FEDERAL COURT OF AUSTRALIA
Friday v Minister for Primary Industry and Resources [2021] FCA 794
Keep reading for free
Create a free CaseChat account to read Friday v Minister for Primary Industry and Resources and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2021] FCA 794
- Decision Date
CaseChat Overview and Summary
The applicants, native title holders, sought declarations that the proposed grant of a mineral lease by the Minister for Primary Industry and Resources under the Mineral Titles Act 2010 (NT) (MTA) is invalid. The Federal Court was required to decide whether the grant of the mineral lease is authorised by s 40(1)(b)(ii) of the MTA, whether s 24MD(6B) of the Native Title Act 1993 (Cth) (NTA) applies to the grant of the mineral lease under the MTA, whether the “procedural rights” under s 24MD(6A) of the NTA, as contained in the MTA, have been afforded to the applicants, whether a substantive and final decision has been made with respect to the grant of the mineral lease, and whether it is appropriate to consider the declaratory relief sought in the absence of such a decision. The Court found that none of the applicants’ challenges to the grant of MLA 29881 had merit, and dismissed their amended originating application. The applicants' claims about the "procedural rights" in s 24MD(6A) were also rejected. The Court concluded that the decision to grant a mineral title under the MTA is subject to a subjective jurisdictional fact, and that the scope for review of such a decision is limited. The definition of "procedural right" in s 253 of the NTA was also considered, and it was found that the applicants had not been denied any procedural rights. The Court dismissed the applicants' amended originating application and made orders for costs.
Orders
Orders of the court
1. The applicants’ amended originating application filed 12 May 2020 is dismissed.
2. If any party wishes to apply for an order for costs of this proceeding by close of business (CST) on 20 July 2021, that party shall file an outline of submissions (limited to five pages) together with any supporting affidavit evidence.
3. If any party files any materials under Order 2, any party opposing such an order shall by close of business (CST) file an outline of submissions (limited to five pages) together with any supporting affidavit evidence.
4. If any materials are filed under Order 2 and/or Order 3 above, the costs of the proceeding will be determined on the papers.
5. If no materials are filed under Order 2 and/or Order 3 above, there will be no order for the costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the following reasons, none of the applicants’ challenges to the grant of MLA 29881 has merit. Their amended originating application will therefore be dismissed.THE FACTUAL BACKGROUND The McArthur River Mine Project was established under the McArthur River Project Agreement Ratification Act 1992 (NT). That Act was amended by the McArthur River Project Agreement Ratification Amendment Act 1993 (NT). Pursuant to s 4A of the amended Act, six mining leases and one exploration licence, which had been granted to Mount Isa Mines under the original Act and the Mining Act 1980 (NT), were “re-granted” to it: mining leases MLN 1121 to MLN 1126 (inclusive) and EL 8078 (see Schedule 2 of the amended Act). As shown on the map annexed to these reasons, mining leases MLN 1121 to MLN 1125 (inclusive) are located at, or in the vicinity of, the McArthur River Mine site itself. However, mining lease MLN 1126 is an outlier. It is located some distance north-east of the McArthur River Mine site on the southern coastline of the Gulf of Carpentaria. The McArthur River Project Agreement makes mention of a barge loading facility or port to be constructed within the Bing Bong Pastoral lease, being the area of MLN 1126. That Loading Facility was constructed in 1994/95. As its name suggests, it is used as a facility to load the product from the mine on to barges for transhipment to larger vessels off the coast. This transhipment method was employed because the coastline in that area of the Gulf was too shallow to allow those larger vessels to berth closer to the shore. On 27 March 2009, the authorised applicant of the Wurruwiji estate group and 23 other estate groups filed a native title determination application (NTD 5 of 2009) under the NTA over that part of the Borroloola PPL which included mining lease MLN 1126 (the Wurruwiji claim). That claim was registered on the Register of Native Title Claims under Part 7 of the NTA on 28 May 2009. However, as explained by Mansfield J in Ngajapa at [7], the Wurruwiji claim and a large number of other related claims were later withdrawn or amended to allow the Ngajapa determination to proceed. Hence, the particular claim to which that determination related was not this Wurruwiji estate group claim (NTD 5 of 2009), but rather a later claim that was filed with the Court on 13 June 2014 (see further at [15] below). On 14 March 2013, Mr Michael Williams, the Administration Manager of the McArthur River Mine, sent an email to the Department of Mines and Energy, now the Department of Primary Industry and Resources (the Department), attaching an application dated 8 March 2013 seeking the grant of a mineral lease under the apposite provisions of the Mineral Titles Act 2010 (NT) (the MTA). That