Maldorky Iron Pty Ltd v South Australian Native Title Services Ltd

[2012] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MALDORKY IRON PTY LTD v SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD

[2012] SASCFC 63

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Blue)

1 June 2012

ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - SOUTH AUSTRALIA - APPEAL OR REVIEW

ABORIGINALS - NATIVE TITLE - PROCEDURE

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - PROCEDURE

An appeal from the decision of a Judge of the Environment, Resources and Development Court refusing an application by Maldorky Iron Pty Ltd for summary determination that it be authorised to enter onto land for the purposes of carrying out and conducting mining operations - South Australian Native Title Services Ltd joined as the respondent in the initial proceedings as a body representing the interests of Aboriginal people - issue on appeal was whether the Judge was correct to dismiss Maldorky Iron’s application - whether the Mining Act 1971 (SA) required that Maldorky Iron be an applicant for or holder of a production tenement before it was entitled to an order from the Environment, Resources and Development Court in its favour for summary determination - whether Maldorky Iron was in substance seeking a conjunctive authorisation.

Held: The relevant provisions of the Mining Act required that Maldorky Iron be, at the very least, an applicant for a production tenement before it was entitled to an order in its favour for summary determination - as Maldorky Iron was not either the holder of or the applicant for a production tenement and as it had no agreement with a registered native title holder, it was precluded from obtaining an authorisation in respect of a future production tenement - Maldorky Iron was in substance seeking a conjunctive authorisation; one which extends to future exploration authorities or production tenements - pursuant to the provisions of the Mining Act, the Environment, Resources and Development Court had no power in the circumstances to confer the conjunctive authorisation sought by Maldorky Iron - the Judge was correct in dismissing Maldorky Iron’s application.

Mining Act 1971 (SA) s 6, s 7, s 8, s 22, s 25, s 28, s 39, s 41F, s 57, s 58M, s 63F, s 63H, s 63I, s 63K, s 63M, s 63N, s 63Q, s 63R, s 63S, s 63T, s 63U, s 63V, s 74 and Pt 9B; Native Title (South Australia) Act 1994 (SA) s 3; Acts Interpretation Act 1929 (SA) s 19; Environment, Resources and Development Court Act 1993 (SA) s 33; Mining Regulations 1988 (SA) Sch 1, referred to.
Maldorky Iron Pty Ltd v Native Title Services SA [2011] SAERDC 16, considered.

MALDORKY IRON PTY LTD v SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD
[2012] SASCFC 63

Full Court        Gray, Peek and Blue JJ

THE COURT:

1. This is an appeal from the decision of a Judge of the Environment, Resources and Development Court refusing an application by the plaintiff and appellant, Maldorky Iron Pty Ltd, for summary determination that it be authorised to enter onto land for the purposes of carrying out and conducting mining operations. 

2. The respondent, South Australian Native Title Services Ltd, joined in the initial proceedings as a body representing the interests of Aboriginal people.  No objection to joinder was raised.  Native Title Services contended in the within proceedings that the Judge was correct to dismiss the application. 

3. The issue on appeal is whether the Judge was correct to dismiss Maldorky Iron’s application for summary determination authorising entry onto the subject land for the purposes of conducting mining operations,[1] notwithstanding that it was not either the applicant for or the holder of a relevant production tenement. 

   [1]    Mining Act 1971 (SA) section 63N.

4. We propose to set out our conclusions at the outset.  At relevant times, Maldorky Iron was the holder of exploration authorities and nothing more.  It was not either the applicant for or the holder of a production tenement.  Maldorky Iron sought to give notice under the legislative scheme[2] and thereby, if appropriate, to approach the Court to seek authorisation to engage in mining operations under a production tenement to be sought in the future. 

   [2]    See Mining Act 1971 (SA) sections 63M, 63N(4).

5. In the circumstances of this matter, the combined operation of the relevant provisions of the Mining Act 1971 (SA) required that Maldorky Iron be, at the very least, an applicant for a production tenement before it was entitled to an order in its favour for summary determination.[3]  As it was not either the applicant for or the holder of a production tenement and as it had no agreement with a registered native title holder, Maldorky Iron was precluded from obtaining an authorisation in respect of a future production tenement.

   [3]    Mining Act 1971 (SA) sections 63H, 63I, 63K, 63N.

