Federal Court of Australia

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2025] FCAFC 160

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed 19 July 2024 is granted.

2.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

OVERVIEW

1    This appeal concerns the proper construction of s 26D(1) of the Native Title Act 1993 (Cth) (NT Act). That section exempts a future act consisting of the “creation of a right to mine” from the “right to negotiate procedures” in Pt 2, Div 3, Subdiv P of the NT Act where, relevantly, the creation of the right is done by the “renewal”, “re-grant or re-making” of an “earlier right to mine” and certain other conditions are satisfied: NT Act, s 26D(1)(a)(ii) and (b).

2    The primary judge found that s 23(b) of the Acts Interpretation Act 1901 (Cth) applies to s 26D(1) of the NT Act, such that the reference to “earlier right” may be read as “earlier right or rights”. In the context of the proceeding, the effect of that construction is that the grant of mining lease 39/1096 (ML39/1096) in place of 31 previous mining leases, without compliance with the right to negotiate procedures, did not render the grant invalid to the extent to which it affected native title.

3    The Nangaanya-ku Native Title Claim Group (applicant) seeks leave to appeal the decision on three grounds, which may be summarised as follows:

(1)    The primary judge erred in law in failing to find that the NT Act evinces a contrary intention for the purposes of s 2(2) of the Interpretation Act, such that the references in s 26D(1) to an “earlier right to mine” are to be read in the singular.

(2)    The primary judge erred in law in finding that the grant of a single right to mine in place of multiple earlier rights to mine comprises the “renewal; or … the re-grant or re-making … of an earlier right to mine” for the purposes of s 26D(1) of the NT Act.

(3)    The primary judge erred in law in finding that the grant of ML39/1096 was an act consisting of the creation of a right to mine to which s 26D(1) of the NT Act applied.

4    On 17 March 2025, we granted leave to appeal. These are our reasons for both the grant of leave and the disposition of the appeal.

AGREED FACTS

5    On 18 December 2007, the first respondent (State) granted 31 mining leases for a term of 21 years to Independence Group NL (previous leases). The grant of each of the previous leases was “an act consisting of the creation of the right to mine” within the meaning of s 26D(1) of the NT Act.

6    At the time, the area covered by the previous leases was not the subject of a native title determination application. Nonetheless, before the grant was made, the State gave notice in accordance with s 29 of the NT Act and the “right to negotiate” procedure was complied with for each grant.

7    In June 2008, Independence Group transferred the majority of its shares in the previous leases to the fourth respondent (AngloGold).

8    Independence Group and AngloGold surrendered the previous leases and, on 11 March 2015, were granted ML39/1096. ML39/1096 covered the same area, was on the same terms and was for the same period (21 years) as the previous leases. The “right to negotiate” procedure was not followed in respect of the grant of ML39/1096. The grant was, and is, valid, insofar as it affects native title, unless and to the extent that the procedure in Pt 2, Div 3, Subdiv P applies: NT Act, s 24MD(1).

9    On 9 October 2018, the applicant filed a native title determination application over an area that included that covered by ML39/1096. On 29 November 2021, a native title determination was made, by consent, in favour of the Nangaanya-ku claimants over an area that relevantly excluded ML39/1096. We will refer to that part of the application area excluded from the determination as the “Part B Area”.

10    The only remaining issue in the proceeding as between the applicant and the State is whether s 47B of the NT Act applies to the Part B Area, such that any prior extinguishment is to be disregarded. Insofar as it concerns ML39/1096, that issue turns upon whether the grant of that mining lease was an act consisting of the creation of a right to mine to which s 26D(1) of the NT Act applies.

11    A separate question to that effect was ordered by the Court on 14 June 2022. On 8 July 2024, the primary judge decided that the answer to that separate question was “yes”. It is from that judgment that the applicant seeks leave to appeal.

THE RIGHT TO NEGOTIATE

12    The “right to negotiate” provisions in Subdiv P comprise part of a suite of provisions in Pt 2, Div 3 of the NT Act dealing with “future acts”. A “future act” is relevantly defined as an act that takes place on or after 1 January 1994 that is not a “past act” and, apart from the NT Act, validly affects native title in relation to the land or waters to any extent: NT Act, s 233(1)(a)(ii), (b) and (c).

13    A “past act” includes, amongst others, an act that took place at any time before 1 January 1994 when native title existed in relation to particular land or waters that, apart from the NT Act, was invalid to any extent but would have been valid to that extent if native title did not exist: NT Act, s 228(2)(a)(ii) and (b). 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: NT Act, s 227.

14    A “future act” will be valid if covered by one of the provisions in Pt 2, Div 3, and invalid if not: NT Act, s 24AA(2). The term “valid” is defined to include “having full force and effect”: NT Act, s 253. Division 3 contains a hierarchy of bases for validity of future acts, which relevantly includes “acts that pass the freehold test” and “acts involving renewals and extensions etc of acts”: NT Act, ss 24AA(4) and 24AB.

15    In the case of acts covered by s 24IC (“permissible lease etc. renewals”), s 24MD (“acts that pass the freehold test”) – unlike other acts to which Pt 2, Div 3 applies – for the act to be valid it is also necessary to satisfy the requirements of Subdiv P with respect to the “right to negotiate”: NT Act, s 24AA(5).

Subdivision I of the NT Act

16    Section 24IC in Pt 2, Div 3, Subdiv I assumes significance in the appeal because of the similarities, and dissimilarities, between it and s 26D of the NT Act. The section relevantly provides as follows:

24IC    Future acts that are permissible lease etc. renewals

(1)    A future act is a permissible lease etc. renewal if:

(a)    it is:

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term;

of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and

(b)    any of the following subparagraphs applies:

(i)    the original lease etc. was granted on or before 23 December 1996;

(ii)    the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act;

(iii)    the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and

…

Replacement by 2 or more leases etc.

(2)    If 2 or more leases, licences, permits or authorities are granted in place of, respectively, a single lease, licence, permit or authority, then, for the purposes of subsection (1), each of the 2 or more grants is taken to be a renewal of the single lease, licence, permit or authority.

