Federal Court of Australia
Friday v Minister for Primary Industry and Resources [2021] FCA 794
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicants’ amended originating application filed 12 May 2020 is dismissed.
2. If any party wishes to apply for an order for costs of this proceeding by close of business (CST) on 20 July 2021, that party shall file an outline of submissions (limited to five pages) together with any supporting affidavit evidence.
3. If any party files any materials under Order 2, any party opposing such an order shall by close of business (CST) file an outline of submissions (limited to five pages) together with any supporting affidavit evidence.
4. If any materials are filed under Order 2 and/or Order 3 above, the costs of the proceeding will be determined on the papers.
5. If no materials are filed under Order 2 and/or Order 3 above, there will be no order for the costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REEVES J:
INTRODUCTION
1 Mr Graham Friday, Mr David Harvey and Mr Thomas Simon, the first, second and third applicants respectively, are native title holders under a native title determination made on 26 November 2015: Ngajapa v Northern Territory of Australia (Ngajapa) [2015] FCA 1249. The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC ICN 7848 (the fourth applicant) is the Prescribed Body Corporate (the Top End PBC) designated by that determination to perform the functions under s 57(3) of the Native Title Act 1993 (Cth) (the NTA).
2 The Ngajapa determination applied to the whole of NT Portion 4319, otherwise known as “Perpetual Pastoral Lease No. 1051” (the Borroloola PPL). That pastoral lease covers an area of land to the south, west and north-east of the town of Borroloola in the Northern Territory. Mount Isa Mines Limited, the third respondent, became its registered proprietor on 23 April 1993. Mount Isa Mines also owns and operates the McArthur River Mine which is located about 70 kilometres southwest of Borroloola.
3 Mr Friday and his fellow applicants commenced this proceeding seeking to prevent the Northern Territory Minister for Primary Industry and Resources, the first respondent, from granting a mineral lease application, MLA 29881, to Mount Isa Mines, which, if granted, will cover an area of land in the northern part of the Borroloola PPL. It will also be contiguous to mining lease MLN 1126, which is already held by Mount Isa Mines.
4 For the following reasons, none of the applicants’ challenges to the grant of MLA 29881 has merit. Their amended originating application will therefore be dismissed.
THE FACTUAL BACKGROUND
5 The McArthur River Mine Project was established under the McArthur River Project Agreement Ratification Act 1992 (NT). That Act was amended by the McArthur River Project Agreement Ratification Amendment Act 1993 (NT). Pursuant to s 4A of the amended Act, six mining leases and one exploration licence, which had been granted to Mount Isa Mines under the original Act and the Mining Act 1980 (NT), were “re-granted” to it: mining leases MLN 1121 to MLN 1126 (inclusive) and EL 8078 (see Schedule 2 of the amended Act).
6 As shown on the map annexed to these reasons, mining leases MLN 1121 to MLN 1125 (inclusive) are located at, or in the vicinity of, the McArthur River Mine site itself. However, mining lease MLN 1126 is an outlier. It is located some distance north-east of the McArthur River Mine site on the southern coastline of the Gulf of Carpentaria. The McArthur River Project Agreement makes mention of a barge loading facility or port to be constructed within the Bing Bong Pastoral lease, being the area of MLN 1126. That Loading Facility was constructed in 1994/95. As its name suggests, it is used as a facility to load the product from the mine on to barges for transhipment to larger vessels off the coast. This transhipment method was employed because the coastline in that area of the Gulf was too shallow to allow those larger vessels to berth closer to the shore.
7 On 27 March 2009, the authorised applicant of the Wurruwiji estate group and 23 other estate groups filed a native title determination application (NTD 5 of 2009) under the NTA over that part of the Borroloola PPL which included mining lease MLN 1126 (the Wurruwiji claim). That claim was registered on the Register of Native Title Claims under Part 7 of the NTA on 28 May 2009. However, as explained by Mansfield J in Ngajapa at [7], the Wurruwiji claim and a large number of other related claims were later withdrawn or amended to allow the Ngajapa determination to proceed. Hence, the particular claim to which that determination related was not this Wurruwiji estate group claim (NTD 5 of 2009), but rather a later claim that was filed with the Court on 13 June 2014 (see further at [15] below).
8 On 14 March 2013, Mr Michael Williams, the Administration Manager of the McArthur River Mine, sent an email to the Department of Mines and Energy, now the Department of Primary Industry and Resources (the Department), attaching an application dated 8 March 2013 seeking the grant of a mineral lease under the apposite provisions of the Mineral Titles Act 2010 (NT) (the MTA). That application was given the file number MLA 29881 and it will be referred to as such throughout these reasons unless the context requires otherwise.
9 The application for MLA 29881 was in a standard form. That form required, among other things, the identification of the “Commodity to be mined or associated purpose in conjunction with mining”. In response to that requirement, the application stated: “Loading facility for the export of Zinc / Lead / Silver concentrates”. As well, the application had attached to it a Summary of Proposed Works. That summary explained that the purpose of MLA 29881 was to enlarge the existing dredge spoil deposition area partly located on ML 1126, which had reached its capacity, so that it would be possible to continue to deposit dredge spoils in that area resulting from the dredging of the navigation channel allowing access to the Bing Bong Loading Facility. Specifically, it stated:
McArthur River Mining (MRM) operates the Bing Bong Loading Facility through which concentrates produced at the Mine are loaded onto a self propelled barge and then transhipped onto Ocean Going Vessels for export throughout the world.
The loading Facility is predominately located on Mineral lease MLN 1126 and consists of a concentrate storage shed and barge loading conveyor system, a swing basin and navigation channel.
At the time of construction in 1994/95 an area on the southern boundary of the Mineral Lease was developed into a dredge spoil deposition area. The swing basin and navigation channel require regular dredging to remove silts and muds from the channel to ensure that sufficient under keel clearance is maintained to enable safe operations for the barge.
Dredged material has been deposited in the spoil area during the course of several dredging campaigns spanning 15 years, however the capacity of the spoil area has now been reached and as such an additional dredge spoil area needs to be constructed.
Works proposed will include the construction of a new dredge spoil area similar in size and design to the existing spoil area and will include engineered internal and external walls and internal and external drains to carry sea water to the existing drainage channel and back out to sea.
The new dredge spoil area will have sufficient capacity to cover anticipated dredging requirements out to the end of mine life.
10 Soon after MLA 29881 was lodged, an officer of the Department asked the person at Mount Isa Mines responsible for the application what name Mount Isa Mines wished to give to the mineral lease. He explained: “In regard to the name of the ML, The Department allocates it a number but it is up to the client to select a name of choice. Please let me know the name once decided”. The email response dated 2 April 2013 said: “Happy to go with Bing Bong Port Ancillary Lease”.
11 The next significant step in the application occurred about a year later. On 23 April 2014, the then Northern Territory Minister for Mines and Energy issued a notice under s 71 of the MTA and s 29(2)(b)(ii) of the NTA of “the intent to do an act, namely to grant the following mineral lease application”:
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(Bold and italics in original)
12 Different forms of that notice were subsequently published in the NT News and Koori Mail newspapers. The difference related to the nature of the acts which the proposed grant would authorise. The notice in the NT News described those acts as being “ancillary to mining” and “for the purpose of a loading facility” as follows:
Nature of act(s): The grant of a mineral lease under section 78 of the Mineral Titles Act authorising the holder to conduct activities in the title area that are ancillary to mining conducted under other Mineral Leases granted to the title holder.
An ancillary lease for the purpose of a loading facility.
13 On the other hand, the notice in the Koori Mail described the acts as “to explore and mine for minerals” in the following terms:
Nature of act(s): The grant of a mineral lease under the Mineral Titles Act authorises the holder to explore and mine for minerals including (but not limited to) the processing and the removal of minerals from the lease area and the treatment of tailings or other mining material the property of the Crown on the lease area including any extractive minerals for or in connection with any of the purposes specified in the lease document for a term the Minister thinks fit and to seek renewals.
14 In addition to publishing that notice, copies of it were provided to several bodies, including the National Native Title Tribunal, the Northern Land Council (the NLC) and Mount Isa Mines. The notice provided to those bodies described the authorised acts in similar terms to those of the notice published in the Koori Mail above. It stated:
Nature of act(s):
The grant of a mineral lease under the Mineral Titles Act authorises the holder to explore and mine for minerals including (but not limited to) the processing and the removal of minerals from the lease area and the treatment of tailings or other mining material the property of the Crown on the lease area, including any extractive minerals for or in connection with any of the purposes specified in the lease document for a term the Minister thinks fit and to seek renewals. The term for which it is intended to grant the mineral lease referred to in this notice commences from the date of grant.
Native Title Parties:
Any person who is, or becomes a “native title party” within the meaning of the [NTA] is entitled to the negotiation and/or procedural rights provided in Part 2, Division 3, Subdivision P of the [NTA]. Under section 30 of the [NTA], persons have until 3 months after the notification day to take certain steps to become native title parties in relation to this notice. Enquiries concerning becoming a native title party should be directed to the National Native Title Tribunal, Level 16, Law Courts Building, Queens Square, Sydney NSW 2000 or GPO Box 9973, Sydney NSW 2001, or telephone (02) 9227 4030.
Objection or Submission, Section 71 of the Mineral Titles Act:
The landowner(s) of land in respect of which the following application is made may lodge an objection to the grant or the application; any other persons may lodge a submission. Objections and submissions must be lodged in writing with the Department of Mines & Energy at the above mentioned address, within 30 days from the relevant Notification Date which is set out below.
(Bold and italics in original)
15 Native title determination application NTD 17 of 2014 was filed with the Court on 13 June 2014. As already noted, the Ngajapa determination was made with respect to that claim.
16 On 8 August 2014, the NLC, in its capacity as the native title representative body responsible for the region in which MLA 29881 was located, wrote to the Chief Operating Officer of McArthur River Mining Pty Ltd and offered to commence good faith negotiations under the NTA with respect to the proposed grant.
17 On 15 September 2014, the Department wrote to the NLC with respect to that negotiation process (the right to negotiate under s 31 of the NTA). That letter relevantly stated:
The Northern Territory Government notified its intention to grant the above mentioned Mineral Lease 29881 in both the NT News and the Koori Mail with a notification date as follows:
Tenement | Applicant | NT Claim | Notified |
Mineral Lease 29881 | Mount Isa Mines Limited | DC2014/003 NTD17/2014 | 23 April 2014 |
As your native title claim has been registered over the area of the Mineral Lease, section 31 of the Native Title Act (NTA) requires the Department of Mines & Energy (the department), the grantee (the applicant) and the native title party (represented by the Northern Land Council) to sign an agreement (tripartite deed) to enable the grant of the Mineral Lease 29881.
It is also expected that the native title party may require an ancillary agreement with the grantee prior to them signing the tripartite deed.
To enable the three parties to reach agreement and sign a tripartite deed, the NTA requires that the native title party have the opportunity to make submissions in regard to the proposed grant of the Mineral Lease 29881.
Your written submission can be forwarded to the department to the attention of the Native Title and Aboriginal Land Right Unit. A copy of any submission lodged by you will be forwarded by the department to all parties as soon as possible after receipt.
Furthermore, the department expects that you will negotiate in good faith:
• with the view to reaching an agreement;
• by keeping the department informed of progress; and
• providing the department with copies of any documents exchanged.
18 Thereafter, approximately seven months elapsed during which period no s 31 negotiations were undertaken. That inaction is most likely explained by the contents of a letter Mr Kevin Stephens of Ward Keller, lawyers acting on behalf of Mount Isa Mines, sent to the Department on 20 April 2015. In that letter, Mr Stephens expressed concerns that “the correct procedures are not being followed under the [NTA], which may invalidate the grant of MLA 29881 to the extent it affects native title”. Specifically, he claimed:
(a) that while they contained “significantly different statements of the nature of the acts”, neither of the s 29 notices published with respect to the application was accurate;
(b) that the “right to negotiate” provisions in s 26(1)(c)(i) and the provisions of s 24MD(6B) of the NTA did not apply to the application because “[t]he proposed grant of MLA 29881 is neither the creation nor a variation of a right to mine”;
(c) that instead the application passed the freehold test under s 24MD(1) of the NTA and any native title holders were therefore vested with the same procedural rights as freehold title owners under s 24MD(6A) of the NTA.
The letter concluded with the following summary and requests:
[Mount Isa Mines] is concerned to ensure that it has good title to any grant of MLA 29881. Purporting to comply with the right to negotiate process, when it is not the applicable NTA provision, will not ensure the valid grant of MLA 29881 in relation to native title rights and interests. We request that the [Department] reconsider its position in relation to MLA 29881 based upon the above.
If you have any queries, or wish to discuss any aspect of the above, please contact me. I look forward to hearing from you in due course.
19 About two and a half months later, on 10 July 2015, the Department wrote to the NLC informing it that it had received the letter from Mr Stephens mentioned above and stating, among other things, that it was seeking legal advice on the issues raised in it, as follows:
…
The details in the [23 April 2014] Notification are not accurate in that the proposed purpose for the [mining lease] is not for a loading facility, but a storage area for dredge spoils from the harbour. Therefore re-notification of the proposed act will be required to accurately reflect the use of the [mining lease] once granted.
…
The Department of Mines and Energy is currently reviewing the applicable NTA process to ensure the future act is valid and for the re-notification of ML 29881, which is specifically for a dredge spoils storage area and has sought legal advice on that issue.
To ensure the future act is valid, the Department does not propose to effect the grant of the title in the first instance until the matter is resolved, however does support in principle that section 24MD(6A) of the NTA is the more appropriate section for of [sic] grant.
…
20 A further 12 months elapsed during which period the Department sought the legal advice mentioned above. In the meantime, as mentioned at the outset, on 26 November 2015, the Ngajapa determination was made.
21 Ultimately, on 13 July 2016, the then Northern Territory Minister for Mines and Energy and the Chief Executive of the Department caused a new notice to be published in the NT News newspaper concerning the grant of MLA 29881. That notice was provided under s 71 of the MTA. It stated that the purpose of the grant was “to construct, use, repair and maintain a dredge spoils area to support mining operations under another Mineral Lease granted to the title holder”. It was in the following form:
22 The Department provided a copy of that notice to the Top End PBC by letter dated 18 July 2016. That letter adopted the theme of Ward Keller’s letter above (at [18]). However, it stated the purpose of the grant in slightly different terms (but significant for the purposes of this matter) as follows:
Re: Application by Mount Isa Mines Limited for Mineral Lease (ML 29881) – Native Title Act 1993 (NTA) future act processes – Section 24MD(6A) notice
Please note that an application for Mineral Lease 29881 (“the Mount Isa Mines application”) has been made by Mount Isa Mines Limited for the purpose to construct, use, repair and maintain a dredge spoils area to support a mining operation on the adjacent Mineral Lease Northern (MLN) 1126, also held by Mount Isa Mines Limited.
A notice as required by section 24MD(6A) of the Native Title Act 1993 is attached, together with a map of the proposed mineral lease area. The notice sets out in summary from [sic], the particular infrastructure or activities ancillary to mining that are required on the Mount Isa Mines application area, and provides the timeframe within which any objection by a Registered Native Title Body Corporate, or any comment by the Recognised Aboriginal/Torres Strait Islander Body for the area, must be provided.
Also attached is a copy of the public notice placed in the NT News on the 13 day of July 2016, in accordance with section 71 of the Mineral Titles Act.
(Errors in original. Italics and emphasis added)
23 Part 4 of the attached “notice as required by s 24MD(6A)” was headed “Future Act”. Among other things, it repeated the purpose of the grant in similar terms to those above as follows:
Background:
Mount Isa Mines Limited, the holder of Mineral Lease 29881 (‘the ML’) has applied pursuant to section 41 Mineral Titles Act (NT) for the grant of a mineral lease for ancillary purposes, to enter the area of the proposed future act for the purpose to construct, use, repair and maintain a dredge spoils storage area to support mining activities conducted on adjacent Mineral Lease (MLN) 1126.
In summary, the particular infrastructure or activities ancillary to mining that are required on the Proposed Future Act are:
a) storage of dredge spoils waste rock
b) surface water management works to control the discharge of sea water run-off and sediment from the project site.
Proposed Future Act/s
The Minister proposes to grant the ancillary mineral lease to Mount Isa Mines Limited for the purposes sought by Mount Isa Mines Limited (the Proposed Future Act). The Proposed Future Act will not permit mining.
The Northern Territory has formed the view that Subdivision M of Division 3 of Part 2 NTA applies to the Proposed Future Act because it is an act passing the freehold test under s24MB NTA given that the act could be done in relation to the land concerned if the native title holders instead held ordinary title.
The Proposed Future Act will NOT extinguish native title rights and interests in the land affected as the non-extinguishment principle will apply.
(Italics and emphasis added)
24 On 19 July 2016, Ms Rebecca Hughes, a lawyer employed by the NLC, made a request of Mr Alan Holland, Senior Director Mines, that she be provided with a copy of the application for MLA 29881. Mr Holland responded on 20 July:
Sorry, we cannot provide a copy of the application to you without the approval of the applicant.
Best to contact McArthur River Mine or Mr Kevin Stephens from Ward Keller.
25 Ms Hughes then sent an email to Mr Stephens in which she set out the history of the application, emphasised that “[t]he nature of the proposed act is critical” and requested that she be urgently provided with a copy of the application for MLA 29881 as follows:
…
As you are aware, the NLC was initially notified about the proposed grant on the basis that it triggered sections 29 and 30 of the Native Title Act, and accordingly the right to negotiate. We were subsequently provided with correspondence from Ward Keller to [the Department] dated 20 April 2015, which contended that the proposed grant of MLA 29881 is a future act to be validated by section 24MD(6A) of the NTA. This letter advised that the “activities to be authorised by, and conducted under, MLA 29881 are outlined in the ‘Summary of Proposed Works’ attachment to the MLA 29881 application.” We were not provided with a copy of this application.
The nature of the proposed act is critical to Ward Keller’s analysis and this analysis, which has been adopted by [the Department], has significant implications for our clients’ rights in the circumstances. Accordingly, we would be grateful if you can urgently forward a copy of that application so that we are able to make our own assessment.
26 Having not received a response to Ms Hughes’ email, on 4 August 2016, Mr Michael O’Donnell, the NLC’s Principal Legal Officer, wrote to Mr Holland of the Department seeking clarification as to whether the Department’s 18 July letter above (at [22]) was intended to give notice under s 24MD(6A) or s 24MD(6B) of the NTA. Mr O’Donnell’s letter also repeated the earlier request to be provided with a copy of the application for MLA 29881 and pointed out that the Department, rather than Mount Isa Mines, had provided the notification of 18 July 2016, which was not in compliance with s 66 of the MTA. It was in the following terms:
MINERAL LEASE APPLICATION 29881 – MOUNT ISA MINES LIMITED – DREDGE SPOILS STORAGE AREA BING BONG
I act for the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC.
I refer to your letters of 18 July 2016 and attached notices, purporting to give notification under section 24MD(6A) of the Native Title Act 1993 (Cth) (NTA) of a proposed future act, being the proposed grant of ML 29881 to Mt Isa Mines Limited under the Mineral Titles Act (Proposed Future Act).
