Decision offers greater clarity on 'right to mine' and 'infrastructure facility' 5 min read
In Harvey v Minister for Primary Industry and Resources,1 (Harvey) the High Court of Australia ruled that native title parties have a right to be notified, to object and to be consulted, in relation to the 'creation of a right to mine' that is for the sole purpose of an infrastructure facility associated with mining. The Court has also expanded the meaning of what an 'infrastructure facility' is.
In this Insight, we delve into the implications of the High Court's decision, including the importance of determining which future act process applies to the grant of a mining lease on which an infrastructure facility will be located.
How does this affect you?
When applying for a mining lease on which mining infrastructure will be located, careful consideration will need to be given as to whether all activities proposed to be undertaken on the lease area constitute an 'infrastructure facility' or not. The answer to this question is important as to what provisions, and procedural rights, under the Native Title Act 1993 (Cth) (the Act) apply.
If this is not properly identified at the outset, there is a risk of delay and additional costs arising as the process may need to be restarted, or potential risk of challenge to the validity of the grant.
Key findings of the High Court in Harvey
The High Court was required to consider what procedural rights native title holders held in relation to an application for a mining lease by Mount Isa Mines for the purposes of its McArthur River mine in the Northern Territory. The mining lease was sought for the purpose of a 'dredge spoil emplacement area' (DSEA), where sediment dredged from a navigation channel would be pumped. The navigation channel was used by bulk-carrier vessels to transport ore mined from the McArthur River mine to larger ocean-going ships.
It was not in dispute that the grant of the mining lease was a future act, which must be 'covered' by section 24MD of the Act in order for the lease to be valid.
The relevant questions were whether the grant of the mining lease was a 'right to mine' and whether it was solely for an 'infrastructure facility'. These were the critical questions that would determine whether the correct procedural requirements in the Act had been complied with.
The Court held:
- under s24MD(6A) of the Act, the native title holders had the same procedural rights as if they held ordinary (freehold) title to the relevant area; and
- in addition to those rights, the native title holders had a right to be notified, to object and to be consulted, under s24MD(6B) of the Act.
The 'right to negotiate' procedure under the Act did not apply, as the mining lease in question was held to be the creation of a right to mine for the sole purpose of the construction of an 'infrastructure facility' associated with mining.2
Importantly, the Court considered the meaning of two concepts that underpin the application of s24MD(6B), being what constitutes a 'right to mine', and the meaning of 'infrastructure facility'.
Right to mine
The Full Federal Court had, in an earlier decision, ruled that the DSEA mining lease was not a 'right to mine' as the location of the DSEA lease was separate from where mining was taking place (the mine itself was 120km from the location of the barge loading facility), and therefore the activities to be undertaken on the DSEA lease were 'too remote from mining activities and cannot be regarded as necessary for the meaningful exercise of a right to mine'.3
This position was rejected by the High Court, with the majority stating that a 'right to mine' is 'not a reference to a specific authority or permission which a mining lease might convey, such as a right of extraction'4, but rather 'should be construed as a composite term used to denote all those mining tenements which are capable of being issued under State and Territory natural resource laws'. The High Court therefore gave a broader interpretation to the meaning of what is a 'right to mine', and it would now appear to be the case that the grant of a mining lease for any purpose associated with mining will be regarded as a 'right to mine'.
Infrastructure facility
The Full Federal Court had previously held that the definition of the term 'infrastructure facility' in the Act is an exhaustive definition—ie the facilities that would come within that definition are limited to those facilities that fall within paragraphs (a) to (i) of the definition.
However, the High Court again took a different view and ruled that the definition of infrastructure facility in the Act was a non-exhaustive definition and that the specific facilities that might be captured by that definition are not limited to those facilities specifically within paragraphs (a) to (i) of the definition (which are only examples of infrastructure facilities). The High Court ruled that the term 'infrastructure facility' is to be given its ordinary meaning.
As it was common ground between the parties that the proposed dredge spoil emplacement area was an 'infrastructure facility' within the ordinary meaning of that term, the ordinary meaning of what is or is not an infrastructure facility was not explained further by the High Court.
Importance of the distinction
The Act provides two different pathways for the grant of a mining lease (a 'right to mine'), depending upon whether the lease is being granted for the 'sole purpose' of an 'infrastructure facility':
- if the mining lease is not for the sole purpose of an infrastructure facility (eg a lease that permits the mining of minerals), then the 'right to negotiate' procedure must be complied with; or
- if the mining lease is for the sole purpose of an infrastructure facility, then the process in s24MD(6B) applies.
There is some similarity between the two processes under the Act, but there are also important distinctions. Notably, they are mutually exclusive processes. Therefore, a decision needs to be made at the outset as to which process applies. This will involve consideration of whether the lease is for the sole purpose of an infrastructure facility, giving the ordinary meaning to those words.
Next steps
Given the ruling, it is crucial for those involved in mining operations to carefully assess the nature of the activities intended to be conducted on the area of a proposed mining lease (and in particular, whether the lease will be used for the sole purpose of an infrastructure facility), to determine what native title procedural rights apply under the Act.
Footnotes
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[2024] HCA 1.
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Such a lease falling within the 'carveout' under s26(i)(c)(i) of the Act to the application of the right to negotiate procedure, and dealt with instead under s24MD(6B)(b).
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See Harvey v Minister for Primary Industry and Resources (2022) 291 FCR 263 at [130], [131].
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Harvey, [65], [66].