Replacing 2 or more leases etc. with a single lease etc.

(2A)    If a single lease, licence, permit or authority is granted in place of, respectively, 2 or more leases, licences, permits or authorities (the original leases etc.), then:

(a)    for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and

(b)    paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc.

…

(Emphasis in the original)

17    Where a future act falls within Subdiv I, then subject to the “right to negotiate” in Pt 2, Div 3, Subdiv P, the act is valid: NT Act, s 24ID(1)(a); see also, s 24IA(b). Subject to s 26D, Subdiv P applies to a future act covered by s 24IC involving the renewal, re-grant, re-making or extension of the term of a lease, licence, permit or authority concerning the creation of a right to mine: NT Act, s 26(1A).

18    Of present relevance, s 24IC(2) and (2A) deem, respectively, the replacement of multiple grants with a single grant and the replacement of a single grant with multiple grants to be a “renewal” for the purposes of the definition of “permissible lease etc. renewal” in s 24IC(1): cf, Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337 at [28] to [29] (Rares J).

19    A future act will not be prevented from falling within s 24IC merely because the term of the renewed, re-granted or re-made lease (or any of the new leases in the case of a grant of two or more leases in the place of a single lease) is longer than the term of the old lease: NT Act, s 24IC(3) and (4).

20    Section 24IC of the NT Act applies to “every type of lease, licence, permit or authority” including, relevantly, the “renewal”, “re-grant or re-making” of a mining lease that satisfies the other criterion in the section: State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47; (2016) 242 FCR 231 at [138] to [140] (Jagot J, with whom Mansfield and Dowsett JJ agreed).

21    If the future act covered by Subdiv I consists of the grant of a freehold estate or confers a right of exclusive possession, then it will extinguish native title in relation to the land or waters: NT Act, s 24ID(1)(b). Otherwise, the “non-extinguishment principle” applies to the future act and native title continues to exist: NT Act, ss 24ID(1)(c) and 238. Irrespective, the native title holders are entitled to compensation for the future act in accordance with Pt 2, Div 5: NT Act, s 24ID(1)(d).

Legislative history

22    Section 24IC of the NT Act was inserted into the statute as part of the amendments that followed the delivery of the judgment of the High Court in Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 on 23 December 1996: Native Title Amendment Act 1998 (Cth) (1998 Amendment Act), Sch 1. The High Court in Wik found that pastoral leases do not necessarily extinguish all native title rights and interests in land. As the Explanatory Memorandum (1998 EM) to the Native Title Amendment Bill 1998 (Cth) (1998 Bill) records, that “created doubt about the validity of certain acts done over pastoral and other leasehold land” since the commencement of the NT Act on 1 January 1994 as well as the validity of future acts by pastoral lessees, governments and third parties: at [3.44].

23    Section 24IC(2A) was not included in the 1998 Amendment Act. It was inserted as part of the later amendments to the NT Act made pursuant to the Native Title Amendment Act 2007 (Cth). The Explanatory Memorandum to the Native Title Amendment Bill 2007 (Cth) explained the object of its inclusion as follows:

1.103    Subsection 24IC(2) provides that if multiple leases, licences, permits or authorities are granted in place of a single lease, licence, permit or authority, those multiple grants are taken as a renewal of the original grant, and hence are a permissible renewal under subsection 24IC(1).

1.104    The same protections do not currently apply where multiple grants are replaced by a single grant.  Proposed subsection 24IC(2A) would provide that where a single lease, licence, permit or authority is granted in place of multiple leases, licences, permits or authorities, the single grant is a renewal of the original grants.  The proposed subsection provides, consistent with existing subsection 24IC(2), that multiple grants that are being renewed by a single grant must satisfy the criteria in paragraphs 24IC(1)(b) to (e).  The protection will only apply where the single grant takes place after these amendments come into force (see Item 124 of the application provisions in Part 2 of Schedule 1 of the Bill).

(Emphasis added)

Subdivision M of the NT Act

24    Part 2, Div 3, Subdiv M is relevant to the appeal because the grant of ML39/1096 is covered by that Subdivision. Subdivision M relevantly applies to a future act consisting of the grant of a mining lease over land when a mining lease would be able to be granted over the land if the native title holders held ordinary title to it: NT Act, s 24MB(1)(b)(i). Save with respect to the compulsory acquisition or surrender of native title, the non-extinguishment principle applies to future acts covered by Subdiv M: NT Act, s 24MD(3)(a). The native title holders may also be entitled to compensation under Pt 2, Div 5 if certain conditions are satisfied in relation to the act: NT Act, s 24MD(3)(b).

25    Where a future act falls within Subdiv M, subject to Subdiv P (which deals with the right to negotiate), the act is valid: NT Act, s 24MD(1). Subject to s 26D, Subdiv P applies to a future act covered by s 24MD involving the creation of a right to mine, whether by grant of a mining lease or otherwise (except one created for the sole purpose of construction of an infrastructure facility), or the variation of such a right, to extend the area to which it relates: NT Act, s 26(1)(c).

26    Subdivision M is based on s 23 and s 235 of the NT Act as originally enacted (1993 Act), which validated (subject to the right to negotiate) a “permissible future act” including, for example, the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holder, instead, held ordinary title: 1998 EM at [15.1].

Subdivision P of the NT Act

27    As outlined above, Subdiv P creates a procedural “right to negotiate” in relation to certain categories of future acts: NT Act, s 25(1). Those categories materially include a future act that is:

(a)    covered by s 24IC, where the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerns the creation of a right to mine: NT Act, s 26(1A); and

(b)    covered by Subdiv M, where the act is:

(i)    the creation of a right to mine, whether by grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility associated with mining: NT Act, s 26(1)(c)(i); or

(ii)    the variation of a right to mine, to extend the area to which it relates: NT Act, s 26(1)(c)(ii).