I note that section 24MD(6A) provides that native title holders and any registered native title claimants ‘have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned’. The effect of this would be to give native title holders the benefit of notification under section 66 of the Mineral Titles Act, whereby the applicant for the grant of a mineral title must give notice to each landowner whose land comprises all or part of the title area. We note that the letters and purported notification of 18 July 2016 come from Department of Mines and Energy, rather than the applicant for the grant (Mt Isa Mines Limited) and therefore do not comply with section 66 of the Mineral Titles Act.
We also note that an additional notification requirement is contained in section 24MD(6B)(c) of the NTA and that section 24MD(6B)(d) provides that ‘any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests’.
We seek your urgent confirmation as to whether your letters of 18 July 2016 are actually an attempt to supply a notice pursuant to section 24MD(6B) of the NTA and confirmation that, if so, our client will have the benefit of the other consequences set out in that clause.
In any event, we reserve our client’s position as to whether or not the Proposed Future Act has been correctly classified and notified by the Northern Territory, including as to whether Subdivision P—Right to Negotiate is applicable.
We also seek a copy of the application for the Proposed Future Act so that we are able to properly advise our client and obtain full and complete instructions in relation to this matter. You have advised that the [Department’s] practice is not to release, without the approval of the applicant, applications for MLs under section 41 of the Minerals Titles Act to native title holders whose interests may be affected by the application and who also have legal rights pursuant to the NTA. If this position is maintained it will cause unnecessary delay in progression of this matter and we will need to seek instructions as to how this can be remedied including applications pursuant to the Information Act. We would be grateful if you can please reconsider this position given the potential effects on our client’s rights.
…
(Errors in original)
It should be noted that Ms Hughes sent a letter to the Department in similar terms to the above letter on the previous day.
27 On 9 August 2016, Mr Stephens wrote to the NLC and formally rejected its requests for a copy of the application for MLA 29881. He did so in the following terms:
…
[Mount Isa Mines] does not propose to release to the Northern Land Council either [Mount Isa Mines’] application to the Department of Mines and Energy (DME) for the MLA or a copy of MLN 1126, the mineral lease for the Bing Bong Loading Facility. The publicly available STRIKE Tenure and Geoscience Information System operated by the DME and the public notification of the proposed grant of the MLA provide the requisite level of information.
However, he then went on to provide a copy of the “Summary of Proposed Works” attached to the application and stated that those works were “ancillary to mining conducted elsewhere, being the McArthur River Mine and not MLN 1126”, as follows:
Because the ‘Summary of Proposed Works’ was referred to in our letter to [the Department] dated 20 April 2015 (provided by the DME to the NLC) I attach a copy of the ‘Summary of Proposed Works’ that accompanied MIM’s application for the MLA. As set out in our letter to [the Department] dated 20 April 2015 the MLA will only provide rights pursuant to section 40(1)(b)(ii) of the MTA to conduct activities that are ancillary to mining conducted elsewhere, being the McArthur River Mine and not MLN 1126.
…
(Bold in original)
The attached “Summary of Proposed Works” was in the same form as that set out at [9] above.
28 On 26 August 2016, Mr O’Donnell sent a further letter to Mr Holland of the Department and sent a copy thereof to Mr Stephens of Ward Keller. In that letter, Mr O’Donnell claimed that MLA 29881 was invalid under both the NTA and the MTA. It is to be noted that the propositions advanced in this letter are essentially the same as those pursued by the applicants in this proceeding as outlined later in these reasons. The pertinent parts of that letter are as follows:
MINERAL LEASE APPLICATION 29881 – MOUNT ISA MINES LIMITED – DREDGE SPOILS STORAGE AREA BING BONG
I refer to the notification of the application for the grant of ML 29881 given on 18 July 2016 and to previous correspondence in the matter, including my letter of 4 August 2016 to which I have had no reply.
The Registered Native Title Body Corporate (the PBC) and the native title holders of the land affected by the proposed grant of mineral lease ML 29881 consider that the application is invalid and does not, as required by ss 4 and 74 of the Mineral Titles Act 2011 (NT), follow the procedures under [the] Native Title Act 1993 (Cth) (the NTA) relevant to the application.
The application and proposed grant are not valid under s 40 of the Mineral Titles Act because:
1. The proposal does not involve activities to be conducted on the ML 29881 area that are ancillary to mining conducted under another mineral lease (ML) granted to the title holder (MIM) within s 40(l)(b)(ii). The notification states that ML 29881 is to be granted for the purpose of a dredge spoils area to support mining conducted on adjacent MLN 1126. Mining (as defined in s 12 of the Act) is not being conducted on MLN 1126. What is being conducted under MLN 1126 involves storage and transport of concentrate from ore and a barge loading facility, not mining as defined in the Act. Also, in view of the transitional provisions (s 202(2)), it is questionable whether MLN 1126 is “another ML” within s 40(l)(b)(ii).
2. The Mineral Titles Act, properly construed, only permits what is being proposed as activities that can be undertaken on land outside a mineral title area pursuant to a right of entry conferred by an access authority granted in accordance with s 84 of the Act (assuming MLN 1126 is, notwithstanding the transitional provisions, a mineral title for the purposes of the Act). Section 84 contains limitations and qualifications as to notification and consent from landowners of the relevant land, such that the Act, properly construed, does not permit use of the general powers in s 40 for activities covered by the specific provisions of s 84, which would avoid and negate those limitations.
In relation to s 84, the Mineral Titles Regulations 2011 (NT) prescribes for s 84(3)(c) that the title holder is required to obtain consent to the entry from the owners of the prescribed classes of land that includes private land (freehold or lease hold land) but not native title land (reg 76(2)). The effect is that an access authority could not be granted if the native title holders instead held ordinary title (freehold) in the land. Therefore, a grant of an access authority would not pass the freehold test in s 24MB of the NTA. As contemplated by the note to s 14 of the Mineral Titles Act, it is necessary to have an indigenous land use agreement (ILUA) under the NTA for consent to be given by the relevant (native title) landowner to the grant of an access authority over native title land.
Nonetheless, Mr O’Donnell went on to state that the Top End PBC was willing to enter negotiations:
.. for the making of an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM. This has been done in relation to other mining arrangements in the region to facilitate the grant of an access authority under s 84.
29 In the balance of his letter, Mr O’Donnell then set out the Top End PBC’s position that MLA 29881 would involve the creation of a right to mine within the terms of s 24MD(6B) of the NTA as follows:
Further, if (which is not accepted) the application and proposed grant of ML 29881 would be valid and within s 40(l)(b)(ii) of the Mineral Titles Act, if granted, ML 29881 would involve the creation of a right to mine for the sole purpose of an infrastructure facility associated with mining within s 24MD(6B)(b) of the NTA, and the further procedural consequences in that subsection apply. Those consequences include the requirements that:
1. notification be given to the PBC and the NLC that the act is to be done;
2. the PBC may object, within two months after notification, to the doing of the act so far as it affects the native title rights;
3. MIM must consult with the PBC about ways of minimising the act’s impact on the native title rights; and
4. the Territory must ensure that the objection is heard by an independent person or body.
The Territory has not taken the necessary steps to comply with the requirements of s 24MD(6B) of the NTA. That means that the Minister cannot be satisfied, as required by s 74 of the Mineral Titles Act, that the procedures under the NTA relevant to the application have been followed.
30 Mr O’Donnell concluded his letter with the following requests and stating that he had provided a copy of the letter to Ward Kelly Lawyers:
In these circumstances, the PBC requires your written acknowledgement that the Minister (and relevant Territory officers) will not act upon the application for MLN 29881 and will refuse the application.
In view of our previous correspondence in the matter, and noting that the close of notification day is 18 September 2016, the PBC requires that written acknowledgement no later than 4.00pm 5 September 2016. Failing that acknowledgment, the PBC will consider itself at liberty to seek appropriate declaratory and other relief in the Federal Court.
I have provided a copy of this letter to the solicitors for MIM, Ward Keller, inviting MIM to withdraw the application (under 69 of the Mineral Titles Act) and repeated the advice that the PBC is ready and willing to enter into negotiations for the making of an ILUA for the grant of an access authority.
31 The Department responded to Mr O’Donnell’s letter of 4 August 2016 above (at [26]) in a letter dated 29 August 2016. This letter appears to have been sent before Mr O’Donnell’s letter of 26 August 2016 above (at [28]) was received. It was in the following terms:
Re: Mineral Lease Application 29881 – Mount Isa Mines Limited
In responding to a letter from Mr Michael O’Donnell dated 04 August 2016,1 can confirm the following.
The Notices with respect to Mineral Lease application 29881 were provided to the Northern Land Council (NLC), the Representative Native Title Body Corporate Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (C/O the NLC GPO Box No.) and the Registered Native Title Claimant NNTT No. DCD2015/008 Top End (Default PBC/CLA Aboriginal Corporation RNTBC (C/O the NLC GPO Box No.) on the 18th July 2016 under Section s24MD (6A) of the Native Title Act 1993 (CTH)[.]
With reference in your letter to complying with section 66 of the Mineral Titles Act, (MTA), this requirement was satisfied by the applicant following the initial application of Mineral Lease 29881 in March 2013. At that time, the applicant provided a list of landowners, and served a notice of the making of the application on each of the landowners as they are defined under the MTA.
To the last part of your letter, I can also confirm that a copy of the application for Mineral lease 29881 can be forwarded to you once the applicant provides written approval to the Department to do so.
I am advised that you have lodged an application under the Information Act for such documents and cannot comment on that further at this stage.
32 On 5 September 2016, in apparent response to the requests contained in the final paragraph of Mr O’Donnell’s 26 August letter above (at [28]-[30]), Mr Stephens wrote to Mr Holland of the Department and stated that Mount Isa Mines was agreeable to any decision on MLA 29881 being deferred on certain terms as follows:
MCARTHUR RIVER MINE – APPLICATION FOR ML 29881
I refer to the letter from the Northern Land Council (NLC) to you dated 26 August 2016 in relation to mineral lease application 29881 (MLA 29881) made by Mount Isa Mines Limited (MIM).
MIM does not agree that an Access Authority pursuant to section 84 of the Mineral Titles Act is the correct form of tenure for the activities proposed. Furthermore, MIM does not agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) apply to the grant of a mineral lease for downstream operations that are ancillary to mining.
Given the above, and that any grant of MLA 29881 is an act of the Territory, MIM is not proposing to withdraw its application for MLA 29881. However, in the circumstances MRM is willing to support a deferral of any decision by the Minister as to whether to grant MLA 29881 and for the Department of Mines and Energy to give to the NLC not less than 21 days’ prior notice in writing of any intention by the Minister to grant MLA 29881.
…
33 On 5 September and 7 September 2016, Mr O’Donnell wrote to Mr Stephens and Mr Holland, respectively, in similar terms, seeking clarification of the terms on which MLA 29881 was to be deferred. The letter to Mr Stephens relevantly stated:
I refer to your letter of today’s date.
First, your letter advises that, ‘in the circumstances MRM is willing to support a deferral of any final decision by the Minister as to whether to grant MLA 29881 and for the Department of Mines and Energy to give to the NLC not less than 21 days’ prior notice in writing of any intention by the Minister to grant MLA 29881’.
I note that it is not clear on the face of the correspondence whether this position is agreed between your client and the Department of Mines and Energy (DME). It is also not clear as to whether DME has been copied into the correspondence. I would be grateful if you can please confirm these matters as soon as possible.
Second, while your letter advises your client does not accept that the right to negotiate provisions are applicable to the proposed grant of ML 29881, it remains silent as to whether nevertheless, the consequences in s 24MD(6B) would apply to the grant of the mineral lease, if otherwise valid.
Again, I would be grateful if your client's position on the applicability of s 24MD(6B) can be confirmed as soon as possible.
34 Mr Holland’s response to Mr O’Donnell’s letter is critical in this matter. It was contained in a letter dated 12 September 2016. It was addressed to the “Chairman” and commenced with the salutation “Dear Mr Bush-Blanasi”. It was in the following terms:
Re: Mineral lease Application 29881 – Mount Isa Mines Limited
I refer to a letter from Mr Michael O’Donnell Principal Legal Officer dated 07 September 2016, requesting to defer any final decision to grant ML 29881 to Mount Isa Mines Limited (MIM) without giving the Northern Land Council (NLC) at least 21 days’ notice of the intention to grant.
As the Department was advised by MIM on 05 September 2016 that they are willing to support a procedure providing 21 days’ notice to the NLC of any decision to grant ML 29881, the Department agrees to your request in this case.
35 Notwithstanding the agreement to defer MLA 29881, on 16 September 2016, the NLC lodged an objection to the grant of MLA 29881 on behalf of the Top End PBC “as agent on behalf of the native title holders”. Among other things, the “Introduction” section of that objection noted the agreement to defer MLA 29881 and stated that the objection was provided “without prejudice to the position outlined in the letters dated 26 August 2016 from the NLC”. While it is lengthy and substantially reiterates the position as stated in the aforesaid letter, since the Department’s subsequent treatment of this objection is critical to one of the applicants’ issues later in these reasons, it is appropriate to set the relevant parts of it out in full, as follows:
Introduction
1. The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End PBC) is the registered native title body corporate in respect of native title determination made in Ngajapa v Northern Territory of Australia [2015] FCA 1249 over the area of land known as McArthur River Station (Native Title Determination).
2. The Department of Mines and Energy (Department) has given notice of application for mineral lease ML 29881 by Mt Isa Mines Ltd (MIM) over part of the land covered by the Native Title Determination (ML 29881 Area) by letter dated 18 July 2016 that attached a document titled “Notification under NTA s 24MD(6A)” (the notification). MIM seeks the grant of ML 29881 to construct, use, repair and maintain a dredge spoils storage area on land adjacent to Mineral Lease MLN 1126.
3. The notification states that any comments or objections must be provided within 60 days, that is, by 18 September 2016. It appears that the Department is inviting the Top End PBC to provide objections to the proposed grant under s 24MD(6A) of the Native Title Act 1993 (Cth) (NTA) by which the native title holders would have the procedural rights in Pt 5 Div 2 of the Mineral Titles Act 2010 (NT) (esp. s 71(3)(d)). Neither the Department nor the proponent (MIM) who applied for the grant intends to consult with the Top End PBC in accordance with s 24MD(6B) of the NTA.
4. The Top End PBC as agent on behalf of the native title holders of the ML 29881 Area objects to the proposed grant of ML 29881 on the following grounds that come within two groups. The first is that the application is not valid; the second is that if the grant were made, there would be unreasonable and adverse impacts on the native title rights.
5. By letters dated 26 August 2016 from the NLC to the Department and MIM, the NLC for the Top End PBC requested that the Department confirm that the Minister will not act upon the application and that MIM will withdraw the application. The Department by letter dated 2 September 2016 advised that the matter had been referred to the Solicitor for the Northern Territory for advice, and by further letter dated 12 September 2016 advised that it would provide the NLC 21 days’ notice of any decision to grant ML 29881.
6. These objections are provided in response to the notification deadline and without prejudice to the position outlined in the letters dated 26 August 2016 from the NLC.
The application for grant is not valid
7. As advised in the letters dated 26 August 2016 the application is invalid for a number of reasons.
8. First, the activities proposed to be undertaken on the ML 29881 Area are not ancillary to mining conducted under another mineral lease granted to MIM pursuant to s 40(1)(b)(i) of the Mineral Titles Act. Mining is not being conducted on MLN 1126. What is being conducted under MLN 1126 involves storage and transport of concentrate from a barge loading facility. Accordingly, the Minister cannot be satisfied that the applicant has met the necessary criteria for the application, as required by s 70 of the Mineral Titles Act.
9. Second, the proposed activities may only be undertaken pursuant to an access authority under s 84 of the Mineral Titles Act. The Mineral Titles Regulations 2011 (NT) prescribes for s 84(3)(c) that the title holder is required to obtain consent to entry to the land from the owners of the prescribed classes of land that includes private land (freehold or leasehold land) but not native title land (reg 76(2)). The effect is that an access authority could not be granted if the native title holders instead held ordinary title in the land. Therefore, the grant of an access authority would not pass the freehold test ins 24MB of the NTA. For the grant of an access authority to be valid, it is necessary to have an indigenous land use agreement under the NTA. The Top End PBC is ready and willing to enter into negotiations for the making of an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM.
10. Third, if, contrary to the above, the application and the proposed grant of ML 29881 would be valid and within s 40(l)(b)(ii) of the Mineral Titles Act (which is not accepted), the grant would involve the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining within s 24MD(6B)(b) of the NTA. As noted, neither the Department nor MIM have complied with the procedures set out in s 24MD(6B) of the NTA. That means that the Minister cannot be satisfied, as required by s 74 of the Mineral Titles Act, that the procedures under the NTA relevant to the application have been followed. For example, under s 24MD(6B)(e) of the NTA, MIM is required to consult with the Top End PBC (on behalf of native title holders) about ways to minimise the impact of ML 29881 on the registered native title rights and interests in relation to ML 29881 Area, access to ML 29881 Area or the way in which any thing authorised by ML 29881 may be done. The Top End PBC has not yet been consulted about any of these matters.
11. Fourthly, MIM did not serve the native title holders with notice of the making of the application for ML 29881, as required by s 66 of the Mineral Titles Act.
Impacts of grant if made
12. The Top End PBC also objects to the grant of ML 29881 on behalf of the native title holders on the basis that it will interfere with the native title rights of those native title holders and with access by the native title holders to the ML 29881 Area and have unreasonable and adverse impacts on the enjoyment of those rights.
13. The grant of ML 29881 will impact on native title holders' ability to exercise their native title rights, pursuant to the Native Title Determination, which are as follows:
(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas;
(e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct and to participate in the following activities on those areas:
(i) cultural activities;
(ii) cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;
(h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
(i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(j) the right to be accompanied on to those areas by persons who, though not native title holders, are:
(i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas;
(ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;
(iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas;
(k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
14. The ML 29881 Area falls within the estate areas of the Mawuli Wuyalia and Wurruwuji Wurdaliya estate groups. Members of the Mawuli Wuyalia and Wurruwuji Wurdaliya have used and continue to use the ML 29881 Area to exercise the native title rights described above, and the ML 29881 area is an important hunting area. The grant of ML 29881 will have a significant impact on the following practical exercise of native title rights:
(a) right to move through country to visit, in particular, old camps and shelters;
(b) right to hunt and fish on country, in particular for hunting goanna, longneck turtle; crab, bush turkey, emu and kangaroo, and
(c) the right to gather food, firewood and medicine on the ML 29881 Area, in particular native sandalwood, water lilies, sugarbag, medicine grass, eucalyptus, paperbark, native blackberries, white berries, banyan tree (for making rope) and pandanus (for making baskets) and other trees (for making a nail-like tip for harpoons to hunt).
15. The ML 29881 Area is spiritually significant to the Mawuli Wuyalia and Wurruwuji Wurdaliya as an important sacred area associated with rain Dreaming. Accordingly, they are concerned that the grant of the ML 29881 will affect not only their ability to access and protect this sacred area, and also affect the area itself and the associated rain Dreaming.
