Williams v Minister for Land and Water Conservation for the State of New South Wales

Case •

[2003] FCA 360

•

2 MAY 2003

FEDERAL COURT OF AUSTRALIA

Williams v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 360

NATIVE TITLE – Proposed grant of mining lease – Validity of notice given under s 29 of Native Title Act in relation to the lease – Whether notice needs to include reference to off-site infrastructure works – Notice held not invalid.

Native Title Act 1993 s 29

NEVILLE WILLIAMS v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth) and MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES and BARRICK AUSTRALIA LIMITED

A 6001 of 2002

KATHLEEN TOWNEY v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth) and MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES and BARRICK AUSTRALIA LIMITED

N 6021 of 2002

WILCOX J
2 MAY 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

A6001 of 2002

BETWEEN:

NEVILLE WILLIAMS
APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth)
FIRST RESPONDENT

MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

BARRICK AUSTRALIA LIMITED
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

2 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion dated 23 January 2003 be dismissed.

2.        The applicant, Neville Williams, pay the respondents’ costs of the motion.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N6021 of 2002

BETWEEN:

KATHLEEN TOWNEY
APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth)
FIRST RESPONDENT

MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

BARRICK AUSTRALIA LIMITED
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

2 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion dated 23 January 2003 be dismissed.

2.        The applicant, Kathleen Towney, pay the respondents’ costs of the motion.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

A6001 of 2002

BETWEEN:

NEVILLE WILLIAMS
APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth)
FIRST RESPONDENT

MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

BARRICK AUSTRALIA LIMITED
THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N6021 of 2002

BETWEEN:

KATHLEEN TOWNEY
APPLICANT

AND:

MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the Native Title Act 1993 (Cth)
FIRST RESPONDENT

MINISTER FOR MINERAL RESOURCES FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

BARRICK AUSTRALIA LIMITED
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE:

2 MAY 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

  1. These reasons concern notices of motion, in identical terms, filed in two separate proceedings. The two motions were heard together, their relevant facts being identical. The motions challenge the validity of a notice purportedly given under s 29 of the Native Title Act 1993 (“the statute”).

  2. Each principal proceeding seeks a determination of native title, in favour of a particular group of people, in relation to the same area of land.  The applicant in one matter (A6001 of 2002) is Neville Williams.  The applicant in matter N6021 of 2002 is Kathleen Towney. 

  3. The boundaries of the claimed area of land are identical to the boundaries of an area of land (“MLA 45”)that is the subject of a proposed mining lease, to be granted by the New South Wales Minister for Mineral Resources, who is a respondent to each motion, to Barrick Australia Limited (“Barrick”), another respondent.  The New South Wales Minister for Land and Water Conservation is also a respondent.

    The s 29 notice

  4. Section 29 of the statute provides for the giving of notice by a “Government party” before a “future act” is done. By an advertisement published in September 2002, the Minister purported to give such a notice in relation to the proposed grant of the mining lease. The notice was in the following form:

    “MINING LEASE APPLICATION

    This notice is published in accordance with the requirements of Section 29 of the Native Title Act 1993 (C’th).

    Description of area that may be affected by the grant of a mining lease

    An area of 2,637 hectares situated approximately 35 kilometres north-north-east of West Wyalong as shown on the diagram below.

    Description of the nature of the Act

    The grant of a mining lease in satisfaction of Mining Lease Application No. 45 (Act 1992) to Barrick Australia Limited (ACN 007 857 598) formerly Homestake Australia Limited (ACN 007 857 598).  The lease will authorise the mining of gold, silver and other minerals and the conduct of associated mining purposes and infrastructure support, including and not limited to protection bunds, power supply and water pipeline, and be granted for a term of 21 years.

    Name and postal address of person by whom the Act would be done

    The Honourable Edward Obeid, Minister for Mineral Resources, PO Box 536, St Leonards NSW 1590.

    How further information about the Act can be obtained

    Further information may be obtained from Frank Underhill, Project Officer in the Department of Mineral Resources on telephone (02) 9901 8325 or facsimile (02) 9901 8493.

    Notification Day

    For the purposes of Section 29(4) of the Native Title Act 1993 (C’th) the notification day is 20 September 2002.  Under Section 30 of that Act persons have until 3 months after the notification day to take steps to become native title parties in relation to this notice.”