6. Further, Maldorky Iron was in substance seeking a conjunctive authorisation – one which extends to future exploration authorities or production tenements.[4]  Pursuant to the provisions of the Mining Act, the Environment, Resources and Development Court had no power in the circumstances to confer the conjunctive authorisation sought by Maldorky Iron. The Judge was accordingly correct to dismiss Maldorky Iron’s application.  It is to be noted that this conclusion is consistent with the proposition that native title rights should not be eroded until, at the very least, all interests have been heard.  Our reasons for these conclusions follow.

   [4]    See Mining Act 1971 (SA) sections 63K(1), 63N.

   Background

7. On 3 September 2010, Maldorky Iron pegged four mineral claims over land in the Hundred of Olary, South Australia approximately 35 kilometres southeast of Olary.  The pegged land extends over an area of about 750 hectares.  On 18 October 2010, four certificates of registration of mineral claims were issued to Maldorky Iron in respect of the pegged land, being mineral claims 4271, 4272, 4273 and 4274.  These mineral claims are a form of exploration authority.

8. On 9 November 2010, Maldorky Iron gave notice of its intention to seek a native title agreement over the land the subject of the mineral claims in the following terms:

   MALDORKY IRON PTY LTD (ACN 145 676 857) of 63 Conyngham Street, Glenside SA 5065 is the registered holder of a block of 4 Mineral Claims (MC), MC4271, NC4272, 4273 and 4274 and intends to make application for a Mining Lease/s in respect of the land covered by the 4 Mineral Claims and upon grant of any Mining Lease/s, proposes to carry out mining operations on the said Mining Lease/s….

9. On 12 and 17 November 2010, Maldorky Iron caused public notices entitled “Notice to Initiate Negotiations with Native Title Parties Mining Act 1971 (SA) Section 63M” to be published in newspapers with appropriate geographic circulations. The notices confirmed Maldorky Iron’s intention to apply for mining leases over the land and stated that if after two months there were no parties holding or claiming native title over the land, it would apply for summary determination from the Environment, Resources and Development Court authorising entry for the purposes of carrying out mining operations on the land.

10. On 17 November 2010, Maldorky Iron served notice, pursuant to section 63M, initiating negotiations for a native title mining agreement in respect of the land. The notice:

    -stated that Maldorky Iron intended to apply for a mining lease in respect of the land and, upon grant thereof, proposed to carry out mining operations;

    -invited any person who held or may hold native title in the land to contact Maldorky Iron; and

    -gave notice that if within two months no party had been registered as holder of or claimant to native title in respect of the land, Maldorky Iron might apply ex parte to the Environment, Resources and Development Court for a summary determination authorising the conduct of mining operations on the land. 

    Native Title Services was served with the notice.

11. On 23 December 2010, Native Title Services sent an email to Maldorky Iron’s solicitors stating that the land appeared to fall within the area in which the Wilyakali people assert native title rights and interests.  Maldorky Iron’s solicitors did not send a substantive reply to this email until 19 January 2011.

12. On 19 January 2011, following a request from Maldorky Iron, the National Native Title Tribunal certified that, as at that date, there were no Native Title claims or determinations with respect to the land the subject of Maldorky Iron’s mineral claims. 

13. On 25 January 2011, Maldorky Iron issued an application in the Environment, Resources and Development Court for summary determination pursuant to section 63N. The application was heard on 29 March 2011. There was no dispute of primary fact. Affidavits were received as evidence at the hearing without any deponent being cross-examined.

14. On 20 May 2011, judgment was delivered dismissing the application.  The Judge concluded that at the time Maldorky Iron gave notice seeking to negotiate a Native Title Mining Agreement, it was seeking to conduct mining operations under a future production tenement.  The Judge further concluded that at that time, Maldorky Iron was not either the applicant for or the holder of a relevant production tenement.  In these circumstances the Judge reasoned that Maldorky Iron was not entitled to initiate negotiations with respect to the very type of agreement it was seeking to conclude:[5] 

    It seems to me that the provisions of s 63K(2), properly understood, preclude the very sort of agreement which Maldorky purported to seek when it initiated negotiations by giving notice under Section 63M. In my view, the combination of Section 63H and Section 63I, by implication, anticipate the existence of an application for a production tenement. When those provisions are allied with s 63K(2), the Part 9(B) scheme points strongly to the conclusion that in order for s 63M and 63N to be properly engaged there must be in existence an application for a production tenement.

