Harvey & Ors v Minister for Primary Industry and Resources & Ors
[2023] HCATrans 110
[2023] HCATrans 110
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D9 of 2022
B e t w e e n -
DAVID HARVEY
First Appellant
THOMAS SIMON
Second Appellant
TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC ICN 7848
Third Appellant
and
MINISTER FOR PRIMARY INDUSTRY AND RESOURCES
First Respondent
NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
MOUNT ISA MINES LIMITED ACN 009 661 447
Third Respondent
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2023, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR S.A. GLACKEN, KC: If the Court pleases, I appear with MR R.W. KRUSE for the appellants. (instructed by the Northern Land Council)
MR S.B. LLOYD, SC: May it please the Court, I appear with MR L.S. PEATTIE for the first and second respondents. (instructed by Solicitor for the Northern Territory)
MR R.N. TRAVES, KC: May it please the Court, I appear with MR M.A. EADE for the third respondent. (instructed by Ward Keller)
GAGELER J: Mr Glacken.
MR GLACKEN: Your Honours will appreciate on the papers that the case raises two short or crisp but important points on the operation of the future act provisions of the Native Title Act. In that respect, native title parties have under the Act a right to negotiate certain conferrals of mining rights. An exceptional proviso is where the future act is, in the language used in the Native Title Act:
the creation or variation of a right to mine . . . for the sole purpose of the construction of an infrastructure facility associated with mining –
Where the proviso applies, there is an alternative right to an independent hearing in the place of the right to negotiate. In our oral outline, we have taken the unusual course of reproducing the text of the section, so it is handy and uppermost in our minds, because what I wanted to do was first, refer to the key findings below that bear upon the statutory construction question; second, briefly, the reasons of the Full Court of why we lost, despite those findings; thirdly, what we say is wrong with the Full
Court’s construction which, we say, just does not work ex facie when one looks at the plain text that we have reproduced in outline; then, after that, we will do a deep dive, so to speak, through the Native Title Act to say what we say is the preferred construction.
GAGELER J: In doing that, Mr Glacken, I would be assisted by knowing within the scheme of the Act, what would be the consequence of a right to mine that is not for the sole purpose of the construction of an infrastructure facility associated with mining in this context.
MR GLACKEN: In this context, we say the right to negotiate would apply. The Full Court and our opponents say there is a third category, if you like, where there is something that is neither a right to mine, nor within the proviso of a right to mine for the sole purpose, et cetera, but is somehow something else. In that third category, what operates as so‑called freehold equivalent procedural rights in 24MD(6A), we respectfully say that is a fallacy. There are only two categories of procedural rights for mining rights, and that is either a right to negotiate, or the alternative right to an independent hearing in 24MD(6B), in the case of the infrastructure proviso.
GORDON J: Just so I am clear, looking at your outline, you are starting with 26(1)(c). You are not starting with the idea this is a right to mine for the sole purpose for provision of the infrastructure?
MR GLACKEN: No. The reason why we are doing that, your Honour, is that 26(1)(b) uses the words, “except one” – and I want to develop this after reviewing the Full Court’s construction, but 26(1)(c) uses the term “except one” ‑ ‑ ‑
GORDON J: Correct.
MR GLACKEN: What we are going to say, your Honours, is that that is a modern, pithy proviso. It is a modern form of drafting of what English drafters used to refer to as a proviso. So, one starts with the proviso to the right to negotiate ‑ ‑ ‑
GORDON J: Is that to say any more than – I do not seek to take you out of order, I just want to understand what the framework is. Is that to say that you seek to establish that this is:
for the sole purpose of the construction of an infrastructure –
and that is why you are starting with the proviso?
MR GLACKEN: Yes. Then once the – and the proviso is within the subject matter of a right to mine.
GORDON J: Thank you.
MR GLACKEN: That is one of the reasons why we say it is a fallacy that there is a third category of – I will try and use a more neutral term – that there is a third category of mining rights to which procedural consequences in the Native Title Act attach.
Your Honours will appreciate that in this case the first respondent Minister proposes, under the relevant Northern Territory mining law, the Mineral Titles Act 2010, to grant a mineral lease to the third respondent, Mount Isa Mines, that would confer on the grantee a “right to conduct activities” on a lease area that are, in the language of section 40(1)(b)(ii) of that Territory Act:
activities . . . ancillary to mining . . . conducted under –
other mineral leases held by Mount Isa Mines. As the proposed grant would not confer a right to conduct mining for minerals, the right to negotiate in the Native Title Act is not triggered because of the proviso, and the context is whether the alternative right to an independent hearing is engaged in place of the right to negotiate. That is, whether the grant is within the proviso as the creation of a:
right to mine for the sole purpose of the construction of an infrastructure facility associated with mining –
Your Honours, there are three key findings below that I want to draw the Court’s attention to that bear upon the characterisation of the grant. Not necessarily in any correct order, but if your Honours first go to appeal book page 161, in the Full Court’s reasons ‑ ‑ ‑
GAGELER J: Could you also give the paragraph numbers, please, Mr Glacken?
MR GLACKEN: It is paragraph 162. As I said, there are three findings that we rely upon for characterisation. At paragraph 162, appeal book 161, their Honours make a conclusion that the works to be constructed pursuant to the proposed grant comprise:
an infrastructure facility within the ordinary meaning of the term.
Your Honours will see that, first of all, at line 4. There is the expression “DSEA”, that is defined at appeal book page 112, paragraph 18(c), as the “Dredge Spoil Emplacement Area”. We do not particularly quibble with the notion that it is using the word “area” rather than “works”, but that is what DSEA is, and their Honours conclude that it is an “infrastructure facility” within the ordinary meaning of the term used in the Native Title Act. The second finding at appeal book 152, paragraph 136, at line 4 of the page, their Honours say:
It is clear from the application –
that is, the application for the grant:
that the purpose of the proposed mineral lease is to construct the DSEA.
So, the integer of the sole purpose of the grant to construct an infrastructure facility is satisfied and that “infrastructure facility” is the ordinary meaning of that term. Then the third finding is at appeal book 151, paragraph 135, in the last sentence:
The respondents do not dispute that the DSEA is associated with mining.