16. It is clear that the activities sought to be undertaken by MIM pursuant to the grant of ML 29881, namely the construction, use, repair and maintenance of a dredge spoils area, will affect the exercise of the recognised rights of the native title holders set out above.
17. Furthermore, these activities will have the following impact on the rights of the native title holders:
• restrictions on access (either physical or safety related) by the native title holders to carry out rites, ceremonies or other activities of cultural significance on the ML 29881 Area;
• physical impact on the land and resources in the area caused by the construction of a dredge spoils area which will impact on the native title holders’ enjoyment of their native title rights and interests; and
• the presence of strangers on or near sacred sites or the location of spiritual, cultural and communal activities.
The application should be refused
18. For these reasons, the Minister should refuse the application for the grant of ML 29881.
…
(Emphasis in original)
36 Thereafter the application for the grant of ML 29881 lay in abeyance for more than two and a half years. It was reactivated on 4 April 2019, when Mr Stephens sent an email to the Department attaching a copy of its letter of 12 September 2016 above (at [34]) and stated:
I refer to my telephone conversation with Carla McConachy of the Mineral Titles Division of the Department of Primary Industry and Resources yesterday and confirm that I still act for Mount Isa Mines Limited (“MIM”) in relation to its application for ML 29881.
MIM requests the Department and Minister proceed with the grant of ML 29881 to MIM. In this regard I note the attached correspondence from the Department to the NLC dated 12 September 2016, in which the Department agreed not to proceed with the grant without first giving 21 days’ notice to the NLC.
I look forward to hearing from you in due course regarding the progress of the grant of ML 29881. If you have any queries, please contact me.
37 On the same day, Ms Turnbull, in her capacity as Director Mineral Titles, sent an email response to Mr Stephens in the following terms:
Thank you Kevin. I have asked Carla to do an ‘audit’ on the file to ensure that nothing has been overlooked by us and we will then proceed, as requested, after taking the NLC’s request into account.
Given that it is [McArthur River Mine] we may need to also advise the Minister prior to grant, as he may wish to sign the documents.
I will keep you in the loop.
38 On 11 April 2019, the Department wrote to Mount Isa Mines advising that MLA 29881 could not proceed until the area of the proposed lease was duly surveyed in accordance with s 76(4) of the MTA and the apposite provisions of Part 3 Divisions 1 and 2 of the Mineral Titles Regulations 2011 (NT).
39 On 17 April 2019, the Department sent an email to Mr Stephens in response to his email of 4 April 2019 above (at [36]) and belatedly provided him and, through him, Mount Isa Mines with a copy of the NLC’s objection set out above (see at [35]). That email relevantly stated:
On 04/04/2019 you advised the Department that you acted on behalf of Mount Isa Mines Limited and requested that we proceed with grant of ML 29881.
As you are aware a review of ML29881 is being conducted and as such it appears that a letter from the NLC dated 16/09/2016, regarding an objection under 24MD(6A) (giving procedural rights like a landowner) has not been provided to the applicant.
A copy is provided for your information and no further action is required.
We will continue to proceed towards grant of the ML[.]
…
40 The next significant step in processing MLA 29881 occurred on 24 September 2019, when Ms Carla McConachy, a Departmental officer with the designation “Team Leader”, sent a memorandum with respect to the application to Ms D Turnbull, the Director Mineral Titles appointed under the MTA (the Director). That memorandum set out the background of the application and a summary of the objection lodged by the NLC on 16 September 2016 (see at [35] above), as follows:
An application for ML 29881 held by Mount Isa Mines Limited (MIM) was lodged on 14/03/2013 for a term of twenty five (25) years, in the Bing Bong locality over an area of 785.98 hectares.
• The underlying land is PPL 1051 (NT Portion 4319), which is held by Mount Isa Mines Limited.
• The application was advertised on 13/07/2016 in the NT News and attracted one (1) Mineral Titles Act 2010 submission. A separate memorandum has been prepared for the submission.
• On 19/07/2016 notices under section 24MD(6A) of the Native Title Act 1993 (NTA) were sent to the Northern Land Council (NLC), Registered Native Title Claimant (RNTC), Registered Native Title Body Corporate (RNTBC). MT2013/0173~0035
• The NLC, on behalf of the RNTBC lodged an objection on 16 September 2016. To date the objection has not been withdrawn.
The following is a summary of the information contained in the objection under section 24MD(6A) of the NTA:
• that the application is not valid, listing four (4) points in detail;
i. firstly, the activities proposed to be undertaken on the ML29881 are not ancillary to mining conducted under MLN1126, as MLN1126 is an Ancillary Mineral Lease.
ii. second, the proposed activities may only be undertaken pursuant to an access authority under s84 of the MTA, and the MTA states that the holder is required to obtain consent to entry to the land from the owners of the prescribed classes of land that includes private land (freehold or leasehold) but not native title land. The effect is that an access authority could not be granted if the native title holders instead held ordinary title in the land. Therefore the grant of an access authority would not pass the freehold test in s24MB of the NTA. For the grant of an access authority to be valid it is necessary to have an ILUA under the NTA, which the Top End PBC is willing to enter into negotiations for the making of an ILUA.
iii. third, if, contrary to the above, the application would be valid and within s40(1)(b)(ii) of the MTA (which is not accepted), the grant would involves the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining with s24MD(6B) of the NTA. As noted, neither the Department nor MIM have complied with the procedures set out in s24MD(6B) of the NTA.
iv. Fourthly, MIM did not serve the native title holder with notice of the making of the application for ML29881 as required by s66 of the MTA.
• The Top End PBC also objects to the grant of ML29881 on behalf of the native title holders on the basis that it will interfere with the native title rights and have unreasonable and adverse impacts on the enjoyment of those rights.
• The grant of ML29881 will impact on native title holders' ability to exercise their native title rights.
• The ML areas falls within the estate areas of the Mawuli Wuyalia and Wurruwuji Wurdaliya estate groups and members of these groups have used and continue to use the areas to exercise their native title rights, and the area is an important hunting area.
• The ML area is spiritually significant to the Mawuli Wuyalia and Wurruwuji Wurdaliya as an important sacred area associated with rain Dreaming.
• The activities on ML29881 will impact the rights of native title holders by restricting access to carry out rites and ceremonies.
The NLC also wrote to the Department asking whether 24MD(6B) of the NTA was the more appropriate form of notification for ML29881, and the department agreed to provide 21 days notice to the NLC of any decision to grant ML29881 while awaiting legal advice.
[Redacted]
The department provided Ward Keller Lawyers, who are acting on behalf of the applicant, a copy of the objection on 17 April 2019. In 2016 when the objection was lodged, it was not realised that a copy would need to be provided to the applicant. Given the time that had passed they were advised that a response was not required. In a verbal conversation with Kevin Stephens from Ward Keller, he requested that if the application was to be viewed negatively that they should be allowed to submit a response.
It should also be noted and considered (since approx. 2009) that the area already has an existing dredge spoil, which the Pastoral Land Board approved and issued a number of non-pastoral use approvals in relation to the dredge spoils within the ML area. MT2013/0173-0033 & MT2013/0173-0034.
In relation to the native title significant and/or sensitive areas, it is a requirement that the applicant obtains a clearance of any sacred sites from the Aboriginal Areas Protection Authority.
(Errors in original)
41 Ms McConachy concluded her Memorandum by making the following recommendation:
That you, as Delegate of the Minister for Primary Industry and Resources sign below approving your intention to continue processing the application for Mineral Lease 29881 towards grant.
At the bottom of the Memorandum, this recommendation was recorded as “Supported” by Ms Nicole Wear, Assistant Manager of Mineral Titles and “Signed” by Ms Turnbull as Director on 27 September 2019.
42 The next step occurred on 10 October 2019 when Mr Stephens sent an email to Ms McConachy referring, among other things, to the Department’s letter to Mount Isa Mines of 11 April 2019 concerning the need for a survey of the lease area (see at [38] above) and stated:
Further to your e-mail below and your letter to Mount Isa Mines Limited (MIM) dated 11 April 2019 requiring a plan of survey approved by the Surveyor-General to enable the grant of ML 29881, please find attached Survey Plan S2019-066 duly approved by the Surveyor-General.
MIM requests that the Minister proceed to grant ML 29881.
MIM would appreciate advice from the Department as to when it has given notice to the Northern Land Council (NLC) of the intention to grant ML 29881, in accordance with the Department’s letter to the NLC dated 12 September 2016.
If you have any queries in relation to the above, please contact me. I look forward to hearing from you and MIM looks forward to the grant of ML 29881.
43 Two weeks later, on 24 October 2019, in her capacity as the Director, Ms Turnbull wrote to the Chairman of the NLC, Mr Bush-Blanasi, in the following terms:
Re: Issue of Notice of Intention to Grant – ML 29881
I refer to the departments [sic] letter dated 12 September 2016 regarding an undertaking to provide the Northern Land Council (NLC) 21 days’ written notice prior to any final decision to grant Mineral Lease (ML) 29881 to Mount Isa Mines Limited.
All legislative requirements have now been satisfied and the department intends to issue the above notice on 18 November 2019. The ML will be granted upon payment of the prescribed rent outlined in the notice.
…
44 A copy of this letter was provided to Mr Stephens and he responded by email to the Department on the same day saying: “Thank you very much for notice of the notification”.
45 The originating application in the present proceeding was filed about three weeks later, on 19 November 2019. It was supported by a statement of claim.
46 In the days before filing this proceeding, the Top End PBC applied to the Northern Territory Civil and Administrative Tribunal (NTCAT) for a hearing in relation to the objection that had been lodged on its behalf with the Department (see at [35] above). It made that application on 15 November 2019 under s 24MD(6B)(d) of the NTA. On the same day, Ms Marion Scrymgour, the Chief Executive Officer of the NLC, sent a letter to the Chief Minister of the Northern Territory and to the Minister, enclosing a copy of a letter to Ms Turnbull, Director Mineral Titles, stating:
I am bringing this letter to your direct attention as a matter of upmost [sic utmost] concern to the Northern Land Council and to the native title holders it represents. The Department, having failed to engage with the native title holders of the land for more than 3 years in relation to the proposed grant, notified the NLC on 24 October 2019 that it intends to grant the Mineral Lease on 18 November 2019.
In the circumstances, where it is now necessary for the native title holders to commence proceedings in the Federal Court of Australia to protect their rights, I trust and seek your assurances that the Northern Territory will not take any precipitative action to frustrate the Court’s processes.
47 The enclosed letter to Ms Turnbull stated, in part:
1. I refer to your letter dated 24 October 2019 stating that the Department of Primary Industry and Resources (the Department) intends to issue a notice of intention to grant Mineral Lease (ML) 29881 to Mt Isa Mines Ltd (MIM) on 18 November 2019.
2. On 26 August 2016 we wrote to the Department (then, the Department of Mines and Energy) on behalf of the Registered Native Title Body Corporate (the PBC) and the native title holders of the land affected by the proposed grant of ML 29881 setting out detailed reasons why the application and proposed grant is invalid and does not follow the requisite statutory procedures. We invited discussions on negotiating an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM.
3. In a response dated 2 September 2016, the Department stated that it had referred our letter to the Solicitor for the Northern Territory for advice, and that it would respond once that advice was received.
4. On 16 September 2016, we wrote again to the Department on behalf of the PBC providing a detailed objection to the grant of ML 29881 on grounds that the application is not valid and that, if granted, there would be unreasonable and adverse impacts on the native title rights.
5. We have had no further response to our August 2016 letter, and no response to our September 2016 objection. Only now, more than three years later, we have received the 24 October 2019 letter giving 25-days’ notice of an intention to make the grant.
6. No explanation has been given in response to the detailed analysis set out in our previous correspondence as to (1) why the grant is not valid and (2) the unreasonable and adverse impacts of the grant on native title rights.
7. Further, no effort has been made to consult or engage with the native title holders.
8. The PBC and the native title holders are now forced into a situation where it is necessary to commence proceedings in the Northern Territory Civil and Administrative Tribunal for a hearing and recommendation in relation to the objection made on 16 September 2016 to the application for the grant of ML 29881, and in the Federal Court of Australia for determination of the validity of the proposed grant of ML 29881.
9. Please advise as to the officer in the Solicitor for the Northern Territory who may have instructions to accept service of the proceedings.
10. Further, noting the obligations of the Northern Territory to behave as a model litigant when handling claims and litigation, we assume, and seek your assurance, that the Department will not take any precipitative action that would frustrate the proceedings, including to make the threatened grant of ML 29881, either before proceedings are issued or while the proceedings are on foot once commenced, which will be shortly.
11. We have copied this letter and enclosures to the legal representative of MIM.
12. The NLC has also written to the Minister for Primary Industry and Resources and the Chief Minister of the Northern Territory providing a copy of this letter. That covering letter is attached for your information.
48 Ms Turnbull responded to this letter by email that afternoon stating:
… I will be away from the office from Monday 18/11 and returning on 25/11 at which time your letter will be fully considered.
49 On 10 December 2019, Mount Isa Mines wrote to the Department requesting an extension of time pursuant to s 167 of the MTA to provide the applicants with notice of MLA 29881 pursuant to s 66(2) of the MTA. The circumstances relied on by Mount Isa Mines for that extension of time were set out in that letter as follows:
(a) the lack of understanding of the requirement for notice by MIM and the Department at the time (and over the intervening years) arising from the difficulty in appreciating the import of the NTA and MTA when read together;
(b) the fact that section 66 only requires that notice be given (rather than affording a right to comment or object of itself) and that the NLC (as representatives of native title holders) were specifically (and separately) advised of the application by the Department and were afforded an opportunity to object, and did so object; and
(c) the fact that adverse weather events in the Gulf (which increase in likelihood over the wet season) may require dredging to be bought [sic] forward which will require access to the area of MLA 29881 for dredge spoil deposition to maintain the sale of product from the mine such that the time taken to withdraw the existing application, lodge a new application, have a new application advertised and let the same objections occur before a grant is possible may materially interfere with the sales of product.
50 On 13 December 2019, the Manager of Mineral Titles as the Delegate for the Minister made the following decision:
I, as Delegate of the Minister for Primary Industry and Resources, pursuant to section 167 of the Mineral Titles Act 2010, allow until the 30 December 2019 to serve a notice of making an application to the landowner/s of land likely to be affected by the grant of Mineral Lease 29881 and to provide proof of service, required under the provision of section 66 of the Mineral Titles Act 2010.
51 On 13 December 2019, Mount Isa Mines sent a letter to the NLC in the following terms:
Mount Isa Mines Limited (MIM) is the applicant for mineral lease 29881 (MLA 29881). MIM applied for MLA 29881 on 14 March 2013. At the time of application native title had not been determined over the land (part of the McArthur River pastoral lease owned by MIM) though the Borroloola Region #2 (Coastal) registered native title claim (NTD 5/2009, NNTT DC2009/001) was in existence.
Pursuant to section 66 of the Mineral Titles Act (NT) (MTA), and an extension of time granted to MIM by the Minister under section 167 of the MTA, MIM hereby notifies:
1. the registered native title claimants of the land the subject of MLA 29881 (as at the application date of 14 March 2013); and
2. the registered native title body corporate for the land the subject of MLA 29881 (from 26 November 2015),
of the application for MLA 29881. Attached is a duly completed Approved Form 24 – Notice of Application for the Grant of a Mineral Title.
MIM as the owner of the McArthur River Mine, operated by McArthur River Mining Pty Ltd, is well known to the NLC and to most native title holders …
THE ISSUES
52 In the applicants’ amended originating application, they sought the following substantive relief:
1. A declaration that the proposed grant of Mineral Lease ML 29881 is invalid.
2. An order restraining the First Respondent from granting the application for Mineral Lease ML 29881.
53 In closing submissions, Mr Glacken QC, the applicants’ counsel, provided a minute to the Court which expressed the relief they sought in more detailed terms as follows:
A. Declarations that:
(1) The First Respondent, the Minister for Primary Industry and Resources, does not have power to decide the application by the Third Respondent for the grant of mineral lease ML 29881 under s 78(2) of the Mineral Titles Act 2010 (NT) made on 8 March 2013 as the proposed grant is not authorised by s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT).
(2) If, contrary to (1), the proposed grant is authorised by s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT), the Minister does not have power to decide the application under s 78(2) of the Mineral Titles Act 2010 (NT) as the procedures under s 24MD(6B) of the Native Title Act 1993 (Cth) are relevant to the application for the purposes of ss 74 and 78(1)(a) of the Mineral Titles Act 2010 (NT) and have not been followed.
(3) If, contrary to (1) and (2), the proposed grant is authorised by s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT) and the procedures under s 24MD(6B) of the Native Title Act 1993 (Cth) are not relevant to the application, the Minister does not have power to decide the application under s 78(2) of the Mineral Titles Act 2010 (NT) as:
(a) the procedures relevant to the application under Part 5 Division 2 of the Mineral Titles Act 2010 (NT) for the purposes of s 78(1)(a), being those in ss 41(2)(c), 58(2)(a), 66 and 72, have not been followed;
(b) the Director Mineral Titles, as delegate of the Minister, purported to, but did not, consider the objection to the grant made by the common law native title holders dated 16 September 2016 and a submission about the application dated 12 July 2016 in accordance with s 78(1)(b)(i) of the Mineral Titles Act 2010 (NT);
(c) whether to require security for compensation in accordance with s 78(1)(b)(ii) and 106 of the Mineral Titles Act 2010 (NT) is not being considered as a procedural right within ss 24MDA(6A) [sic] and 253 (procedural right definition par (c)) of the Native Title Act 1993 (Cth);
(d) by virtue of (a), (b) and (c), the procedures under s 24MD(6A) of the Native Title Act 1993 (Cth) relevant to the application for the purposes of ss 74 and 78(1)(a) of the Mineral Titles Act 2010 (NT) have not been followed.
(4) In considering the application and determining the objection, the Director, as delegate of the Minister, failed to afford procedural fairness to the common law native title holders.
B. Orders that the Minister is restrained from granting ML 29881:
(1) by virtue of not having power to decide the application [consequential to the matters declared at A(1), (2) or (3)];
(2) based on the purported determination of the objection to the grant [consequential to the matters declared at A(3)(b), (4)].
(Emphasis in original)
54 The declarations described in [53A] above essentially fall into three categories. The first category comprises the declaratory relief outlined in [53A(1)] above. That paragraph is based on the allegations in the applicants’ Further Amended Statement of Claim (FASC) that the grant of MLA 29881 is not authorised by s 40 of the MTA. Even though it relies solely on the construction of provisions of Northern Territory legislation, namely the MTA, this Court has jurisdiction to determine that issue because it is a part of the “matter” which constitutes the applicants’ claims in this proceeding (see The Lardil Peoples v State of Queensland (2001) 108 FCR 453; [2001] FCA 414 (Lardil) at [43] per French J (dissenting but not on this point); at [75] per Merkel J; and at [122]-[132] per Dowsett J). Furthermore, since this question is fundamental to the grant of MLA 29881, it is, in practical terms, immaterial whether or not the decision to make that grant has already been made. This is likely to explain why the respondents accept that, if the applicants establish that allegation in their FASC, they are entitled to the declaratory or injunctive relief they have sought.
