the NTA a rule to deal with the situation where a future act meets the requirements of more than one validating provision of Division 3 .... [s 24AB] ... This is necessary because different consequences may flow from the application of different provisions (e.g. different procedural or compensation arrangements may apply). If an act would, apart from section 24AB, be covered by more than one validating provision, it is instead only covered by one ... This applies to the extent that the act is covered by the provisions concerned.
Although reference to such extrinsic materials may be illustrative of legislative intention, they are not conclusive of the issue. As McHugh, Gummow, Kirby and Hayne JJ stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [69]), ‘the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.’ Although the High Court has endorsed the use of extrinsic materials to identify the purpose of a statute, it has also noted that the purpose of a statute is ‘not something which exists outside the statute’ but ‘resides in its text and structure’: Lacey v Attorney-General of Queensland (2011) 242 CLR 573, [43] – [44].
It is important here to note the use of the words ‘apart from section 24AB’ in the EM 1997. Section 24AB provides that ‘to the extent that a future act is covered by a particular section...it is not covered by a section that is lower in the list.’ In this respect, it is possible to interpret s 24AB as meaning that, to the extent a future act is covered by a particular provision, it is not covered by a later provision to the same extent. For example, if an act involves the grant of a permit under a fisheries management act to take fish from a lake located on a non-exclusive agricultural lease, s 24AB would operate to exclude the application of s 24HA (being a permit granted under legislation that relates to the management or regulation of living aquatic resources) in preference for s 24GA (being an act that permits a primary production activity on an non-exclusive agricultural lease). This interpretation is consistent with other provisions in Pt 2, Div 3. For example, s 24NA provides that Subdivision N applies to a future act ‘to the extent that it relates to an offshore place’ and provides that ‘[a] reference to a future act to which this Subdivision applies is to be read as referring to the act to that extent only.’ Hence, a future act that relates to both onshore and offshore areas will require different procedures (and presumably give rise to different compensation arrangements) to the extent that it covers each area. Subdivision F provides that an act done in relation to an area that is the subject of a non-claimant application will attract the protections in s 24FA if, at the end of the relevant notice period, no relevant native title claim covers the area or part of the area. This implies that a future act will attract the protections in s 24FA even though the procedures set out in ss 24FB and 24FC only indicate the absence of native title in relation to part of the area. Presumably, to the extent that the act partly overlaps a registered native title claim, it will need to be validated pursuant to one of the subsequent provisions. Section 26(3) also specifies that Subdivision P ‘only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea.’ Therefore, the Act clearly contemplates different validating provisions applying to the same act.
It is important to acknowledge, as the Full Court observed in Harris, that the procedural rights set out in Pt 2, Div 3 are directly related both to the anticipated impact of a particular act on native title rights and interests and to the government doing the act, which may be liable for compensation arising from that impact. In this context, what the validating provisions in Pt 2, Div 3 do is establish requirements for the validation of future acts to the extent they affect native title and make arrangements for compensation. However, if those requirements are not complied with, the future act will be invalid only to the extent that it affects native title: s 24OA NTA. As Chesterman JA and Applegarth J noted in Queensland Construction Materials Pty Ltd v Redland City Council (2010) 175 LGERA 52 (at [87]):
[T]he validity of which the NTA speaks is the power of an act to affect, diminish or extinguish, native title rights. If a future act is invalid by reason of non-compliance with the applicable subdivision of the NTA the consequence is that the act does not affect native title, which remains intact, and can be asserted by appropriate means ... . Invalidity under the NTA does not mean invalidity of acts done pursuant to State [or Territory or Commonwealth] legislation such as the grant of mooring authorities, leases or development applications. Those acts may be valid exercises of ... executive power but nevertheless not affect native title rights.
In other words, where s 24OA applies, the effect is that, to the extent of the invalidity, the future act will be subject to any native title rights and interests that exist in the area concerned: Kennedy v Victoria [1999] FCA 659, North J at [5]; Rubibi Community v Western Australia (No 7) [2006] FCA 459, Merkel J at [20]. Hence, a future act that does not comply with the future act provisions will be valid to the extent that native title rights and interests have already been extinguished: Neowarra v Western Australia [2003] FCA 1402, Sundberg J at [587]. As such, the focus of the future act regime is on whether the rights created or varied by the act are inconsistent with native title rights and interests.
It is feasible that an individual future act (in the sense of ‘the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters’: s 226(2)(c) NTA) could create a set of rights that have an asymmetrical effect on native title rights and interests. Hence, the hierarchy established by ss 24AA(4) and 24AB(2) ensures that the procedural requirements and compensation arrangements set out in each subdivision do not apply to the extent that the future act is already ‘covered’ by a section higher in the list set out in paragraphs 24AA(4)(a) to (k). If the Government party’s interpretation of s 24AB(2) were accepted, the words ‘to the extent’ would have no work to do. The better view is that the rule in s 24AB(2) operates only to the extent that a future act is covered by a particular section. Any additional rights may have to be validated by reference to a section lower in the list. However, it is only those additional rights which need to be considered. This interpretation is consistent with the statement of purpose expressed in the EM 1997 and quoted above at [54].
Conclusion
For the reasons stated above, I find that Subdivision P does not apply to the proposed licence. Therefore, the Tribunal is not entitled to consider the application.
Decision
Future act determination application WF12/23 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Daniel O'Dea
Member
3 October 2012
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