That follows the findings of the trial judge. I will not essay them, but if I can give the references. The trial judge at paragraph 135 refers to his finding that, subject to the “infrastructure facility” definition, the elements of the proviso would be met. Perhaps I might go to this finding. He draws in earlier findings that his Honour made which was a contest about the characterisation of the grant for the purposes of the Territory law. So, if your Honours turn to paragraph 96, appeal book 53, in the third line his Honour makes findings about the purpose of the grant. He says that:
the proposed ancillary activities to be conducted under MLA 29881, if granted, involved enlarging the Dredge Spoil Deposition Area –
His Honour uses the expression “enlarge” at paragraph 9 in reference to there is an existing mineral leave 1126 that is continuous to the proposed grant area. Then he goes on to say:
involved enlarging the Dredge Spoil Deposition Area to facilitate the transportation of zinc, lead and silver concentrates –
So not all concentrates:
from the McArthur River Mine.
And that is the mine situated on mineral leases 1121 to 1125, further south of the port. His Honour continues:
Specifically to allow for the continued use of that area to deposit the dredge spoil produced as a result of the dredging that is required of the swing basin and navigation channel that provide access to the Bing Bong Loading Facility used to tranship those materials to ocean-going vessels.
Importantly for this issue, it also corresponds to the description of the kind of activities which are ancillary to mining on another mineral lease described in s 40(1)(b)(ii) and in respect of which the Minister is authorised to grant a mineral lease under s 40(1) of the MTA.
Then in paragraph 97, at about point 7 on the page, his Honour makes a point that there is no requirement for an ancillary lease to be proximate to the other mineral lease. Just so the Court appreciates the context of that finding – appeal book page 45, paragraph 78 – the trial judge sets out the text of the Territory law, and at section 40 of the Mineral Titles Act it permits a mineral lease relevantly of two creatures. In (1)(b) a mineral lease that confers the right to (i):
conduct mining for minerals in the title area and other activities specified in section 44(1) and (2) –
I will pause – they are activities like treatment, tailings, and what have you, that are listed in section 44. The next species or creature is (ii):
conduct activities in the title area that are ancillary to mining conducted under another ML granted to the title holder –
That is obviously on a separate title area, and it is a common feature of State and Territory mining laws – and I will come to this later, to have what I might call a primary tenement and a secondary tenement. That has taken some time, but the point is that there are three key findings of the Full Court, and also reflecting the findings of the trial judge that the three integers of the proviso in the Native Title Act are satisfied.
GORDON J: Mr Glacken, each of those findings you have taken us to, both in the Full Court and in the primary judge, draw, I think from reading them, and if I am wrong I would be grateful if you told me, from the application that was actually made itself. That is, consistent with the Mineral Titles Act. The applicant for it had to set out:
a summary of the technical work proposed to be carried out for conducting authorised activities –
MR GLACKEN: That is correct. I cannot remember the number that your Honour is reading from.
GORDON J: I am reading 41(2)(c).
MR GLACKEN: Yes.
GORDON J: Am I right that these activities are set out in the application that we have in front of us?
MR GLACKEN: Yes. It is in the applicant’s further materials.
GORDON J: Am I right it is page 185?
MR GLACKEN: Yes, I am sure that your Honour is. I did not want to burden the Court with this sort of factual detail, but the application itself starts ‑ ‑ ‑
GORDON J: I will say it for this reason, Mr Glacken, is those findings are based upon the content of this document, and the document itself sets out, I would have thought, material which would assist to understand those findings.
MR GLACKEN: Yes. Can I take the Court to that document then?
GORDON J: Only if you want to. If I have taken you out of order then, by all means, do it at a later time.
MR GLACKEN: If I recall section 45, which I will pull up in a moment, reflective in this – and this is an approved form in the appellant’s further materials volume, the section requires ‑ ‑ ‑
GORDON J: It comes in two stages, you have got to apply for it, and 41(2) says your application must include this summary that sits at 185 and then, the conditions under section 45 are to:
conduct authorised activities in relation to the title area –
And one assumes that authorised activities are the ones that are applied for in the subject of the proposed grant.
MR GLACKEN: Yes. If your Honours turn up the application in that volume the approved form commences at page 171. The point that I wanted to make following your Honour’s comments is at page 173, and from memory it is approved under section 165 of the Mineral Titles Act. Your Honour will see a heading “Details of Mineral Lease”, and there is a box. One is asked with the words:
Commodity to be mined or associated purpose in conjunction with mining –
The answer given by the applicant is:
Loading facility for the export of Zinc / Lead / Silver concentrates –
Hence, it is identifying what would be, in the language of section 40 of the Mineral Titles Act, the ancillary activity. The summary of proposed work, the prescribed form or approved form, refers to page 175. Then the information provided by the applicant in this case appears at page 185, and that is all set out and quoted by the trial judge at paragraph 9 of his reasons.
GORDON J: Do I understand that summary to be consistent with what you just took us to in page 173? To reflect the findings of both the courts below that this was, in a sense, an essential aspect of this Bing Bong Loading Facility?
MR GLACKEN: Yes. Further, in terms of the territory law, an activity ancillary to mining in the findings that the trial judge makes at paragraph 96, and then, further to the Native Title Act, activities or an infrastructure facility associated with mining. Your Honour will hear submissions from the respondents that may say, for example, this is an activity for shipping, rather than for mining. We do not say it is for mining per se, and I am going to come to the definition of a mining lease, in the strict sense, used in Native Title Act. What those submissions do not come to grips with, if you like, is the findings that the activities are associated with mining for the purposes of the Native Title Act proviso.
What I wanted to say in terms of the sequence is that having had those three findings in our favour, and things were looking pretty good, why did we lose? We lost for two reasons. The first is that the trial judge held that the infrastructure definition used in the Native Title Act is exhaustive in its listing of things and that the works under the proposed grant did not come with any listed paragraph; relevantly, we relied on paragraphs (f) and (g). His Honour had overlooked our primary submission that the definition was inclusive and that the works fall within the ordinary meaning of an “infrastructure facility” and it was from that that we appealed, and the court rejected our submission that the definition is inclusive, agreeing with the trial judge that it is exhaustive, and the Full Court’s conclusions on that are at paragraphs 157 and 161.
Then, on top of that, the Full Court upheld a notice of contention by Mount Isa Mines that the proposed grant did not constitute the creation of a right to mine, being a construction point that was in our favour by the trial judge. Could I take the Court to the Full Court’s conclusions on that point, and that is a segue to introducing their Honours’ construction of the proviso and our criticism of it before we then develop our own construction. If your Honours turn to appeal book page 150 and paragraph 130 of the reasons, the Full Court concludes at paragraph 130 that:
the grant of ML 29881 would not constitute the creation of a “right to mine” within the meaning of s 24MD(6B)(b). This is because the activities authorised by ML 29881 are too remote from mining activities and cannot be regarded as necessary for the meaningful exercise of a right to mine.
