FEDERAL COURT OF AUSTRALIA

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729

ORDERS

THE COURT ORDERS THAT:

1.    The answer to the separate question, 'Was the grant of mining lease 39/1096 an act consisting of the creation of a right to mine to which s 26D(1) of the Native Title Act 1993 (Cth) applied?' is 'Yes'.

2.    The matter is listed for a case management hearing before a registrar at 9.30 am AWST on 5 August 2024 or such alternative date as fixed by the registrar.

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

Table of Contents

REASONS FOR JUDGMENT

JACKSON J:

1    In 2015 the first respondent (the State of Western Australia) granted mining lease 39/1096 (M39/1096) to Independence Group NL (now called IGO Ltd) and the fourth respondent, AngloGold Ashanti Ltd. M39/1096 consolidated 31 mining leases previously held by those companies. The area covered by M39/1096 is the same as the total area covered by the 31 previous leases. The duration of M39/1096 is the same as the duration of each of the previous leases. The rights and obligations attaching to M39/1096 are the same as those attaching to the previous leases.

2    Before the grant of M39/1096, the State did not give notice to affected parties and the public under s 29 of the Native Title Act 1993 (Cth) (NTA). The giving of that notice is required if Pt 2 Subdiv 3 of the NTA applies to the grant of a mining tenement. The notice is a step in the right to negotiate procedure for which that Subdivision provides.

3    This proceeding is an application for the determination of native title to an area that includes the area of M39/1096. It is common ground that if the right to negotiate procedures did apply to the grant of M39/1096 in 2015, they were not followed, and that this means that the grant of the tenement is invalid to the extent that it affects native title. The native title applicant contends that it is indeed invalid in that way; the State and AngloGold contend that it is not.

4    These reasons answer a separate question which has been ordered to resolve that issue: 'Was the grant of mining lease 39/1096 an act consisting of the creation of a right to mine to which s 26D(1) of the Native Title Act 1993 (Cth) applied?' Section 26D sets out circumstances when Pt 2 Subdiv 3, and so the right to negotiate, does not apply. If the separate question is answered in the affirmative, the result will be that the right to negotiate did not apply when the previous leases were replaced with M39/1096, so there will be no dispute that the grant of the tenement was valid. If the separate question is answered in the negative, the result will be that the right to negotiate applied when the previous leases were replaced with M39/1096, meaning the grant of the tenement is invalid to the extent that it affects native title.

5    The separate question holds within it two more specific issues. The circumstances contemplated by s 26D can include 'the renewal' or 're-grant or re-making … of an earlier right to mine' (s 26D(1)(a)). But s 26D does not apply when 'the area to which the earlier right relates is … extended' (s 26D(1)(c)). The first issue, then, is whether the grant of M39/1096 should be characterised as the renewal, re-grant or re-making of an earlier right to mine or earlier rights to mine. The provision does not speak of 'right to mine' in the plural, and whether it should be read to include the plural is a key point of contention. The second issue is whether the grant has the result that the area to which each of the previous mining leases relates has been extended. These are questions of the proper construction of the NTA, and its application to agreed facts.

6    For the reasons that follow, the separate question will be answered in the affirmative, meaning that M39/1039 is valid.

Background

7    The facts I am about to describe mostly appear in a statement of agreed facts that the parties signed, which was admitted into evidence under s 191 of the Evidence Act 1995 (Cth).

8    In 2018, the applicant applied for a determination of native title in relation to an area of land centred around Lake Rason, about 100 km east of Laverton in Western Australia.

9    The State agrees that the members of the Nangaanya-ku claim group have rights in relation to the land and waters in that area under traditional laws and customs (AngloGold is reserving its position on that issue). In 2021, the Court made a consent determination that native title exists in relation to all of the claim area (apart from areas where native title has been extinguished), excluding the area covered by M39/1096 and another mining lease, M39/139. The areas so excluded are the subject of what has come to be called Part B of the claim.

10    AngloGold is the manager of a joint venture that runs the Tropicana gold mine within the area of M39/1096. That tenement was granted on 11 March 2015 for a term of 21 years commencing on that day. It was granted under s 71 of the Mining Act 1978 (WA). It authorises the mining of the land for all minerals as defined in s 8 of the Mining Act, with the exception of uranium ore and iron (unless specifically authorised): Endorsements cl 10. The parties have agreed that M39/1096 was and is valid for all purposes under the Mining Act.

11    As has been said, M39/1096 covers an area that was previously covered by 31 mining leases. These were originally granted to IGO in 2007, also under s 71 of the Mining Act. Each of them authorised the mining of the land covered by the lease for all minerals as defined in s 8 of the Mining Act, with the exception of uranium ore and iron or iron ore (unless specifically authorised): Endorsements cl 2 of each. They each had a term of 21 years. The State gave notice under s 29 of the NTA before the grant of those leases, so it is an agreed fact that if native title did exist in relation to the area covered by the leases, the leases were not invalid to the extent that they affected native title. I will continue to refer to these 31 leases as the previous leases.

12    In 2008, AngloGold acquired a 70% share in each of the previous leases from IGO. In 2015, the previous leases were surrendered on condition that the application for M39/1096 be granted. The surrenders became absolute when the term of M39/1096 commenced on 11 March 2015.

Statutory framework

13    It is convenient to give an account of the statutory framework afforded by the NTA before turning to the specific issues. The nature of those issues requires a fairly lengthy exposition of certain aspects of what is, on any view, a complicated piece of legislation.

Introducing the right to negotiate

14    The preamble to the NTA notes, among other things, that the High Court has held (in Mabo v Queensland (No 2) (1992) 175 CLR 1) 'that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests'. The preamble also includes the following:

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

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

15    One of the main objects of the NTA, stated in s 3(b), is 'to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings'.

16    In Charles v Sheffield Resources Limited [2017] FCAFC 218; (2017) 257 FCR 29, after reviewing these broad statements of purpose, North and Griffiths JJ commented on the importance of the right to negotiate as follows (at [54]):

There can be no dispute that the right to negotiate has been, and remains, an important part of the fabric of the NT Act since its enactment. This reflects the explicit reference in the Preamble that future acts which affect native title should only be able to be validly done 'if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate' (emphasis added). That is balanced by the reference in the Preamble to the importance to the broader Australian community of 'certainty' that such acts may validly be done. In North Ganalanja [Aboriginal Corporation and Anor for and on behalf of the Waanyi People v The State of Queensland and Ors [1996] HCA 2; 185 CLR 595] at 637 McHugh J described the right to negotiate as a 'valuable' one. And in [FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; 175 FCR 141], Spender, Sundberg and McKerracher JJ accepted at [18] that 'the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act and that it is not to be narrowly construed'.

Structural overview of the NTA including Part 2 and Division 3

17    Further below there is a detailed discussion of the provisions that are relevant to the question of whether the right to negotiate applied to the grant of M39/1096. That discussion reflects the complicated nature of the NTA itself. Before embarking on the discussion, it may help to orient the reader with an overview of the scheme reflected in Pt 2 Div 3 of the NTA concerning 'future acts'.

18    The title of Pt 2 is just 'Native Title'. It is the Part in which native title is recognised and protected, and where numerous qualifications to and carveouts from that recognition and protection are contained. Broadly, the other Parts of the NTA concern the machinery and procedures for the determination, recording and enjoyment of native title rights, including the constitution of relevant bodies and registers. But it is in Pt 2 that provisions as to the recognition and protection of native title are to be found.

19    Part 2 is divided into ten Divisions. Division 1 makes provision for the recognition and protection of native title. It also makes provision in relation to its extinguishment, and for approved determinations of native title (under Pt 3 or in connection with compensation applications). Division 1 is relatively brief; the detail lies in the subsequent Divisions.