28    Where the “right to negotiate” procedures apply, before the future act is done, the parties must negotiate with a view to reaching an agreement about the act: NT Act, s 25(2). The negotiation may, if relevant, include the possibility of a condition to the effect that the native title party is entitled to payments (worked out by reference to the amount of profits made, any income derived or anything produced) by the grantee as a result of anything done to the land and waters the subject of the grant: NT Act, s 33(1). The negotiations may also deal with the conditions subject to which the future act is done: NT Act, ss 27B and 31(1)(b). Unless the expedited procedure applies, the negotiating parties must negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the future act: NT Act, s 31(1); see also, s 32. If the parties do not reach agreement, an arbitral body or a Minister will make a determination about the act instead: NT Act, s 25(3). If the procedures in Subdiv P are not complied with, then the act will be invalid to the extent that it affects native title: NT Act, s 25(4).

Section 26D

29    Section 26D of the NT Act carves out from Subdiv P the renewal, re-grant, re-making or extension of certain existing rights to mine (NT Act, s 26(2)(e)) and relevantly provides as follows:

26D Excluded mining acts: earlier valid acts

Renewal of valid mining lease etc.

(1)    This Subdivision does not apply to an act consisting of the creation of a right to mine if:

(a)    the creation of the right is done by:

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term;

of an earlier right to mine; and

(b)    the earlier right:

(i)    was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or

(ii)    was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and

(c)    the area to which the earlier right relates is not extended; and

(d)    the term of the right is no longer than the term of the earlier right; and

(e)    no rights are created in connection with the right that were not created in connection with the earlier right.

…

30    As appears from that extract, unlike s 24IC, s 26D does not contain a deeming provision with respect to the replacement of multiple grants with a single grant or the replacement of a single grant with multiple grants.

Legislative history

31    The right to negotiate procedure was provided for in the NT Act as originally enacted: 1993 Act, Pt 2, Div 3, Subdiv B. Its coverage included future acts consisting of the creation of a right to mine (whether by the grant of a mining lease or otherwise), the variation of a right to mine by extending the area to which it relates and the extension of the period of a right to mine, save where that occurred under an option or right of renewal under the original instrument: 1993 Act, s 26(2)(a) to (c).

32    The preamble to the NT Act records in this respect that:

It is particularly important to ensure that native title holders are now able to fully enjoy their native title rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

(Emphasis added)

33    Subdivision P was introduced as part of the statutory amendments that followed Wik: 1998 Act, Sch 1. The amendments completely replaced Subdiv B in the 1993 Act, although many of its provisions were substantially re-enacted in Subdiv P: 1998 EM at [18.9]. The 1998 EM explained that:

18.11    The purpose of the amendments to the right to negotiate provisions is to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interest of native title holders and claimants.

34    To this end, Subdiv P narrowed the scope of the future acts to which the right to negotiate procedure applies. This included removing from its ambit the grant of a right to mine for the sole purpose of an infrastructure facility (s 26(1)(c)(i)) and certain low-impact and small-scale mining upon determination by the Minister where specified conditions are met: NT Act, ss 26(2)(b), (c) and (d) and 26A, 26B and 26C.

35    Subdivision P also made it possible for the right to negotiate to be exercised only once in relation to a project involving a number of future acts, some of which may take place at a later time: NT Act, s 42A. A proponent wishing to avail themselves of a single right to negotiate must, however, comply with s 29(9). That section requires that, in order for s 42A to apply, the notice given to the affected parties before the future acts are done (as part of the procedures in Subdiv P) identify a project to be carried out in a specified area and the two or more acts constituting or forming part of the project (whether or not the notice separately specifies the area that each act will affect): see also, 1998 EM at [18.12].

36    Consistent with the preamble, the 1998 EM identified that the right to negotiate procedure in the NT Act was a “special measure” within the meaning of the International Convention on the Elimination of All Forms of Racial Discrimination 1969 and the Racial Discrimination Act 1975 (Cth) (RDA):

18.24    Some provisions of the NTA provide formal equality to native title holders. The RDA generally requires such formal equality, that is, equal treatment of all groups under law without distinction on the basis of race (see Gerhardy v Brown (1985) 159 CLR 70). Other provisions of the NTA provide “special measures” within the meaning of the Convention on the Elimination of all Forms of Racial Discrimination and the RDA. Special measures are allowed as an exception to the general principle of formal equality because they are designed to advance the human rights and freedoms of persons, such as Aboriginal people and Torres Strait Islanders, who have been historically disadvantaged groups. The right to negotiate provisions have been generally considered a “special measure”.

(Emphasis added)

37    The 1998 EM went on to state with respect to the amendments introduced by the 1998 Act that:

18.25    In amending the right to negotiate provisions, the Government is exercising the discretion it has in relation to instituting, maintaining and re-formulating such special measures.

(Emphasis added)

38    Insofar as it concerns s 26D, the 1998 EM outlined that:

19.46     The Bill provides that the grant of a right to mine that is valid or has gone through the right to negotiate process will not have to go through the process again when the right is renewed etc. To this end, a future act that is the creation of a right to mine will not be an act to which the right to negotiate provisions apply if it meets the requirements below.

•    The right must be created by the renewal, re-grant, re-making or extension of the term of an earlier right to mine. [Schedule 1, item 9, paragraph 26D(1)(a)]

•    The area of land or waters covered by the earlier right to mine must not be extended by the renewal etc. [Paragraph 26D(1)(c)]

•    The earlier right to mine must have been either of the things in Table 19.6.

Table 19.6

(Emphasis in the original)

39    The terms of s 26D(1) were amended during the passage of the 1998 Bill. Those amendments included the insertion of s 26D(1)(d) and (e) and were explained as follows (Supplementary Explanatory Memorandum at pp 22-23 (Government amendment H52)):

Subsection 26D(1) presently excludes the renewal, re-grant or extension of the term of the term of an earlier right to mine if:

•    the earlier right to mine was validly created on or before the date of the Wik decision or complied with the right to negotiate; and

•    the renewed etc right to mine does not cover a greater area than that covered by the earlier right to mine.

The purpose of [the] Government amendment … is to impose further conditions to be satisfied in order for the creation of a right to mine to be exempt from the right to negotiate under s 26D(1).