We will come back to the test that their Honours postulate at paragraph 127, but their Honours give two reasons why it is not a right to mine. The first at paragraph 131 is that it is on land separate to another mining title. Then at paragraph 132 their Honours say that the activity authorised by the grant is concerned with the shipment of the ore mined, or perhaps more accurately it is the concentrate - never mind. Their Honours continue but not the mining of the ore, then they refer to the purpose of the facility and then say:
The ordinary meaning of mining does not encompass the transportation of mined ore to customers.
Could we just, at this point, telescope a complaint we make about the intersection of the Native Title Act with State and Territory laws, and the need for that Act to be accommodated within those laws is that on our review of State and Territory mining laws, no secondary tenement, if I can use that word, to refer to ancillary, associated, or connected infrastructure tenements would meet the Full Court’s conclusions for two reasons. By definition, such a secondary tenement will be on land separate to the primary tenement, and the second reason is that the ancillary or secondary tenement will permit that other, separate land to be used for the purposes other than for the mining of minerals, such as transportation or the like.
STEWARD J: Can I ask you, Mr Glacken, do you read the reference to “right to mine” in 6(b) as not so much – indeed, you would say, could not be a reference to an obligational right to get in and get out the minerals ‑ ‑ ‑
MR GLACKEN: That is so.
STEWARD J: ‑ ‑ ‑ to use the classic definition. But the “right to mine” is an ambulatory phrase designed to pick up all those different types of mining tenements ‑ ‑ ‑
MR GLACKEN: That is so.
STEWARD J: ‑ ‑ ‑ that are often issued by the State legislatures in different names. Bearing in mind what was said in Ward about the – I will use the word “sloppiness”, about the use of the word, for instance, lease in a mining lease.
MR GLACKEN: That is so. Simply, meaning yields to context. This is why we wanted to spend some time this morning, perhaps burdening the Court, with some old‑fashioned learning on what is a proviso. That is one way of looking at it. But yes, that is essentially what we say ‑ ‑ ‑
STEWARD J: You would say that if it meant the classic concept of mining, getting in and getting out, you would almost certainly fail the sole purpose test.
MR GLACKEN: Correct, by definition.
STEWARD J: Whatever this right to mine is, it is not a right to get in and get out. It is a right or obligation to construct the infrastructure associated with mining.
MR GLACKEN: That is so, and I will develop the point later, but if one just looks at the text of the proviso, whether we look at – I prefer to look at the proviso starting at section 26. I know it is in different numbering, but the structure of the Act starts with the right to negotiate. One of the reasons, to answer your Honour’s questions, that we approached it that way is that it says that a right to mine is something “whether by the grant of a mining lease or otherwise”.
I will come to what a mining lease is as defined, but we say this is a right to mine that is within the words “or otherwise”. That is made abundantly clear by the actual addition of the proviso in the 98 amendments. We are criticised for saying that we do not give the words “right to mine” work to do. We say it has different work to do depending on the context.
STEWARD J: You say the work is that it identifies a governmental act, namely, the grant or variation of a mining tenement of a particular kind.
MR GLACKEN: Yes. That will permit – it may be a tenement that permits what fits the definition of a mining lease in section 245, to which I will come to in a moment, or it may be a tenement that permits, in this case, the:
sole purpose of the construction of an infrastructure facility –
et cetera.
GLEESON J: What is the underlying reasoning for the separation between the primary tenements and the secondary tenements?
MR GLACKEN: In terms of the legislative history – and I will come to this – but the Parliament was concerned that compulsory acquisitions for infrastructure purposes were being taken out of the right to negotiate, whereas it was recognised that mining companies often build similar infrastructure and then when the mining lease is over, the operation is over, the infrastructure may remain and be used by the community.
So, the legislative history points to why that distinction was made, and I will come to that later. I really want to just deal with the Full Court’s construction and why we say it is wrong ex facie and then develop those more nuanced points. The way the Full Court approached the matter starts at paragraph 97, appeal book 137 ‑ ‑ ‑
EDELMAN J: Appeal book 197, did you say?
MR GLACKEN: Appeal book 137, paragraph 97. And their Honours introduce – have a heading, “The elements of s 24MD(6B)(b)”. Their Honours go straight to that provision rather than the terms of section 26 itself, but that probably does not presently matter. Their Honours say that the statutory language:
defines a future act that satisfies two elements: (i) the future act must be the creation or variation –
of a mine:
(ii) the sole purpose of the creation –
et cetera:
must be . . . associated with mining.
Now, just pausing there, we say that that is, in effect, tearing apart the composite expression, which introduces error to segment things in that way. And that is illustrated by seeing the way their Honours pose what they consider to be the statutory questions at paragraph 119, page 145, where their Honours say:
It is therefore necessary to determine whether the grant of ML 29881 would be the creation of a right to mine within the meaning of s 24MD(6B)(b).
Their Honours do not ask, would it be the creation of a right to mine for the sole purpose of the construction of an infrastructure facility, et cetera.
GAGELER J: The segmentation really would not matter, would it, on your argument, provided a broad understanding is taken of the right to mine?
MR GLACKEN: We think it does, your Honour, because we think it is the platform for what is the third step in their reasoning of what is a right to mine. Their Honours would not get to – it is at paragraph 127 – their Honours, I think, would not have got to what they formulate the meaning or content of the expression “right to mine” without that initial segmentation. At least, that is the way I ‑ ‑ ‑
GORDON J: Sorry to interrupt you. Your point really, as I understand it, has three steps. One has 26, right to mine, except for; one has 26MD, which is right to mine for sole purpose; and your argument is “right to mine” has to include both and one carves it out and one includes it.
MR GLACKEN: Yes.
GORDON J: Is it any greater than that?
MR GLACKEN: No. Can I sit down?
GORDON J: I think that is what Justice Gageler has just put to you.
MR GLACKEN: Although the Full Court did not see it that simply, and it was that segmentation that leads to this point at paragraph 127 – sorry, I will go back. At paragraph 102, what their Honours were concerned about – it is about point 3 of the page, starting with the sentence:
Undoubtedly, such a tension exists –
So, their Honours concede that there was a tension between the words, the “right to mine” and then the exception or proviso, and their Honours try – and rather than just treating the proviso as a proviso and focusing on the sole purpose test, their Honours try and allay, or lessen, that tension at about point 5 of the page by suggesting:
Adopting that broader meaning of the phrase “right to mine” removes the tension in the provision.
We respectfully say that is unnecessary. One looks simply at the text, and if one perceives any tension ‑ ‑ ‑
GORDON J: Well, I do not know about that. The last sentence in 102 is your case, is it not?