    …

    I am satisfied that at the time Maldorky gave notice seeking to negotiate a native title mining agreement it was seeking to conduct mining operations under a future production tenement.

    As it was not, at that time, either an applicant for, or the holder of, a production tenement with respect to the land, it was not entitled to initiate negotiations with respect to the very type of agreement it was seeking.

    As such, there has not been the practical compliance with the prerequisites in Part 9B of the Mining Act, necessary to enable an application for summary determination to be entertained.

    Accordingly, the application for summary determination by Maldorky is dismissed.

    [5]    Maldorky Iron Pty Ltd v Native Title Services SA [2011] SAERDC 16, [43], [50]–[53].

    The Legislative Scheme

15. Any person who wishes to explore for minerals on any land in the State must first obtain an exploration authority.[6]  The principal exploration authorities are an exploration licence[7] and a mineral claim.[8]

    [6]    Mining Act 1971 (SA) sections 6(1), 7, 8, 22, 25, 28.

    [7]    Mining Act 1971 (SA) section 28.

    [8]    Mining Act 1971 (SA) section 25.

16. Any person who wishes to recover minerals from any land in the State must first obtain a production tenement.[9]  The principal production tenement is a mining lease.[10]  For simplicity, we treat production tenements and mining leases as synonymous.

    [9]    Mining Act 1971 (SA) sections 6, 7, 8, 39, 41F, 74.

    [10]   Mining Act 1971 (SA) section 39.

17. The term “mining tenement” encompasses both an exploration authority and a production tenement.[11]  The term “mining operations” encompasses both exploration operations under an exploration authority and mineral recovery operations under a production tenement.[12]

    [11]   Mining Act 1971 (SA) section 6(1).

    [12]   Mining Act 1971 (SA) section 6(1).

18. Exploration authorities and production tenements are materially different mining tenements. Exploration authorities authorise a holder to carry out exploratory operations for any minerals in any manner which is set out in the licence or is approved by the Director of Mines. Exploration authorities are not subject to complex or extensive conditions. By contrast, mining leases may be confined to specified minerals, specified mining operations and specified measures to avoid, minimise or remedy damage to the land. They are subject to prescribed conditions and additional terms and conditions which the Minister may specify. An application for a mining lease is required to be in a form specified in Schedule 1 to the Mining Regulations 1998 (SA)[13] and to contain a statement of the proposed mining operations and proposed damage remedial measures.

    [13]   These regulations have been superseded by the Mining Regulations 2011 (SA). 

19. Part 9B of the Mining Act came into force in June of 1996.  It had as its genesis the Native Title Act 1993 (Cth). Prior to the enactment of Part 9B, the right to negotiate with respect to mining on native title land was governed by Subdivision B of Division 3, Part 2 of the Native Title Act.  Subdivision B set out the procedure governing the right to negotiate under the Native Title Act.  However, a State was entitled to set up its own procedure provided the relevant Commonwealth Minister determined, in writing, that those alternative State procedures complied with requirements set out in the Native Title Act. The Commonwealth Minister made an appropriate determination so that the alternative provisions of the South Australian Mining Act, those set out in Part 9B, took effect.

20. In respect of native title land, the Mining Act overlays an additional requirement that a person seeking authorisation either has a native title mining agreement with the native title parties, or has been authorised by a native title mining determination to enter the land and to carry out the relevant exploration or mineral recovery operations.[14]  Native title parties are either persons registered as holding native title or persons registered as claimants to native title.[15] 

    [14]   Mining Act 1971 (SA) sections 57, 58, 63F, 63H, 63K, 63N, 63Q, 63S–63V.

    [15] Native title parties are defined in section 63L(1) of the Mining Act 1971 (SA) and section 3(1) of the Native Title (South Australia) Act 1994 (SA).

21. Native title land encompasses any land in respect of which native title might exist unless formally declared not to be native title land.[16]  The Mining Act contains provisions which authorise or recognise a binding declaration that land is not subject to native title either generally or in respect of mining operations.[17] 

    [16]   Native Title (South Australia) Act 1994 (SA) section 3(1); Mining Act 1971 (SA) sections 6(1), 63F(1)(b), 63H(b).

    [17]   The different mechanisms for binding declarations include:

    -   a declaration by the Environment, Resources and Development Court that land is not subject to native title on the application of a person who seeks to carry out mining operations on the land;

    -   a declaration under the law of the State or the Commonwealth that the land is not subject to native title;

    - an indigenous land use agreement registered under the Native Title Act 1993 (Cth) which provides that statutory rights to negotiate are not intended to apply in relation to mining operations on the land.