•    the term of the renewed mining lease is not longer than the term of the earlier mining lease; and

•    the renewed mining lease does not confer rights that were not conferred by the earlier mining lease.

This will ensure that subsection 26D(1) only exempts from the right to negotiate those renewals etc of mining leases that confer the same or lesser rights as the existing mining lease.

(Emphasis in the original)

INTERPRETATION ACT

40    Against that background, it is convenient to turn to ss 2(2) and 23(b) of the Interpretation Act. The combined effect of those sections is to provide that in any Act, subject to a contrary intention, words in the singular number include the plural and words in the plural number include the singular.

41    The Interpretation Act “shortens the language of Acts of Parliament by making it unnecessary for Parliament to enact elaborate and repetitive provisions and anticipating possible uncertainties and declaring the legislative intention on these points”: Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 (AG-Q) at [7] (Gleeson CJ).

42    As Gleeson CJ explained in that case (at [8]):

Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.

(Emphasis added)

43    The following principles emerge from the authorities as to the displacement of the statutory presumption:

(a)    In considering whether a contrary intention appears, it is appropriate to consider the section in its setting in the legislation and the substance and tenor of the legislation as a whole: Blue Metal Industries v Dilley [1969] 3 WLR 357; (1969) 117 CLR 651 at 656 (Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson and Lord Diplock), citing Sin Poh Amalgamated (HK) Ltd v Attorney-General of Hong Kong [1965] 1 WLR 62; [1965] 1 All ER 225; see also, Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248; (2023) 413 ALR 499 at [60] (Kirk JA, with whom Bell CJ and Griffiths AJA agreed);

(b)    The legislative policy as discerned from the legislation can be taken into account in determining whether there is a contrary intention displacing the statutory presumption: Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159; (2004) 10 VR 435 at [114]-[116] (Hansen AJA), citing Blue Metal Industries at 656. The extrinsic material may also be relevant, but it must be borne in mind that “the law is to be found in the statute and not in extrinsic material”: Commissioner of State Revenue v Muir Electrical Co Pty Ltd [2003] VSCA 112; (2003) 8 VR 200 at [18] (Callaway JA); see also, Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ), 532 (Deane J) and 547 (Gaudron J);

(c)    The term “words” in s 23(b) of the Interpretation Act is apt to include any part of speech including nouns, pronouns, verbs and demonstrative adjectives: Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; (2008) 170 FCR 105 at [12] (Moore, Lindgren and Buchanan JJ). Thus, in that case, it was held to apply to the phrase “that relative” such that it could be read as “those relatives”;

(d)    An apparently careful choice between the use of both the singular and the plural for some expressions, and the use of singular only for other expressions, may indicate a contrary intention: Muir Electrical at [14] (Callaway JA); see also, at [1] (Ormiston JA) and [31] (Eames JA). Such drafting may reflect the application of the technique expressed in the maxim expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded): R v Ahmed [2007] VSCA 270; (2007) 17 VR 454 at [31]-[32] (Nettle JA);

(e)    The apparently deliberate usage of the definite article “the” or the indefinite articles “a” or “an” may also be relevant in determining whether the statutory presumption is displaced: Tamas v Victorian Civil and Administrative Tribunal [2003] VSCA 113; (2003) 9 VR 154 at [44] (Eames JA, with whom Ormiston and Callaway JJA agreed);

(f)    The statutory presumption may be displaced if its application would change the meaning of a word: Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; (2008) 72 NSWLR 577 at [60] (Palmer J). For example, while the presumption may readily be applied to a collective noun such as “team” so as to include the plural form of “teams”, its application would not readily permit a singular collective noun to be read as meaning each or any of its constituent parts such as “player”: Waterhouse at [62]; see also, Fordham v Brideson [1986] VR 587 at 591 (Brooking J) and 592 (Young CJ) (with whom Nathan J agreed); and

(g)    Subject always to the context, the statutory presumption permits a process of selective pluralising or singularising: No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 2 WLR 646; [1974] Ch 229 at 241-242 (Megarry J), as cited in Jones v Scully [2001] FCA 879; (2001) 113 FCR 343 at [14] (Hely J). For example, in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297, Davies J held at 305 that s 23(b) applied to the phrase “of the decision made by the Board in substitution for the decision so set aside” in s 175(1)(b) of the Veterans Entitlements Act 1986 (Cth), so that it also reads “of the decisions made by the Board in substitution for the decision so set aside” (emphasis added); see also, at 308 to 309 (Wilcox J) and 312 to 313 (Foster J).

FINDINGS BY THE PRIMARY JUDGE

44    The grounds of appeal, whilst variously expressed, are all directed to the ultimate finding by the primary judge that s 23(b) of the Interpretation Act applies to s 26D(1) of the NT Act, such that the expression “earlier right to mine” in that section is to be read as including the plural “earlier rights to mine” (at [164]). The grounds of appeal are best understood in the context of an overview of the primary judge’s reasons.

The meaning of “renew”, “re-grant” and “re-make”

45    The starting point of the primary judge’s analysis was the meaning of the words “renewal”, “re-grant” and “re-making” in s 26D(1)(a) of the NT Act. That analysis was directed to identifying the “breadth of the connection between the right to mine created by the future act” which his Honour identified as “important to determining the proper construction” of the section (at [89]).

46    In that regard, the primary judge adopted (at [92]) the meaning Mortimer J attributed to those words in Narrier v State of Western Australia [2016] FCA 1519 at [1073] in the context of s 24IC:

… I consider it is likely that the term “renewal” is used in the sense described by Gibbs J [in Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 497 at 406-407)]: that is, the grant of a new lease for the same period and on the same terms. I consider it is likely that s 24IC uses the terms “re-grant” and “re-making” to signify the grant of a new lease to replace an expired lease, on different terms yet still with sufficient connection to the expired lease that it can be said the lease is being granted again. To “remake” a lease may be something quite different, and may well be used in relation to leases whose terms have not expired but where a new contractual arrangement, still with sufficient connection to the old lease, needs to be made.