MR GLACKEN: Yes, it “is capable”, their Honours say, but it is not capable because of the construction their Honours then adopt at paragraph 127.
GLEESON J: Well, it is not capable in the sense that they have used this expression about “rights necessary for its meaningful exercise”.
MR GLACKEN: Correct, that is at paragraph 127. So, if your Honours turn to paragraph 127, the Full Court posits a construction of the words “right to mine” at the beginning of the paragraph to say it:
refers to a future act that confers a right to engage in mining activities . . . typically . . . the exploration for and extraction of a mineral . . . from the ground, and encompasses rights necessary for its meaningful exercise.
We lose on that – well, on both limbs because have a tenement that is associated, or ancillary, to mining. Now, what their Honours formulate is pretty much the language of a primary tenement, so in Ward, paragraph 308, the joint reasons cite section 85 of the Mining Act (WA) dealing with a mining lease proper.
STEWARD J: Well, there is a problem with that sentence in any event, because mining activities do not typically involve exploration.
MR GLACKEN: No, but your Honours have done that because the verb “mine” in the Native Title Act is defined.
STEWARD J: I know the very expansive definition of “mine” in the Act does include exploration, but typically there has always been a very strong demarcation between getting in and getting out minerals by exploration.
MR GLACKEN: And nor, possibly, is gas, a mining method or a mineral.
STEWARD J: Yes, that is also dealt with normally, statutorily.
MR GLACKEN: I do not disagree with that. Can we just say that, ex facie, those two limbs just clash with the statutory text. The first limb, the right to mine will confer a right to dig and recover, if I can use a more narrow expression. It cannot be met because of the sole purpose test. The second limb, rights necessary for the meaningful exercise of mining, distorts the words of “connection” used in the proviso, which is whether something is associated with mining.
Then your Honours conclude at the end of 127 that the application of the phrase “right to mine” will always be fact‑specific. We say, with respect, if one characterises the act or tenement with an understanding of the State and Territory laws and it meets those integers of the proviso that I have explained – those three findings – one would not have any further factual inquiry, which would just introduce uncertainty for proponents and native title holders, which is an undesirable consequence. Can we just pause there and say, ex facie, that construction does not sit with the statutory text.
GORDON J: By that, do you mean statutory test – both the Mineral Titles Act as well as the Native Title Act?
MR GLACKEN: Yes. Primarily, of course, the latter. The State and Territory laws can only, if you like, inform an understanding of the proviso used in the Native Title Act in the same way that some of the learning in the tax cases would look at State and Territory laws for the common understanding. So, they do inform what is a common understanding of an Act that confers a right to construct infrastructure associated with mining, et cetera. Of course, we have to first deal with the primary text of the Native Title Act. Those tests posed by your Honours simply clash with the text of the proviso.
GAGELER J: Does the first sentence of paragraph 128 capture your construction?
MR GLACKEN: No.
GAGELER J: How do you differ?
MR GLACKEN: With respect, we never said it is something tantamount to a mineral lease. We would not say that because the Native Title Act does not use the expression “mineral lease”, it uses the expression “mining lease”. We say that a right to mine includes something other than a mining lease – and a mining lease is something that solely or primarily permits mining.
STEWARD J: I was going to say, you have to be careful. The nomenclature here, “mining leases”, can confer all sorts of rights nowadays.
MR GLACKEN: That is so. I will come to the definition in the Native Title Act.
STEWARD J: Your point is that the right to mine is a tenement of a particular kind that will meet the sole purpose test.
MR GLACKEN: Yes, in the context of the proviso.
STEWARD J: And you say that the one that we are looking at meets that test?
MR GLACKEN: Correct.
STEWARD J: Yes, I understand.
GAGELER J: And ML 29881 is a mining lease, is it not? Or would be, if granted?
MR GLACKEN: Correct. But 128 does not represent our case because there is a full stop after “mineral lease” or “licence”. Our case is – read on:
a mineral lease –
or licence:
for the sole purpose –
et cetera. That is the difference. It does not capture what we submitted below.
GAGELER J: No, I appreciate that.
MR GLACKEN: Could we then deal – so that is our criticism.
GORDON J: Can I ask a very basic question about statutory construction. If one looks at 44(1)(f) of the Mineral Titles Act which says authorised activities under the mineral lease include:
other activities, as specified in the ML, in connection with an activity mentioned –
above, is it not that, contrary to what is put in 127, that met what is set out in this proposed mineral lease?
MR GLACKEN: Yes, except 44 needs to structurally be read by going back to section 40.
GORDON J: And section 45.
MR GLACKEN: Yes. Section 44 are activities that are part of what I might call the mineral lease proper within (i) of section 40.
GORDON J: Yes.
MR GLACKEN: So can I call that the Ward example?
GORDON J: Yes.
MR GLACKEN: That is, a mining lease proper will confer rights to – forget particular statutory provisions, but a mining lease proper will confer rights to extract and recover minerals, together with such necessary incidental rights to allow that to occur. Now, that philosophy is picked up by section 40.
GAGELER J: I just do not know why you are using that language, “a mining lease proper”. I mean, everything under section 40 is a mineral lease proper, is it not?
MR GLACKEN: Only because, if one goes back to the proviso, one sees that a right to mine is something – whether by the grant of a mining lease or otherwise, a mining lease is defined ‑ ‑ ‑
GORDON J: “Or otherwise”.
MR GLACKEN: Correct.
GORDON J: I mean, this mineral lease in 40 is a right to occupy the title under (a), which gives you the exclusive right to, for example, in (ii):
conduct activities in the title area that are ancillary to mining conducted –
We know from 44(1)(f) that they are things which can be included in that which is set out in the authorised activities.
MR GLACKEN: Yes. The only reason why I am – well, two reasons why I am referring to “mining lease proper” is, one, that that is what the Full Court is posing at paragraph 127 – the elements of a primary tenement for the recovery of minerals. The second reason why I use that expression – and I apologise for the looseness of it – is that the proviso in the Native Title Act speaks of an Act that is the grant of a mining lease or otherwise, and section 245 defines a “mining lease” – and I wanted to go to that as part of developing our construction. So, could I ask your Honours to turn up the other provisions of the Native Title Act. It is in the joint book volume 1, tab 3.
GAGELER J: We are working from a reprint, Mr Glacken.