    There followed a plan in which was delineated, by a thick line, the boundary of MLA 45.  As already mentioned, the land so identified is identical to the land claimed in each of the two principal proceedings for a native title determination.

  5. Part 2 of the statute is headed “Native Title”.  It contains Division 3, dealing with “future acts”.  The term “act” is defined, by s 226(2) of the statute, as including:

    “(a)     the making, amendment or repeal of any legislation;

    (b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

    (c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

    (d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

    (e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

    (f)     an act having any effect at common law or in equity.”

  6. It will be apparent that the grant of a mining lease, by a Minister on behalf of the Crown, falls within each of paras (b), (c), (d) and (e).  The grant of a mining lease over MLA 45 will be an “act”.

  7. Section 227 provides that an “act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise” (original highlighting).  It is obvious that the grant of a mining lease, which would authorise a person other than a native title holder or claimant to occupy and disturb a parcel of land is (at least) partly inconsistent with the continued enjoyment or exercise of any native title rights that may exist over that land.  The grant of the lease is therefore an act affecting native title.

  8. As the lease has not yet been granted, it is a “future act”: see s 233.

  9. This means s 29 of the statute is relevant. Unless that section is complied with, any mining lease will be invalid to the extent that it affects native title: see s 28 of the statute.

  10. Subsections (1) to (4) of s 29 provide:

    “(1)Before the act is done, the Government party must give notice of the act in accordance with this section.

    (2)The Government party must give notice to:

    (a)any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and

    (b)unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

    (i)any registered native title claimant (also a native title party); and

    (ii)any representative Aboriginal/Torres Strait Islander body;

    in relation to any land or waters that will be affected by the act; and

    (c)if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) – that person (a grantee party); and

    (d)the registrar or other proper officer of the arbitral body in relation to the act.

    (3)Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.

    (4)      The notice given under subsection (2) or (3) must:

    (a)specify a day as the notification day for the act; and

    (b)contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and

    (c)be accompanied by any prescribed documents and include any prescribed information.”  (Original highlighting)

  11. Section 252 defines the phrase “notify the public in the determined way” as meaning “give notice in the way determined by the Commonwealth Minister for the purposes of the provision in which the expression is used”.

  12. A relevant determination has been made.  By s 6(5) of the Native Title (Notices) Determination 1998 (published in the Commonwealth of Australia Gazette of 2 September 1998), the Commonwealth Minister determined that a notice under s 29(3) must include:

    “(a)     a clear description of the area that may be affected by the act; and
      (b)     a description of the nature of the act; and

    (c)the name and postal address of the person by whom the act would be done; and

    (d)     a statement of how further information about the act can be obtained.”

    The applicants’ case

  13. Before recounting the argument put to the Court by Mr Alan Oshlack, a non-lawyer who appeared by leave on behalf of both applicants in support of the motions, it is desirable to note two matters that are not in issue.

  14. First, there is no dispute about the manner or extent of the notice’s publication.  Second, it is not contended that the plan that appears at the foot of the notice is unclear or that, considered as a representation of MLA 45, it is inaccurate.

  15. The applicants’ case hinges on a single complaint. It is said the published notice fails to comply with s 29 of the statute, and the determination, because it makes no reference to certain proposed infrastructure works, that would be essential to the mining project but are located outside the boundaries of MLA 45.

  16. That such works are contemplated is evident from an exhibit comprising three pages of the Environmental Impact Statement relating to the mining project.  This exhibit shows an open mining pit, various protection bunds and storage areas and a processing plant, all proposed to be located within MLA 45.  However, it also shows that electricity is proposed to be supplied to the project by means of a 132kV transmission line from Temora, some 60 or 70 kilometres away, and that water is to be piped from a borefield some 10 kilometres north-east of the site. 

  17. The published notice states the proposed lease “will authorise … infrastructure support, including and not limited to protection bunds, power supply and water pipeline”, but there is no other reference to the power supply and water pipeline.  In particular, and this is Mr Oshlack’s point, although a reader of the notice would appreciate that there would be on-site power and water infrastructure, he or she would gain no information as to the extent or location of any off-site works necessary to convey electricity and water to the site.

