GAGELER CJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ
DAVID HARVEY & ORS APPELLANTS
AND
MINISTER FOR PRIMARY INDUSTRY AND RESOURCES & ORS RESPONDENTS
Harvey v Minister for Primary Industry and Resources
[2024] HCA 1
Date of Hearing: 5 September 2023 Date of Judgment: 7 February 2024
D9/2022
ORDER
1.Appeal allowed.
2.Set aside order 1 of the orders made by the Full Court of the Federal Court of Australia on 29 April 2022 and in its place:
(a)order that the appeal be allowed;
(b)declare that the grant of ML 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 for the sole purpose of the construction of an infrastructure facility associated with mining within s 24MD(6B)(b) of the Native Title Act 1993 (Cth); and
(c)order that the first respondent be restrained from deciding the application for ML 29881 until completion of the procedures in s 24MD(6B) of the Native Title Act 1993 (Cth).
3.Each party bear its own costs of the appeal.
On appeal from the Federal Court of Australia
Representation
S A Glacken KC with R W Kruse for the appellants (instructed by Northern Land Council)
S B Lloyd SC with L S Peattie for the first and second respondents (instructed by Solicitor for the Northern Territory)
R N Traves KC with M A Eade for the third respondent (instructed by Ward Keller)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Harvey v Minister for Primary Industry and Resources
Native title – Native title rights – Mining – Mineral leases – Where s 24MD(6B) of Native Title Act 1993 (Cth) entitles native title holders to certain procedural rights in relation to future acts that, relevantly, involve "the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility ... associated with mining" – Where Mount Isa Mines Limited carries on mining enterprise in Northern Territory – Where Mount Isa Mines Limited applied for mineral lease ("ML 29881") under Mineral Titles Act 2010 (NT) to construct Dredge Spoil Emplacement Area ("DSEA") on pastoral lease – Where first and second appellants native title holders in respect of land comprising pastoral lease – Where third appellant relevant prescribed body corporate for the purposes of Native Title Act – Whether appellants entitled to procedural rights in s 24MD(6B) of Native Title Act – Whether proposed grant of ML 29881 constitutes creation of right to mine for sole purpose of construction of infrastructure facility associated with mining pursuant to s 24MD(6B)(b) of Native Title Act – Whether definition of "infrastructure facility" in s 253 of Native Title Act exhaustive – Whether DSEA infrastructure facility.
Words and phrases – "associated with mining", "definition", "dredging", "exhaustive", "explanatory memorandum", "extrinsic materials", "future act", "includes any of the following", "infrastructure facility", "mine",…
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 v Minister for Primary Industry and Resources [2024] HCA 1
Case
[2024] HCA 1
Decision Date
CaseChat Overview and Summary
The appeal concerned the application of certain procedural rights under the *Native Title Act 1993* (Cth) to a proposed mineral lease in the Northern Territory. The appellants, who were native title holders and their prescribed body corporate, sought to establish their entitlement to the procedural rights outlined in section 24MD(6B) of the Act. These rights are triggered when a future act involves the creation or variation of a right to mine for the sole purpose of constructing an infrastructure facility associated with mining. The dispute arose from an application by Mount Isa Mines Limited for a mineral lease (ML 29881) to establish a Dredge Spoil Emplacement Area (DSEA) on pastoral lease land, which was also native title land.
The central legal issues before the High Court of Australia were whether the proposed grant of ML 29881 constituted the creation of a right to mine for the sole purpose of constructing an infrastructure facility associated with mining, as contemplated by section 24MD(6B)(b) of the *Native Title Act*. This required the Court to determine whether the definition of "infrastructure facility" in section 253 of the Act was exhaustive and, if so, whether the DSEA qualified as such a facility. The Court also had to consider the interpretation of the phrase "associated with mining" in the context of the proposed DSEA.
The High Court, in allowing the appeal, reasoned that the definition of "infrastructure facility" in section 253 of the *Native Title Act*, when considered in light of the Explanatory Memorandum accompanying the legislation, should be interpreted as exhaustive. The Court found that the DSEA, being a facility specifically for the disposal of spoil generated by dredging operations directly linked to mining, fell within the ordinary meaning of an "infrastructure facility" and was indeed "associated with mining". Consequently, the Court declared that the grant of ML 29881 was a future act that triggered the procedural rights under section 24MD(6B)(b) of the Act. The Court ordered that the Minister be restrained from deciding the application for ML 29881 until the prescribed procedures under section 24MD(6B) were completed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 1 of the orders made by the Full Court of the Federal Court of Australia on 29 April 2022 and in its place:
(a) order that the appeal be allowed;
(b) declare that the grant of ML 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 for the sole purpose of the construction of an infrastructure facility associated with mining within s 24MD(6B)(b) of the Native Title Act 1993 (Cth); and
(c) order that the first respondent be restrained from deciding the application for ML 29881 until completion of the procedures in s 24MD(6B) of the Native Title Act 1993 (Cth).
3. Each party bear its own costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAGELER CJ, GORDON, STEWARD AND GLEESON JJ
EDELMAN J
(dissent)
The clarity and specificity of the statements in the Explanatory Memorandum and its relevance to the second issue on this appeal require that the text and context of the definition of "infrastructure facility" in s 253 be viewed through the prism of the clear manifested intention expressed in the Explanatory Memorandum. Independently of the information in that extrinsic material, the text and context of s 253 provide strong support for an exhaustive definition of "infrastructure facility" but there remains some ambiguity and a degree of uncertainty. When viewed through the prism of the clarity and specificity of the statements in the Explanatory Memorandum, the text and context must be understood in the manner expressed in the joint reasons.Conclusion I agree with the orders proposed in the joint reasons.
Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ, GORDON, STEWARD AND GLEESON JJ,