MR GLACKEN: If your Honours would start with section 25 of the reprint. The point of this exercise, if I can explain, is to contextualise the shorter points that we have made already about the structural operation of the Act. So, section 25 has an overview of the right to negotiate, and it has summary in subsection (1) of the sorts of acts; (aa) are renewables of mining leases, and then (a) is the:
certain conferrals of mining rights –
That summary is then developed by the operative provisions of section 26. So (1A) deals with acts that are renewals of mining leases, subject to section 26D when the right to negotiate applies. And then relevantly – although we have been to the text already – subsection (1) deals with mining acts and acts of compulsory acquisition, to which the right to negotiate applies. And then the relevant test is in (c)(i), where there is:
a right to mine, whether by the grant of a mining lease or otherwise, except one created for –
et cetera. The accompanying note uses the expression:
Rights to mine created for the sole purpose –
The note is somewhat emphatic, if you like, that a right to mine is created for a sole purpose. And, as I said earlier, (i) uses the words “except one created”. So, except a right to mine created for. And that may be a more modern drafting in the form of a proviso. In other words, it is saying, provided that this subdivision does not apply to a right to mine created for a sole purpose, in which event, as the note explains, section 24MD(6B) applies instead. Hence, we liken it to a proviso.
Can I then just go to the definitions in section 245, “Mining Lease”.This is the point in answer to the earlier questions of why I would use the term “mining lease proper”, because the expression in the section 26 refers to a “mining lease or otherwise”. Section 245(1) says:
A mining lease is a lease . . . that permits the lessee to use the land . . . solely or primarily for mining.
The verb “mine” is defined, and we will come to that in a moment. Prima facie, it picks up the meaning of the defined verb, but can I draw your Honours attention to the expansion of a mining lease in section 242. In subsection (1):
(1) The expression lease includes:
. . .
(c)anything . . . declared to be or described as a lease –
in a State or Territory law. The observation was made in Ward that that picks up mining leases under the Western Australian Mining Act. In subsection (2):
references to a mining lease . . . includes a licence issued, or an authority given –
For example, in the Victorian Legislation it has the expression “mining licence” rather than “mining lease”. The Atomic Energy Act, section 41, has an “authority to mine prescribed substances”. Those expanded definitions were considered by the Court in Tjungarrayi v Western Australia (2019) 269 CLR 150. And if I can just take the Court to the definition of “mine” and the definition of “infrastructure facility”, for completeness, in section 253.
As was observed before, the verb mine is defined in an inclusive way, but by way of expansion to include things that would ordinarily not include the mining of minerals. And then, finally, the definition of “infrastructure facility” appearing two pages beforehand says it “includes any of the following” and lists things. And then in (e) and (f) there are particular examples that focus on the context of a mining operation. Bearing in mind that section 26(1)(c) uses the expression:
a right to mine, whether by the grant of a mining lease or otherwise –
having regard to those expansive definitions, a right to mine can be created in at least four ways. A mining lease, in the most commonly understood form of tenement as one for the extraction of minerals – that is within section 245(1) without any further enquiry. Secondly, there might be a mining authority or licence that by section 242 is treated as a mining lease within section 245.
Thirdly, because of the definition of mine, there may also be an expiration licence that by virtue of that definition section 242 is included as a mining lease within section 245. Finally, and this is our “otherwise”, there is something other than a mining lease, mining authority or expiration licence that is not within section 245 as expanded by those definitions.
When the right to mine is created by a mining lease taking in those expanded definitions then by section 245(1) that instrument requires or permits the land to be “solely or primarily for mining”. When the right to mine is created by something other than a mining lease, in that sense, then that instrument need not require or permit the land to be “solely or primarily for mining” or exploration.
The final point to make about these provisions is that the “infrastructure facility” definition itself indicates the type of things that may be associated with mining to fall within that proviso. These features indicate, in our submission, that the mining infrastructure proviso will concern something other than rights to use land solely or primarily for mining or exploration and will permit use of the land for constructing things like those listed in the “infrastructure facility” definition.
STEWARD J: On your view, would a retention lease fit within “other”?
MR GLACKEN: A retention lease in the sense of what is granted subsequent to an exploration licence.
STEWARD J: Yes. Yes, classically.
MR GLACKEN: I would have to look at the provision more closely because they tend to just put things on hold, but there would seem to be the end purpose ‑ ‑ ‑
STEWARD J: There are normally some activities which are both permitted and required for a retention lease; minimal ones.
MR GLACKEN: The end purpose is to permit mining, certainly when the retention lease is converted into a mining lease – can I say the word proper, a mining lease proper.
GAGELER J: You mean as defined by section 245.
MR GLACKEN: Yes, that is what I meant by proper, and why the Full Court paragraph 127 reasoning is improper. One of the reasons.
GAGELER J: Let us not take the language too far.
MR GLACKEN: No. Why it miscarries? As I said, ex facie, it clashes with the text of the proviso, and secondly, it overlooks, if you like, the more nuanced features of the Act, and what is meant by those words “a right to mine”, whether by mining lease or otherwise. One otherwise is then confirmed by the proviso itself. Could we then, perhaps, venture ‑ ‑ ‑
GORDON J: Sorry, have you finished with the infrastructure definition in 253?
MR GLACKEN: For the purposes of this right to mine point, yes.
GORDON J: Thank you.
MR GLACKEN: But we will come back to it for the issue of whether it is exhaustive or inclusive.
GORDON J: Maybe I should ask this, and you might think about this: if one looks at (a) to (h) for the moment, are you going to address us about whether or not this DSEA on the proposed mineral lease falls in its terms within either (a), or (f) itself, or (g)?
MR GLACKEN: Our primary case is that it falls within the ordinary meaning of an “infrastructure facility”.
GORDON J: I asked a more direct question, sorry.
MR GLACKEN: Then our secondary submission is that, if we are wrong on that, that it falls within (f) or (g) because of the findings of the trial judge.
GORDON J: I see. Thank you.
EDELMAN J: Why not (a)?
MR GLACKEN: It equally can, as part of a transport facility. We have not put that submission, but equally can. We had not put it to the trial judge. I might add there were a lot of points before the trial judge and this point that we are now dealing with was something that sort of came up towards the end.
Can we then say something about the drafting technique used in section 21(1)(c)(i). We have distributed an extract from Craies on Statute Law, and an extract from a more recent work by Bennion. I am concerned with the expression used in 26(1)(c)(i) which speaks of:
a right to mine . . . except one –
et cetera. It may be seen as, in substance, a proviso because it is saying Subdivision P does not apply in that event. There are traditionally four possibilities, if I can just paraphrase some of the points made by Craies at page 218 of that extract. The opening paragraph simply states what is the effect of making an exception to qualify something that has been previously enacted, and it is said there is four construction possibilities. The one is identified by Lord Justice Lush in Mullins v Treasurer of Surrey where:
the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject‑matter of the proviso.”