(Emphasis added)

47    The “breadth of the connecting words”, the primary judge found, encompassed more than just a “renewal”, and encompassed “other kinds of connection between an earlier right to mine and a later one” (at [97]). His Honour considered (at [99]):

… the ordinary meaning of s 26D(1), when read with s 23(b) of the Interpretation Act as it must be, encompasses the creation of a single right to mine as, at least, the re-making of multiple earlier rights to mine. On the face of things, the phrase “an earlier right to mine” in the closing words of s 26D(1)(a) is thus to be read as “an earlier right or earlier rights to mine”. In ss 26D(1)(b) to (e), “earlier right to mine” is similarly read to include plural rights to mine.

The contrary intention arguments

48    The primary judge then addressed the specific arguments advanced by the applicant as to why the NT Act manifests a contrary intention. Those arguments (many of which are reiterated on appeal) concern: the context of s 26D; difficulties said to be posed by reading “earlier right to mine” in the plural; drafting choices in the statute between the singular and plural; the availability of an expressio unius inference when a comparison is made between the express language of s 24IC and the sparser language of s 26D; and the purpose and policy of the “right to negotiate” procedure. It is useful to outline how these considerations were dealt with below.

Context

49    The context argument focused on whether s 26D requires a “like for like” comparison between the right to mine to be created by the future act and the earlier right to mine to which the section refers.

50    The primary judge accepted that the section requires that “not only must the [future] act be a renewal etc” (s 26D(1)(a)), but “there must not be any material difference between the proposed right and the earlier right” (s 26D(1)(c) to (e)). However, his Honour went on to find (at [117]) that:

It would not be correct to extrapolate from the vague idea that the rights must be “like for like” some more specific proposition that a single mining lease that consolidates multiple earlier leases is not sufficiently “like for like”. That proposition must be found in the text of the section itself. And it is not there

Difficulties of application

51    The argument concerning difficulties said to arise in applying s 26D if “right to mine” were pluralised focused on a series of hypotheticals which were said to illustrate why the comparison required by s 26D(1)(c), (d) and (e) is not straightforward if “earlier right to mine” is read in the plural. The primary judge considered, and rejected, each of those examples before stating (at [124]):

There is another reason why reading s 26D as encompassing the consolidation of multiple rights to mine is unlikely to create the problems which the applicant posits. It is that the legislature has seen fit to be explicit that such a consolidation can take place under s 24IC(2) or s 24IC(2A) without depriving future acts of the benefit of s 24IC(1). This suggests that there is nothing inherent in the similar wording of s 26D(1) that inhibits its ready application in similar circumstances.

Drafting choices

52    The drafting choices argument focused on provisions in Div 3 (and one in Pt 6, Div 5) drafted by reference to either a singular “act” or multiple “acts” or “acts of that class”: NT Act, ss 24GE(1)(f), 24HA(7), 24IC, 24JAA(18), 26A, 29, 42A and 140. The primary judge concluded that the cited examples where other provisions were expressed in the plural were “neither so pervasive, nor so directly relevant, as to show that throughout Div 3, the legislature chose to use the singular for all nouns generally, or ‘earlier right to mine’, specifically, because it wished to exclude the plural” (at [128]).

Expressio unius est exclusio alterius

53    The expressio unius argument focused on the express provision for splits and consolidations in s 24IC but not in s 26D of the NT Act. Specifically, whether that founds an inference that the legislature intended that the former section encompass splits and consolidations, but not the latter section. The applicant also relied on the legislative history outlined above.

54    The primary judge accepted that such an inference was “open” and “may be strong” if “qualities such as omniscience, absolute thoroughness, rigorous consistency and logical infallibility” are attributed to the intention of Parliament (at [139]). But his Honour considered that “reality is permitted to intrude” and certainly with “legislation as cumbersome, labyrinthine and frequently amended” as the NT Act (at [140]).

55    The primary judge expressed the “need for caution in the application of the expressio unius rule”, before stating (at [141]-[142]):

… In this case, it would be unwise to place too much store on canons of construction or any similar inference that attribute to the notional person of Parliament the often fictional qualities mentioned above. There are many reasons for that: the frequency of amendment of the NTA over time; the byzantine complexity of Pt 2 Div 3; the variety of future acts covered by the Division; and the palpable air of political compromise that permeates it.

That is especially so where, as here, there is no evident purpose or policy that would be served by facilitating splits and consolidations in one place and not in another …

(Emphasis added)

56    His Honour then expressed the view that (at [144]):

The problem becomes even more acute when one considers the potential interaction between s 24IC and s 26D in connection with particular instruments. Suppose a future act consists of the grant by the State of a consolidated mining lease in the place of two previous mining leases which covered the same area and which were granted before the date of the Wik decision. The future act will comply with the conditions at s 24IC(b) to (e) and, by virtue of s 24IC(2A), will also clearly comply with s 24IC(1)(a). The act will therefore be valid, subject to Subdiv P. Because the act creates a right to mine, Subdiv P will apply to it: s 26(1A). And yet, on the applicant’s construction, despite being treated as the renewal of the earlier leases for the purposes of Subdiv I, the consolidated lease will be treated as if it were not a renewal of them for the purposes of Subdiv P. The right to negotiate will be triggered, even though, in substance, the mining tenement granted by the future act is the same as the two pre-Wik tenements.

(Emphasis added)

57    The primary judge considered that “reading both ss 24IC and 26D to permit of splits and consolidations” gives Div 3 “a harmonious operation in the context of the statutory scheme as a whole”, prioritising “substance over form” and “avoiding the need for distinctions that make no real difference” (at [154]).

Policy and purpose

58    The policy and purpose argument focused on the beneficial character of the NT Act and whether, and if so, how, that informed the construction of s 26D. The primary judge accepted that the right to negotiate is an important aspect of the statute’s recognition of native title but emphasised that s 26D is intended to limit the circumstances in which that right was engaged (at [156]).