22. The Mining Act requires a person wishing to undertake any mining operations on native title land to obtain both the relevant mineral tenement issued by the State and the relevant native title mining authorisation, unless the mining operations are confined to exploration and do not affect native title.[18]

    [18]   Mining Act 1971 (SA) sections 58, 63F(2), 63F(4), 63I(1), 63R(4), 63V(5).

23. Division 1 of Part 9B addresses exploration authorities, and contemplates and permits the grant of an exploration authority prior to and without any application for or grant of native title mining authorisation. However, sections 63F(1) and 63F(2) provide that a person who holds an exploration authority cannot carry out mining operations on native title land unless they obtain a native title mining authorisation. Conversely, section 63F(4) provides that a mining operator’s right to carry on mining operations derived from an agreement or determination under Part 9B is contingent on the existence of an exploration authority.

    Section 63F relevantly provides:

    Qualification of rights conferred by exploration authority

    (1)     An exploration authority confers no right to carry out mining operations on native title land unless—

    (a)the mining operations do not affect native title (ie they are not wholly or partly inconsistent with the continued existence, enjoyment or exercise of rights deriving from native title¹); or

    (b)a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title;² or

    (c)an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intended to apply in relation to the mining operations.³

    (2)     However, a person who holds an exploration authority that would, if land were not native title land, authorise mining operations on the land may acquire the right to carry out mining operations on the land (that affect native title) from an agreement or determination authorising the operations under this Part.

    …

    Notes—

    1      Cf. Native Title Act 1993 (Cwth), section 227.

    2A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of such a declaration is that the land ceases to be native title land.

    3      Cf. Native Title Act (Cwth), section 24EB(1)(c).[19]

    [19]   From time to time in the Mining Act1971 (SA), reference is made to a “note” and on other occasions to an “explanatory note”. Section 6(3) provides that an “explanatory note to a provision of this Act forms part of the provision to which it relates”. Section 19 of the Acts Interpretation Act 1915 (SA) is also relevant as it provides:

    …

    (2)  The following do not form part of an Act, subject to any express provision to the contrary:

    …

    (b)  notes (including their headings);

    …

    (3)  In this section—

    …

    note means—

    (a)  a marginal note; or

    (b)  a footnote (whether at the foot of a page or a section or a heading); or

    (c)  any text designated as a note;

    …

    It is to be observed that Part 9B includes a number of notes but importantly, two explanatory notes - one to section 63K(1) and the other to section 63L(1). Further, two notes refer in terms to the explanatory note to section 63K(1). Neither section 19 of the Acts Interpretation Act nor section 6(7) of the Mining Act appear to address the drafting technique of a note referring to an explanatory note.  It would appear that the purpose of referring to the explanatory note by way of a note was to incorporate the explanatory note as part of the subsequent provision. 

24. Division 2 of Part 9B addresses production tenements. Section 63H(a) expressly prohibits a production tenement being granted over native title land unless the mining operations have been authorised by a pre-existing native title mining authorisation. Section 63I(1) empowers the Minister to agree with an applicant for a production tenement that the tenement will be granted contingent on the registration of a native title mining authorisation.

1. Division 2 of Part 9B of the Act provides:

   Production

   63H—Limits on grant of production tenement

   A production tenement may not be granted or registered over native title land unless—

   (a)the mining operations to be carried out under the tenement are authorised by a pre-existing agreement or determination registered under this Part; or

   (ab)an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intended to apply in relation to the mining operations to be carried out under the tenement;¹ or

   (b)a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title.²

   Notes—

   1Cf. Native Title Act (Cwth), section 24EB(1)(c).

   2A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of the declaration is that the land ceases to be native title land.

   63I—Applications for production tenements

   (1)The Minister may agree with an applicant for a production tenement over native title land that the tenement will be granted or registered contingent on the registration of an agreement or determination under this Part.

   (2)The Minister may refuse an application for a production tenement over native title land if it appears to the Minister that the applicant is not proceeding with reasonable diligence to obtain the agreement or determination necessary to the grant or registration of the tenement to which the application relates (and if the application is refused, the applicant's claim lapses).