55 The second category comprises the declaratory relief outlined at [53A(2)] and [53A(3)] above. Those paragraphs are based on the alternative allegations in the FASC that the “Minister intends to and has threatened to grant” MLA 29881, in circumstances where there has been an alleged failure to comply with the provisions of s 24MD(6B) of the NTA ([53A(2)]); or, in the alternative, where there has been an alleged failure to afford them the “procedural rights” prescribed by s 24MD(6A) of the NTA and the relevant provisions of the MTA ([53A(3)]). In their written submissions, the applicants characterised this threatened grant as involving an “apprehended violation of [their] statutory rights”. In Lardil, both French J (at [58]) and Merkel J (at [73]) agreed that such a threatened violation of statutory rights could found the relief the applicants have sought in [53A(2)] and [53A(3)] above.
56 The third category comprises the declaratory relief outlined at [53A(3)(b)] and [53A(4)] above. That category relies on an alleged failure to afford the applicants procedural fairness in “considering the application and determining the objection”. Self-evidently, these words are ambiguous as to whether any decision has been made in relation to MLA 29881, or the objection to which reference is made. The word “considering” suggests the opposite in relation to the application itself and, while the word “determining” may be indicative of a decision having been made with respect to the objection, no such decision is expressly identified. Instead, the statement in [53B(2)] compounds the confusion by referring to it as “the purported determination”.
57 This ambiguity is not resolved in the applicants’ FASC. The only allegation there bearing on this issue is the threatened grant pleaded at [7] (see at [55]) above. The applicants were, however, more forthcoming in their reply to the defence of the Minister and the Northern Territory on this aspect. That defence put in issue the question whether a decision has been made to grant MLA 29881 as follows:
(a) denies that the Minister intends to and has threatened to grant ML 29881;
(b) says that a decision to grant ML 29881 has not been made;
Particulars
Letter from Denise Turnbull, Director Mineral Titles, Department of Primary Industry and Resources, to Mr Bush-Blanasi, Chairman of the Northern Land Council dated 24 October 2019
(c) says that the Minister has not issued a notice of intention to grant ML 29881 to [Mount Isa Mines] pursuant to r60(3) of the Mineral Titles Regulations 2011.
58 In their reply, the applicants responded to these allegations in the following terms:
(1) rely upon the terms of:
(a) the letters dated:
(i) 7 September 2016 from the NLC, representing the common law holders of native title and the PBC, to the Director Mineral Titles, a delegate of the Minister, and copied to Ward Keller (WK), solicitors for MIM asking for confirmation that:
… the Minister (and relevant officers of the Department … ) … will not grant the application for ML 29881 without giving the NLC at least 21 days’ notice of intention to grant;
(ii) 12 September 2016 from the Director to the NLC and copied to WK stating that:
As the Department was advised by MIM on 05 September 2016 that they are willing to support a procedure providing 21 days’ notice to the NLC of any decision to grant ML 29881, the Department agrees to your request in this case.
(b) the letter dated 24 October 2019 from the Director to the NLC and copied to WK with the subject line “Re: Issue of Notice of Intention to Grant – ML 29881”:
(i) referring to the Director’s letter dated 12 September 2016;
(ii) stating that:
All legislative requirements have now been satisfied and the department intends to issue the above notice on 18 November 2019. The ML will be granted upon payment of the prescribed rent outlined in the notice.
(2) rely upon the terms of ss 78 and 165 of the Mineral Titles Act;
(3) say that by the 24 October 2019 letter the Director thereby served or notified the decision to grant ML 29881.
59 Ultimately, the applicants were even more forthcoming on this aspect in closing submissions. That occurred in the following exchange with the applicants’ counsel, Mr Glacken:
MR GLACKEN: … what we say, your Honour, is that there is a threatened intention to grant – that’s what we plead in the statement of claim [sic] at paragraph 7, and that’s the fact that we say should be found.
HIS HONOUR: But is that a decision to grant?
MR GLACKEN: It necessarily follows that there has been a decision to grant, yes.
HIS HONOUR: So you say a threatened intention to grant is a decision to grant.
MR GLACKEN: We say we don’t have to put it that way, but if your Honour rules against us and that a threatened intention to grant is not enough that one articulates a decision, we say that that letter of 24 October and the recommendation made on 24 September are overt acts that evidence a decision for the purposes of section 78.
60 In my view, Mr Glacken’s last statement above mixes two quite separate concepts. That is a threat to violate statutory rights by proceeding to make the grant; and an alleged failure to provide procedural fairness in respect of the decision to make that grant. Except that it will likely reinforce the seriousness of the threat, the former is not dependent on the latter decision having been made. That is to say, if the threat in question is established and if it is shown that the statutory rights concerned have not been afforded, then, for the reasons set out above, that set of circumstances may provide a separate and distinct foundation for relief.
61 However, the same is not the case with the latter. In order to obtain relief in respect of that kind of alleged failure in an administrative decision-making process, an applicant will generally need to establish that a substantive and final decision has been made. That is so because permitting challenges to procedural decisions, or those made “in the course of reasoning on the way to the making of the ultimate decision” (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 336 per Mason CJ) is likely to impair the efficient administration of government. In Bond, Mason CJ discussed the difficulties that would arise from allowing such challenges (at 337):
To interpret a “decision” in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process.
See also Kowalski v Repatriation Commission (2009) 50 AAR 33; [2009] FCAFC 107 at [28] per Spender, Graham and Gilmour JJ and Chief of Navy v Angre (2016) 244 FCR 457; [2016] FCAFC 171 at [80] per Mortimer J (with whom Allsop CJ, Griffiths, Perry and Gleeson JJ agreed).
62 In Bond, Mason CJ went on to compare “a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration” with a decision relating to “a procedural matter not resolving a substantive issue and lacking the quality of finality” (at 337). While these observations were made in the context of a matter concerning the Administrative Decisions (Judicial Review) Act 1977 (Cth), I consider they apply equally to this matter. It follows that, to obtain the relief sought in the third category mentioned above (at [56]), the applicants will need to establish that a decision of the former kind has been made with respect to MLA 29881.
63 Having regard to these conclusions and to the extensive and detailed views about the issues in this matter expressed by the parties and their lawyers in the correspondence described in the “Factual Background” section above, I consider the following issues fall to be determined in this matter:
1. Is the grant of MLA 29881 authorised by s 40(1)(b)(ii) of the MTA?
2. If the answer to question 1 above is in the affirmative, does s 24MD(6B) of the NTA apply to the grant of MLA 29881?
3. If the answer to question 2 above is in the affirmative, have the provisions of ss 24MD(6B)(b)-24MD(6B)(g) of the NTA been complied with?
4. If the answer to question 2 above is in the negative, have the “procedural rights” referred to in s 24MD(6A) of the NTA, as contained in the relevant provisions of the MTA, been afforded to the applicants?
5. If the answer to question 3 or question 4 above is in the negative, has a substantive threat been made to grant MLA 29881?
6. If the answers to the questions above are, in combination, adverse to the applicants, has a substantive and final decision been made with respect to the grant of MLA 29881?
7. If the answer to question 6 above is in the affirmative, have the applicants been afforded procedural fairness with respect to that decision?
THE EVIDENCE
64 Before considering these issues, it is convenient to outline the evidence that the parties relied on to establish their cases with respect to them. While much of this evidence has already been mentioned in the “Factual Background” section above, there are some additional matters which have not been and are therefore dealt with below. First, the applicants tendered a bundle comprising 12 documents, or groups of documents. In addition to document A2 in that bundle, which comprises the two letters that have already been set out above (at [28] and [32]), it included:
(a) A1 – an affidavit by Mr Daniel Wells, a lawyer employed by the NLC, which responded to Ms Turnbull’s first affidavit below (at [67]) by annexing several documents that were not included in that affidavit. Many of those documents have already been described in the “Factual Background” section above;
(b) A6 – a bundle of MTA Approved Forms and Guidelines:
– MTA Approved Form 3 – Application for a Mineral Lease
– MTA Approved Form 24 – Notice of Application for the Grant of a Mineral Title
– MTA Guideline – Application for the Grant of a Mineral Lease over Native Title Affected Land
– MTA Guideline – Application for an Access Authority on Native Title Affected Land Flowchart
– MTA Guideline – Objections or Submissions for the Grant of a Mineral Title
(c) A3, A7, A8, A9, A10, A11 – numerous documents which related to the contested discovery process that occurred during the interlocutory stages of the proceeding, together with the documents produced in that process. Most of these documents relate to Issue 7 above: the procedural fairness issue.
(d) A12 – two letters exchanged in August and September 2020 that concerned the Hardiman principle.
65 Two things should be noted about this material. First, following the exchange of correspondence referred to at [64(d)] above, the Minister and the Northern Territory elected not to take any further active role in the proceeding. This led to the Minister and the Northern Territory deciding not to press many of the paragraphs of their written submissions filed 4 March and 15 May 2020. However, most of those paragraphs were subsequently adopted by Mount Isa Mines when it became the only active respondent in the proceeding.
66 Secondly, Mount Isa Mines objected to the admissibility of the documents described in [64(c)] above on the grounds of relevance. In essence, that objection revolved around the question whether a decision had yet been made to grant MLA 29881. I will deal with that objection when I come to consider Issue 6 below.
67 Turning, then, to the evidence relied upon by the respondents. First, the Minister and the Northern Territory tendered (with certain paragraphs thereof excluded) an affidavit sworn on 30 January 2020 by Ms Denise Turnbull, who is, as mentioned already, the current Director Mineral Titles. For its part, Mount Isa Mines also tendered an affidavit by Ms Turnbull. That affidavit was sworn on 7 October 2020. The applicants objected to parts of both of those affidavits. Since those objections fall into the same category as that mentioned above, I will also deal with them in conjunction with Issue 6 below.
68 Mount Isa Mines also tendered an affidavit by Mr Steven Rooney, the General Manager of McArthur River Mine. The applicants also objected to the admissibility of the whole of that affidavit. Since the contents of that affidavit are connected with Issues 1 and 2, I will consider that objection when I come to consider those issues below.
69 In addition to the written evidence described above, two witnesses gave oral evidence. First, Mr Kevin Stephens, Mount Isa Mines’ lawyer, who had not previously made an affidavit was called by the applicants. Without objection, Mr Glacken asked Mr Stephens a series of leading questions about his communications with various officers of the Department in 2016, 2018 and 2019, including Mr Holland and Ms Turnbull. This evidence was primarily directed to Issue 7: the procedural fairness issue. As well, Ms Turnbull was called as a witness for cross-examination on the contents of her affidavits. Her evidence included a description of the process that was followed to determine the NLC’s objection (see at [35] above); whether she had had any discussions with Mr Stephens with respect to MLA 29881; whether she had already made a decision to grant MLA 29881; and her role in the extension of time determination made on 13 December 2019 (see at [50] above). This evidence was partly directed to Issue 6 and partly directed to Issue 7.
70 I will now turn to consider the issues set out above. However, as will become apparent later, it will not be necessary to determine all of those issues.
ISSUE 1. IS THE GRANT OF MLA 29881 AUTHORISED BY SECTION 40(1)(b)(ii) Of The MTA?
Introduction
71 This issue involves two more specific issues, one of which is a legal issue and the other a factual issue. The legal issue has already been mentioned above. It concerns the proper construction of s 40(1)(b)(ii). The factual issue is whether the activities described in the application for MLA 29881 are activities that are ancillary to mining for minerals within the terms of s 40(1)(b)(ii) properly construed.
The issue as pleaded
72 The applicants pleaded this issue at [9]-[10] of the FASC in the following terms:
9. The proposed grant of ML 29881 is not authorised by s 40 of the Mineral Titles Act because:
(1) The activities proposed to be conducted on the ML 29881 application area are not mining or activities ancillary to mining conducted under another ML (mineral lease) granted to the title holder (MIM) within s 40(1)(b)(i) or (ii).
Particulars
Notification of the application given to the PBC on 18 July 2016 states in Part 4 that ML 29881 is to be granted for the purpose to construct, use, repair and maintain a dredge spoils storage area to support mining activities conducted on adjacent MLN 1126. Mining (as defined in s 12) is not being conducted on MLN 1126. What is being conducted or permitted under MLN 1126 (clause 4) is the storage and transport of concentrate from ore and a barge loading facility, not mining as defined in the Act.
See also the application for the Bing Bong Port Ancillary Lease dated 8 March 2013 (annexure DMT5).
(2) The effect of the transitional provisions in s 202(2) is that MLN 1126 is not “another ML” granted to the title holder (MIM) within s 40(1)(b)(ii).
10. Further and alternatively, the Mineral Titles Act only permits the activities proposed to be undertaken on the ML 29881 area as an area outside a mineral title area (MLN 1126) pursuant to a right of entry conferred by an access authority granted in accordance with s 84 of the Act.
Particulars
Section 84 contains limitations and qualifications as to notification and consent from landowners of the relevant land in connection with use of land adjacent to a mineral title area for infrastructure associated with activities on the mineral title area, such that the Act, properly construed, does not permit use of the general powers in s 40 for activities covered by the specific provisions of s 84, which would avoid and negate those limitations.
It should be noted that, at the hearing of this matter, the applicants did not seek to pursue the issue pleaded in [9(2)] above.
73 In the corresponding paragraphs of its defence, Mount Isa Mines pleaded:
As to paragraph 9 of the [FASC], [Mount Isa Mines]:
(a) admits that the notification given to the PBC on 18 July 2016 (notification) stated that the purpose of the proposed grant of ML 29881 is to support mining activities conducted on MLN 1126;
(b) says that the purpose of the proposed grant of ML 29881 is for the purpose to construct, use, repair and maintain a dredge spoil storage area to support mining activities which are conducted on the following mineral leases granted to the Third Respondent pursuant to the McArthur River Project Agreement Ratification Act 1992 (NT): MLNs 1121, 1122, 1123, 1124 and 1125;
(c) says that the PBC was informed of the purpose referred to in paragraph (b) above on 9 August 2016;
Particulars
Letter from Kevin Stephens of Ward Keller, solicitors for [Mount Isa Mines], to Rebecca Hughes of [NLC], solicitors for the PBC, dated 9 August 2016
(d) says that each of MLNs 1121, 1122, 1123, 1124 and 1125 falls within the meaning of the terms “ML” and “mineral lease” in section 40, and the words “another ML” in s40(1)(b)(ii), of the Mineral Titles Act 2010;
(e) says that the activities proposed to be conducted on the ML 29881 application area are ancillary to mining conducted on other MLs (mineral leases) granted to the Third Respondent within section 40(1)(b)(ii) of the Mineral Titles Act 2010, namely MLNs 1121, 1122, 1123, 1124 and 1125; and
(f) denies that the proposed grant of ML 29881 is not authorised by section 40 of the Mineral Titles Act 2010.
As to paragraph 10 of the [FASC], [Mount Isa Mines]:
(a) says that section 41 of the Mineral Titles Act 2010 permits the Minister to grant a ML (mineral lease) to confer on the title holder the right to occupy the title area in section 40(1)(a) and one or more of the exclusive rights in section 40(1)(b) including the right to conduct activities in the title area that are ancillary to mining conducted on another ML granted to the title holder;
(b) says that section 84 of the Mineral Titles Act 2010 permits the Minister to grant an access authority to confer on a title holder the (non-exclusive) right in section 84(1) to enter land outside the title area;
(c) says that sections 41 and 84 of the Mineral Titles Act 2010 are directed to the conferral of different kinds of rights and s84 does not warrant or require the reading down of the power in section 41; and
(d) denies that the Mineral Titles Act 2010 only permits the activities proposed to be undertaken on the ML 29881 area on an area outside a mineral title area pursuant to an access authority granted pursuant to section 84 of the Mineral Titles Act 2010.
(Emphasis in original)
74 The applicants responded to [9] of Mount Isa Mines’ defence above at [2] of their reply. While parts of this pleading relate to other issues, it is convenient to set [2] out in full at this point as follows:
[T]he Applicants:
(1) rely upon the terms of the application for the grant of ML 29881 dated 8 March 2013 stating, as required by the approved form of application, the “associated purpose in conjunction with mining” as “Loading facility for the export of Zinc / Lead / Silver concentrates”, with the summary of works required to accompany the application referring to the use of adjacent MLN 1126 and the email advice from MIM on 2 April 2013 that the name of the new mineral lease under application is “Bing Bong Port Ancillary Lease”;
(2) rely upon the terms of:
(a) the public notice of the application dated 13 July 2016 stating:
Nature of act(s): The grant of a mineral lease under section 78 of the Mineral Titles Act authorising the holder to conduct activities in the title area that are ancillary to mining conducted under another Mineral Lease granted to the title holder.
(b) the notifications of the application to the PBC and to the NLC dated 18 July 2016 stating:
[MIM], the holder [sic] of Mineral Lease 29881 (‘the ML’) has applied pursuant to section 41 Mineral Titles Act (NT) for the grant of a mineral lease for ancillary purposes, to enter the area of the proposed future act for the purpose to construct, use, repair and maintain a dredge spoils storage area to support mining activities conducted on adjacent Mineral Lease (MLN) 1126.
(3) rely upon the provisions of the Mineral Titles Act that require:
(a) an application for the grant of a mineral lease to be in the approved form (s 41(1));
(b) applications to be made substantially in accordance with the applicable approved form (s 164(2));
(c) an application for the grant of a mineral lease to include a summary of the work proposed to be carried out for conducting authorised activities under the mineral lease (s 41(2)(c));
(d) an applicant to give to the Minister all the information required to make a proper decision (s 58(2)(a));
(e) each application for the grant of a mineral title to include a list of landowners, which includes native title holders (s 14, and see NTA s 224), and for the applicant to serve notice of the application on each landowner no later than 14 days after lodging the application (s 66);
(f) public notice of the application to include a statement that a landowner may object to the grant of the mineral title and other details about the application that the Minister considers will allow a person to make proper objections (s 71);
(4) rely upon the terms of the representations from the NLC on behalf of the common law native title holders and the PBC made in response to the notifications by letters dated:
(a) 26 August 2016 to the Director and copied to WK;
(b) 16 September 2016 to the Director;
that:
(i) the activities proposed to be undertaken on the ML 29881 area are not ancillary to mining conducted under another mineral lease within s 40(1)(b)(ii) of the Mineral Titles Act as mining is not conducted under MLN 1126;
(ii) MIM did not serve the native title holders with notice of the application as required by s 66 of the Mineral Titles Act.