20    The next five Divisions of Pt 2 concern the validation (or not) of various kinds of 'acts' and the extent to which they may extinguish native title that would otherwise have existed. Division 3, concerning 'future acts', is the one of present interest. The rest of Pt 2 deals with other matters that need not be described.

21    Division 3 thus takes its place among several other Divisions that concern the validation of 'acts' taking place before and after the NTA came into force. They include Div 2 - 'Validation of past acts' (broadly, those that occurred before the commencement of the NTA) and Div 2A - 'Validation of intermediate period acts etc.' (broadly, those that occurred after the commencement of the NTA and before the High Court's decision in Wik Peoples v State of Queensland (1996) 187 CLR 1).

22    What, then, is an 'act'? Section 226 affects the meaning of the word in references to an act affecting native title and in other references to native title. It does so by providing in s 226(2) that an 'act' includes, among many other things:

…

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

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

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

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

23    The separate question concerns a 'future act'. A future act is relevantly defined to mean an act that takes place on or after 1 January 1994 (when the NTA took effect) and which, apart from the effect of the NTA, validly affects native title in relation to the relevant land or waters to any extent: s 233(1). 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': s 227. It is common ground that if the grant of M39/1096 is found to be valid, it affects native title in the way described by s 227.

24    Division 3 of Pt 2 governs the effect of future acts in great detail. Subdivision A, entitled 'Preliminary', sets out the way the Subdivision as a whole works. One of the things that it does is set out a cascading hierarchy of circumstances in which a future act will be valid. I will return to that shortly.

25    Subdivisions B to E concern indigenous land use agreements. They are not presently relevant.

26    Subdivisions F through to N then contain detailed provisions about each component of the cascading hierarchy. They variously make provision for when a relevant act is valid and for the extinguishment of native title as a result, for compensation, and for consultation of representatives of Aboriginal or Torres Strait Islander people and, in some instances, notice to the public. In some instances, bodies to whom notice is given have rights to object.

27    Included among these Subdivisions are two of particular interest for present purposes: Subdiv I, concerning '[r]enewals and extensions etc.' of previously existing rights, and Subdiv M, concerning acts that pass 'the freehold test'. Each of these will be considered below.

28    Subdivision O contains one operative provision, namely s 24OA: 'Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.'

29    The right to negotiate itself is then found in Subdiv P. That is the Subdivision that contains s 26D, the application of which is the subject of the separate question. The effect of Subdiv P is to provide that certain kinds of acts done by governments, including certain conferrals of mining rights, are not valid if the right to negotiate procedures have not been complied with. This Subdivision too will be considered below.

30    The final Subdivision in Pt 2 Div 3 is Subdiv Q, which makes provision for access rights for native title claimants in respect of non-exclusive agricultural and pastoral leases. It is not presently relevant.

31    Thus, the scheme of Pt 2 Div 3 can be broadly described as follows. An act affecting native title occurring after the NTA took effect is invalid, save to the extent that a provision elsewhere makes it valid: s 24OA. Indigenous land use agreements can have the effect of validating future acts. In their absence, an act must come somewhere within the cascading hierarchy in order not to be invalid. For some such acts, additional procedures must be complied with. These include, for certain acts, the right to negotiate procedures in Subdiv P. The present dispute is about whether the act of granting M39/1096 was an act of that kind.

The regime governing the validity of future acts, and the right to negotiate

32    The detailed provisions that are directly relevant to the dispute can now be described against that structural background.

33    Section 24AA gives an overview of Pt 2 Div 3, including at s 24AA(2):

Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

34    Section 24AA(3) makes provision for the validation of future acts under indigenous land use agreements. Section 24AA(4) provides that a future act will also be valid to the extent that it is covered by any of the 12 provisions of the NTA listed at paragraphs (a) to (k); this is the cascading hierarchy that has already been mentioned. Of present relevance are the reference to s 24IA found in s 24AA(4)(f), concerning 'acts involving renewals and extensions etc. of acts', and the reference to s 24MD in s 24AA(4)(j), concerning acts that pass the freehold test.

35    These references are qualified by s 24AA(5), which provides:

In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a 'right to negotiate').

36    While s 24IC does not apply to the grant of M39/1096, as will be seen its wording is similar to the provision in issue, s 26D. That leads the applicant to rely on that wording as relevant to the construction of the latter section. The relevance of this section is reinforced by the fact that the right to negotiate applies to certain acts covered by s 24IC as well as certain acts that pass the freehold test (of which the grant of M39/1096 is one): s 24AA(5).

37    Other kinds of acts covered by the provisions listed in s 24AA(4) do not attract the right to negotiate, but instead provide for different procedural rights of notice: see, eg, s 24GB(9)(c). This all constitutes a legislative scheme under which:

persons with determined or possible native title interests in the land are to have carefully graded rights to be notified beforehand and are also to have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act. These deliberately structured differences between the various entitlements to be notified of and to respond to proposals to do future acts are … more than mere semantic differences.

Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603; (2000) 98 FCR 60 at [27] (Heerey, Drummond and Emmett JJ).

38    Consistently with that careful grading, s 24AB stipulates the order in which the different validating provisions are to apply. Section 24AB(1) effectively separates acts covered by indigenous land use agreements from the rest of the regime. As for other future acts, if a future act is covered by a particular section in the list of validating provisions in s 24AA(4), it is not covered by a section that is lower in the list: s 24AB(2). That is why I describe it as a cascading hierarchy.

Subdivision I - Renewals and extensions etc.

39    It is common ground that the only basis for the validation of the grant of M39/1096 for which Pt 2 Div 3 possibly provides is s 24MD and the freehold test. That test is found in Subdiv M. But before dealing with that, it is necessary to describe the basis for validation found in Subdiv I, in which s 24IC is found. It is headed: 'Renewals and extensions etc.' The place of Subdiv I in the hierarchy, above Subdiv M, is confirmed by s 24AA(4)(f), which situates s 24IA in the list of provisions that confer validity on future acts.

40    Broadly, Subdiv I concerns the validation of future acts that arise out of acts that occurred before 23 December 1996 (the date of Wik). It applies to a 'pre-existing right-based act' as well as a 'permissible lease etc. renewal': s 24IA. If it does apply then, subject to Subdiv P, the future act is valid, and other consequences follow: s 24ID.

41    A pre-existing right-based act is an act that takes place in the exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid or, in broad terms, an act that takes place in good faith pursuant to a good faith arrangement made on or before that date, of which there is contemporaneous written evidence: s 24IB.

42    A 'permissible lease etc. renewal' is defined in s 24IC as follows:

24IC    Future acts that are permissible lease etc. renewals

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

(a)    it is:

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term;

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

(b)    any of the following subparagraphs applies:

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

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

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

(c)    the future act does not:

(i)    confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or

(ii)    otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or

(iii)    create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or

(iv)    if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes - have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and

(d)    if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders - the renewed, re-granted, re-made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and

(e)    if the original lease etc. did not permit mining - the renewed, re-granted, re-made or extended lease, licence, permit or authority does not permit mining.

Replacement by 2 or more leases etc.

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

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

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

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

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

Features that do not prevent a lease etc. from being a renewal

(3)    The features listed in subsection (4) do not prevent:

(a)    an act from being the renewal, re-grant, re-making, or extension of the term, of a lease, licence, permit or authority (the old authority) for the purposes of subsection (1) (the renewed, re-granted, re-made or extended lease, licence, permit or authority being the new authority); or

(b)    2 or more leases, licences, permits or authorities (each of which is a new authority) from being granted in place of a single lease, licence, permit or authority (the old authority) for the purposes of subsection (2).