  18. Mr Oshlack argued the off-site electricity and water works are essential components of the mining project. Moreover, he contended these works are likely to have significant implications for the Aboriginal community. As an alternative to persisting with the tender of a large bundle of documents, Mr Oshlack obtained a concession, from both counsel for the Ministers, Dr J G Renwick, and counsel for Barrick, Mr N Williams SC, that the Minister for Mineral Resources had applied to the National Parks and Wildlife Service of New South Wales for a permit in respect of the collection and destruction of Aboriginal relics – see ss 87 and 90 of the National Parks and Wildlife Act 1974 (NSW) – and the area covered by this application extended, not only to MLA 45, but also the land affected by the proposed borefield and pipeline.

  19. Mr Oshlack argued the omission from the subject notice of any reference to off-site infrastructure made it impossible to determine the identity of the whole of the land affected by the project and the manner of its affectation. The notice failed to contain “a clear description of the area that may be affected by the act”, as required by s 6(5)(a) of the determination. The defect, he claimed, was important; it defeated the purpose of giving a s 29 notice: the facilitation of negotiations in respect of the project.

    Conclusions

  20. As Mr Oshlack contends, it is apparent from ss 30A to 33 of the statute that s 29 is concerned to facilitate negotiations between a Government party who proposes to perform a future act and a person who is a “native title party”, as that term is defined in s 30 of the statute. However, contrary to his submission, the statute does not contemplate negotiations at large. Section 31(1)(b) sets out the statutory parameter. It says:

    “(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

    (i)the doing of the act; or

    (ii)the doing of the act subject to conditions to be complied with by any of the parties.”

  21. I emphasise the words “the doing of the act”.  As I have indicated, in the present case the relevant “act” is the proposed grant by the Minister for Mineral Resources of a mining lease over the area of land described as MLA 45.  It is not the development of the mine, something that would be done by the mining lessee, rather than any Government party.

  22. No doubt it is correct to say that negotiations, once commenced, often range widely. They may conclude with agreement between the parties on topics beyond those mentioned in any relevant statute. It may be useful for parties concerned with the grant of a mining lease to take the opportunity to discuss all aspects of the project, including activities that will occur beyond the boundaries of the proposed lease area. However, that possibility cannot enlarge the legal requirements in relation to the content of the s 29 notice or the extent of the obligation to negotiate that is imposed by s 30(1)(b).

  23. Counsel for the respondents each argued the subject notice complied with s 29 because it accurately identified the whole of the land affected by the proposed future act; that is, the land over which the mining lease was proposed to be granted. They said it was immaterial that it would be necessary, if the mining lessee was to obtain any benefit from the lease, for it to arrange for the installation of infrastructure outside MLA 45. Counsel accepted that, if the development of that infrastructure involved the doing of an “act” (as defined in s 226(2)) that affected native title (within the meaning of s 227), it might be necessary (in order to avoid invalidity) for somebody to give a further s 29 notice; but they said this circumstance does not affect the validity of the notice that has already been given.

  24. The respondents’ contentions are correct. In considering the terms of any notice given, or proposed to be given, pursuant to s 29, it is important to bear in mind the definitions contained in ss 226, 227 and 233 of the statute. The requirement of s 29(1) is for the Government party to “give notice of the act”; that is, the act as defined in ss 226, 227 and 233. In the present case, the relevant act is the grant of the proposed mining lease over MLA 45. The notice must disclose the intention to perform that act. It is not required to disclose more. The subject notice is valid.

  25. Identification of the relevant “act” is also critical to the application of s 6(5)(a) of the determination.  The “area that may be affected” by the grant of a mining lease is the area covered by the lease.  This is so notwithstanding that development and operation of a mine, pursuant to the lease, may adversely affect the occupation or enjoyment of other land.  The latter affectation results from actions by the lessee, not the Government party.

  26. It is important to emphasise that I am not asserting the statute can have no application to the electricity transmission line or water pipeline.  Whether or not it does so depends on matters not investigated at the hearing of these notices of motion.  Probably the most important of these matters is the tenure of the land over which the electricity transmission line and water pipeline will be constructed.  If it should happen this is all freehold land, obviously the statute will have no application.  To the extent that it is not all freehold land, the statute may have application.  If so, nothing decided in connection with  these motions affects that result.

  27. The motions must be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            2 May 2003

Representative of the Applicants: Mr A Oshlack appeared by leave
Counsel for Ministers: Dr J G Renwick
Solicitor for Ministers: I V Knight (New South Wales Crown Solicitor)
Counsel for Barrick: Mr N Williams SC
Solicitor for Barrick: Blake Dawson Waldron
Date of Hearing: 7 April 2003
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