That is the simple point, there is a right to mine, and then there is a carve‑out. An old case, West Derby Union, points to two possibilities. One is if the prior enactment is clear then the proviso cannot be relied upon to implicate something contrary to the clear meaning. But in the quotation there is a reference to what Lord Watson says at the end of that paragraph, that he would:
perfectly admit that there may be and are many cases in which the terms of an intelligible proviso may throw considerable light on the ambiguous import of the statutory words.”
Then Lord Herschell has similar sentiments. Lord Watson was concerned that historically provisos were often introduced in a passage of a private members bill by opponents to cut down things in the same way as savings clauses were. Hence in that quotation there is a reference to Lord Watson saying:
When one regards the natural history and object of provisos, and the manner in which they find their way into Acts of Parliament –
that he thought that some caution should be given to how to read a proviso. West Derby throws up two possibilities. One is if the prior enactment is abundantly clear you will not imply something from the proviso to contradict it, but if it is ambiguous then the proviso may be intelligible. Then the fourth possibility is at the end of page 219. It is point five of 219, above the heading “Proviso repealed”, in the last sentence of that paragraph, the author writes:
But sections, though framed as provisos upon preceding sections, may exceptionally contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes before.
And the key case there is footnote 96, but there is a – I will come to it in a moment. It is put against us that the rights to mine are so clear and could never have included this grant. We say a number of responses, but one is that the legislative history indicates that this sort of grant was within a right to mine – apprehended as within a right to mine. We could also be in the third possibility if it was ambiguous; we have an intelligible proviso. Then the fourth possibility is that did the 1998 amendments, in effect, have a substantive enactment. In other words, you read the exception as – rather than accept one, you read it as: and in the case of X, this subdivision does not apply.
Can I say that on all of those views, other than the second one which I attributed to the doubts in West Derby, we would succeed. On the doubts expressed in West Derby, Bennion 2013 – we have included an extract, elaborates on the fourth possibility of a proviso operating as a substantive enactment and, at footnote 5, adds a useful case, Stamp Duties Comr v Atwill, a Privy Council decision reversing a decision of this Court about construction of the Stamps Act or the like. In the end of footnote 4, the author writes that:
Judges used to cast doubt on the value of a proviso in throwing light on the meaning of the words qualified by it: see, for example, West Derby . . . This is because provisos, like savings, were often put down as amendments to Bills by their opponents, and accepted to allay often groundless fears. This still happens in the case of private Bills; but since the establishment of the Parliamentary Counsel Office in 1869 it has not been true of public general Acts.
Now, what we take from that simply is that the exception in 26(1)(c) states clearly and intelligibly that a right to mine includes something known as an act:
for the sole purpose of the construction of an infrastructure facility associated with mining –
What it does is that an act within the proviso is included in the subject matter of a right to mine and that is what we take from that learning on drafting. Can I then just wrap up some points on this. I have gone up to 5.1 of our outline. The next point we would make ‑ ‑ ‑
GAGELER J: Can I just understand the point you have just made. When you say that the subject matter of the exception is included within the subject matter of the rule, if I can put it that way, you are not saying I think that the subject matter of the exception is automatically and thereby within the rule.
MR GLACKEN: No.
GAGELER J: The rule can be broader; it can have other elements.
MR GLACKEN: Yes. That is just the point of making an exception.
EDELMAN J: Your submission is just contextual construction, is it not?
MR GLACKEN: Yes, that meaning yields to context. Another contextual point that we wish to make is that there is an obvious interlocking between 26(1)(c)(i) and 24MD(6B) and the interlocking pivots on the sole purpose test. If an act permits both mining and the construction of an infrastructure facility, et cetera, that will engage the right to negotiate. Going back to the Territory Mineral Titles Act, a mineral lease within (i) of section 40(1)(b) permits mining plus infrastructure. That engages the right to negotiate.
In terms of that interlocking and the sole purpose test, if the act permits only the construction of an infrastructure facility, et cetera, then that engages the alternative right to be heard in 24MD(6B) and in the Territory mining law an example is in section 40(1)(b)(ii). Another example is what is called an access authority in section 84 of that law.
EDELMAN J: What is the purpose, on your argument, of carving out mining leases that are created for the sole purposes of construction of infrastructure facility from a right to negotiate and conferring in that pocket, on your argument, the right to an independent hearing instead?
MR GLACKEN: It is revealed by the legislative history in the answer I gave to Justice Gleeson before that a policy choice by the Parliament that an act of that kind, the sole purpose act, ought not be the subject of a right to negotiate because a compulsory acquisition act for that same purpose would not be. That was what was identified as a misuse, if you like, in the extrinsic material. Perhaps if I can turn that up now, which is the next point in our outline that we wanted to make. We have included extracts from the extrinsic materials. It is in volume 5 of the joint book.
GLEESON J: Is this because if there was a right to negotiate, then the State governments would be more likely to exercise a compulsory acquisition or adopt a compulsory acquisition process?
MR GLACKEN: Yes. There is always that possibility that government could say, rather than the mining company entering into a negotiation with the native title holders, because of the nature of the facility being built and its general importance to the public, then we can exercise the power of compulsory acquisition instead.
That is alluded to in extrinsic material, but it is not put that bluntly, I think. The supplementary explanatory memorandum is at tab 40, and this material accompanied amendments made to the Bill to introduce the provisions with which we are being concerned with. The first amendment is just section 26. If your Honours turn to page 23 of the explanatory memorandum – or, it has a pagination, 1108 in the joint book – and at about point six of the page, there is a heading, “Government amendment (H46)”, if your Honours have picked that up. It is an amendment to paragraph 26(1)(c)(i), which:
provides that the creation of a right to mine is subject to the right to negotiate. The amendment removes the creation of a right to mine from the operation of that paragraph (and thereby from the right to negotiate) if it is one created for the sole purpose of constructing an infrastructure facility (which is defined in section 253) associated with mining. The words ‘sole purpose’ have been used to make it clear that the creation of the right to mine with which the infrastructure facility is associated is not removed from the right to negotiate by this amendment.
In terms of the policy decision, it is identified in the next paragraph:
This amendment will remove an anomaly in the Bill namely, that the grant of a mining lease that permits the construction of an infrastructure facility associated with mining must go through the right to negotiate but a compulsory acquisition for the purpose of constructing an infrastructure facility associated with mining need not. Grants of this kind, like compulsory acquisitions . . . will be subject to the additional procedural rights set out in subsection 24MD(6B).
That is the point that was being identified as a policy position.