Features

(4)    The features are as follows:

(a)    the new authority, or the new authorities together, cover a smaller area than the old authority;

(b)    the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;

(c)    the new authority or any of the new authorities is a perpetual lease (other than a mining lease);

(d)    if the new authority or any of the new authorities is a non-exclusive agricultural lease or a non-exclusive pastoral lease - the new authority permits or requires the carrying on of an activity that the old authority did not permit or require and that consists of:

(i)    a primary production activity (see section 24GA); or

(ii)    another activity, on the area covered by the new authority or of any of the new authorities, that is associated with or incidental to a primary production activity, provided that, when the other activity is being carried on, the use of the majority of the area covered by the new authority, or the new authorities together, will be for primary production activities.

43    So, in very broad terms, Subdiv I provides for the validation of acts done pursuant to rights validly granted pre-Wik (s 24IB(a)), or good faith commitments that pre-date Wik (s 24IB(b)), or acts that renew, re-grant, re-make or extend the term of a valid lease, licence, permit or authority that can be traced back to an original valid grant that occurred before Wik and which do not add to the rights conferred by the original grant save as to duration (s 24IC).

44    It is an agreed fact here that each of the previous leases was granted after the date of the Wik decision, meaning that they cannot fall under Subdiv I by way of s 24IC(1)(b)(i). It appears to be assumed by the parties that neither of the other two sub-paragraphs of s 24IC(1)(b) apply to the previous leases. Hence Subdiv I does not apply. But, it is said, in dealing with different kinds of renewal, re-grant or re-making of leases in more explicit detail than s 26D, s 24IC sheds light on the proper construction of s 26D. In particular, that is because of the deeming or definition provisions at ss 24IC(2) and (2A). Indeed, the State goes further and submits that these provisions apply to s 26D. All that will be addressed below.

45    For the moment it only remains to describe how s 24IC connects with s 26D(1). It has already been noted that validation of relevant acts under Subdiv I is subject to Subdiv P (in which s 26D is found): s 24AA(5), s 24ID(1)(a). Section 26, which is in Subdiv P, provides for when that Subdivision applies. Under s 26(1A), Subdiv P only applies to a future act to which s 24IC applies if the act is done by a 'Government party' and 'the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine'. In other words, if there is, say, a creation of right to mine by a State, the right to negotiate may apply. However, as will be explained below, that right can still be excluded by s 26D.

Subdivision M - Acts passing the freehold test

46    Having described Subdiv I, it is necessary to deal with the Subdivision that does apply to M39/1096, namely Subdiv M. As has been said, this contains something called 'the freehold test'. Broadly, the intent behind that test is that if a future act could be done in respect of land that was held on ordinary (freehold) title, that act can also be done to land to which native title rights and interests apply. Given its place in the cascading hierarchy under s 24AA(4), it will not apply if Subdiv I does: s 24AB(2).

47    An act of that kind will be valid, but certain procedural rights and rights to compensation will be granted to the native title holders, broadly in order to ensure that the consequences of the act are the same for them as they would be for a holder of ordinary title. In addition, and as foreshadowed in s 24AA(5), the validity of the future act is subject to Subdiv P dealing with the right to negotiate: s 24MD(1). To that Subdivision I now turn.

Subdivision P - Right to negotiate

48    In Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53 (YAC v WA) at [5]-[6] a Full Court (Rares, White and Banks-Smith JJ) described Subdiv P as follows:

… Subdivision P in Pt 2 Div 3 of the NT Act contains a scheme by which future acts by the Commonwealth, a State or a Territory involving, generally speaking, mining activities, may be valid. The evident intention of Subdiv P is to provide a means by which future acts of this kind may be lawfully undertaken, despite their effect on native title, and to provide some certainty as to whether the acts are permitted.

The scheme in Subdiv P contemplates four such means: negotiated agreement; governmental decision when an expedited procedure is appropriate; arbitral determination; or ministerial determination. It puts particular emphasis on the parties negotiating an agreement with respect to the carrying out of future acts.

49    'The importance of these provisions for native title parties has long been recognised as has the significance of the correlative obligation on other persons to negotiate in good faith': Charles at [3].

50    The first provision in Subdiv P, s 25, gives the following overview:

(1)    In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:

(aa)    certain acts covered by section 24IC (which deals with permissible lease etc. renewals);

(a)    certain conferrals of mining rights;

(b)    certain compulsory acquisitions of native title rights and interests;

(c)    other acts approved by the Commonwealth Minister.

(2)    Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. However, in certain circumstances, the Commonwealth, State or Territory can limit its participation in negotiations if the other parties consent.

(3)    If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.

(4)    If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

(5)    States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.

51    The State has made no Western Australian law as an alternative to Subdiv P.

52    Section 26 then says when Subdiv P applies. Specifically, under s 26(1), Subdiv P applies if Subdiv M concerning the freehold test applies to it (as it does here), and the act is done by a 'Government party' (here, it was done by the State), and, relevantly and subject to the balance of s 26(1), the act is (s 26(1)(c)):

(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

(ii)    the variation of such a right, to extend the area to which it relates …

53    Section 26(1) immediately follows s 26(1A) mentioned above, which similarly applies Subdiv P to a 'permissible lease etc. renewal' (as defined in s 24IC) that is done by a Government party and creates a right to mine.

54    Section 253 defines 'mine' in ways that need not be considered here, but the phrase 'right to mine' is not explicitly defined in the NTA. Its meaning has, however, received recent consideration by the High Court in Harvey v Minister for Primary Industry and Resources [2024] HCA 1 (Harvey HC), which will be considered below.

55    The term 'mining lease' is defined (in s 245(1)) and it is uncontroversial that M39/1096 comes within that definition.

56    Section 26(2) describes various kinds of act to which Subdiv P does not apply. These include acts covered by any of s 26A to s 26D: ss 26(2)(b) to (e). The separate question addresses the application to M39/1096 of an exclusion to the coverage of Subdiv P that is mentioned in s 26(2)(e) of the NTA. This provides that the Subdivision does not apply to the extent that the future act is 'an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision'.

57    Which brings us to s 26D. It too is in Subdiv P. It has the heading 'Excluded mining acts: earlier valid acts', and above s 26D(1) there is the sub-heading 'Renewal of valid mining lease etc.'. Then s 26D(1) provides:

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

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

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term;

of an earlier right to mine; and

(b)    the earlier right:

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

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

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

(d)    the term of the right is not longer than the term of the earlier right; and

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

58    Section 26D also contains s 26D(2), which concerns the conversion of certain exploration rights into mining rights, and need not be set out.

59    Section 28(1) of the NTA provides that, subject to the NTA, an act to which Subdiv P applies is invalid to the extent that it affects native title unless one of the paragraphs of the subsection applies. For example, invalidity will not arise if there is no native title party affected by the act (s 28(1)(a) and (b)), or if an agreement is made after the negotiation procedure prescribed by Subdiv P (s 28(1)(f)).

60    That procedure provides for notification to the public and to relevant parties, including registered native title bodies corporate and registered native title claimants (s 29). It also provides for negotiation in good faith with a view to obtaining the agreement of native title parties (s 31(1)(b)).

61    The balance of Subdiv P contains detailed provisions as to other ways in which the right to negotiate can be fulfilled, such as certain 'arbitral body determinations', and other exceptions to the requirements. It is not necessary to set these out.

62    It is convenient to pause to take stock of where this winding journey has taken us. What it all relevantly adds up to, once again in broad terms, is that future acts can derive validity from the fact that they arose out of pre-Wik acts that were valid (Subdiv I), or from the fact that they pass the freehold test (Subdiv M). But if they were done by a Government party and create a right to mine, then they must comply with the right to negotiate provisions unless that requirement is excluded by s 26D (or other provisions listed in s 26(2)). Broadly, that exclusion operates when:

(a)    a connection of the kind described in s 26D(1)(a) (renewal etc.) can be drawn between the future act under scrutiny and an earlier right to mine; and

(b)    the earlier right was validly created pre-Wik (s 26D(1)(b)(i)) or, when it was created, the right to negotiate process had been followed or did not apply (s 26D(1)(b)(ii)); and

(c)    the earlier right has not been augmented in any of the ways (area, term, additional rights) covered by ss 26D(1)(c) to (e).