59    His Honour considered that a “clear indication” of the purpose of Subdiv P was “Point 6” of the “10 Point Plan” introduced by the Howard government in response to the decision in Wik, and extracted in the 1998 EM (at [157]):

Point 6 Future mining activity

For mining on vacant crown land there would be a higher registration test for claimants seeking the right to negotiate, no negotiations on exploration, and only one right to negotiate per project. As currently provided in the NTA, states and territories would be able to put in place alternative regimes with similar right to negotiate provisions.

(Emphasis added)

60    His Honour noted the following extract from the 1998 EM that was said to address “Point 6” (at [158]):

The right to negotiate process, containing the changes outlined in Point 6, is found in new Subdivision P, Division 3, Part 2 of the NTA. New sections 43A and 43B allow for equivalent State/Territory regimes on former and current pastoral lease land etc. The new registration test is contained in new sections 190B and 190C of the NTA. The renewal of mining leases is achieved by new section 24IC.

61    The primary judge then rejected the submission that the reference to “only one right to negotiate per project” in the 1998 EM was confined to the “project act” provisions in s 42A of the NT Act referred to at [35] above, because (at [159]):

… Subdivision P as a whole was the Government’s enactment of Point 6, and was intended to achieve the purpose of “only one right to negotiate per project”. That purpose is promoted by a construction of s 26D that encompasses consolidations of mining leases where there is no change to the total area covered, to the duration of the leases, or to the rights conferred by them.

LEAVE TO APPEAL

62    Leave to appeal from an interlocutory judgment is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The principles governing the grant of leave to appeal are well-established. There are two considerations. First, whether the primary judgment is attended with sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, assuming the decision is wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

63    The issues raised on appeal do not involve the exercise of a discretion such that a question arises as to the application of the principles stated in House v The King (1936) 55 CLR 499. The questions of statutory construction with which the separate question was concerned are finely drawn and the correctness or otherwise of the decision is susceptible to only one answer. Moreover, the applicant says that substantial injustice would result if leave was refused, given that the answer to the separate question bears on the validity of ML39/1096 and the application of s 47B of the NT Act to the Part B Area. The issue of construction raised by the separate question is reasonably arguable and the answer is attended by sufficient doubt to warrant the grant of leave to appeal. Given those matters, we were satisfied that leave to appeal should be granted.

GROUNDS OF APPEAL

64    By the first ground of appeal, the applicant contends that the primary judge erred in failing to find a contrary intention displacing the application of s 23(b) of the Interpretation Act to the words “earlier right to mine” in s 26D(1) of the NT Act. The second ground of appeal is related in that it comprises the principal reason why the primary judge is said to have erred, namely the failure to give effect to the expressio unius inference that is said to arise as between s 24IC and s 26D of the NT Act. The third ground of appeal encapsulates what the applicant says follows from success on the first two grounds. Given the grounds of appeal interconnect, they are conveniently addressed together.

65    The meaning of a statutory provision is to be decided having regard to its text, context and purpose. Context should be considered at the first stage and in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). So too with the question of whether a contrary intention appears; the inquiry is not confined to the text of the section but requires consideration of “its setting in the legislation and the substance and tenor of the legislation as a whole”: Blue Metal Industries at 656.

Text

66    The text of s 26D(1) is not “clearly inconsistent” with the presumption of pluralisation: AG-Q at [52] (Gaudron, McHugh, Gummow and Hayne JJ). As the primary judge identified, the terms “renewal”, “re-grant” and “re-making” signify a connection between the new “right” and that which it replaced: see also, Narrier at [1073]. But the need for such a connection does not, in and of itself, say anything about whether the presumption of pluralisation is displaced. The section also draws a distinction between the use of the definite article “the” before “renewal”, “re-grant or re-making” and the indefinite article “an” before “earlier right to mine”. But again, not much turns on that distinction; it simply suggests that the provision is speaking of a specific instance of a renewal etc of an unspecified, albeit connected, earlier right to mine: cf, Tamas at [44]. Moreover, the applicant, rightly, does not challenge the primary judge’s finding that “earlier right to mine” in s 26D(1) is capable of being read in the plural as “earlier right or earlier rights to mine”.

Context

67    Turning then to the context, the scheme established by Pt 2, Div 3 of the NT Act, pursuant to which a future act may be deemed “valid” has a “rule-like quality”: Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53 at [90] (Rares, White and Banks-Smith JJ); see also, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [95] (McHugh, Gummow, Kirby and Hayne JJ).

68    The rules for validity relevantly require the following:

(a)    First, the future act must be covered by s 24IC or Subdiv M: NT Act, s 24AA(4). If the future act is covered by s 24IC, then it will not be covered by Subdiv M: NT Act, s 24AB(2).

(b)    Second, before the future act covered by s 24IC or Subdiv M is done, Subdiv P must be complied with if:

(i)    the lease that is renewed, re-granted or re-made under s 24IC created a right to mine: NT Act, s 26(1A)(a); or

(ii)    the lease granted under Subdiv M either created a right to mine (other than for the sole purpose of the construction of an infrastructure facility) or varied such a right, to extend the area to which it relates: NT Act, s 26(1)(c); and

(iii)    the act consisting of the creation of a right to mine is not covered by s 26D, which will be the case if:

(A)    it is derived from and has a sufficient connection with “an earlier right to mine”: NT Act, s 26D(1)(a); see also, Narrier at [1073];

(B)    the “earlier right to mine” was valid with respect to native title because it was created on or before 23 December 1996 or satisfied the “right to negotiate” procedures in Subdiv P: NT Act, s 26D(1)(b) and s 28; and

(C)    the right created by the renewal etc does not extend the area or the term of the earlier right, or create new rights: NT Act, ss 26D(1)(c) to (e).

