Harvey v Minister for Primary Industry and Resources

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.