63    How, precisely, the exclusion operates here is the subject of the separate question.

How the separate question arises

64    Within that statutory framework, the agreed facts give rise to the separate question in the following way.

65    The previous leases, which were each held by AngloGold and IGO, were surrendered on condition that the application for M39/1096 be granted. The surrenders became absolute on the commencement of the term of M39/1096.

66    Assuming that native title exists in relation to the area that M39/1096 covers (a subject on which the position of AngloGold is reserved), the grant of M39/1096 was a future act. It took place after 1 January 1994. It was valid and effective for all purposes under the Mining Act. So to the extent that it extinguishes or is inconsistent with the native title claimed by the applicant, apart from the effect of the NTA it would have affected that native title: s 227.

67    It is common ground that the grant of M39/1096 passed the freehold test, that is, broadly, that it is an act of a kind that could have been done even if the native title claimants had held ordinary title over the relevant area. I accept that this is so. Also, M39/1096 was granted by a Government party, and it is an agreed fact that the grant was 'an act consisting of the creation of a right to mine'. Given that it is a mining lease, that must be so. Hence, all necessary conditions in s 26(1) apply to the grant.

68    Therefore, unless the application of Subdiv P is elsewhere excluded, under s 24AA(5), s 24MD(1) and s 28(1), the validity of the grant of M39/1096 depends on whether the right to negotiate requirements of Subdiv P have been satisfied.

69    Those requirements have not been satisfied here. The State did not give notice of the creation of M39/1096 to anyone under s 29 of the NTA, so the right to negotiate process under Subdiv P has been neither started nor completed. At the time the grant of M39/1096 was made, there were no native title determination applications or native title determinations or registered native title bodies corporate in respect of the area covered by the grant, so the requirements for notification in respect of those matters did not apply. But s 29 also requires notice to be given to representative Aboriginal bodies, and the public must also be notified in a prescribed way: s 29(2)(b)(ii) and s 29(3). Those things were not done.

70    Hence the issue comes down to whether the requirement to observe the right to negotiate has been excluded. The exclusions are listed in s 26(2). The only potentially relevant one is the exclusion effected by s 26D, as referred to in s 26(2)(e).

71    As to the requirements of s 26D, the application of s 26D(1)(a) is controversial. Passing over it for now to s 26D(1)(b), each of the previous leases was granted post-Wik and after observance of the right to negotiate process. As to the latter, it is an agreed fact that all relevant processes under Subdiv P were complied with in respect of the grant of each of the previous leases on the assumption that native title existed, or may have existed, in respect of the area of the leases. So if the previous leases are properly characterised as 'an earlier right to mine' for the purposes of s 26D(1)(b), then the requirements of s 26D(1)(b)(ii) are satisfied.

72    The application of s 26D(1)(c) is also controversial and may be passed over for now. Moving to s 26D(1)(d), the term of M39/1096 is not longer than the term of each of the previous leases; the term of each is 21 years. So it is common ground that s 26D(1)(d) is fulfilled.

73    Finally, it is agreed in connection with s 26D(1)(e) that no rights have been created in connection with M39/1096 that were not created in connection with each of the previous leases, (except to the extent that s 26D(1)(c) affects the position, on which the parties disagree).

74    What is in controversy, then, is whether s 26D(1)(a) and s 26D(1)(c) apply. For s 26D(1)(a), the question is whether the grant of M39/1096 was the creation of a right to mine that was done by the renewal, or the re-grant or re-making, or the extension of the term of, an earlier right to mine or (if this is permissible) earlier rights to mine. For s 26D(1)(c), the question is whether the grant of M39/1096 is properly characterised as not extending the area of the earlier right (or rights) to mine relates. If either of those questions is answered in the negative, s 26D(1) will not operate to disapply the right to negotiate requirements in Subdiv P. It would follow that, since those requirements were not observed in relation to the grant of M39/1096, the tenement will be invalid to the extent that it affects native title: s 25(4) and s 28(1).

Principles of statutory interpretation

The general approach

75    The fundamental object of statutory construction is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 (Mason and Wilson JJ); see also at 304 (Gibbs CJ). A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] (McHugh, Gummow, Kirby and Hayne JJ).

76    The task must begin and end with the consideration of the text itself. The statutory text must be considered in its context, including legislative purpose, legislative history and extrinsic materials: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]. Context should be regarded at this first stage, and not at some later stage when ambiguity might be thought to arise, and it should be regarded in its widest sense to include such things as the existing state of the law and the mischief which the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL at [14].

77    Where, as here, the provision to be construed is in a Part of the NTA, which Act comprises a statutory scheme, its construction is to be approached having regard to the meaning that best fits within that scheme: see Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39; (2021) 274 CLR 565 at [86]. As the High Court said at [87] of a different statutory scheme (citations removed):

the ongoing reference to 'access' in the text of Pt IIIA must be construed in the context of the Part as a whole within a broader context that includes the course of the legislative history of the Part and extrinsic materials pertaining to that legislative history. Understanding that broader context 'has utility if, and in so far as, it assists in fixing the meaning of the statutory text'.

78    Thus, as Gageler J said in Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 at [71] (again, of different legislation) (citations removed):

Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are important. More important is the 'purpose and policy' reasonably attributed to the provision within the statutory scheme.

79    The purpose of a provision must, however, be derived from what the legislation says, not from any assumption about the desired or desirable reach or operation of the relevant provisions. It is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26] (French CJ and Hayne J), quoting Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ). Identifying a purpose of the legislation as a whole does not mean that every provision has that purpose; the purpose of the relevant provision must be identified: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [29] (French CJ, Crennan, Kiefel and Keane JJ).

80    The NTA is legislation of a kind where it would be wrong to attribute an intention to achieve a particular purpose above others. 'As its terms and history suggest, the Act is a product of compromise and political negotiation. These facts should also restrain the judicial importation of implications which do not appear to be necessary to the text': Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 at [76] (Kirby J). In legislation of that kind, it can be taken that the legislature saw the correct balance as being achieved by the very words it chose to implement the regime, so caution needs to be used before recourse to an principle that a 'beneficial' construction is to be preferred: see Commissioner of Patents v Ono Pharmaceutical Co Ltd [2022] FCAFC 39; (2022) 291 FCR 1 at [114]-[116] (Allsop CJ, Yates and Burley JJ).

81    In any event, the proposition that beneficial legislation should be construed beneficially is only a manifestation of the more general principle that all legislation is to be construed purposively. The principle assists in making constructional choices, where they are open on the text of the legislation. But no legislation pursues its primary objective at all costs, and it frustrates rather than effectuates legislative intent to assume simplistically that whatever furthers the statute's primary objective must be the law: see Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 at [44]-[46] (Gageler J) and see further below at [159].

The Acts Interpretation Act

82    A particular provision of the Acts Interpretation Act 1901 (Cth) assumed prominence in the parties' arguments. It was s 23(b), which provides that in any Act 'words in the singular number include the plural and words in the plural number include the singular'. That is subject to the general principle found in s 2(2) of the Interpretation Act that the application of a provision of that Act to another Act or a provision of another Act 'is subject to a contrary intention'.