69    Section 24IC, Subdivs M and P have different spheres of operation. Section 24IC deals with the renewal etc of a pre-Wik lease, licence, permit or authority granted. Subdivision M deals with future acts done after 23 December 1996, which pass the freehold test. Subdivision P deals with a subset of future acts covered by s 24IC and Subdiv M. Its principal concern is future acts involving the creation of a right to mine other than for infrastructure or exploration and gold, tin, opal and gem mining: NT Act, ss 26(1)(c)(i), 26B and 26C. Section 26D(1) further reduces the scope of future acts to which Subdiv P applies. But even insofar as it concerns the renewal etc of a pre-Wik mining lease, licence, permit or authority, the operation of s 26D(1) does not mirror that of s 24IC. For example, the renewal etc of a pre-Wik mining lease for a longer term will be covered by s 24IC, but not s 26D: NT Act, ss 24IC(3), (4)(b) and 26D(1)(d).

Purpose

70    The legislative policy underpinning the scheme can be discerned from the statute. A native title holder may be entitled to compensation under Pt 2, Div 5 for a future act covered by s 24IC or Subdiv M. The “right to negotiate” gives native title parties additional rights, procedural in nature, in the case of a future act that is concerned with the creation of a right to mine of the kind described above. Those procedural rights are not confined to financial considerations and include the conditions subject to which the future act may be done: NT Act, s 33(1). Further, save for circumstances not presently relevant, the parties are expressly required to negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the future act: NT Act, s 31(1).

71    Subdivisions M and P of the NT Act facilitate two of the main objects of the NT Act, namely, to establish ways in which future dealings affecting native title may proceed and setting standards for those dealings: NT Act, s 3(b). As for Subdiv P (formerly Subdiv B), its intended purpose was to ensure that “whenever appropriate, every reasonable effort has been made to secure the agreement of native title holders through a special right to negotiate” whilst also giving the community “certainty that such acts may be validly done”: NT Act, preamble; cf, Interpretation Act, s 13(1); S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [22] (Mansfield J).

72    The 1998 Act altered the parameters of the “right to negotiate”. We would not go so far as to say that Subdiv P is to be construed in light of “Point 6” of the “10 Point Plan” because the law is to be found in the statute: Muir Electrical at [18]. The evident purpose of the 1998 Act was to impose limits on the class of future acts connected with the creation of a right to mine to which the “right to negotiate” was to apply. Putting to one side s 26D, those future acts excluded from the operation of the “right to negotiate provisions” relevantly include low-impact and small-scale mining, mining leases unconnected to the act of mining (because its sole purpose is the construction of associated infrastructure) and a single project consisting of multiple future acts provided that the native title party is notified, and thereby given the right to negotiate, with respect to each of the future acts that will or may form part of the project: NT Act, ss 26(1)(c), 26A to 26C, 29(9) and 42A. They are, therefore, either future acts where the procedural right has been given already or, alternatively, future acts where the character of the mining activity will tend to have less physical impact on the land and waters concerned.

Applicant’s submissions

73    The applicant advances three overarching submissions in support of the contention that the primary judge erred in finding that the presumption of pluralisation was not displaced.

74    First, the “rule-like quality” of Subdiv P coupled with its character as a “special measure” is said to count against the operation of the presumption, because the Parliament has explicitly set out the processes to be followed for its provisions to be satisfied and that qualification ought to be construed narrowly. The pluralisation of s 26D(1) does not, the applicant submits, promote clarity and precision. Rather, it is submitted that the applicant’s construction better effects, and is consonant with, the sole purpose of the special measure, being the advancement and protection of Aboriginal and Torres Strait Islander peoples.

75    Second, and relatedly, the applicant submits that the natural meaning of “a future act” or “the act” in Pt 2, Div 3 of the NT Act is a single act. That is reinforced by s 24AB because the order of application of provisions must be considered in relation to each individual future act, and even s 24IC draws a distinction between the use of the singular and the plural. It follows, the applicant submits, that the Parliament intended references to “an act” and “the act” in Pt 2, Div 3 to be read in the singular unless the NT Act expressly utilises the plural.

76    Third, the rationale for the distinction in language between s 24IC and s 26D, and consequently, the evident purpose and policy for facilitating splits and consolidations in one but not the other, is said to lie in the different purposes they serve. In summary:

(a)    Section 24IC is conditioned on the “original lease etc” being granted before 23 December 1996: NT Act, s 24IC(1)(b)(i). That is significant because it links the section to Wik and the misconception that existed before the date that pastoral leases extinguished native title. Understood in that context, the applicant argues, s 24IC can be seen as facilitating a compromise between permitting the renewal etc of pre-Wik leases but providing for compensation.

(b)    Section 26D on the other hand has a narrower scope of operation because it is a special measure.

State and AngloGold’s submissions

77    The State and AngloGold accept that Pt 2, Div 3 has a “rule-like quality” and that Subdiv P is a special measure. They contend that the “rule-like quality” simply means that the procedural requirements must be strictly complied with and the “special measure” characterisation of Subdiv P is necessary because otherwise its provisions would fall foul of the RDA. It does not follow, the State and AngloGold submit, that s 26D(1) is to be construed narrowly or that the presumption of pluralisation cannot apply to any particular provision of the NT Act, or generally.

78    The State and AngloGold dispute that there exists within Pt 2, Div 3 of the NT Act a consistent and careful choice between the plural and the singular. They point to other provisions within this part of the NT Act where words are used in the singular “when there is clearly no intent to exclude the plural” and, conversely, sections where the plural is used “when there is clearly no intent to exclude the singular”: NT Act, ss 24CD(3)(a) and (4), 24CE(2), 24CF(2), 24CI(2), 24GB(1)(d)(i), 24GC(2)(b), 24JAA(1)(b)(i) and 24JAA(1)(c)(i); cf, NT Act, s 24HA(7)(b).

79    The State and AngloGold accept that, while s 24IC and s 26D “talk to each other”, Subdivs I and P have “very different purposes”, but they resist the suggestion that this provides any basis for drawing an expressio unius inference. The “clear purpose” of s 26D is, they submit, to provide an exception to the right to negotiate where the renewal etc meets the criteria in ss 26D(1)(b) to (e). AngloGold contests the proposition that s 24IC deals only with legacy matters, because it says that s 24IC(1)(b)(ii) can apply to renewals etc that were granted after 23 December 1996. Both the State and AngloGold contend that there is no reason why, as a matter of principle or policy, a lease that is a consolidation of multiple earlier leases within s 24IC(2A), and which does not have any greater effect on native title than the earlier leases, should be required to go through the right to negotiate process yet, if the earlier leases were not consolidated, they could be renewed without having to go through that process.

