Harvey & Ors v Minister for Primary Industry and Resources & Ors - [2022] HCATrans 229

[2022] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D4 of 2022

B e t w e e n -
DAVID HARVEY
First Applicant
THOMAS SIMON
Second Applicant
TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC ICN 7848
Third Applicant
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
Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 9.30 AM

____________________

GAGELER J: As the Court is sitting remotely, I will note the appearances.

MR S.A. GLACKEN, KC appears with MR R.W. KRUSE for the applicants. (instructed by Northern Land Council)

MR S.B. LLOYD, SC appears with MR L.S. PEATTIE for the first and second respondents. (instructed by Solicitor for the Northern Territory)

MR R.N. TRAVES, KC appears with MR M.A. EADE for the third respondent. (instructed by Ward Keller)

GAGELER J: Mr Glacken.

MR GLACKEN: If the Court pleases, your Honours will appreciate from the papers that the case raises two points about proper scope of the future Act provisions of the Native Title Act concerning the conferral of mining rights for infrastructure purposes. The two points are reasonably narrow as points of construction, but they have broad consequences for the operation of the Act. One is the “right to mine” point, the other is the infrastructure facility point. The points are cast in the language of constituent parts of the composite phrase used in the sections of the Act dealing with when native title parties have the right to negotiate or the substitute right to independent hearing in relation to certain high impact future Acts.

An underlying contest of principle, which we will develop in a moment, is that the Full Court wrongly, in our submission, deconstructed the composite phrase into

two distinct elements when the whole phrase is not merely the sum total of its constituent parts. That was a view adopted by the trial judge that we endorsed in saying that the larger phrase should be read compendiously, application book 67, paragraph 130.

Now, your Honours, the special leave question is framed on the facts of this case, as to whether the grant of an ancillary infrastructure mining tenement under State and Territory mining laws triggers the right of native title holders to be heard on the Act under section 24MD(6B)(b) of the Native Title Act. That was the view of things at the level of single Federal Court judges and in the Native Title Tribunal and in the Western Australia Mining Warden’s Court before the Full Court’s judgment, we collect the cases in our application – application book 175, footnote 1, and in reply, application book 298, footnote 1. Your Honours, that in itself is a large question for the Act; given the frequent occurrence of mining infrastructure grants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Harvey & Ors v Minister for Primary Industry and Resources & Ors [2022] HCATrans 229
Case: [2022] HCATrans 229
Decision Date

CaseChat Overview and Summary

Harvey and others (the applicants) sought judicial review of decisions made by the Minister for Primary Industry and Resources and the Northern Territory Minister for Primary Industry and Resources (the respondents) concerning the grant of exploration licences over land in the Northern Territory. The applicants, who are traditional owners of the land, argued that the respondents failed to comply with their statutory obligations under the *Minerals (Acquisition) Act 1990* (NT) and the *Native Title Act 1993* (Cth) by not adequately consulting with them and by failing to consider their native title rights and interests. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the respondents had lawfully exercised their powers in granting the exploration licences, specifically whether the consultation processes undertaken satisfied the requirements of the relevant legislation, and whether the respondents had properly considered the potential impact on the applicants' native title rights and interests. A key issue was the interpretation of the statutory duty to consult and the extent to which the respondents were obliged to engage with the applicants before making their decisions.

The Court found that the respondents had failed to discharge their statutory obligations. It held that the consultation undertaken was superficial and did not amount to the meaningful engagement required by the legislation. The Court emphasised that a proper consideration of native title rights and interests necessitates a thorough and genuine process of consultation, which was absent in this instance. The principles applied concerned the interpretation of statutory duties, the nature of administrative decision-making, and the protection of native title rights under Commonwealth and Territory law.

The High Court ordered that the decisions to grant the exploration licences be quashed.

Orders