application was given the file number MLA 29881 and it will be referred to as such throughout these reasons unless the context requires otherwise. The application for MLA 29881 was in a standard form. That form required, among other things, the identification of the “Commodity to be mined or associated purpose in conjunction with mining”. In response to that requirement, the application stated: “Loading facility for the export of Zinc / Lead / Silver concentrates”. As well, the application had attached to it a Summary of Proposed Works. That summary explained that the purpose of MLA 29881 was to enlarge the existing dredge spoil deposition area partly located on ML 1126, which had reached its capacity, so that it would be possible to continue to deposit dredge spoils in that area resulting from the dredging of the navigation channel allowing access to the Bing Bong Loading Facility. Specifically, it stated:McArthur River Mining (MRM) operates the Bing Bong Loading Facility through which concentrates produced at the Mine are loaded onto a self propelled barge and then transhipped onto Ocean Going Vessels for export throughout the world.The loading Facility is predominately located on Mineral lease MLN 1126 and consists of a concentrate storage shed and barge loading conveyor system, a swing basin and navigation channel.At the time of construction in 1994/95 an area on the southern boundary of the Mineral Lease was developed into a dredge spoil deposition area. The swing basin and navigation channel require regular dredging to remove silts and muds from the channel to ensure that sufficient under keel clearance is maintained to enable safe operations for the barge.Dredged material has been deposited in the spoil area during the course of several dredging campaigns spanning 15 years, however the capacity of the spoil area has now been reached and as such an additional dredge spoil area needs to be constructed.Works proposed will include the construction of a new dredge spoil area similar in size and design to the existing spoil area and will include engineered internal and external walls and internal and external drains to carry sea water to the existing drainage channel and back out to sea.The new dredge spoil area will have sufficient capacity to cover anticipated dredging requirements out to the end of mine life.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The next question is whether the applicants are entitled to the second category of declaratory relief on their alternative case, namely the alleged violation of their statutory rights under s 24MD(6A) of the NTA. To answer that question, it is necessary to examine what those rights are and the claims the applicants have made with respect to them.The decision to grant a mineral title and the link to s 24MD(6A) An appropriate starting point is s 78 of the MTA under which a decision to grant a mineral title is made. It relevantly provides:(1)This section applies in relation to an application for the grant of a mineral title, after:(a)all the procedures under this Division relevant to the application are completed; and(b)the Minister has considered:(i)all objections, submissions, and responses mentioned in section 72; and(ii)all other matters he or she is required by this Act to consider before making a decision about the application.… There are therefore three groups of prerequisites to such a grant:(a)that all the procedures under Division 2 of Part 5 (ss 70 to 79) relevant to the application have been completed;(b)that the Minister has considered all objections, submissions and responses mentioned in s 72; and(c)that the Minister has considered all other matters that he or she is required by the MTA to consider before making a decision about the application.One effect of the last of these three prerequisites is to provide the link to the NTA which has already been mentioned above (see at [117]). In particular, s 74(2) relevantly provides that “the Minister may grant the mineral title only if satisfied all procedures under the NTA relevant to the future act have been followed” (emphasis added). The words in this provision, “the Minister is satisfied”, introduce, what is often referred to as, “a subjective jurisdictional fact” (see Singh v Minister for Home Affairs (2020) 274 FCR 506; [2020] FCAFC 7 at [78] per Derrington J (Logan and Reeves JJ agreeing) and EHF17 at [44]-[45] and [55]). The scope for review of such a decision is limited. In brief, the inquiry is directed to whether the state of satisfaction required has actually been reached (see Commissioner of Taxation v Addy (2020) 382 ALR 68; [2020] FCAFC 135 at [169] per Derrington J (Davies and Steward JJ agreeing) and EHF17 at [65]-[70]). In this matter, having determined Issue 2 above against the applicants, the words “procedures under the NTA” in s 74(2) above correspond, in particular, to the “procedural rights” that are referred to in s 24MD(6A) at [114] above. That, in turn, requires consideration of the definition of that expression in s 253 of the NTA as follows:procedural right, in relation to an act, means:(a)a right to be notified of the act; or(b)a right to object to the act; or(c)any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.The applicants’ claims about the “procedural rights” in s 24MD(6A)
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.