Analysis of competing considerations

80    As the primary judge rightly identified, there is a need for caution in the application of the expressio unius cannon of construction: cf, O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 215. We are not persuaded, however, that the frequency of amendment of the NT Act or its complexity amount to compelling reasons to discount the principle. It is important to recall that s 24IC and s 26D were introduced into the statute at the same time. It is only s 24IC(2A), which deals with the consolidation of multiple rights to mine into a single right, that was introduced later (in 2007). While it might be right to describe the NT Act in general as complex and as having been the subject of frequent and substantial amendment, that history of amendment does not really assist much in explaining the differences between s 24IC and s 26D on which the applicant’s argument relies.

81    Indeed, the simultaneous introduction of s 24IC and s 26D by the 1998 Act lends considerable force to the expressio unius inference. Sections 26D(1) and 24IC(1) deal with similar matters and, clearly by design, employ a similar structure and language. Had it been intended that the operation of s 26D be extended in the same way as s 24IC – to provide for the splitting of one lease into two or more leases – one might have expected that a provision equivalent to s 24IC(2) would have been included in s 26D.

82    Weighing against that is the substantive reason which the primary judge advanced for declining to draw the expressio unius inference. That is, the absence of an evident purpose or policy behind facilitating splits and consolidations in s 24IC but not also in s 26D.

83    Subdivisions I, M and P are all concerned with the validation of future acts. Subdivision P has a distinct and differing purpose in that scheme: the conferral of a procedural right to negotiate. That right is an element of the protection of native title, which protection is not to be narrowly construed: Charles v Sheffield Resources Limited [2017] FCAFC 218; (2017) 257 FCR 29 at [54] (North and Griffiths JJ); see also, Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [23] (French J).

84    It is, nonetheless, to be emphasised that the principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. As Gageler CJ explained in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92]:

Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation “rarely pursues a single purpose at all costs” and that “[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling”.

(Citations omitted)

85    The central difficulty with the applicant’s contention is that it is unable to identify a purpose or policy, beyond the invocation of the beneficial character of Subdiv P and its “rule-like” quality, for concluding that the NT Act evinces an intention to displace the presumption of pluralisation with respect to s 26D. It is not argued, for example, that the consolidation of multiple leases into a single lease has a material effect on native title such that a native title party would lose the opportunity to negotiate with respect to that effect should s 23(b) of the Interpretation Act apply. Indeed, if in a particular case the consolidation of multiple leases would alter the rights of native title holders to their detriment, then it is difficult to see how the consolidated lease would satisfy the requirement in s 26(1)(e) of the NT Act. The applicant’s explanation as to the purpose served by s 24IC does not assist, because it does not provide a convincing explanation as to why the expressio unius inference should be applied to s 26D so as to displace the statutory presumption. And as the State and AngloGold highlight, the “rule-like” quality of Subdiv P speaks to the consequences of non-compliance but does not, in and of itself, assist with the question of construction involved.

86    The applicant’s submissions as to the natural meaning of “future act”, the hierarchy enshrined by s 24AB and the distinction drawn between the plural and the singular in certain provisions of Pt 2, Div 3, are similarly of not much assistance in determining whether the expressio unius inference is to be drawn. The sections where there does exist a distinction between the singular and the plural are neither so pervasive nor so relevant to s 26D as to be decisive. The fact that the natural meaning of the words “future act”, “an act” and “the act” is singular is merely the very circumstance that attracts the operation of the presumption of pluralisation. And the order of application of the provisions is just another feature that contributes to the rule-like quality of Pt 2, Div 3.

87    It can be gleaned from the overview set out above, that Subdiv P is concerned to exclude from its scope future acts consisting of the creation of the right to mine where either the native title party has been afforded a right to negotiate with respect to each constituent future act involved in the project, or the mining activity is small-scale or low-impact or solely concerned with the construction of infrastructure such that it has a lesser physical effect on the land and waters concerned. The application of the presumption of pluralisation to s 26D is consistent with – and is the construction that best serves – that discernible purpose, because it excludes from the procedural rights with which the Subdivision is concerned, the renewal etc of an act consisting of the creation of a right to mine, including by split or consolidation, provided that it meets the criteria in s 26D(1)(b) to (e). Those criteria serve to protect the interest of native title holders because they materially include that the renewal etc of the act consisting of the creation of the right to mine does not extend the area, or the term, to which the earlier right relates and no rights are created in connection with the new right that were not created in connection with the earlier right. Thus, the act in question will be the renewal etc of the creation of a right to mine that has already been through the “right to negotiate” process or concerns a pre-Wik grant (s 26D(1)(b)). But, in any event, its physical impact on land and waters is confined by reason of the criteria in ss 26D(1)(c) to (e). That construction accords with the immediate context of s 26D and, in particular, the character of the future acts consisting of the creation of a right to mine that are otherwise excluded from the procedural rights that are conferred by Subdiv P of the NT Act.

88    The issue regarding the application of s 23(b) of the Interpretation Act in this case is finely balanced. The primary judge undertook a thorough analysis and carefully identified the relevant considerations. For the reasons identified above, we do not consider that his Honour erred in that analysis and ultimately we agree with his conclusion that an expressio unius inference ought not be drawn. A consideration of s 26D, in the context of the NT Act as a whole and the apparent purpose of the provision, does not reveal a contrary intention sufficient to rebut the presumption that words in the singular include the plural when it comes to the expression “right to mine” in s 26D(1). A construction of s 26D that enables it to apply to rights to mine in both the singular and the plural is the interpretation that would best achieve the purpose or object of the provision, and is thus to be preferred: Interpretation Act, s 15AA.

CONCLUSION

89    For these reasons, the application for leave to appeal is granted but the appeal is dismissed.

Associate:

Dated:    24 November 2025

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