STEWARD J: Do you accept that the legislative anomaly identified there was solved in a way which went beyond the problem? We have here (6B)(a) deals with extinguishment, subparagraph (b) does not necessarily deal with extinguishment, and indeed there would be no extinguishment here.
MR GLACKEN: Correct.
STEWARD J: So, whatever legislative choice they have made, they may have gone a little bit beyond that particular problem.
MR GLACKEN: Yes, or not gone as far as making it an extinguishing act. The general philosophy of the Act is, of course, mining acts are non‑extinguishing.
GORDON J: So, it is two aspects, is it? It is non‑extinguishing, but it is also giving additional rights that otherwise would not be available on compulsory acquisition.
MR GLACKEN: Correct. Additional to freehold procedural rights.
GORDON J: Sorry, you are right. That is right.
STEWARD J: Do you rely also on what is said at top of page 20 or 1107? In the first paragraph, the last line:
However if the grant allows both mining and construction of infrastructure, it will not pass the sole purpose test.
MR GLACKEN: Yes. That is what we say is the example of the mining lease in Ward, and the attributes given by the Full Court at paragraph 127 of its test of what is a right to mine.
STEWARD J: Do they address that sentence in the explanatory memorandum?
MR GLACKEN: They are certainly conscious of the material; it is quoted. I could not answer that question on my feet, whether they tackle that.
STEWARD J: Thank you.
MR GLACKEN: Then the other amendment, of course, is introducing 24MD(6B), and that is at page 19 of the memorandum or pagination 1106. There is the amendment, which explains – sorry – the purpose of the amendments, and there are three types of acts identified by bullet points. In this case:
the grant of a mining lease for the sole purpose of permitting the construction of an infrastructure facility associated with mining.
Then after that, in the fourth line, the policy decisions identified:
The Government believes that it is not appropriate to subject future acts of this kind to the right to negotiate.
I am sorry. I should have said the first bullet point was “compulsory acquisition” for infrastructure. It goes on:
They include the provision of infrastructure . . . Such infrastructure is increasingly being provided by non‑Government entities . . . It is appropriate however that in relation to acts of this kind, which may have the result of extinguishing native title altogether, native title holders be given procedural rights essentially the same as others but which ensure that the special nature of their rights can be taken into account.
Picking up from the previous passage, that is, in a sense, of the additional rights – additional to freeholder rights. There is, then, a reference to what was then current section 24MD(6) – which is now (6A) – which lists certain mining acts in section 26A, B, C as not subject to the right to negotiate.
The memorandum makes the point that, for that exception, which already gives native title holders special procedural rights in relation to the acts to which those sections apply – if I can just digress slightly, they are listed in section 24MD(6A). In the case of 26A and 26B, the special procedural rights are basically the same as what you would find in 24MD(6B). So, they are additional to freeholder rights. Then, at the end of the page, it is said that the:
New subsection 24MD(6B) will also apply to the grant of a mining lease for the sole purpose –
It will be:
exempt from the right to negotiate . . . but the consequences set out in new subsection 24MD(6B) will apply –
And then, in the passage that we went to before, there is an emphasis on how the sole purpose test works.
GORDON J: I know you are going to come back to what you describe as the respondents’ third argument. Does of the foot of 19 and the top of 20 of that EM deal with that question?
MR GLACKEN: We say it denies – the Full Court at paragraph 129 posits a threefold classification of procedural rights for mining rights; one, Subdivision P, the right to negotiate; two, 24MD(6B) for an infrastructure grant on their test; and three, some other mining rights that do not fall within one or two, having freeholder rights under 24MD(6A). We say that those passages meet the notion – respectfully, the incorrect notion – that there is some third category of mining rights which only attract freeholder rights.
GAGELER J: Is the expression “right to mine” used in the Act elsewhere than this?
MR GLACKEN: Yes, in several places. So, 26A, B and C are examples. They are rights to mine opal, tin, gold; special acts that can be exempted from the right to negotiate by ministerial determination. They kick off with the expression a “right to mine” – and there are in other places. The third respondent’s submissions in‑chief list all of the references to that phrase.
GAGELER J: Okay. We will take our 15-minute morning adjournment at this stage.
AT 11.13 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.29 AM:
MR GLACKEN: Your Honours, can I conclude this topic – because I note the time – by taking your Honours to our outline. The final point we wanted to make on this issue of the proviso and what is meant by “right to mine” is on page 2. It is paragraph 5(4). I have touched on this already, but can we make these points by reference to the material that we cite.
The Native Title Act necessarily intersects with State and Territory resource laws and land management laws generally, and we submit that those laws may inform an understanding of the mining infrastructure exceptional proviso that is used in the Native Title Act. In terms of the material that we cite, the 1993 explanatory memorandum makes the point that for the future act regime:
native title is to be accommodated into the national land management system.
The Act necessarily recognises that the bulk of dealings which will affect native title are done by States and Territories. We refer to Federal Commissioner of Taxation v ICI Australia (1972) 127 CLR 529. That concerned whether references in mining laws to what is meant by “mine” or “mining operations” can help inform a common understanding of those terms for the purposes of the Income Tax Assessment Act. We submit a similar process of construction can be employed for the Native Title Act’s interrelationship with State and Territory laws as informing what is a common understanding of:
a right to mine for the sole purpose of an infrastructure facility . . . associated with mining –
et cetera. We submit that a similar process of deduction was done by the joint reasons of this Court in Tjungarrayi 269 CLR 150, where the joint reasons consider what were the typical characteristics of an exploration licence as informing the reading of section 47B of the Native Title Act and its reference to a lease.
Then, finally, in our submissions we collect all of the examples of mining infrastructure tenements and we have circulated a note to summarise that material for your Honours’ benefit.
GORDON J: Sorry, what does this go to? Which paragraph in your outline?
MR GLACKEN: Paragraph 5(4).
GORDON J: Thank you.
GAGELER J: Is the short point that the structure of section 40 of the Northern Territory Act is replicated elsewhere?
MR GLACKEN: Replicated throughout the States and Territories. What one finds – and we have endeavoured to summarise this with the note – is that either the words “associated” or “ancillary” or “connected with” are used. So, in the note we have provided, Queensland and Tasmania have the expression “associated with”, Victoria has the expression “solely”, then other jurisdictions have the expression “ancillary” and Western Australia has “in connection with”; all describing what I might call mining infrastructure tenements which, we say, informs the understanding of the words used in the Native Title Act.
That takes me to the infrastructure facility point, where we lost twice below on a conclusion that the definition is exhaustive. I went earlier to the Full Court’s finding that the works for this grant would meet the ordinary meaning of an “infrastructure facility”, so the definition is not exhaustive in the sense of the listing, then we succeed on that point and on that finding.