2. Division 4 of Part 9B addresses native title mining authorisations. It relevantly provides:

   Negotiating procedure

   63K—Types of agreement authorising mining operations on native title land

   (1)    An agreement authorising mining operations on native title land (a native title mining agreement) may—

   (a)authorise mining operations by a particular mining operator; or

   (b)authorise mining operations of a specified class within a defined area by mining operators of a specified class who comply with the terms of the agreement.

   Explanatory note—

   If the authorisation relates to a particular mining operator it is referred to as an individual authorisation. Such an authorisation is not necessarily limited to mining operations under a particular exploration authority or production tenement but may extend also to future exploration authorities or production tenements. If the authorisation does extend to future exploration authorities or production tenements it is referred to as a conjunctive authorisation. An authorisation that extends to a specified class of mining operators is referred to as an umbrella authorisation.

   (2)    If a native title mining agreement is negotiated between a mining operator who does not hold, and is not an applicant for, a production tenement for the relevant land, and native title parties who are claimants to (rather than registered holders of) native title land, the agreement cannot extend to mining operations conducted on the land under a future production tenement.

   …

   63L—Negotiation of agreements

   (1)A person (the proponent) who seeks a native title mining agreement may negotiate the agreement with the native title parties.

   Explanatory note—

   The native title parties are the persons who are, at the end of the period of two months from when notice is given under section 63M, registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land. A person who negotiates with the registered representative of those persons will be taken to have negotiated with the native title parties. Negotiations with other persons are not precluded but any agreement reached must be signed by the registered representative on behalf of the native title parties.

   (2)The proponent must be—

   (a)if an agreement conferring an individual authorisation¹ is sought—the mining operator who seeks the authorisation;

   (b)if an agreement conferring an umbrella authorisation¹ is sought—the Minister or an association representing the interests of mining operators approved by regulation for the purposes of this section.

   Note—

   1 See the explanatory note to section 63K(1).

   63M—Notification of parties affected

   (1)The proponent initiates negotiations by giving notice under this section.

   (2)The notice must—

   (a)identify the land on which the proposed mining operations are to be carried out; and

   (b)describe the general nature of the proposed mining operations that are to be carried out on the land.

   (3)The notice must be given to—

   (a)the relevant native title parties; and

   (b)the ERD Court; and

   (c)the Minister.

   (4)Notice is given to the relevant native title parties as follows:

   (a)if a native title declaration establishes who are the holders of native title in the land—the notice must be given to the registered representative of the native title holders and the relevant representative Aboriginal body for the land;

   (b)if there is no native title declaration establishing who are the holders of native title in the land—the notice must be given to all who hold or may hold native title in the land in accordance with the method prescribed by Part 5 of the Native Title (South Australia) Act 1994.

   63N—What happens when there are no registered native title parties with whom to negotiate

   (1)If, two months after the notice is given to all who hold or may hold native title in the land, there are no native title parties in relation to the land to which the notice relates, the proponent may apply without notice to any person to the ERD Court for a summary determination.

   (2)On an application under subsection (1), the ERD Court must make a determination authorising entry to the land for the purpose of carrying out mining operations on the land, and the conduct of mining operations on the land.

   (3)The determination may be made on conditions the Court considers appropriate and specifies in the determination.

   (4)The determination cannot confer a conjunctive or umbrella authorisation.¹

   Note—

   1 See the explanatory note to section 63K(1).

   …

3. The Mining Act thus provides for native title mining authorisations by way of native title mining agreements or native title mining determinations which may be effected as follows:

   -an agreement between the mining operator and registered holders of native title in the land;[20]

   -an agreement between the mining operator and native title parties who are registered as claimants to native title in the land;[21]

   -an inter partes substantive determination by the Environment, Resources and Development Court authorising mining operations on land in respect of which native title parties are registered as either the holders or claimants and are parties to the proceeding;[22] or

   -an ex parte summary determination by the Environment, Resources and Development Court authorising mining operations on land in respect of which there are no native title parties registered as either the holders or claimants in respect of the land at the relevant time.[23]

   The above are all initiated by the giving of formal notice by the proponent pursuant to section 63M. The formal notice may lead to an agreement with native title parties, or to a substantive or summary determination of the Environment, Resources and Development Court, or to a failure to secure authorisation.

   [20]   Mining Act 1971 (SA) sections 63Q, 63R.

   [21]   Mining Act 1971 (SA) sections 63Q, 63R.

   [22]   Mining Act 1971 (SA) sections 63S–63V.