(5) say that there has been no response to, or proper consideration of, the representations referred to at (4) and refer to the matters at [1] above and [16] and [17A] of the SOC;
(6) say that if, as alleged at paragraph [9] of the defence, the purpose of the proposed grant of ML 29881 is for the purpose of constructing, using, repairing and maintaining a dredge spoils storage area to support mining activities conducted on MLNs 1121 to 1125 then:
(a) there has not been compliance with the requirements of the Mineral Titles Act respecting the making and notification of the application;
(b) the procedure adopted failed to afford to the common law holders of native title and the PBC a fair opportunity to be heard on the application;
(7) say that the failure to identify in the application and in the public notice the other mineral lease under which mining is conducted for the purposes of s 40(1)(b)(ii) means that the application and notice do not comply with the requirements of ss 41, 58 and 71 of the Mineral Titles Act;
(8) say that by reason of the foregoing, the procedures under s 24MD(6A) of the NTA relevant to the application have not been followed.
75 The positions of the parties on this issue are more than adequately developed in the pleadings set out above and in the communications that have passed between them and their lawyers since 2013, as detailed in the Factual Background section above, and therefore do not require repeating.
The evidence
76 The documents critical to this issue are already set out in the Factual Background section above and also do not, therefore, require repeating. Specifically, they are:
(a) the application for MLA 29881 dated 8 March 2013 (at [8]-[9] above);
(b) the email exchange in early April 2013 where the proposed lease was given the name the Bing Bong Port Ancillary Lease (at [10 above]);
(c) the Notice of Proposed Grant of Mineral Lease published on 13 July 2016 (at [21] above);
(d) the copy of that notice that was provided to the Top End PBC by letter dated 18 July 2016 (at [22] above);
(e) Mr Stephens’ letter to the NLC dated 9 August 2016 (at [27] above).
77 In addition, there is one piece of evidence not set out in the Factual Background section, namely cl 4 of the lease for ML 1126. It is as follows:
The Company may use or permit to be used the Lease Area for the purposes of:
(a) Mining, processing, treatment and concentration of the Ore including the treatment of tailings or other mining material and removal of Ore, Concentrate, tailings or other mining material from the Lease Area;
(b) the erection of machinery, conveyor apparatus, plant, buildings or other structures, or use thereof;
(c) impounding and retaining of waste resulting from the Mining, treatment or processing operations;
(d) the erection and use of residential premises or recreational facilities for persons engaged in or connected with the McArthur River Project;
(e) the cutting and construction of water races, drains, dams and roads for use in connection with the McArthur River Project;
(f) the boring or sinking for, pumping or raising of, water for the use of that water for or in connection with the McArthur River Project;
(g) exploring for minerals on the Lease Area;
(h) the Mining and use of extractive minerals for or in connection with all or any of the purposes specified in paragraphs (a), (b), (c), (d), (e) and (f) of this clause; and
(i) such other purposes necessarily incidental to or in connection with paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) of this clause, including the management, protection and rehabilitation of the Environment.
Finally, there is also Mr Rooney’s evidence, which I will come to below at [92].
The text, context and purpose of s 40(1)(b)(ii)
78 The statutory construction issue mentioned above requires a consideration of the text of s 40(1)(b)(ii) of the MTA, having regard to its context and purpose. The provision must be read as a whole to give it a meaning which is consistent with the language of the MTA (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ at [15] and the cases there cited). With these principles in mind, it is appropriate to begin with s 40 of the MTA and, in particular, s 40(1)(b)(ii) emphasised below. Section 40 provides:
Mineral lease
(1) A mineral lease is a mineral title that gives the title holder:
(a) the right to occupy the title area specified in the ML; and
(b) the exclusive right to:
(i) conduct mining for minerals in the title area and other activities specified in section 44(1) and (2); or
(ii) conduct activities in the title area that are ancillary to mining conducted under another ML granted to the title holder (for example, operating a treatment plant); or
(iii) conduct tourist fossicking in the title area and the activity specified in section 44(3).
(2) The rights of the title holder may be exercised only:
(a) during the period the ML is in force; and
(b) in accordance with this Act and the conditions of the ML.
(Underlining added)
79 It can be seen that this section prescribes the rights of a “title holder” to that type of mineral title described as “a mineral lease (an ML)” (see s 11(1)(c)). The expression “title holder” is defined in s 8 to mean:
(a) generally – a person who is granted or issued with a mineral title; or
(b) in relation to a specified type of mineral title – a person who is granted or issued with that type of mineral title.
80 Four aspects of a title holder’s rights are defined by s 40. They are:
(a) the right to occupy the title area (see s 40(1)(a));
(b) the activities that may be conducted in the title area (see s 40(1)(b));
(c) the period during which those rights may be exercised (see s 40(2)(a)); and
(d) the conditions under which those rights may be exercised (see s 40(2)(b)).
81 Turning next to the text of s 40(1)(b)(ii) itself, it commences with the words “conduct activities”. The word “conduct” is not defined in the MTA so it will have its natural and ordinary meaning, which is “2. direction or management; … 5. to direct in action or course; manage; carry on” (Macquarie Dictionary (Eighth ed, Macquarie Dictionary Publishers 2020)). The word “activities” is also not defined in the MTA, but the expression “authorised activities” is by the combined effect of ss 11(3)(c), 11(4) and 44 as follows:
11 Mineral title
…
(3) A mineral title gives the title holder the right to conduct activities (authorised activities) mentioned in the following provision:
…
(c) for an ML – section 40(1)(b)(i), (ii) or (iii);
…
(4) A reference in this Act to authorised activities includes a reference to the work necessary for conducting the activities.
44 Authorised activities under ML
(1) An ML that gives the title holder the right to conduct mining in the title area also gives the title holder the right to conduct the following activities:
(a) exploration for minerals in the title area;
(b) the evaluation, processing or refining of minerals in the title area;
(c) the treatment of tailings and other material in the title area;
(d) the storage of waste and other material in the title area;
(e) the removal of minerals from the title area;
(f) other activities, as specified in the ML, in connection with an activity mentioned in this subsection.
(2) An ML mentioned in subsection (1) also gives the title holder the right to conduct any of the following activities:
(a) mining extractive minerals in the title area;
(b) tourist fossicking;
(c) other activities, as specified in the ML, in connection with an activity mentioned in this subsection.
(3) An ML that gives the title holder the right to conduct tourist fossicking also gives the title holder the right to use mechanical equipment in association with the fossicking conducted under the ML.
82 Significantly, however, the activities described in s 40(1)(b)(ii) are not expressly correlated to any particular authorised activity as described in s 44 in the same way as s 40(1)(b)(i), with respect to ss 44(1) and 44(2); and s 40(1)(b)(iii), with respect to s 44(3), are. This suggests that the expression “activities” in s 40(1)(b)(ii) is not intended to be confined to the authorised activities described in s 44. However, the words immediately following the word “activities” do confine that expression in two respects. First, those activities are geographically confined to “the title area”. Secondly, they must be conducted for a specific purpose, namely “ancillary to mining”. With respect to the latter, the word “mining” is relevantly defined in s 12 of the MTA to be “the extraction of minerals … from land” by one of the four prescribed methods, the main one of which is “underground, surface or open-cut workings”. The word “mineral” within this definition is defined in s 9 in the following terms:
(1) A mineral is:
(a) any of the following naturally occurring substances that is obtainable by mining:
(i) an inorganic element or compound (for example, an inorganic carbonate compound);
(ii) an organic carbonate compound; or
(b) coal, lignite, oil shale or salt; or
(c) another substance prescribed by regulation.
(2) However, none of the following is a mineral:
(a) an extractive mineral;
(b) petroleum as defined in section 5(1) of the Petroleum Act 1984;
(c) water;
(d) another substance prescribed by regulation.
This definition is to be contrasted with the definition of the expression “extractive minerals” which are excluded from the above, that is “soil, sand, gravel, rock or peat” (see s 10).
83 The word “ancillary” is also not defined in the MTA. It has, however, been held to have the following meanings in the contexts indicated:
(a) “ancillary to the meal” – “Less than supplementary or supplemental to – it means ‘subservient’ or ‘subordinate’” (Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 at [14] per Muirhead J);
(b) “a use ancillary or incidental to that use” – “An ancillary use does not necessarily need to be a subordinate or subservient one. It may be more than a minor use … It may also be noted that among the relevant dictionary meanings of ancillary are auxiliary and accessory … A use which is ancillary to another use is not precluded from being an independent use” (Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 223-4 per Stein JA (with Mason P and Meagher JA agreeing));
(c) “an order that is ancillary to a restraining order” – “the enforcement proceedings are incidental and subordinate to the restraining order as they are dependent on the grant of the restraining order and the expiry thereof … on this basis, the proceedings for the enforcement of the undertaking are ancillary to the restraining order” (McCleary v Director of Public Prosecutions (Cth) (1998) 157 ALR 301 at 332 per Ipp J (with Malcolm CJ and Franklyn J agreeing [except with Ipp J’s finding that the Crown may lead evidence showing or attempting to show that McCleary was involved in other criminal conduct]);
(d) “ancillary orders” – “must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it” (Woodcroft v Director of Public Prosecutions (2000) 174 ALR 60; [2000] NSWCA 128 at [72] per Giles JA; and
(e) “ancillary proceedings” – “an appeal could [n]ever be described as an ancillary proceeding [as] it is not incidental, or subsidiary or auxiliary to the proceedings at first instance, either in the ordinary meaning of the term ‘ancillary’ or in the same sense as the applications to which we have referred” (Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225 at [33] per Beazley JA, McColl JA and Mathews AJA).
84 Finally, in the text of s 40(1)(b)(ii), the following things are to be noted about the words “conducted under another ML granted to the title holder”. First, the mineral title concerned must be an ML, that is a mineral lease. That is to say, to involve mining for minerals as distinct from, for example, exploring for minerals, or extracting extractive minerals (see s 11(1)). Secondly, there is no limitation expressed as to the location of the title area where the ancillary activities are being conducted vis-à-vis the mineral lease where the mining activities are being conducted. Hence, the treatment plant given in the example could be located in a town or city some distance from the mineral lease where the mining is conducted. Thirdly, the words “the title holder” plainly refer to the same title holder that is mentioned in the chapeau to s 40(1).
85 Moving from the text of s 40(1)(b)(ii) of the MTA to its context and purpose, the following matters are noteworthy. First, there is a contrast between the nature of the primary mining or tourist fossicking activities that may be carried out under s 40(1)(b)(i) and s 40(1)(b)(iii) respectively and the nature of the ancillary activities under s 40(1)(b)(ii). Secondly, the word “ancillary” is unique to s 40(1)(b)(ii) in the MTA. Elsewhere the broader expressions “in connection with” or “associated” are used, for example, in ss 44(1)(f) and 44(2)(c) (above) and s 84(1) (below).
86 Thirdly, with the exception of s 44(1)(e), which permits the removal of minerals from a mineral lease, all of the activities described in ss 40(1)(b) and 44 are confined by their terms to the title area of the mineral lease concerned. This is to be contrasted with the other section of the MTA that the applicants relied on for context in the construction of s 40(1)(b)(ii) for which they contended, namely s 84. It provides that a title holder may carry out certain activities outside of the title area in certain circumstances as follows:
(1) The holder of a mineral title has the right to enter land outside the title area (the relevant land) to construct, maintain and use infrastructure associated with conducting authorised activities under the mineral title if the title holder also holds an access authority for the relevant land.
(2) The holder of a mineral title may apply to the Minister for the grant of an access authority.
(3) At least 14 days before making the application, the title holder must:
(a) give written notice of the intention to apply for the access authority:
(i) to each landowner of the relevant land; and
(ii) if a mineral title is in force for any of the relevant land – to the title holder; and
(b) publish a notice of the intention in a newspaper circulating in the area in which the relevant land is situated; and
(c) obtain the consent of owners of classes of relevant land, as prescribed by regulation, to enter the land for the purposes mentioned in subsection (1).
(4) The Minister may grant an access authority to the title holder, subject to the conditions specified in the access authority, if the Minister is satisfied:
(a) the infrastructure to be constructed is necessary for conducting authorised activities under the mineral title; and
(b) the applicant has complied with subsection (3).
87 It is also to be noted that this section does not provide for the grant of a mineral title with all the rights that affix to such a title as described in s 40 above. Rather, it provides for a right of access to land to undertake a particular set of activities, namely to “construct, maintain and use infrastructure associated with conducting authorised activities under the mineral title”. Given these distinct features of the two provisions, I consider Mount Isa Mines is correct in its contention that each confers a specific, but different, set of rights on a title holder. In other words, I reject the contention to the contrary in [10] of the applicants’ FASC (see at [72] above).
88 Finally, an important purposive consideration is the “Objects of Act” set out in s 3 of the MTA. Notably, they include in (b) the commercial exploitation of the activities conducted under mineral titles as follows:
(a) to establish a framework for granting and regulating mineral titles that authorise exploration for, and extraction and processing of, minerals and extractive minerals;
(b) to facilitate the commercialisation of activities conducted under mineral titles by authorising the creation and transfer of interests in the titles;
(c) to authorise other activities relating to minerals or extractive minerals to be conducted without mineral titles.
89 Having regard to all these textual, contextual and purposive matters, I consider s 40(1)(b)(ii) defines a form of mineral title which gives the title holder the rights to occupy a specified area of land and conduct activities there that are supplementary or incidental to the mining for minerals that the title holder concerned is also conducting on another mineral lease it holds. The activities in question do not themselves constitute mining for minerals as defined in the MTA. Accordingly, while they may include some of them, they are not confined to the “authorised activities” described in s 44. Furthermore, the provision does not require the mineral lease where the ancillary activities are conducted to be adjacent to or even geographically close to the mineral lease where the mining is being conducted. This construction of s 40(1)(b)(ii) is, in my view, coherent with the other provisions of the MTA and advances the objects of the legislation as stated in s 3.
Are the activities proposed under MLA 29881 ancillary to mining?
90 It is necessary, next, to turn to the factual issue mentioned above (at [71]). On that issue, it is convenient to begin with s 41 of the MTA. It provides that a person may apply for (s 41(1)), and that the Minister may grant (s 41(3)), a mineral lease for the term the Minister considers appropriate. It follows that the Minister’s power to grant MLA 29881 is relevantly, for present purposes, founded on whether the activities for which that mineral title is sought are activities that are “ancillary to mining” in the terms of s 40(1)(b)(ii) as construed above. Accordingly, the question whether those activities meet those criteria is an objective jurisdictional fact. That is to say, a fact which may be ascertained by reference to a “criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker” (see Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ and the discussion in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 (EHF17) at [51]-[54] per Derrington J).
91 Whether or not those criteria exist as a matter of fact is therefore a question in respect of which evidence may be adduced (see Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; McCormack v Commissioner of Taxation (2001) 114 FCR 574; [2001] FCA 1700 at [38]-[40] per Sackville J; Chandra v Webber (2010) 187 FCR 31; [2010] FCA 705 at [40]-[41] per Bromberg J; and EHF17 at [64]). For these reasons, as foreshadowed at [68], I consider Mr Rooney’s affidavit is relevant to this issue and it should therefore be admitted as evidence in this matter. This necessarily means that I reject the applicants’ contention to the contrary, namely that the evidence bearing on this issue is limited to the material that was before the decision-maker, assuming, for present purposes, that a decision was made.
92 Having made this ruling, it is convenient next to summarise Mr Rooney’s evidence about the activities that Mount Isa Mines proposes to conduct on the title area of MLA 29881 if it is granted. First, Mr Rooney described how the product from the McArthur River Mine is transported to the Bing Bong Loading Facility and then barged offshore for export overseas as follows:
15. As the Gulf of Carpentaria is very shallow, it is not possible to transport Product from the Bing Bong Loading Facility directly to ocean-going vessels.
16. It is necessary to take Product offshore to the Offshore Transfer Zone by using a bulk carrier to enable Product from the Mine to go to market.
17. The Mine contracts a purpose built vessel, the MV Aburri, as the bulk carrier.
18. Once in the Offshore Transfer Zone, Product is transferred from the bulk carrier to an ocean-going vessel.
19. To take Product offshore, the bulk carrier enters a swing basin at the Bing Bong Loading Facility, is loaded by a barge loading conveyor system and then travels out to sea through the navigation channel.
93 Secondly, Mr Rooney described the monitoring that was required during this process and the exigencies that arise from time to time in connection with it as follows:
21. As continual barging activity by bulk carrier is required to be able to maintain the export of Product from the Mine, it is necessary to monitor the depth and width of the navigation channel and swing basin and, if necessary, undertake maintenance dredging.
22. A simple example of why monitoring is required, is that some weather events (particularly cyclones) can impact the depth and width of the navigation channel and/or swing basin.
23. If the depth and/or width of the navigation channel or swing basin is sufficiently reduced, maintenance dredging will be immediately required to ensure the bulk carrier can safely use the swing basin and pass through the navigation channel.
94 Thirdly, he described how the slurry, or dredge soil, that is produced in the dredging process is managed using the Bing Bong Dredge Spoil Emplacement Area as follows:
24. The swing basin and navigation channel was originally formed at the time of construction of the Bing Bong Loading Facility.
25. In simple terms, dredging of the swing basin and/or navigation channel removes silts and sands which come out in a slurry form.
26. The slurry is commonly referred to as “dredge spoil”.
27. The dredge spoil is pumped from the place of dredging by way of a pipeline that outlets to an area known as the Bing Bong Dredge Spoil Emplacement Area (‘DSEA’) .
…
29. The DSEA consists of ponds (commonly referred to as “cells”) and a retention basin.
30. The DSEA is located within Perpetual Pastoral Lease 1051 (known as McArthur River Station) owned by [Mount Isa Mines].
(Bold in original)
95 Finally, he described how the cells and perimeter drain elements of the facility are operated, monitored and maintained as follows:
31. As dredge spoil is deposited into the cells the silt within the dredge spoil begins to separate from the water and gravity is used to pass the dredge spoil between cells (going west to east) to drop out further silt and fine sediment from the water.
32. This decantation of the water from the dredge spoil leaves a dry silt within the cells and supernatant water being released through the dredge spoil drain.
33. The cells contain the residue dry silt and some of that dry silt is then pushed up and redeposited to be able to recreate the walls of each cell for subsequent lifts of the DSEA.
34. The cell walls are created so that there is control of the deposition of the dredge spoil.
35. The cells are monitored and maintained to ensure the operational integrity of the DSEA.
36. The cell walls of the DSEA are made entirely from dried natural material (no building materials are used to construct or support these walls) and the cells are surrounded by a perimeter drain.
37. The perimeter drain is an excavated and shaped open air drain.
38. The perimeter drain is in place to aid in the isolation and control of dredge spoil deposited in the DSEA.
39. The perimeter drain extends around the DSEA, approximately 400 metres from the retention pond, to a discharge point on the tidal mud flats to the east of the Bing Bong Loading Facility.
40. The existing DSEA retains some capacity for further dredge spoil deposition however it is anticipated that further dredging is likely to require an increase in the DSEA or an additional DSEA.