83    In Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 (A-GQ v AIRC) at [8], Gleeson CJ said:

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

84    In Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656 the Privy Council explained the operation of provisions like s 23(b) as follows:

By s 21 of the Interpretation Act, 1897 (NSW) it is enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

85    The contrary intention can appear if the draftsperson seems not to have relied on the provision very much or at all, because the Act in question may be replete with expressions in which the singular, or plural, or both, appear to have been deliberately chosen: see Commissioner of State Revenue v The Muir Electrical Co Pty Ltd [2003] VSCA 112; (2003) 8 VR 200 at [14] (Callaway JA, Ormiston and Eames JJA agreeing). A contrary intention can also appear if to apply the drafting convenience of s 23(b) would be to change the character of the legislation: Blue Metal Industries at 658; Muir Electrical at [15]-[16].

Consideration

The text of s 26D(1)

86    With those principles in mind, I commence with consideration of the text of the provision in question. In my view the following features of s 26D(1) are important:

(1)    It contains a set of criteria that must all be satisfied by a future act if Subdiv P is not to apply to the act. The first of those criteria, in the chapeau, is that the act must consist of the creation of a right to mine. The rest of the criteria apply to that right and/or to an earlier right to mine.

(2)    Structurally, s 26D(1)(a) is important, because it requires that there be a relationship, of one or more certain described kinds, between the later right to mine and an earlier right to mine, and so introduces the concept and relevance of the earlier right. Section 26D(1)(b) then contains criteria to determine when the earlier right will be of the kind necessary for Subdiv P not to apply. Sections 26D(1)(c) to (e) then require comparison between the earlier right and the later right in respect of three matters: area, term and rights.

(3)    So, as noted previously, the disapplication of the right to negotiate which s 26D(1) effects depends on the existence of three things:

(a)    a later right to mine that is connected with an earlier right in relevant ways, for example because it is a renewal of the earlier right;

(b)    an earlier right to mine which either was created before Wik by an act that was valid, or was created after compliance with the right to negotiate procedure in Subdiv P or created in circumstances where the Subdivision did not apply, so that the act was not invalid under s 28; and

(c)    no expansion in the later right to mine, when compared with the earlier right, in relation to three matters - area, term, and the rights created in connection with each right to mine.

(4)    The words used in s 26D(1)(a) to describe the relationship that must exist between the later right and the earlier right are broad. They include not only 'the renewal' of the earlier right to mine, but also the 're-grant', 're-making' and 'extension of the term' of the earlier right. I will consider some dictionary definitions of some of those terms and the one case that discusses their meaning below.

(5)    The purpose of the provision that emerges with tolerable clarity from these aspects of the text of s 26D(1) is that it is intended to provide for circumstances where, either the right to negotiate process did not need to be followed in order for the earlier right to mine to be valid under the NTA, or it did, but that process was observed. In those circumstances, the grant of a later right to mine which arises in a relevant way out of that earlier right to mine, which is not greater in terms of the area of land covered or the duration of the earlier right to mine, and does not add to the rights that are created in connection with the earlier right to mine, will not trigger the right to negotiate.

(6)    A further policy that can be inferred from this is that the reason it is necessary for area, duration and rights not to be increased or added to is that doing those things may further impinge in a material way on any native title rights and interests that were affected by the earlier right. It is easy to see why the policy of the legislature would be to require a further negotiation in the event of that further impingement, but not otherwise.

(7)    One qualification to what has just been said is that s 26D(1) does seem to contemplate that a particular kind of impingement will not trigger the right to negotiate. That is because, although the requirement in s 26D(1)(d) is that the term of the later right is not longer than the term of the earlier right, the term of the later right will, by definition, start at a later time, and so will extend the total duration of the two rights taken together. For example, in this case M39/1096 will expire in 2036, while the previous leases were due to expire in 2028. If M39/1096 is a renewal of the earlier leases, then the total term of all the leases will have been extended.

(8)    That feature of s 26D provides a further indication of its purpose; it is to ensure that if the new right to mine is sufficiently related to a pre-existing validly created right to mine, and if it does not extend the area of the pre-existing right to mine or grant more rights than it, then the right to mine may be extended into the future without triggering the right to negotiate, provided each step has the necessary relationship with the earlier right to mine (renewal etc.). This confirms that the policy behind the section is that, if the right to mine does not relevantly impinge further on the native title rights and interests, a new right to negotiate process will not need to be observed.

87    It is notable that only one aspect of the ordinary meaning of the text of s 26D(1) indicates that the consolidation of a number of tenements into one (which does not change the total area covered, the nature of the rights enjoyed in respect of that area or the duration of those rights) will fall outside the criteria set by the provision. That is the fact that, with one exception in s 26D(1)(e), the provision speaks consistently in the singular, including when it speaks of 'an act' that creates a later right to mine and 'an act' that creates an earlier right to mine.

88    But it is important in that regard to recall Gleeson CJ's statement in A-GQ v AIRC that a particular Act, and the Interpretation Act, 'do not compete for attention, or rank in any order of priority. They work together.' It would be wrong, then, to approach the application of s 23(b) of the Interpretation Act as if it were some sort of last resort, to which recourse must be had to 'fix' a problem with the drafting of s 26D(1) of the NTA. If the NTA does not manifest a contrary intention, there is no reason why the Court should be slow to apply the rule that words in the singular number include the plural. It is quintessentially an area where, consistently with the explanation in Blue Metal Industries, the application of the Interpretation Act simply avoids the need for cumbersome and repetitious inclusion of plural forms.

Renewal, re-grant or re-making

89    The breadth of the connection between the right to mine created by the future act and the earlier right to mine, as required under s 26D(1)(a), is important to determining the proper construction and application of s 26D(1) in the present circumstances. I have already noted that the words used to denote that connection are wide. One kind of connection can be disregarded immediately. No party submitted that the last of them, 'extension of the term', applied here. On any view, whatever occurred as a result of the surrender of the previous leases and the grant of M39/1096 was more than a mere extension of the term of the right or rights to mine created by the earlier tenements. That leaves 'renewal', 're-grant' and 're-making'.

90    Bearing in mind the usual cautions about the use of dictionary definitions, it is useful to have regard to them here (all from the Shorter Oxford English Dictionary, 6th ed). The relevant sense of the prefix 're-' denotes repetition, or doing something again. 'Renew', relevantly, is defined to mean (7) 'Grant anew, reaffirm, reinstitute; esp. extend the period or application of (a lease, licence, subscription, etc.)' and (11) 'Grant a fresh lease or licence'. Used as a noun, 'regrant' is defined as the 'action of granting something again; the renewal of a grant'. 'Re-making' is not defined in the Shorter Oxford. 'Remake' is defined as a noun with an emphasis on the particular use of the word in relation to films, but 'remake' as a verb is defined as 'Make again or differently'.

91    In my opinion, those definitions confirm the ordinary natural meaning of the words as used in s 26D(1)(a). There is significant overlap between them; the use of 'or' in the subsection does not imply that they are strict, mutually exclusive alternatives: in relation to renewal and re-grant see Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 406-407 (Gibbs J). That in itself suggests that the intention of the drafter was to give the connecting terms a broad reach. The fact that the verb 'remake' can mean 'make again or differently' also points to that intention. On the face of things, joining 31 mining leases into one to produce a right of the same nature, duration and extent as the aggregation of the rights conferred under the earlier more numerous tenements falls, at minimum, within the concept of making something differently.

92    The one case that has considered the meaning of these terms in the context of the NTA is Narrier v State of Western Australia [2016] FCA 1519. There, Mortimer J (as her Honour then was), after setting out Gibbs J's comments in Tooth & Co, said at [1073]:

Despite the difficulties in language to which Gibbs J refers, in the context of the NT Act, I see no particular construction issues as between the use of the term 'renewal' and the use of the terms 're-grant and re-making'. I consider it is likely that the term 'renewal' is used in the sense described by Gibbs J: that is, the grant of a new lease for the same period and on the same terms. I consider it is likely that s 24IC uses the terms 're-grant' and 're-making' to signify the grant of a new lease to replace an expired lease, on different terms yet still with sufficient connection to the expired lease that it can be said the lease is being granted again. To 'remake' a lease may be something quite different, and may well be used in relation to leases whose terms have not expired but where a new contractual arrangement, still with sufficient connection to the old lease, needs to be made.