   [23]   Mining Act 1971 (SA) section 63N.

4. Sections 63R(4) and 63V(5) provide that native title mining agreements and substantive determinations, respectively, which authorise mining operations under a future mining tenement, are contingent on the tenement being granted. These subsections provide:

   63R—Effect of registered agreement

   …

   (4)A registered agreement that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.

   63V—Effect of determination

   …

   (5)A determination under this Part that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.

   …

5. Section 63I(2), as extracted earlier, empowers the Minister to refuse an application for a production tenement over native title land if it appears that the applicant is not proceeding with reasonable diligence to obtain a native title mining authorisation.

6. It is an essential precondition to the making by the Environment, Resources and Development Court of a substantive determination that the proponent has initiated negotiations by giving formal notice pursuant to section 63M, that native title parties have become registered as holders or claimants in respect of the land within a specified time, and that no agreement has been reached between those parties within a specified time from the giving of formal notice.[24]

   [24]   Mining Act 1971 (SA) sections 63M, 63S.

7. It is an essential precondition to the making by the Environment, Resources and Development Court of a summary determination that the proponent has given formal notice pursuant to section 63M and that a specified time thereafter no native title parties have become registered as holders or claimants in respect of the land.[25]

   [25]   Mining Act 1971 (SA) sections 63M, 63N.

   The Appeal

8. Maldorky Iron submitted that the conclusion of the Judge that the combination of sections 63H and 63I when joined with section 63K gave rise to an implication “that in order for sections 63M and 63N to be properly engaged there must be in existence an application for a production tenement”, did not arise from a proper construction of Part 9B. Maldorky Iron contended that the construction arrived at the by the Judge was an unlikely construction because if Parliament had intended a precondition of an application for a mining lease being on foot to exist, it would have so provided in express terms.

9. Maldorky Iron argued that it was entitled to make an application for summary determination under section 63N of the Mining Act, authorising entry onto the land the subject of the mining claims for the purposes of conducting mining operations, notwithstanding that it was not either the applicant for or the holder of a relevant production tenement. Maldorky Iron further contended that the implication found by the Judge is inconsistent with specific provisions of Part 9B concerning future production tenements, with the context in which the relevant provisions sit and with the purpose of the legislative scheme. The relevant provisions when read in context, it was said, are premised on a proponent first obtaining an agreement or determination under the Part, and only then having a production tenement granted or registered.

10. Native Title Services submitted that, as Maldorky Iron was not either the applicant for or the holder of a relevant production tenement, it was not entitled to make an application for summary determination. Further, by its notice of contention, Native Title Services argued that the terms of sections 63N and 63U(1) precluded the Court from granting an authorisation. It was pointed out that Maldorky Iron’s claim related solely to a future production tenement and that, as a consequence, a conjunctive authorisation was being sought. It was said that Maldorky Iron was seeking an authorisation from the Court that was beyond the Court’s power to grant. As mentioned earlier, a conjunctive authorisation is defined by section 63K as an authorisation that extends to future exploration authorities or production tenements.

11. Where, as in the within proceedings, there has been no determination or declaration that there is no native title in respect of the subject land, the Mining Act places express limits on the scope of the authorisation that may be granted in favour of a proponent.[26] 

    In the event that native title parties come forward as registered claimants and an agreement is reached, by reason of section 63K the agreement could not authorise mining operations conducted on the relevant land under a future production tenement unless the proponent had applied for the relevant production tenement.[27]  In the event that native title parties come forward and an inter partes determination is sought, by reason of section 63U a determination cannot confer a conjunctive authorisation – that is, one extending to a future production tenement – unless the native title parties are represented in the proceeding and agree to the authorisation.[28] If, however, native title parties do not come forward, a section 63N determination cannot confer a conjunctive authorisation at all.[29]

    [26]   See Mining Act 1971 (SA) section 63N.

    [27]   Mining Act 1971 (SA) section 63K(2).

    [28]   Mining Act 1971 (SA) section 63U(1).

    [29]   Mining Act 1971 (SA) section 63N(4).

12. The rationale for this approach towards authorisations in Part 9B to both agreements and determinations is to be found in sections 63R and 63V of the Mining Act which substantially bind both the native title parties and the proponent as well as their successors, and which assume that production tenements will actually be granted.[30]  The evident purpose of confining summary and substantive determinations in the absence of consent by the native title parties to applying to particular tenements and not future tenements is to avoid the pre-authorisation of mining operations which have not yet been precisely defined or delimited. 