96 Albeit in much more detail, this evidence broadly corresponds to the description of the proposed works set out in the Summary of Proposed Works which was attached to the original application for MLA 29881 dated 8 March 2013. That is to say, that the proposed ancillary activities to be conducted under MLA 29881, if granted, involved enlarging the Dredge Spoil Deposition Area to facilitate the transportation of zinc, lead and silver concentrates from the McArthur River Mine. Specifically to allow for the continued use of that area to deposit the dredge spoil produced as a result of the dredging that is required of the swing basin and navigation channel that provide access to the Bing Bong Loading Facility used to tranship those materials to ocean-going vessels (see at [9] above). Importantly for this issue, it also corresponds to the description of the kind of activities which are ancillary to mining on another mineral lease described in s 40(1)(b)(ii) and in respect of which the Minister is authorised to grant a mineral lease under s 40(1) of the MTA.
97 It follows that the applicants’ contention in [9] of their FASC (see at [72] above) cannot be accepted. While their description in that paragraph of the works to be carried out under MLA 29881 is unremarkable – to construct, use, repair and maintain a dredge spoils storage area to support mining activities – the defect in it lies in its fixation on ML 1126. It is apparent from the correspondence emanating from their lawyers, as outlined in the Factual Background section above, that this arises from the mention of that mineral lease in the Summary of Proposed Works attached to the original application and in the Department’s letter and notice to the NLC dated 18 July 2016. That, despite Mr Stephen’s letter of 9 August 2016 explaining that MLA 29881 was proposed to be ancillary to mining being conducted at “the McArthur River Mine and not ML 1126”. Even if that explanation had not been provided, there is no requirement in s 40, or s 41, or elsewhere in the MTA, that an applicant for an ancillary activities mining lease must nominate the other mining lease to which the activities concerned are ancillary. In any event, as explained above, there is no requirement in s 40(1)(b)(ii) for the ancillary mineral lease to be proximate to the other mineral lease upon which mining is conducted. All that is required is that such a mining lease exists and it is held by the same title holder. Mr Rooney’s evidence and the Summary of Works attached to the original application show that all these criteria for the grant of MLA 29881 exist. Accordingly, the activities proposed under MLA 29881 are ancillary to mining within the terms of s 40(1)(b)(ii) of the MTA and the Minister therefore has the authority to grant it. This means that the applicants have not established their entitlement to the first category of declaratory relief described above at [54].
Conclusion on Issue 1
98 For these reasons, the answer to the question posed in Issue 1 above (at [63]) is “yes”. Further, since this answer is in the affirmative, it will be necessary, next, to consider Issue 2 above.
ISSUE 2. DOES SECTION 24MD(6B) OF THE NTA APPLY TO THE GRANT OF MLA 29881?
Introduction
99 This issue and the next concern the interaction between the NTA and the MTA insofar as the creation of a right to mine is concerned. That interaction is provided for in ss 4 and 74(2) of the MTA and, for present purposes, s 24MD of the NTA. As is explained in more detail below, by reason of those provisions s 24MD(6B) will apply to the grant of MLA 29881 if it involves “the creation … of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining”.
100 As with the previous issue, the contentions of the parties on this issue have been more than adequately illuminated in the correspondence passing between them and their lawyers, as outlined in the Factual Background section above, all of which is reiterated in the pleadings set out below.
The issue as pleaded
101 The applicants pleaded this issue at [19]-[24] and [28] of the FASC in the following terms:
19. Further and alternatively, by:
(1) s 4 of the Mineral Titles Act where a provision of that Act deals with a matter relevant to the holder of native title land, it is subject to a provision relating to that matter in the NTA;
(2) s 74 of the Mineral Titles Act if the Minister is satisfied the grant of a mineral title will be a future act in relation to any of the proposed title area of the application for the grant, the Minister may grant a mineral title only if satisfied all procedures under the NTA relevant to the application have been followed;
(3) s 78 of the Mineral Titles Act a decision on an application cannot be made until after all the procedures under Part 5 Division 2 relevant to the application are completed, and the Minister has considered all objections, submissions and responses mentioned in s 72 and all other matters the Minister is required by that Act to consider before making a decision on the application, which includes that which is required by s 74.
20. The effect of [19] is that compliance with the procedures under the NTA relevant to the application, or the Minister’s satisfaction as to compliance, is an essential preliminary to the grant of a mineral title.
21. If (which is not admitted) the grant of ML 29881:
(1) is authorised by the Mineral Titles Act;
(2) [omitted in amended statement of claim filed on 16 March 2020];
it is a future act that is the creation of a right to mine for the sole purpose of an infrastructure facility associated with mining within s 24MD(6B)(b) of the NTA to which the further procedural consequences in s 24MD(6B)(c)–(g) apply.
22. The further procedural consequences in s 24MD(6B) relevant to the application are that:
(1) notification be given to the registered native title claimants, the PBC and to the Northern Land Council that the act is to be done (s 24MD(6B)(c));
(2) the claimants or PBC may object, within two months after notification, to the doing of the act so far as it affects the registered native title rights (s 24MD(6B)(d));
(3) MIM must consult with the claimants or PBC about ways of minimising the act’s impact on the registered native title rights and any access or the way in which anything authorised by the act is to be done (s 24MD(6B(e));
(4) the Northern Territory must ensure that the objection is heard by an independent person or body (s 24MD(6B)(f));
(5) the recommendation of the independent person or body must be complied with subject to certain exceptions (s 24MD(6B)(g)).
23. There has been no compliance with the further procedural consequences in s 24MD(6B) relevant to the application.
24. As a person permitted by s 24MD(6B)(d) of the NTA to object to the application the PBC has applied to the [NTCAT] for a hearing and recommendation in relation to the objection pursuant to s 161(2) of the Mineral Titles Act.
…
28. In the circumstances:
(1) The Minister could not be satisfied, as required by s 74 of the Mineral Titles Act, that the procedures under the NTA relevant to the application have been followed.
(2) The proposed grant of ML 29881 is not authorised by the Mineral Titles Act.
102 In the corresponding paragraphs of its defence, Mount Isa Mines admitted that ss 4 and 74 of the MTA had the effect pleaded in [101(19)] and [101(20)] above, but it denied the allegation in [101(21)] above in the following terms:
As to paragraph 21 of the [FASC], [Mount Isa Mines] denies the allegations made and says the grant of ML 29881 would not constitute the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (within the meaning of section 253 of the NTA) associated with mining, within s24MD(6B)(b) of the NTA.
103 Accordingly, it claimed that the procedural consequences pleaded in [101(22)] above were irrelevant and it accepted that there had been no compliance with those consequences (at [101(23)]. It also accepted that the Top End PBC had applied to NTCAT, but it claimed that NTCAT had no jurisdiction to hear and determine that application (at [101(24)]). Finally, it denied that the applicants were entitled to the relief claimed in [101(28)] above.
104 The dispute between the parties on this issue therefore centres on [21] of the FASC and Mount Isa Mines’ defence above. It essentially reduces to two sub-issues: a legal issue: what do the words “creation … of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining” mean?; and a factual issue: will the grant of MLA 29881 be for that sole purpose?
The evidence
105 As with Issue 1, the documents that are critical to this issue are already set out in the “Factual Background” section above. In addition, there is the evidence of Mr Rooney which is set out above (at [92]-[95]).
The relevant statutory provisions
106 Division 3 of Part 2 of the NTA contains what is commonly referred to as “the future acts regime”. The expression “future act” is relevantly defined in s 233 of the NTA as follows:
(1) Subject to this section, an act is a future act in relation to land or waters if:
(a) either:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C) if it were valid to that extent, it would affect the native title.
…
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” (see s 227).
107 Subdivision M of Division 3 contains the freehold test. The non-discrimination principle underpinning that test is described by the authors of Australian Native Title Law (Lawbook Co., 2nd ed, 2018, 390-391) as follows:
Subdivision M is one of the core provisions of the NTA, and sets out the basic “freehold test” for future acts. Whilst many of the future act Subdivisions are focused on particular types of grants or actions, Subdiv M has a broad operation, and implements a principle of non-discrimination. In the Second Reading Speech for the Native Title Bill 1993 (Cth), Prime Minister Keating explained the freehold test as follows:
Generally, governments may make grants over native title land only if those grants could be made over freehold title.
This test is founded directly on a principle of non-discrimination. A government may not make a freehold or leasehold grant to somebody else over your or my freehold. If our title is to be extinguished, a government must acquire it and only for the purposes set down in compulsory acquisition legislation, and you or I must be given the protections involved. By contrast, a mining grant can generally be made over your or my freehold. It will be exactly the same for native title.
…
108 For a non-legislative act, s 24MB(1) of Subdivision M applies to a future act if:
(a) it is an act other than the making, amendment or repeal of legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and
(c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
If the act meets this description, then “subject to Subdivision P (which deals with the right to negotiate), the act is valid” (s 24MD(1)).
109 Relevantly for present purposes, the right to negotiate provisions of Subdivision P apply to “certain conferrals of mining rights” (see s 25(1)(a)). Those “mining rights” are relevantly described in s 26(1)(c)(i), which also creates an important exception, as follows:
…
(1) This Subdivision also applies to a future act if:
…
(c) subject to this section, the act is:
(i) the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining; or
…
(Note omitted)
110 The exception referred to above is linked back to Subdivision M of Division 3 by the provisions of s 24MD(6), which relevantly provides:
In the case of any future act to which this Subdivision applies, other than:
(a) an act to which Subdivision P (which deals with the right to negotiate) applies; …
…
the consequences in subsections (6A) and (6B) apply.
111 This exception was introduced by the 1998 amendments to the NTA. Its rationale was elucidated in the Supplementary Explanatory Memorandum for those amendments. First, the broad background to the group of amendments concerning particular kinds of future acts was described in the following terms:
The purpose of these amendments is to provide procedural rights to registered native title claimants. native title bodies corporate and representative bodies in relation to future acts that consist of any of the following:
• the compulsory acquisition of native title rights and interests for the purpose of enabling a non-Government party to provide an infrastructure facility;
• the compulsory acquisition of native title rights and interests in land or waters wholly within a town or city where the purpose of the acquisition is to confer rights on a non-Government party; or
• the grant of a mining lease for the sole purpose of permitting the construction of an infrastructure facility associated with mining.
Future acts of this kind are generally valid since they pass the freehold test, but are not subject to the right to negotiate (see subparagraph 26(1)(c)(i) amended by Government amendment (H46) and paragraph 26(1)(c)(iii)). The Government believes that it is not appropriate to subject future acts of this kind to the right to negotiate. They include the provision of infrastructure. such as roads, gas pipelines and the like. Such infrastructure is increasingly being provided by non-Government entities, especially in remote and regional Australia. It is appropriate however that in relation to acts of this kind, which may have the result of extinguishing native title altogether, native title holders be given procedural rights essentially the same as others but which ensure that the special nature of their rights can be taken into account.
112 Then the reason for the introduction of s 24MD(6B) was described as follows:
New subsection 24MD(6B) will also apply to the grant of a mining lease for the sole purpose of the construction of an infrastructure facility associated with mining (paragraph 24MD(6B)(b)). The grant of a mining lease of this kind is exempt from the right to negotiate (see subparagraph 26(l)(c)(i) which is amended by Government amendment (H46)) but the consequences set out in new subsection 24MD(6B) will apply to grants of this kind in addition to the procedural rights provided in subsection 26MD(6A) …
113 Finally, the changes to s 26 to create the exception mentioned above were described later in the Memorandum as follows:
Government amendment (H46) is to paragraph 26(l)(c)(i) which, subject to the exclusions contained in subsection 26(2), provides that the creation of a right to mine is subject to the right to negotiate. The amendment removes the creation of a right to mine from the operation of that paragraph (and thereby from the right to negotiate) if it is one created for the sole purpose of constructing an infrastructure facility (which is defined in section 253) associated with mining. The words ‘sole purpose’ have been used to make it clear that the creation of the right to mine with which the infrastructure facility is associated is not removed from the right to negotiate by this amendment. The fact that an infrastructure facility may, when constructed, also provide services to the local community, will not prevent the relevant grant being for the sole purpose of constructing the infrastructure.
This amendment will remove an anomaly in the Bill namely, that the grant of a mining lease that permits the construction of an infrastructure facility associated with mining must go through the right to negotiate but a compulsory acquisition for the purpose of constructing an infrastructure facility associated with mining need not. Grants of this kind, like compulsory acquisitions that are for the purpose of enabling a non-Government party to construct an infrastructure facility, will be subject to the additional procedural rights set out in subsection 24MD(6B) (see Government amendment H33). This is made clear in the note inserted by Government amendment (H47).
114 Sections 24MD(6A) and 24MD(6B) provide:
(6A) The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.
…
(6B) If the act is:
(a) the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or
(b) the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;
the following consequences also apply:
(c) the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following:
(i) any registered native title claimant (a claimant) in relation to the land or waters; and
(ii) any registered native title body corporate (a body corporate), in relation to the land or waters; and
(iii) any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; and
(iv) the Registrar;
that the act is to be done; and
(d) any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and
(e) either:
(i) in a paragraph (a) case—the Commonwealth, the State or the Territory; or
(ii) in a paragraph (b) case—the person who requested or applied for the doing of the act;
must consult any claimants, and bodies corporate, who object, about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and
(f) if:
(i) a claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act; and
(ii) 8 months after the notification mentioned in paragraph (c), the objection has not been withdrawn;
the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and
(g) if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:
(i) the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and
(ii) the consultation is taken into account; and
(iii) it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.
115 As can be seen from the case they have pleaded above, the applicants contend that the grant of MLA 29881 is the “creation … of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining” within the terms of s 24(6B)(b) above. In this respect, two other definitions in the NTA are relevant. First, the word “mine” is defined in s 253 to include:
(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters; or
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non‑mechanical means.
116 Secondly, the expression “infrastructure facility” is defined in the same section to include any of the following:
(a) a road, railway, bridge or other transport facility;
(b) a jetty or port;
(c) an airport or landing strip;
(d) an electricity generation, transmission or distribution facility;
(e) a storage, distribution or gathering or other transmission facility for:
(i) oil or gas; or
(ii) derivatives of oil or gas;
(f) a storage or transportation facility for coal, any other mineral or any mineral concentrate;
(g) a dam, pipeline, channel or other water management, distribution or reticulation facility;
(h) a cable, antenna, tower or other communication facility;
(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purposes of this paragraph.
117 Finally, it is necessary to set out the provisions of the MTA that interrelate to ss 24MD(6A) and 24MD(6B) above. As mentioned at the outset, they are ss 4(1) and 74(2) as follows:
4 Application of Act may be affected by other legislation
(1) This Act has effect subject to other Acts of the Territory and Commonwealth that may affect:
(a) rights and powers given under this Act; or
(b) obligations and functions imposed under this Act.
Examples for subsection (1)
1 …
2 The ALRA and NTA.
…
74 Grant relating to Aboriginal land or native title land
…
(2) If the Minister is satisfied the grant of a mineral title will be a future act in relation to any of the proposed title area of the application for the grant, the Minister may grant the mineral title only if satisfied all procedures under the NTA relevant to the future act have been followed.
…
Banjima People v State of Western Australia
118 This brings me back to the first of the two sub-issues described at the outset above (at [104]). In respect of that issue, both parties relied on the judgment in Banjima People v State of Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 (Banjima). In that matter, among many other things, Barker J considered whether a miscellaneous licence L45/147 granted to BHP Billiton for the purpose of constructing a railway line associated with a mining project involved the creation of an infrastructure facility within the terms of s 24MD(6B)(b) above. After recording the process that had been followed by the State of Western Australia in relation to that grant and the terms of the Iron Ore (Mount Newman) Agreement Act 1964 (WA), Barker J identified five issues to be determined, one of which has a bearing on the present issue as follows (at [959]):
…
(4) Whether s 24MD(6B) applied to the grant of L45/147 and, if it did, whether the failure to comply with s 24MD(6B) invalidated the grant of L45/147, as the claimants would, in those circumstances, contend.
…
119 In considering that particular issue, his Honour recorded the State’s contention as to what the expression “a right to mine” meant as follows (at [979]:
The State contends that the ordinary meaning of the expression “a right to mine” does not comprehend the grant of a miscellaneous licence for the purpose of planning, design, construction, commissioning, operation and maintenance of a railway and associated infrastructure …
120 After reviewing several authorities that dealt with the expression “mining operations”, his Honour identified what he regarded as the “difficulty” with the claimants’ position as follows (at [981]):
The difficulty with the claimant’s argument is that the expression “mining operations” which was given that broad construction is different from the expression “the creation of a right to mine, whether by the grant of a mining lease or otherwise”. The primary focus is on the words “right to mine” …
121 Barker J then posed the question: “Does L45/147 create a right to mine?” and proceeded to answer that question in the negative as follows (at [981]-[983]):
… On the face of it, as the respondents contend, it does not. Undoubtedly it is a tenure that is granted to facilitate the transportation of product to port for sale, and may be part of a mining operation as defined generally or for the purposes of the NTA. It may also be an “infrastructure facility … associated with mining”. In that regard, “infrastructure facility” is defined by s 253 NTA to include “a road, railway, bridge or other transport facility”. The railway falls within that definition and would appear to be associated with mining on any view. The tenure would also appear to have been granted for the “sole purpose” of the construction of the railway associated with mining.
982 In the result, however, it seems to me to involve impermissible reasoning to say that, because the grant of the right to construct the railway is associated with mining, it is therefore “mining”. Unless one can contend the words of subs (1)(c)(i) are to be taken to mean that a grant not for the sole purposes of construction of a tenure infrastructure associated with mining, involves “the creation of a right to mine”, which I do not think one can in the overall context of the NTA, then the claimants’ argument must fail.
983 In any event, even if it is possible to treat the grant of L45/147 as the creation of a right to mine comprehended by s 26(1)(c)(i), it is difficult to see why the exception should not apply in that the grant would appear to be “one created for the sole purpose of the construction of an infrastructure facility … associated with mining”.
(Emphasis in original)
122 Having decided that it fell within the exception in s 26(1)(c)(i), his Honour then concluded that “the grant of L45/147 was not affected by Subdiv P” (at [984]). However, he added the following qualification about the operation of s 24MD(6B)(b) (at [985]):
Whether Subdiv M applied: Even if the claimants were right about the application of Subdiv P to the future act this does not necessarily mean that the grant of the miscellaneous licence would not be valid under Subdiv I. It might be that Subdiv P can be said to apply but there can be no doubt that Subdiv M did apply because, I accept, the relevant act fell within s 24MD(6B)(b). As a consequence, the “other consequences” set out in subs (6B) would apply, including (f) requiring the hearing of an objection by an independent person or body; something not here done.
(Italics and bold in original)
123 Barker J then turned to consider two rail leases – K843924 and K843925 – which the claimants contended were invalid, including for the following reason (at [1006(5)]):
If Subdiv M applies, each grant would have to satisfy the freehold test in s 24MB NTA. If each grant does pass the freehold test, the grants were still invalid due to the state’s failure to comply with the procedural requirements in s 24MD(6A) and (6B), as per the claimants’ submissions in relation to miscellaneous licence L45/147 discussed above.
The critical question was whether the rail leases were general leases and therefore category B past acts, as BHP Billiton claimed they were (at [1046]-[1047]), or whether they were mining leases as defined in s 245 of the NTA, and therefore category C past acts, as the claimants’ claimed they were (at [1048]).
