Fortescue Metals Group Limited & Ors v The Commonwealth of Australia

Fortescue Metals Group Limited and others (the applicants) brought proceedings against the Commonwealth of Australia (the respondent) in the High Court of Australia. The dispute concerned the validity of certain provisions of the *Native Title Act 1993* (Cth) and their application to the applicants' mining operations. Specifically, the applicants challenged the operation of s 24MD(1B) of the Act, which they argued impermissibly impaired their rights and interests in relation to native title.

The primary legal issue before the High Court was whether s 24MD(1B) of the *Native Title Act 1993* (Cth) was constitutionally valid, particularly in light of the implied freedom of political communication. The applicants contended that this provision, by imposing certain conditions and limitations on the grant of mining leases, unduly burdened their ability to communicate with government and the public regarding their mining interests and the native title process, thereby infringing the implied constitutional freedom.

Gummow J considered the nature of the implied freedom of political communication and its limitations. His Honour analysed the purpose and effect of s 24MD(1B), finding that it was a law enacted for the purpose of facilitating the recognition and protection of native title rights and interests, and that any incidental burden on political communication was justified and proportionate to that legitimate purpose. The provision was designed to ensure that native title holders were consulted and their rights considered in the context of resource development, a matter of significant public interest and political communication.

The High Court dismissed the applicants' challenge, upholding the constitutional validity of s 24MD(1B) of the *Native Title Act 1993* (Cth).