    [30]   Mining Act 1971 (SA) sections 63R(4), 63V(5).

13. Section 63M of the Mining Act prescribes the process by which a proponent initiates negotiations. In particular, section 63M(2) provides that the proponent’s notice must describe the general nature of the proposed mining operations that are to be carried out on the land. The Court may make a determination pursuant to section 63N authorising entry to land for the purpose of carrying out mining operations on the land, and the conduct of mining operations on the land. Such an authorisation could only be sensibly granted when detail of the general nature of the proposed mining operation is known to the Court.

14. It is noteworthy that section 63N does not give the Court any discretion whether or not to make a summary determination authorising the conduct of mining operations.[31] This suggests that section 63N proceeds on the basis that those mining operations have already been defined by an earlier process, such as an application for the grant of a mining tenement or a conditional agreement with the Minister pursuant to section 63I(1).

    [31]   Contrast an inter partes substantive determination in which the Court can refuse the application.

15. It is also relevant to note that under section 63N, when making a determination, the Court may impose such conditions as it considers appropriate. The Court cannot exercise this discretion in a vacuum. These considerations support a construction of the statutory scheme that requires an applicant for a section 63N determination to at least have been an applicant for a production tenement. The information required to be provided to support such an application includes the detail of the general nature of the proposed mining operation.

16. By section 63N(4), the Environment, Resources and Development Court in making a summary determination under Part 9B cannot confer a “conjunctive authorisation”. At the time of initiating negotiations and filing the application pursuant to section 63N in Part 9B of the Act, Maldorky Iron was not either the applicant for or the holder of a production tenement over the land. The authorisation sought necessarily extended to a future production tenement as defined in the Explanatory Note to section 63K(1) and hence Maldorky Iron, by its application, was seeking a conjunctive authorisation. Native Title Services argued that a proponent seeking a summary determination under section 63N must not only be an applicant for a production tenement but must also have entered into a conditional agreement with the Minister pursuant to section 63I(1). It is not necessary to decide whether section 63M(4) goes this far for the purposes of this appeal because Maldorky Iron was not an applicant for a production tenement at the relevant time.

17. The combined operation of sections 63H, 63I, 63K and 63N of the Mining Act ensures that a proponent, a mining operator, is at the very least an applicant for a production tenement before that operator is entitled to make an application for summary determination under section 63N.

18. For these reasons, we uphold the decision of the Judge of the Environment, Resources and Development Court. 

    Application for Dispensation

19. In the event that this Court were to hold that the decision of the Judge at first instance was correct, Maldorky Iron seeks an order from this Court in its original jurisdiction pursuant to section 33 of the Environment, Resources Development Court Act 1993 (SA) dispensing with the requirement that Maldorky Iron was a party to an agreement with the Minister or had been the applicant for a mining lease at the time of the hearing of its application for summary determination.

20. Section 33(1) of the Environment, Resources and Development Court Act provides:

    If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that—

    (a)there has been a failure to comply with a requirement of any Act or other law that affects the matter to which the application or appeal relates; and

    (b)it would not be unjust or inequitable to exercise the powers conferred by this subsection,

    the relevant Court may excuse the failure by ordering that, subject to such conditions as may be stipulated by the relevant Court, the requirement be dispensed with to the necessary extent.

21. The preconditions for the making of such an order under sub-paragraphs (a) and (b) have not been met. The fact that Maldorky Iron had not at the time of giving the notice applied for a production tenement means that the necessary precondition for the Environment, Resources and Development Court to exercise its jurisdiction to make a summary determination under section 63N did not exist. This cannot be characterised as a mere “failure to comply with the requirement of [any] Act” nor can it constitute something which the Court can simply excuse.

22. In any event, as the necessary prerequisite for the exercise of jurisdiction by the Environment, Resources and Development Court did not exist, it cannot be said that it would be unjust or inequitable to ignore that omission. If no order is made under section 33 of the Environment, Resources and Development Court Act, Maldorky Iron will be obliged to give fresh notice and make fresh application to the Environment, Resources and Development Court. Any potential native title parties will be entitled to apply for and obtain registration as claimants to or holders of native title in respect of that land within two months after notice is given by Maldorky Iron. Such parties would be prejudiced by an exercise of power by this Court under section 33.

    Conclusion

23. For the foregoing reasons we dismiss the appeal.