93    I acknowledge that Mortimer J was speaking of s 24IC, not s 26D, and that the use that can be made of the similarities in language between the two provisions is controversial in this case. Nevertheless, her Honour's comments, with respect, are consistent with the understanding of the connecting words that I have outlined above.

94    Counsel for the applicant submitted that the words 'renewal', 're-grant' and 're-making' in s 26D(1)(a) all contemplate a connection between the earlier right and the later right. So much may be accepted; the question, of course, is the nature of the connection that is required. Counsel submitted that the words also require a comparison between the two rights. That may be so but, in my view, that bare fact adds little to an understanding of the provision. Understanding the comparison required by s 26D(1)(a) still requires one to identify the meaning of the terms 'renewal', 're-grant', 're-making', etc. What the provision requires by way of comparing specific characteristics or qualities of the new rights is expressly set out in ss 26D(1)(c) to (e). Section 26D(1)(a) offers no guidance on that particular subject.

95    Counsel for the applicant also submitted that by using the words 'renewal', 're-grant' and 're-making', s 26D gives effect to an expectation that the holder of a right to mine such as a mining lease will be able to secure a further term for that lease. She submitted that there was, however, no general expectation that the lease holder would be able to surrender all of its original leases in exchange for one larger lease.

96    In a similar vein, the applicant's written submissions say that s 26D(1) 'is directed towards true renewals etc., not tenure rationalisation or project administration'. The submissions cite in support of that a statement in Professor Bartlett's textbook that the rationale behind excluding renewals, re-grants or extensions of mining leases from the right to negotiate is to 'give effect to expectations under existing tenements': Bartlett R, Native Title In Australia (4th ed) at 25.67. There was no 'expectation', the applicant says, that the previous leases would be consolidated into one.

97    But while I accept that an expectation of renewal is one matter intended to be covered by s 26D, there is nothing in the text to indicate that this is the sole matter for which it makes provision. To the contrary, the breadth of the connecting words as I have described them indicates that other kinds of connection between an earlier right to mine and a later one can cause s 26D to apply.

98    As for the applicant's reliance on Professor Bartlett's observation, the broad statement that s 26D(1) is intended to give effect to expectations under existing tenements is not inconsistent with the proposition that the section can encompass rationalisations of tenure that meet the requirements of the section; the suggestion that this excludes 'tenure rationalisation or project administration' is the applicant's own gloss. In any event, a statement of that kind in a textbook is not to be applied as if it were a statutory provision itself.

The ordinary meaning of the text of s 26D

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

100    The replacement of several earlier mining leases by a single new mining lease thus falls within the ordinary meaning of, at least, the re-making of those earlier leases. The question is whether, nevertheless, for the purposes of s 2(2) of the Interpretation Act, the NTA manifests a contrary intention.

The 'right to mine' argument

101    It is convenient at this point to address another argument arising out of the text of s 26D, which AngloGold advanced as a principal argument, and the State embraced as an alternative. Essentially, the argument is that there is no need to make the phrase 'earlier right to mine' plural in connection with the previous leases. That is said to be because a distinction should be drawn between, on the one hand the substantive right to conduct mining activities which is conferred under instruments such as mining leases, and on the other hand the instruments themselves. The activities that were authorised in the area of the previous leases should be conceived of as the subject of a single, aggregated right to mine, even though it was conferred by 31 individual mining leases. For the purposes of s 26D, then, the previous leases created a single 'earlier right to mine' in respect of the entire area they covered.

102    At first, that argument held some attraction. For one thing, it could have explained the insertion of s 24IC(2) and s 24IC(2A) (considered below), because s 24IC deals in terms with a variety of instruments ('a lease, licence, permit or authority') while s 26D would, on this construction, speak in terms of a substantive right to mine. But after judgment was reserved on the separate question, the High Court handed down judgment in Harvey HC. In my view, that means the argument is no longer tenable.

103    In Harvey HC, the relevant issue was whether the grant of a particular mineral lease under the Mineral Titles Act 2010 (NT) was 'the creation of a right to mine' under s 26(1)(c)(i) of the NTA. The mineral lease was to be over an area that was to be used for the deposit of dredge spoil. The dredging was necessary to provide a channel for barges to transport, to ocean going vessels, ore that had been extracted from other areas. A Full Court had held that the mineral lease would not create 'a right to mine', essentially because the activity of depositing dredge spoil was not mining as it is commonly understood, and the lease was too remote from mining activities.

104    The High Court (Gageler CJ, Gordon, Steward and Gleeson JJ, with Edelman J agreeing) overruled the Full Court. After giving several examples of the many and varied tenements that could be granted under State and Territory mining legislation, the joint judgment expressed its conclusions this way, at [65]-[66]:

A 'right to mine'

It is against the foregoing background that the phrase 'right to mine' in s 26(1)(c)(i) of the Native Title Act must be construed. Contrary to the reasons of the Full Court, a 'right to mine' is not a reference to a specific authority or permission which a mining lease might convey, such as a right of extraction. It is not, for example, referring to one of the 'rights' listed in s 40(1) of the Mineral Titles Act. Nor should it be confined to the activity of 'getting at and getting out' minerals.

In its particular statutory context, the phrase 'right to mine' should be construed as a composite term used to denote all those mining tenements which are capable of being issued under State and Territory natural resource laws. The Native Title Act uses such a phrase precisely because it is sufficiently descriptive of the very many different types of mining tenements that can be created under State and Territory natural resource laws and of the very many different names by which such tenements are identified. And, as set out above, mining tenements can convey a wide variety of permissions or authorities not confined to the act of getting at and getting out a mineral. That is why the term 'right to mine' is followed by the phrase 'whether by the grant of a mining lease or otherwise'. That phrase is an express recognition of the very many types of mining tenements which exist. That is to say, the inclusion of that phrase makes plain that Parliament intended that the phrase 'right to mine' have a broad application which would embrace every sort of mining tenement issued by the States and the Territories and that a 'mining lease' as defined is merely one type of such a tenement. The term 'mining lease' is otherwise needed for Div 2 of Pt 2 of the Native Title Act, which is concerned with the validation of past acts. Thus, for example, a 'category C past act' is defined in s 231 as a past act consisting of the grant of a 'mining lease'.

105    A little later, after discussing a different Full Court's consideration of the meaning of 'mining, quarrying or prospecting right' in different legislation (Mitsui & Co (Australia) Ltd v Federal Commissioner of Taxation [2012] FCAFC 109; (2012) 205 FCR 523), the joint judgment in Harvey HC said, at [70]-[71] (footnote removed):

So too here the phrase 'right to mine' is 'descriptive of the various types of mining titles that might arise under various Australian laws'.

The foregoing conclusion is consistent with the broad and inclusive definition of 'mine' in the Native Title Act. It would be anomalous in the context of the Native Title Act if that word were to fail to embrace all of the various activities which are essential to a mining project, whether or not ancillary or subordinate to it, and which are authorised by State and Territory mining legislation. It is also consistent with the description in the Supplementary EM of the creation of a right to mine in s 24MD(6B)(b) as being 'the grant of a mining lease'. In other words, a 'right to mine' is a species of a mineral tenement.

106    Thus the mineral lease over the dredge spoil area was a 'right to mine' for the purposes of the NTA, as it was a tenement granted under the Northern Territory mining legislation.