124 On that issue, his Honour concluded that mining was confined to the “physical, primary acts” and did not extend to include “activities that facilitate the conduct of a broader mining operation” as follows (at [1053]):
I accept, therefore, that the expression “mining lease” is limited in the context of the NTA and should reflect the meaning given to the verb “mine” in s 253 NTA. That definition is not comprehensive but simply provides that mine “includes” certain exploration, prospecting, extraction and quarrying activities. That may mean that other activities can be drawn in, but in the circumstances I do not consider that a lease granted in respect of the railway should be included within the concept in this case. The focus of the definition of mine is the physical, primary acts and not associated with activities that facilitate the conduct of a broader “mining operation”.
125 In that context, his Honour also concluded that the apposite words in s 24MD(6B)(b) of the NTA were a “compendious phrase” and should be interpreted as “standing alone”, as follows (at [1054]-[1055]):
1054 The only respect in which the NTA suggests the meaning of “mine” which goes beyond the physical, primary act, is in the use of the compendious phrase, “the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining” found in s 24MD(6B)(b) and discussed above in relation to L45/147.
1055 While this particular provision – which as noted above is a difficult one to grapple with – might suggest that where an infrastructure facility is associated with mining, then the creation of a right in respect of such construction should be seen as the creation (or variation) of a “right to mine” where that is the sole purpose of the infrastructure, I am rather inclined to treat a provision such as s 24MD(6B)(b) as standing alone and to be interpreted in the particular circumstances of the subdivision of the NTA in which it appears. It is not a provision, in my view, which, in the overall context of the NTA, suggests that every time an infrastructure facility can be shown to be solely or primarily associated with mining that the tenure pursuant to which it is constructed should also be treated as a “right to mine” or indeed “mining” itself and so involve the grant of a “mining lease”.
The contentions
126 On the construction issue identified above, Mr Glacken placed particular reliance on the conclusion Barker J reached at [1054]-[1055] of Banjima. Based thereon, he disputed Mr Doyle’s contention below that there were two limbs to the words in s 24MB(6B)(b): “the creation … of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining”. He contended instead that those words had to be read as a “compendious phrase”. He therefore contended that a grant could be described as creating a right to mine within the terms of those words if it were for the sole purpose stated. Further, he claimed that the judgment of Drummond J in Smith v Tenneco Energy Queensland Pty Limited (1996) 66 FCR 1 (Smith), upon which Mr Doyle relied, pre-dated the 1998 amendments to the NTA and was therefore distinguishable.
127 On the factual issue, Mr Glacken agreed with Mr Doyle that, in this instance, the word “includes” in the definition of “infrastructure facility” in s 253 of the NTA should be construed as “means and includes”. On that basis, he contended that the works described in the Summary of Works attached to the application for MLA 29881 fell within the broad and inclusive terms of subparagraphs (f) and (g) of that definition because the Bing Bong Loading Facility was a transport facility for the export of minerals within the terms of subparagraph (f) and because it also was proposed to have engineered walls and drainage such that it was a water management facility within the terms of subparagraph (g).
128 With respect to the construction issue, as foreshadowed above, Mr Doyle contended that there were two limbs to the subject phrase and the applicants had to establish both. They were: that the grant had to involve the creation of a right to mine; and it also had to be for the sole purpose of constructing an infrastructure facility as defined. Mr Doyle contended that the conclusions that Barker J came to at [1054]-[1055] of Banjima were distinguishable because his Honour was there dealing with the question whether the leases were “mining leases” as defined in the NTA and not the expression “right to mine”. Instead, he contended that his Honour’s conclusions at [982]-[983] of Banjima were applicable in this matter. As also foreshadowed above, he also relied on the judgment in Smith where Drummond J held that the grant of a licence for a pipeline was not the creation of a right to mine. As mentioned above, Mr Doyle also contended that the word “includes” in the definition of “infrastructure facility” should be construed as “means and includes”.
129 On the factual issue, Mr Doyle contended that the dredge spoil deposit area and the engineered walls and drains to carry sea water through existing channels to sea was neither a transport facility nor a water management facility, as described in subparagraphs (f) and (g), respectively, of the definition of “infrastructure facility” in s 253 of the NTA. Finally, he emphasised that the subject phrase required the grant to be made for the “sole purpose” of constructing one of those facilities.
Consideration on the construction issue
130 To begin with, I do not accept Mr Doyle’s contention that there are two limbs to the phrase “the creation … of a right to mine for the sole purpose of the construction of an infrastructure facility … associated with mining” in s 24MD(6B)(b). Instead, I respectfully agree with Baker J in Banjima at [1055] that the subject phrase should be read compendiously and that s 24MD(6B) should be treated as a standalone provision. I do not, therefore, agree with Mr Doyle that, in this instance, that part of Banjima is distinguishable.
131 The need to read that phrase compendiously means that one looks to the “construction” that is pivotal to that phrase and determines whether it meets all of the elements necessary to bring that construction within the exception to which s 24MD(6B) is directed. That is to say, one asks whether it:
meets the sole purpose test;
involves an infrastructure facility of the kind defined in s 253 of the NTA; and
is associated with mining.
If there is an affirmative answer to all of those questions, then the grant to build that construction is treated as the creation of a right to mine of that exceptional kind to which the rights prescribed by s 24MD(6B) attach. That grant will not, however, be treated as the creation of a right to mine falling within the terms of Subdivision P.
132 This last conclusion concerns the latter. There are at least three reasons why s 24MD(6B) is to be treated as a standalone provision. First and foremost, focusing on the constituent phrase “creation… of a right to mine” leads inevitably to the paradoxical result of destroying the exception that underpins that section’s very existence. That, all the more so, when it is clear from the Explanatory Memorandum above and s 26(1)(c)(i) itself that a grant to construct an infrastructure facility associated with mining was deliberately excluded from Subdivision P by the 1998 amendments. I interpose to record that, in this respect, I agree with Mr Glacken that, since the judgment of Drummond J in Smith pre-dates those amendments, it provides no assistance in the construction of s 24MD(6B)(b).
133 Secondly, that focus also creates a tension between the words “right to mine” at the beginning of the subject phrase and the words “associated with mining” at the end of it. That tension will be exacerbated if the word “mine” is constructed narrowly. In this respect, it is also important to note that the Explanatory Memorandum makes it clear that s 24MD(6B)(b) was intended to provide protection for the rights of native title holders where the infrastructure facility concerned was, while not involving mining per se, associated with it.
134 Thirdly and relatedly, I respectfully agree with the observations of Barker J in Banjima at [1055] that s 24MD(6B)(b) “is not a provision … which, in the overall context of the NTA, suggests that every time an infrastructure facility can be shown to be solely or primarily associated with mining that the tenure pursuant to which it is constructed should also be treated as a ‘right to mine’ or indeed ‘mining’ itself and so involve the grant of a ‘mining lease’”.
135 Applying these conclusions in this matter, since the works proposed to be conducted under MLA 29881 are, as explained earlier, ancillary to mining at the McArthur River Mine, they can be said to be associated with mining under the third element above. That means, if those works are, in fact, for the sole purpose of the construction of an infrastructure facility as defined in subparagraphs (f) and/or (g) of the definition in s 253 of the NTA under the first and second elements above, then the grant of MLA 29881 will fall within the terms of the subject phrase in s 24MD(6B)(b). The question, then, is whether, as a matter of fact, those proposed works are of that type. That leads to the factual issue above.
Consideration on the factual issue
136 Before addressing that issue, it is necessary to consider the definition of “infrastructure facility” in s 253 of the NTA. First, I accept what is now common ground that the word “includes” should be construed as “means and includes” (see Y.Z. Finance Company Pty. Limited v Cummings (1964) 109 CLR 395 at 402 and 403-404 per Kitto J). Secondly, since the sole purpose test for the construction is applied by reference to that definition, to my mind, that suggests the need for specificity in respect of the infrastructure facility to which it is to be applied.
137 Thirdly, while the words in subparagraph (i) “any other thing that is similar to any or all of the things mentioned in paragraph (a) to (h)” may tend to reinforce the inclusiveness of the definition, the fact that provision exists suggests the opposite. That is to say, if the Legislature has provided a process whereby other items can be added to the definition, that suggests a degree of exclusiveness with respect to the items that are already included.
138 Fourthly, it is important to note that there are two types of transport facility referred to in the definition: the “transport” facility in subparagraph (a); and the “transportation” facility in subparagraph (f). Even recognising the caution to be applied with respect to the expressio unius rule (see Pearce, DC, Statutory Interpretation in Australia (9th ed, 2019, [4.45])), in this instance, that rule suggests that the latter subparagraph is to be given a more confined meaning than the former. That is, to confine the latter exclusively to the transportation of the materials described, namely “coal, any other mineral or any mineral concentrate”.
139 Fifthly, and finally, while, on the one hand, I consider the terminology used in subparagraph (g) is broad enough to include waste or excess water, on the other hand, it is difficult to see how that subparagraph would apply to characterise a drain to disburse waste or excess water as a water management facility.
140 Turning then to the evidence, based on the Summary of Proposed Works attached to the original application for MLA 29881 (see at [9] above) and Mr Rooney’s description of the works proposed for the expansion of the Dredge Spoil Emplacement Area that is used in the operation of the Bing Bong Loading Facility, I do not consider those works are for the sole purpose of constructing an infrastructure facility as defined in subparagraph (f) or subparagraph (g) of the definition of “infrastructure facility” in s 253 of the NTA. That is because the proposed works are not for the sole purpose of constructing a storage or transportation facility for the materials described in subparagraph (f). Specifically, while the expanded Dredge Spoil Emplacement Area will allow for the storage of dredge spoils, those spoils do not fall within the description of “coal, any other mineral or any mineral concentrate”.
141 Secondly, I also do not consider those works are for the sole purpose of constructing a dam, pipeline, channel or other water management distribution or reticulation facility within the terms of subparagraph (g). That is so because I do not consider the process of constructing a drain to remove excess sea water from the Dredge Spoil Emplacement Area falls within the description of a “water management distribution or reticulation facility”. Instead, at its highest, it involves a peripheral element of the expansion works that are proposed for that area. Finally, and for completeness, I do not consider that a spoils dump facility of the kind proposed falls within the description of any of the other infrastructure facilities mentioned in the various subparagraphs of the definition of that expression in s 253, even if the most expansive meaning were to be given to the language used in them. This highlights the important distinction that exists on the facts of this matter between the “activities … ancillary to mining” which the grant of MLA 29881 will permit Mount Isa Mines to conduct, namely to expand the Dredge Spoil Emplacement Area to enhance the operation of the Bing Bong Loading Facility, and the more closely confined conduct “associated with mining” to which the exception in s 24MD(6B) applies, namely a construction having both a sole purpose and a particular object, to wit the construction of an “infrastructure facility” of the kind defined in one or more of the subparagraphs of the definition of that expression in s 253 of the NTA.
Conclusion on Issue 2
142 For these reasons, the answer to the question posed in Issue 2 above (at [63]) is “no”. That being so, the Minister was not required to comply with the procedures set out in s 24MD(6B)(c) to s 24MD(6B)(g). This means that the applicants have not established their entitlement to the second category of declaratory relief above (at [55]) insofar as that relief concerns the violation of any statutory rights or procedures that are prescribed by those provisions.
143 Since the answer to this question is in the negative, it will not be necessary to consider Issue 3 above and nor will it be necessary to consider the first part of Issue 5 above.
ISSUE 4. HAVE THE STATUTORY RIGHTS IN SECTION 24md(6a) OF THE NTA BEEN AFFORDED TO THE APPLICANTS?
Introduction
144 The next question is whether the applicants are entitled to the second category of declaratory relief on their alternative case, namely the alleged violation of their statutory rights under s 24MD(6A) of the NTA. To answer that question, it is necessary to examine what those rights are and the claims the applicants have made with respect to them.
The decision to grant a mineral title and the link to s 24MD(6A)
145 An appropriate starting point is s 78 of the MTA under which a decision to grant a mineral title is made. It relevantly provides:
(1) This section applies in relation to an application for the grant of a mineral title, after:
(a) all the procedures under this Division relevant to the application are completed; and
(b) the Minister has considered:
(i) all objections, submissions, and responses mentioned in section 72; and
(ii) all other matters he or she is required by this Act to consider before making a decision about the application.
…
146 There are therefore three groups of prerequisites to such a grant:
(a) that all the procedures under Division 2 of Part 5 (ss 70 to 79) relevant to the application have been completed;
(b) that the Minister has considered all objections, submissions and responses mentioned in s 72; and
(c) that the Minister has considered all other matters that he or she is required by the MTA to consider before making a decision about the application.
One effect of the last of these three prerequisites is to provide the link to the NTA which has already been mentioned above (see at [117]). In particular, s 74(2) relevantly provides that “the Minister may grant the mineral title only if satisfied all procedures under the NTA relevant to the future act have been followed” (emphasis added).
147 The words in this provision, “the Minister is satisfied”, introduce, what is often referred to as, “a subjective jurisdictional fact” (see Singh v Minister for Home Affairs (2020) 274 FCR 506; [2020] FCAFC 7 at [78] per Derrington J (Logan and Reeves JJ agreeing) and EHF17 at [44]-[45] and [55]). The scope for review of such a decision is limited. In brief, the inquiry is directed to whether the state of satisfaction required has actually been reached (see Commissioner of Taxation v Addy (2020) 382 ALR 68; [2020] FCAFC 135 at [169] per Derrington J (Davies and Steward JJ agreeing) and EHF17 at [65]-[70]).
148 In this matter, having determined Issue 2 above against the applicants, the words “procedures under the NTA” in s 74(2) above correspond, in particular, to the “procedural rights” that are referred to in s 24MD(6A) at [114] above. That, in turn, requires consideration of the definition of that expression in s 253 of the NTA as follows:
procedural right, in relation to an act, means:
(a) a right to be notified of the act; or
(b) a right to object to the act; or
(c) any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.
The applicants’ claims about the “procedural rights” in s 24MD(6A)
149 In their FASC, the applicants have identified five procedures under the MTA which they contend are an “essential preliminary” (at [20]) and/or “procedural rights” (at [26]). They are in numerical order (at [26]):
(a) s 66(2);
(b) s 71;
(c) s 72;
(d) s 78; and
(e) s 106.
150 Since they contain requirements to give notice, ss 66(2) and 71 ostensibly fall with subparagraph (a) of the definition of “procedural right” above and, as it contains a right of objection, s 72 ostensibly falls within subparagraph (b). Putting aside s 78, which concerns the decision to grant itself, the remaining provision above, s 106, provides that the Minister may require security in considering whether to grant a mineral title. For that provision to constitute an “essential preliminary” or a “procedural right” to which s 24MD(6A) applies, it would need to fall within the terms of subparagraph (c) of the definition above.
151 In addition to the sections set out above, in their reply to the defence of the Minister and the Northern Territory, the applicants have also “rel[ied] upon” the following additional provisions of the MTA as procedures which, they contended, have not been followed as required by s 24MD(6A) of the NTA (at [2(3)] and [2(8)]):
(a) s 41(1);
(b) s 41(2)(c);
(c) s 58(2)(a); and
(d) s 164(2).
152 With respect to these two lists of provisions, it is to be noted that, unlike ss 71, 72 and 78, ss 66 and 106 of the first list at [149] above and all of the additional procedures in the second list at [151] above do not fall within Division 2 of Part 5 of the MTA and are not, therefore, captured by the first group of prerequisites for a grant under s 78(1)(a). That means that the applicants must rely upon the third group of prerequisites mentioned above, namely the combination of ss 78(1)(b)(ii) and 74(2) of the MTA and s 24MD(6A) of the NTA (see at [117] and [146]), to bring those provisions into contention. There is no dispute that s 66(2) is engaged by that pathway because, as already mentioned, as a notice requirement, it meets the description of subparagraph (a) of the definition of “procedural right” above. However, neither s 106, nor any of the additional provisions listed at [151], falls within the terms of either that subparagraph or the right to object described in subparagraph (b). Accordingly, as already mentioned with respect to s 106, they must constitute a “right that is available as part of the procedures that are to be followed when it is proposed to do the act” under subparagraph (c) of that definition before s 24MD(6A) will apply to them.
153 With respect to s 66(2), Mount Isa Mines accepts that it (as distinct from the Department: see at [22] and [26] above) did not serve the notice on the first to third applicants as required by that section. Instead, it relies on the extension of time granted by the Minister’s delegate under s 167 of the MTA on 13 December 2019 (see at [50] above). In their reply, the applicants challenged the validity of that decision claiming that it was done “without regard to the merits of the application” (at [4(5)(a)]).
154 As for s 71, the applicants do not claim the requisite notice under that section was not given (see at [21] and [22] above), but rather that the notice that was given was invalid because it did not identify the other mineral lease to which MLA 29881 related (at [27] of the FASC and at [2(3)] and [2(7)] of the reply). This aspect of their claims has already been addressed incidentally in Issue 1 above, albeit in a particular context (see at [97]).
155 With respect to the Minister’s treatment of the objection that was lodged on the applicants’ behalf on 16 September 2016 under s 72 (see at [35] above), the applicants, in their FASC, have variously claimed that: the Minister failed “to deal with, consider or respond to the objection at all and to deal with and consider the objection in accordance with ss 72 and 78” of the MTA (at [16]); that he displayed “disqualifying bias” (at [17]); and that he “failed to accord [them] procedural fairness in considering the application and in deciding whether to grant the application and failed to consider the objection in accordance with ss 72 and 78” (at [18]).
156 I interpose to note that the so-called “double might” test for the existence of the “disqualifying bias” referred to above is set out in the High Court judgment of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. It should also be noted that, at [4] of Ebner, their Honours observed that that test was not confined to judicial officers and, at [8], they described the two steps that are required in its application as follows:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ( or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge ( or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Emphasis added)
157 In their reply, the applicants also added a further claim with respect to the second group of prerequisites in s 78(1)(b)(i). That is, they contended that the NLC’s letters to the Department on 26 August 2016 (see at [28] above) and 16 September 2016 (see at [35] above) comprised “representations” that the Minister was bound to consider under that section. They also claimed that “the lack of any real genuine and realistic consideration” of those representations, among other things, “l[ed] to a reasonable apprehension of bias” (at [3(4)(c)] and [3(4)(d)]).
158 It follows from this review of the applicants’ claims, insofar as they relate to the procedural rights under s 24MD(6A), that they have not pleaded a frank violation of their rights to receive notice or to object, of the kinds protected by the combination of that section and subparagraphs (a) and (b) of the definition in s 253 above. Rather, they have challenged: the validity of the extension of time concerning the late notice that was given under s 66(2) (see at [153] above); the validity of the notice that was given under s 71, based on its content (see at [154] above); and the failure to afford them procedural fairness in respect of their objection under s 72 (see at [155] above). Put differently, having disposed of their allegations with respect to the procedural requirements in s 24MD(6B) of the NTA, what remains of their case insofar as it concerns the balance of s 24MD, namely the procedural rights under s 24MD(6A), does not involve the kind of threatened violation of rights that would justify the second category of declaratory relief being granted, as discussed earlier (see at [55]).