Can we say – and in another Full Court in South Australia v Slipper (2004) 136 FCR 259, dealing with the term “infrastructure facility” in the context of a compulsory acquisition, assumed that the definition in section 253 comprehends such things that the term would ordinarily mean as well as those specifically listed. We say that view should be preferred over the Full Court’s conclusion that the listing is exhaustive, and if we can make these points.
If your Honours turn up the Act, as convenient, simply go to section 253 and the page that contains the definition “infrastructure facility”. Part 15 of the Act generally, which has a whole series of definitions, and then section 253 in particular which has sundry definitions, takes particular care in using the words “means”, “is” or “includes”. Just on that page your Honours will see as an example:
forest operations means –
. . .
horticulture includes –
. . .
infrastructure facility includes –
The Full Court at paragraph 145 considered that less weight to the usual presumption of the use of the word “includes” could be given because infrastructure was added in 1998. Can we say that most of the – or a good many definitions in section 253 were added in 1998, including the two that I just mentioned, “forest operations” and “horticulture”. They were introduced at the same time as “infrastructure facility”.
The second point that we would make, if your Honours concentrate on the listing of the things in paragraphs (a) through to (h), the listing itself does not comprehensively cover all things that could be an infrastructure facility, nor does it use any generic term such as capital structures, buildings or the like that might generally capture infrastructure.
Some obvious examples of things missing might include military infrastructure, like barracks and stores – that would be the subject of a compulsory acquisition – educational infrastructure like schools, colleges; health infrastructure like hospitals, clinics; recreational infrastructure, parks, sporting fields and the like. Contrast the definition of “public work”, also added in 1998 ‑ ‑ ‑
GAGELER J: I am sorry, are you saying a school would be an infrastructure facility according to the ordinary meaning?
MR GLACKEN: In the ordinary meaning, schools would form part of a system, a subordinate part of an undertaking of education.
GAGELER J: I am not sure that is your best point, Mr Glacken.
MR GLACKEN: Well, the second point on the same theme is that one does not find in this listing any generic or all‑embracing term to cover everything that is possibly infrastructure. There is a third point that I will come to later, that in the context of mining there are all sorts of things that are not listed. But just dealing with these two points ‑ ‑ ‑
GLEESON J: What does the word “facility” connote over and above infrastructure?
MR GLACKEN: Only in the sense that it would tend to refer to a purpose of some sort. So, it tends to conform or cohere with the view taken in Slipper, that the thing – infrastructure – would be a part of an undertaking. So, to facilitate something.
EDELMAN J: What would be the consequences for your position if the DSEA did not fall, or were found not to fall, within the proviso but was found to be a right to mine?
MR GLACKEN: Then the right to negotiate would apply. We did not advance that case because of the sole purpose test and the nature of the application for the grant.
EDELMAN J: I do not understand that.
MR GLACKEN: Sorry, your Honour asked what would be the case if the proviso did not apply.
EDELMAN J: Yes.
MR GLACKEN: And if it was a right to mine within the sense used at paragraph 127 of the Full Court’s reasons, then subject to application of the sole purpose test it would engage the right to negotiate.
EDELMAN J: You would have the right to negotiate, but you would not have the (6B) rights that would come within the proviso?
MR GLACKEN: Yes.
EDELMAN J: But you do not press that case at all in the event that you are wrong about the proviso you say that you have no rights, neither the right to negotiate nor the (6B) rights?
MR GLACKEN: We did not plead a case that Subdivision P applied.
GORDON J: Why not?
MR GLACKEN: Because of the sole purpose test and the nature of the application for the grant.
GORDON J: Is that because you run this compendious argument not split?
MR GLACKEN: It is also because our primary argument before the trial judge is that the tenement was simply not authorised by the Northern Territory Mineral Titles Act.
GORDON J: But you lost that.
MR GLACKEN: Yes. Then we said if we lose that, then it must be because of the purpose – if it does not involve mining in an expanded sense, then the purpose would engage the proviso in the Native Title Act.
EDELMAN J: It is just a question of law, though, is it not?
MR GLACKEN: Yes. There is no – and it has been asked more than once, there has been no factual findings beyond what your Honours see at paragraph 96 by the trial judge, which reflects at paragraph 9 the contents of the application document.
EDELMAN J: How is your client’s position then worse if you were to lose on the proviso or the sole purpose test, but effectively to obtain a right to negotiate on the argument that Mr Lloyd put?
MR GLACKEN: We would be back to say that the right to negotiate applies, if it comes within a notion of a right to mine.
EDELMAN J: Yes.
GORDON J: When you say you would be back, what does that mean? You are here.
MR GLACKEN: No, the act has not taken place.
GORDON J: I see.
MR GLACKEN: The state of play is that we lodged an application in the Administrative Appeals Tribunal of the Northern Territory, and that has been on hold pending a ruling on the case that was put before the trial judge.
EDELMAN J: To put it in maybe simpler terms, then: if I want to express that legal point in terms of the relief you seek would order (b) be to the effect that:
Declare that the grant of Mineral Lease Application 29881 under s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT) is a future act that is the creation of a right to mine –
And then full stop, rather than within the exception.
MR GLACKEN: Yes. In terms of the order that we seek restraining the minister it would still be the same, because under the Mineral Titles Act he cannot complete the decision. The trial judge found that there has been no decision to make a grant, no final decision. That is why I used the expression we would be back. I did not mean back here, I meant back contending to the Territory what is the characterisation of the act.
A small point Justice Gleeson asked, the reference to section 85 in Ward in the footnote, it is reproduced in the joint bundle, volume 2, tab 11. Ward itself paraphrases the section at paragraph 290. I mentioned it though because that section 85 of the Mining Act, at the risk of being admonished, is what I called a mining lease proper. That is what section 85 deals with, as opposed to section 86 which deals with a general-purpose lease, and then section 91 of the Mining Act deals with miscellaneous licences for infrastructure, and so forth.
Then, finally, what is the difference between (6A) or (6B) applying in a case like the present? Under the Mineral Titles Act (NT), section 78, the fate of the application is a matter for the Northern Territory Minister for Mines if only (6A) were to apply. Whereas if (6B) were to apply, then there is a procedural entitlement to be heard in the Civil and Administrative Tribunal, and we have provided the relevant jurisdictional legislation at volume 2, tab 15.
They are the points I wanted to make in reply.
GAGELER J: Thank you, Mr Glacken. The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 4.13 PM THE MATTER WAS ADJOURNED
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