107    In my view, the idea that 'earlier right to mine' in s 26D could be a reference to the substantive right to carry on mining activities in the area covered by all of the previous leases cannot be reconciled with the High Court's conclusions in Harvey HC. In the present context, 'earlier right to mine' can only be a reference to an earlier mining lease (or other tenement) granted under the Mining Act.

108    I gave the parties the opportunity to make written submissions on Harvey HC, and they took up that opportunity. The State merely says that it cannot discern any relevant finding or reasoning in Harvey HC that would cause it to reconsider the correctness of its alternative submission. But AngloGold's supplementary submissions do engage with the point. To some extent they simply repeat earlier submissions about the meaning of 'earlier right to mine' and say that in the context of s 26D they must be right. But AngloGold also submits that the references in s 26D(1)(a) to renewal and extension, which can occur without the grant of a new mining tenement, meant that the phrase 'earlier right to mine' is not limited to a tenement.

109    I do not accept that submission. Although a renewal or extension of a right to mine may occur without the grant of a new tenement, they must still fall within the concept of 'an act consisting of the creation of a right to mine' as used in the chapeau to s 26D(1) and similarly 'the creation of the right' as used in the chapeau to s 26D(1)(a). In context, then, 'creation of a right to mine' need not be the creation of a new tenement or other right; it is simply an act that has the result that there is a right to mine over a relevant area for a relevant term. An extension of a mining lease, for example, would come within that concept.

110    AngloGold further submits that the structure and text of s 26D(1) focus on the nature of the rights created by mining tenements, rather than mining tenements per se. AngloGold finds this, in particular, in the comparisons required by s 26D(1)(c) to (e) which focus on the substantive rights and other conditions of the tenement rather than on the tenements themselves. But while I agree at a general level that this focus is there, it does not follow that the references to 'right' and 'earlier right' in those paragraphs cannot be read to refer to tenements. To the contrary, they can, and in my view Harvey HC means that they must.

111    The applicant submits that nothing in Harvey HC detracts from its submissions. I agree. While the point in issue in Harvey HC was different to the point raised by the separate question here, the explication of 'right to mine' in the NTA given by the High Court without qualification binds me. The separate question must be answered on the basis that 'right to mine' in s 26D means, here, a mining lease. The question remains whether this cannot be read as encompassing the singular and the plural because the NTA evinces an intention contrary to the general rule in s 23(b) of the Interpretation Act.

The statutory context of s 26D(1)(a)

112    The applicant submits that the NTA does manifest a contrary intention. It relies on the Explanatory Memorandum, Native Title Amendment Bill (1997) (EM), being the bill that resulted in the amendments that introduced s 26D in 1998. It also relies on the immediate statutory context of s 26D(1)(a) to submit that reading 'right to mine' as encompassing plural rights to mine would make the section difficult to apply in certain situations. The applicant also refers to other provisions which, it says, show that where the NTA intends to refer to plural 'acts' it uses the plural form.

113    The applicant relies further on the presence of sub-sections (2) and (2A) in s 24IC, and the absence of anything similar in s 26D, as showing that s 26D should be understood not to encompass plural rights to mine. More broadly, the applicant submits that the legislative history of s 24IC and s 26D shows a contrary intention. But as will be seen, I consider that this submission is simply another way of making the same points about the significance of ss 24IC(2) and (2A).

The EM and a 'like for like' comparison

114    The applicant's first submission about the context of s 26D is that extrinsic material indicates that the section requires a 'like for like' comparison between the right to mine to be created by the new future act and the earlier right to mine to which the section refers.

115    The applicant relied on the way that, it submitted, s 26D(1) requires a comparison between the creation of a right to mine and an earlier right to mine. The EM contains a table (Table 19.1) explaining the purpose of proposed s 26D(1), the relevant excerpt of which is (emphasis in original):

116    The applicant says this means that the grant of the later right must be 'like for like' when compared to the earlier grant. That is confirmed by the use in s 26D(1)(a) of the terms 'renewal', 're-grant', 're-making' and 'extension of the term'. And, the applicant submits, it can be seen in the requirements of s 26D(1)(c), (d) and (e) which mean that, not only must the act be a renewal etc., but there must not be any material difference between the proposed right and the earlier right.

117    I accept these submissions, as far as they go. But they do not carry the applicant as far as it wants. The excerpt from the EM merely accurately summarises the effect of s 26D(1). It sheds no light on the breadth of the provision itself. And while it may be accepted that a 'like for like' comparison is required, that broad statement is given specific content by ss 26D(1)(c), (d), and (e). It is they which specify what has to be alike as between the proposed right to mine and the earlier right. If the respective rights are the same on the criteria in those paragraphs, then s 26D disapplies the right to negotiate (provided that ss 26D(1)(a) and (b) are also met). It would not be correct to extrapolate from the vague idea that the rights must be 'like for like' some more specific proposition that a single mining lease that consolidates multiple earlier leases is not sufficiently 'like for like'. That proposition must be found in the text of the section itself. And it is not there.

Does reading 'an earlier right to mine' as plural create difficulties in applying s 26D?

118    The applicant also submits that if 'earlier right to mine' is read as including the plural, the comparisons required by ss 26D(1)(c), (d) and (e) are not straightforward. It gives a few hypothetical examples of this (I have converted the terminology of 'right to mine' to 'mining lease' to make the examples more concrete):

(1)    Rights to mine with different durations: Suppose that a new mining lease for a term of five years is granted over the same area as two earlier mining leases, one for three years and one for ten years. The applicant submits that there would be doubt as to whether s 26D(1)(d) is satisfied.

(2)    Rights to mine with different start dates: Suppose that both earlier mining leases had a term of five years, but one was granted in 2010 and the other in 2015. The applicant submits that it would be difficult to say whether or not the grant of a new lease over the combined area of both, in 2020, is a renewal or re-grant or re-making or extension of term of those earlier rights to mine.

(3)    Rights to extract different minerals: Suppose that one earlier lease permitted mining of gold, and another permitted mining of silver. The applicant submits that it would be difficult to apply s 26D(1)(e) to a new mining lease over the combined area of both which permits mining of both gold and silver.

119    The applicant also submits that similar issues arise in relation to the criteria in s 26D(1)(b), asking (AS para 19): 'Must both earlier rights satisfy either limb of s 26D(1)(b), or the same limb; or is it sufficient that one of them satisfied either limb?'

120    The State submits in reply that none of the situations in the examples given arise in this matter, and that the Court's function is to determine the dispute as to these specific facts, not as to hypothetical fact situations. But while that is so, it remains the case that in the course of determining the dispute specific to these parties, the Court is called on to arrive at a construction of the NTA which is of general application. To pose hypotheses in the way the applicant has is merely to point to 'the consequences of a literal or grammatical construction' (Project Blue Sky at [78]) or 'inconvenience of result or improbability of result' (Cooper Brookes at 320) which the legislature may be taken not to have intended.

121    That is an accepted technique of construction, provided that the examples are not far-fetched or absurd: see for example Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179 at [55]-[59] (Mason P, Handley and McColl JJA agreeing). The use of a hypothetical situation for the purposes of statutory interpretation does not render the ultimate issue the Court is called on to determine 'hypothetical' in any sense that would make it unsuitable for judicial resolution: see Australian Institute for Progress Ltd v Electoral Commission of Queensland [2020] QSC 54; (2020) 4 QR 31 at [64] (Applegarth J).