159 Instead, their claims with respect to their procedural rights under s 24MD(6A) are now inextricably intertwined with their claims with respect to the decision which they claimed has already been made to grant MLA 29881. That is, that that decision was made without affording them procedural fairness (at [18] of the FASC) and was “made or done without regard to the merits of the application” (at [4(5)(e)] of the reply) within the third category of declaratory relief discussed above (at [56]). That then raises the same mix of concepts discussed earlier (at [60]) and leads back to the conclusion reached earlier (at [62]) that, to obtain that category of relief, the applicants will need to establish that there has been a decision on MLA 29881 which is “final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”. On this aspect it is worth adding that, because they are, in effect, in the same category as interlocutory decisions, I do not consider the decisions reached on the extension of time (see at [153] above), or the rejection of the objection (see at [155] above and [170(b)] below), meet these criteria.
160 In this respect, it is to be recalled that the applicants did not expressly plead, in their FASC, that a decision had been made to grant MLA 29881. Instead, that issue was raised by the Minister in his defence where he claimed that “a decision to grant [the application for MLA 29881] has not been made” (at [7(b)]) (see at [56]-[58] above). Further, with respect to the applicants’ objection, he claimed that “the obligation in s 78(1)(b)(i) of the [MTA] need only be discharged immediately before the making of that decision” (at [16(f)]). Finally, with respect to the applicants’ allegations concerning compliance with s 106 of the MTA, he claimed that he “has not yet made a decision to grant ML 29881 and consideration on whether to exercise the discretion in s 106 of the [MTA] only arises upon the making of that decision” (at [27(e)]).
161 Having regard to the way in which the applicants’ claims are now presented, and bearing in mind that all of the declaratory relief that the applicants have sought is discretionary, I consider these claims in the Minister’s defence have to be determined first. To do otherwise will have some, or all, of the following consequences:
(a) it will pre-empt the Minister’s subjective satisfaction as to whether the procedures in ss 41(1), 41(2)(c), 66(2), 78(2)(a), 106 and 164(2) are “procedural rights” as defined in subparagraph (c) of the definition of “procedural rights” in s 253 of the NTA with respect to which he needs to afford the applicants rights under s 24MD(6A) of the NTA (see at [147]-[148] above);
(b) it will pre-empt the Minister’s final consideration of the applicants’ objection under s 72 of the MTA (see at [155] above);
(c) it will pre-empt the Minister’s decision as to whether the applicants’ letters dated 26 August 2016 and 16 September 2016 constitute representations within the terms of s 78(1)(b)(i) and, if so, his consideration of those representations (see at [157] above);
(d) it will prematurely decide whether the Minister has given real, genuine and realistic consideration to all of these matters before he has completed consideration of the applicants’ objection and/or the application for ML 29881, as required by s 78(1) (see at [145]-[146] above); and
(e) it will make it difficult, if not impossible, to apply the two step test set out in Ebner to that allegedly non-existent decision (see at [156] above).
In short, this requires Issue 6 to be considered next.
ISSUE 6. HAS A SUBSTANTIVE AND FINAL DECISION BEEN MADE WITH RESPECT TO THE GRANT OF MLA 29881?
The indicia of a decision
162 In Pintarich v Deputy Commissioner of Taxation (2018) 262 FCR 41; [2018] FCAFC 79 (Pintarich) (at [143]) the majority (Moshinsky and Derrington JJ) considered the following statement of Finn J in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (Semunigus) at [19] “to accurately capture the elements that are generally involved in the making of a decision”:
For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion — as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
163 In Pintarich, the central issue was whether, in sending a letter to the appellant taxpayer on or about 8 December 2014, a delegate of the Deputy Commissioner of Taxation had made a decision to remit a general interest charge (GIC). Their Honours concluded that the delegate had not made that decision (see at [153]). Importantly for present purposes, in reaching that conclusion, they had regard to the evidence of Mr Celantano, the delegate concerned, that “he made no decision on the application” (see at [144(b)]). They also observed that “it is clear from [this] evidence that he did not turn his mind to this aspect of the letter” (see at [146]). It is obvious, therefore, that their Honours took account of Mr Celantano’s subjective views as to whether he had made a decision with respect to the GIC when composing his letter of 8 December 2014. Since that reasoning constitutes the ratio of the majority judgment in that case and its factual circumstances are relevantly indistinguishable from the present case, I consider it must be followed in this matter. Accordingly, it is necessary to answer the following two questions:
Did Ms Turnbull, as the Minister’s delegate, apply a mental process to come to a conclusion on the grant of MLA 29881?
If so, what overt acts are there, if any, that translated that conclusion into a final decision to make that grant?
The relevant statutory provisions
164 Before considering the evidence bearing on the answers to these questions, it is convenient to identify the relevant statutory provisions. Section 78(1) is already set out above (see at [145]). The other subsection of that section that is relevant to this issue is subsection (2) as follows:
(2) The Minister may decide to take one of the following actions:
(a) grant the mineral title for all of the proposed title area;
(b) grant the mineral title for part of the proposed title area and refuse to grant the title for the remaining proposed title area;
(c) refuse to grant the mineral title;
(d) refer the application to the Tribunal for a hearing and recommendation.
165 As well, s 166 of the MTA requires the Minister to give notice in writing of a decision as follows:
(1) A decision, requirement, approval, consent, authorisation or notice made or given by the Minister under this Act must be in writing and served on the person to whom it is directed.
(2) If the Minister decides to refuse an application made under this Act, the Minister must give the applicant a notice of the refusal that includes the reasons for the decision.
(3) However, subsection (2) does not apply to an application prescribed by regulation.
166 Finally there is one other provision of the MTA and a provision of the Mineral Titles Regulations 2011 (NT) that have a bearing on this issue. They are s 76 and reg 60 as follows:
[Section] 76 Survey of particular title areas
(1) This section applies in relation to any of the following applications:
(a) an application under section 33 for the designation of an EL as an ELR;
(b) an application under Part 3 or 4 for the grant of an ML, EML or EMP;
(c) an application under section 118(1) for the grant of an MA, if the Minister requires a survey of the proposed title area of the MA.
(2) The applicant must survey the proposed title area of the mineral title, and give the Minister a copy of the plan of survey, before the Minister may issue the ELR or grant the ML, EML, EMP or MA (as applicable).
(3) However, if the Minister is satisfied there are reasons to justify a delay in surveying the proposed title area of the mineral title, the Minister may:
(a) issue or grant the title before the proposed title area is surveyed; and
(b) require the applicant to complete a survey of the title area within a specified period not exceeding 6 months; and
(c) include the requirement under paragraph (b) as a condition of the title.
(4) In relation to an application for the grant of an ML or EML, if the title area to be surveyed:
(a) exceeds the size prescribed by regulation – the applicant must:
(i) have the title area surveyed by a licensed surveyor as defined in section 4 of the Licensed Surveyors Act 1983; and
(ii) give the Minister a copy of the plan of survey for the title area certified by the Surveyor-General under the Licensed Surveyors Act 1983; or
(b) does not exceed the size prescribed by regulation – the applicant must survey the title area as prescribed by regulation.
(5) In relation to an application for the designation of an EL as an ELR, or the grant of an EMP or MA, the applicant must survey the title area as prescribed by regulation.
[Reg] 60 Procedures relating to payment of rent and giving security
(1) The Minister may grant a person a mineral title only if the person has paid the required rent, and given the required security, for the title.
(2) If the person has paid the required rent and given the required security when the Minister decides to grant the mineral title, the grant takes effect on the day the Minister makes the decision.
(3) If the person has not paid the required rent or given the required security and the Minister considers it will be appropriate to grant the mineral title if the person does so, the Minister must give the person a notice specifying:
(a) the Minister will grant the mineral title for the title area specified in the notice if the person pays the required rent and gives the required security before the date specified in the notice; and
(b) the matters mentioned in subregulations (5) and (6).
(4) The date specified under subregulation (3)(a) must be at least 30 days after the date of the notice.
(5) If the person pays the required rent and gives the required security before the specified date, the grant of the mineral title takes effect on the date the Agency receives the rent and security.
(6) If the person does not pay the required rent and give the required security before the specified date:
(a) the person's application for the grant of the mineral title is refused; and
(b) the application is prescribed for section 166(3) of the Act.
Note for subregulation (6)(b)
The Minister is not required to give any further notice relating to the refusal to grant the mineral title that would otherwise be required under section 166(2) of the Act.
(7) In this regulation:
required rent means:
(a) for an EMEL – the rent payable for the term of the EMEL; or
(b) for any other mineral title – the rent payable for the first operational year of the title.
required security, for a mineral title, means the security (if any) for compensation required under section 106 of the Act before or during the consideration of an application for the grant of the title.
The evidence
167 As with the preceding issues, most of the evidence bearing on this issue is set out in the Factual Background section above. That includes:
(a) Mr O’Donnell’s letters to Mr Stephens and Mr Holland on 5 September and 7 September 2016, respectively (at [33] above);
(b) Mr Holland’s letter to the Chairman of the NLC dated 12 September 2016 (at [34] above);
(c) Mr Stephens’ email to the Department on 4 April 2019 and Ms Turnbull’s reply of the same date (at [36] above);
(d) Ms McConachy’s memorandum to Ms Turnbull dated 24 September 2019 (at [40] above);
(e) Ms Turnbull’s letter to the Chairman of the NLC dated 24 October 2019 (at [43] above);
(f) Ms Scrymgour’s (the CEO of the NLC) letter to the Chief Minister of the Northern Territory and the Minister on 15 November 2019 (see at [46] above); and
(g) the NLC’s letter to Ms Turnbull on 15 November 2019 and Ms Turnbull’s email reply of the same date (see at [47]-[48] above).
168 There is also those parts of Ms Turnbull’s two affidavits to which objection was taken by the applicants. They are the first and second sentences of [45] of Ms Turnbull’s first affidavit and [4] and [5] of Ms Turnbull’s second affidavit as follows:
[First affidavit]
45. As at the date of making this affidavit, neither the Minister nor any authorised delegate of the Minister, has decided whether or not to grant ML 29881. [The Department’s] usual process is for the Minister or his authorised delegate to make such decisions upon a full briefing by Departmental officers.
[Second affidavit]
4. As at the date of making this supplementary affidavit, I have not decided whether or not to grant ML 29881 to Mount Isa Mines Limited.
5. To the best of my knowledge, and in my experience, a decision in relation to an application for the grant of a mineral title would only be made by the Minister or his authorised delegate once:
(a) the relevant applicant for the grant of a mineral title has paid the required rent and provided the required security (if any) pursuant to r.60 of the Mineral Titles Regulations 2011 (NT); and
(b) a notice has been issued by the Minister or his authorised delegate to the relevant applicant pursuant to r.60(3) of the Mineral Titles Regulations 2011 (NT).
169 Mr Glacken objected to the admissibility of those paragraphs on the ground of relevance. He contended that the question whether a decision had yet been made to grant MLA 29881 had to be determined objectively and Ms Turnbull’s subjective views with respect to it were matters of opinion rather than fact and therefore irrelevant. For the reasons set out above (at [163]), I reject that contention. Accordingly, those paragraphs of Ms Turnbull’s affidavits will be admitted into evidence.
170 In addition, Ms Turnbull was cross-examined on the contents of her affidavits and she gave the following evidence which has a bearing on this issue:
(a) As a result of a misunderstanding in relation to the treatment of the objection lodged on behalf of the applicants, the Mineral Titles section of the Department did not provide a copy of that objection to, and request a response from, Mount Isa Mines. This involved a departure from the normal procedures set out in the Guidelines published by the Department.
(b) The effect of accepting the recommendation in Ms McConachy’s memorandum (see at [41] above) was to reject the applicants’ objection. Having done so, she said she could then proceed towards a grant with respect to MLA 29881. However, she claimed that was not a recommendation to make that grant because “there are other matters that need to be finalised before a final decision is made”.
(c) Ms Turnbull said she asked Ms McConachy to undertake an audit of the file to check that “all legislative requirements for making a grant had been met”. She said, once that audit was undertaken, two matters were identified: “a survey and dealing with objections”. Once those steps were addressed, then all the legislative requirements for making a grant with respect to MLA 29881 would have been undertaken.
(d) With respect to the statement in Ms Kennedy’s (the Acting Director Mineral Titles) email of 18 November 2019 that “the offer of grant was due to be sent out today”, she said that was not an accurate statement of the status of the application as at that date “because the matter had not been resolved, because the NLC had taken action to prevent the grant. So we would not have been sending the offer because of pending legal proceedings”.
(e) Conversely, if 18 November 2019 had occurred without legal proceedings being instigated, then Ms Turnbull said “my staff would have prepared a full briefing memo for me, which would have outlined all the matters that had been addressed to date. I would have considered those again and then we would – if I was satisfied that all the proceedings that needed to be completed had been completed, we would have issued the notice of intention to grant, which is the normal practice once you get to that particular point”.
(f) On this aspect, she added, “I would not have signed the notice of intention to grant on the 18th [November]. That was just an indicative date, so there’s still a process that has to be followed before the notice of intention to grant would be issued”. However, she also added that she was not aware of anything “being uncompleted” at that time.
171 In re-examination, Ms Turnbull said that the final briefing she would receive from her staff “would outline when the application was made, the location, the type of land tenure, any objections we had received, the contents, a very brief summary of those contents, and any decisions made around the objections. It would also discuss any native title implications, whether we had considered – taken native title into account, a whole range of – a whole range of factors”. As to the form of the lease or tenement, that briefing “would outline that it was for ancillary purposes, and it would suggest the term that it was going to be granted for and the purpose”.
The contentions
172 Mr Glacken contended that Ms Turnbull’s letter of 24 October 2019 and her written acceptance of the recommendation in Ms McConachy’s memorandum dated 24 September 2019 comprised the overt acts referred to in the second limb of Semunigus. As for the first limb, he contended that the acceptance of the latter also represented a decision by the Director not to refuse the grant under s 78(2)(c) of the MTA. With respect to the provisions of s 166, he contended that there was a distinction to be made between a decision and a notice of a decision, the latter being the letter of 24 October 2019. He contended that the same distinction was made in reg 60(3). With respect to the construction of Ms Turnbull’s letter of 24 October 2019, he made two contentions. First, that the notice referred to in the second paragraph was the same as the notice referred to in the heading, namely “the notice of intention to grant”. He contended this was consistent with the requirements of reg 60(3). Secondly, he contended that it was never the intention to issue two lots of notices. Finally, he contended that there were three steps in the decision-making process for the grant of MLA 29881: first, a decision under s 78(2); secondly, the notice of that decision under s 166; and thirdly, the making of a grant following compliance with, among other provisions, s 76 relating to a survey and the requirements of reg 60 relating to rent and security.
173 Mr Doyle contended that Ms Turnbull’s letter dated 24 October 2019 did not reflect a decision to grant MLA 29881, but rather was a notice of intention to make a final decision about that grant. He contended that that letter had to be read in the context of the letter from the Department to the NLC dated 7 September 2016, to give notice before any final decision was made. Finally, he relied upon Ms Turnbull’s written and oral evidence about the process that needed to be followed before the final decision was made to make that grant, claiming that process had not yet been followed.
No decision has been made as yet to grant MLA 29881
174 For the reasons that follow, I consider that both of the questions posed above (at [163]) must be answered in the affirmative. First, I accept Ms Turnbull’s written and oral evidence that she has not, as the Minister’s delegate, applied the mental process necessary to make a decision to grant MLA 29881. Her evidence is clear that, once she returned from leave on 25 November 2019, she would have obtained a final briefing from her staff and then decided whether to make that grant. As she explained in her oral evidence, she was not able to do that because the applicants issued this proceeding in the meantime. Having regard to this evidence, to the extent that Ms Kennedy’s email of 18 November 2019 suggests otherwise, I consider that Ms Kennedy was mistaken.
175 Secondly, I reject the applicants’ contention that either Ms Turnbull’s acceptance of the recommendation in Ms McConachy’s memorandum dated 24 September 2019, or her sending the letter of 24 October 2019, were overt acts that reflected a final decision to grant MLA 29881. By its terms, Ms McConachy’s recommendation did not evidence such a decision, but rather, as it stated, signified an “intention to continue processing the application for Mineral Lease 29881 towards grant”. While Ms Turnbull’s letter of 24 October 2019 was, in its term, more ambiguous, when it is read in its proper context, I also do not consider it evidenced a decision to make that grant. That is to say, while the second paragraph of that letter does express more finality and does appear to engage the terms of reg 60, insofar as it referred to the payment of rent, when the first paragraph is read in the context of the agreement recorded in the second paragraph of the Department’s letter to the NLC dated 12 September 2016, to provide “21 days notice to the NLC of any decision to grant [MLA] 29881”, I consider that letter, read as a whole, gives notice of an intention to proceed to make a decision with respect to the grant of MLA 29881 after the 21 days’ notice period has expired.
176 Thirdly, I do not accept Mr Glacken’s contentions that there is a distinction between a decision to make a grant and the grant itself. Section 78(2) of the MTA provides for only one decision to be made with respect to the grant of an application for a mineral title. Consistently with that section, s 166 requires written notice to be given of that decision. Significantly, it does not mention the word “grant”, or anything similar. In the context of these provisions, I consider s 76 and reg 60 allow the decision to grant a mineral title to occur in a particular manner, or under certain conditions, for example without a survey under s 76(3)(a), or on condition that the rent is paid by a certain date under reg 60(3). However, those provisions do not, in my view, create a distinction between a decision to make a grant and the grant itself.
Conclusion on Issue 6 and the remaining issues
177 Since neither limb of the test in Semunigus has been established by the applicants, it necessarily follows that the Minister is correct in his claims that no decision has yet been made to grant MLA 29881. In that event, the answer to the question posed in Issue 6 above is “no”. It follows from that conclusion and the discussion earlier (at [159]-[161]) that it would not be appropriate to consider any of the remaining issues set out above (at [63]). It follows further that the applicants are not entitled to any of the declaratory relief sought in their draft Minute of relief (at [53] above). They have not established their entitlement to the first category of declaratory relief described at [54] above, nor the s 24MB(6B) component of the second category at [55] above. As for the s 24MD(6A) component of that second category, as explained above, their claims are so inextricably intertwined with their claims concerning the third category that they cannot be appropriately determined in the absence of a decision having been made with respect to the grant of MLA 29881.
OVERALL CONCLUSION
178 To sum up, for the reasons set out above, I have concluded that:
1. The Minister is authorised by s 40(1)(b)(ii) of the MTA to make the grant of MLA 29881 (see at [98] above).
2. Section 24MD(6B) of the NTA does not apply to the proposed grant of MLA 29881 (see at [142] above).
3. A substantive and final decision has not been made with respect to the grant of MLA 29881 (see at [177] above).
179 Their amended originating application filed 12 May 2020 must be therefore dismissed. I will hear from the parties on the question of costs.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves. |
Associate:
ANNEXURE
NTD 40 of 2019 | |
TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC ICN 7848 |