122    The more direct answer to the examples given by the applicant is simply that it is not difficult to apply s 26D(1) to them. Taking each in turn:

(1)    Rights to mine with different terms (durations): If a new mining lease for a term of five years is granted over the same area as two earlier mining leases, one for three years and one for ten years, then s 26D(1)(d) would not be satisfied in relation to the act of the creation of the new mining lease. That is because the term of the new right to mine (the mining lease of five years) would be greater in respect of part of the area covered than the term of the earlier lease for that area (three years). On a straightforward application of the terms of s 26D(1), Subdiv P would not be excluded in respect of the future act, and the right to negotiate procedure would have to be observed in relation to that act. The act would consist of the creation of a right to mine where the term of the right (the new lease) is longer than the term of one of the earlier rights to mine. Since the future act itself is the indivisible creation of a single new mining lease, the whole act would be subject to the right to negotiate. If s 26D(1)(d) is read so that words in the singular number include the plural (Interpretation Act s 23(b)), it will require the term of the proposed new right to mine to be compared with 'the term [or terms] of the earlier right [or earlier rights]'. In view of that, and consistent with the policy and purpose of the section as discerned above, this condition will not be satisfied if the term of the new right is longer than the term of either of the earlier rights. That would result in an impingement on native title rights greater than that contemplated under the rights as originally granted.

(2)    Rights to mine with different start dates: The applicant's example here appears to posit that one of the mining leases was not in place over part of the land between 2015 and 2020, because it commenced in 2010 and expired after five years. The other was in place as at 2020, because it commenced in 2015 with a term of five years. On the basis of the purpose and policy behind s 26D as articulated above, the section would not disapply Subdiv P in this case because, as at 2020, land with no mining lease affecting its native title rights would, by the future act, become subject to a lease (right to mine) with that effect. To the extent that there is any doubt about whether, somehow, the new act is the renewal etc. of the lease that expired in 2015, the doubt is simply the result of the contestable boundaries of the broad composite expression 'the renewal … or … the re-grant or re-making … or … the extension of the term … of an earlier right to mine'. It is not a difficulty that points to an intention not to permit multiple mining leases to be consolidated into one without requiring the right to negotiate.

(3)    Rights to extract different minerals: Again, there is no difficulty in applying s 26D(1)(e) to this situation. The new mining lease would permit the mining of gold in areas where it was not previously permitted, and the same with the mining of silver in other areas. Rights would thus be created in connection with the new mining lease that were not created in connection with the earlier leases, or in connection with each earlier lease when considered individually. Section 26D would not operate to disapply Subdiv P in relation to the future act.

123    As for the applicant's question about the application of s 26D(1)(b) (see [119] above), it is evident from the policy behind s 26D, as emerges from its place in the statutory scheme described above, that it will be necessary for both earlier leases to satisfy the criterion in s 26D(1)(b). That may occur either because the earlier lease was created on or before the date of Wik by an act that is valid or was created by an act to which Subdiv P applied that was not invalid by reason of not having complied with the right to negotiate procedure when that procedure applied. It may seem unlikely that any given act can be both, because if an act occurred on or before the date of Wik then it was probably not an act to which Subdiv P applied. But it is not necessary to decide for present purposes whether the 'or' in s 26D(1)(b) should be read as 'and/or' or as purely disjunctive. Not every contestable issue about the construction of s 26D points to an intention not to permit multiple rights to mine to be consolidated into one, without having to observe the right to negotiate.

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

125    I do not consider that the alleged difficulties in the application of s 26D(1) on which the applicant relies manifest any intention of the part of the legislature not to have 'earlier right to mine' read with s 23(b) of the Interpretation Act to also include earlier rights to mine.

Are there other textual indications that when the NTA uses 'act' it speaks in the singular?

126    The applicant submits that the provisions of Div 3 are drafted by reference to a singular 'act' or in contemplation of such. Where it intends to refer to multiple acts, the Division so provides expressly. The applicant points to the following instances:

(1)    Section 24GE(1)(f)(i) refers to 'the act, or acts of that class', and s 24GE(1)(f)(ii) refers to 'the act or class of acts'. This section addresses the grant of rights by non-exclusive agricultural or pastoral leases to third parties.

(2)    Section 24HA(7)(a) refers to 'the act, or acts of that class', and s 24HA(7)(b) refers to 'the act or class of acts'. This section concerns future acts that relate to water and airspace.

(3)    Section 24IC, which has already been described, contains s 24IC(4). This subsection refers to 'the new authority, or the new authorities together' and 'the new authority or any of the new authorities', where 'new authority' is defined as a renewed, re-granted, re-made, or extended lease etc.: s 24IC(3)(a).

(4)    Section 24JAA(18) refers to giving notice of '2 or more acts'. This section deals with future acts that relate to public housing.

(5)    Section 26A refers in several subsections to an act or acts at several points. That is in the context of the Commonwealth Minister specifying that an 'act, or that each act included in a class of acts' is an 'approved exploration act', which can disapply Subdiv P to the act or acts (see s 26(2)(b)).

(6)    Section 29, which has already been mentioned, provides that before a future act is done, the Government party doing it must give notice of it in accordance with the section: s 29(1). Section 29(8) provides for circumstances in which the Commonwealth Minister can determine when notice of two or more acts can be given in the same notice. Section 29(8A) provides that notice of two or more acts to the public under s 29(3) can be given in the same notice. Section 29(9) provides that if a notice of two or more acts under s 29(8) or s 29(8A) is given, the acts are 'project acts' for the purposes of Subdiv P. Then, under s 42A(2), the right to negotiate provisions apply to all project acts as if they were a single act. But for the purposes of certain specified subsections, this does not mean that all of the conditions in the subsections must apply to all of the project acts comprising the single act or that they must be the same for all of the project acts to which they apply: s 42A(3).

127    The applicant also relies on s 140 which, although outside Pt 2 Div 3, provides that certain inquiries conducted by the National Native Title Tribunal may cover more than one matter, issue or application. The applicant submits that this indicates express words are used to identify when provisions relate to multiple acts.

128    These instances where the legislature appears to have deliberately chosen to use the plural are neither so pervasive, nor so directly relevant, as to show that throughout Div 3, the legislature chose to use the singular for all nouns generally, or 'earlier right to mine' specifically, because it wished to exclude the plural. There is no consistent careful choice between the plural and the singular: cf Muir Electrical [14]. Rather, the needs of a few specific situations have required the use of the plural form.

129    It is convenient to start by considering s 29, s 24JAA, s 24GE, and s 24HA, as they all mention plural 'acts' in the context of the provision of notices. Section 29, concerning notification of interested parties and the public as part of the right to negotiate process, deals with a situation where the default option is to give a single notice in relation to each single act. After all, some persons may be interested in responding to notice of some acts and not others, and it could create confusion to roll more than one act into a given notice.

130    That appears particularly clearly from s 29(4), which provides for a notification day which starts the clock running for three months, during which persons may take certain steps to become native title parties in relation to the act. The notification day must be the day by which, in the Government party's opinion, it is reasonable to assume that all notices will have been received by or come to the attention of persons who must be notified. Different acts thus might attract different notification days.

131    In all that context, it can be seen that s 29(8) and s 29(8A) permit limited departure from that approach, and so necessarily draw a distinction between the singular and the plural. The same logic applies to s 24JAA(18), which allows notice of '2 or more acts' to be given in the same notice. Sections 24GE(1)(f)(i)-(ii) and ss 24HA(7)(a)-(b) similarly address notice requirements. Those sections' use of the plural 'acts' is necessary to confirm that notice of multiple acts can be given in one notice, as it can in ss 29(8) to (8A).

132    Turning to the other sections raised by the applicant, ss 24IC(2) to (2A) are deeming or definition provisions that refer to multiple leases etc. in the context of splits and consolidations. Sub-sections 24IC(3) to (4) follow, and build on, those provisions to identify features that do not exclude leases etc. from constituting a renewal. It makes sense that, in referring back to sub-sections that address multiple leases, these sub-sections also refer to multiple leases etc.

133    Section 26A is about the making of a legislative instrument that concerns, not just any specific act that has occurred or is proposed to occur, but a class of acts. That subject matter compels the use of the plural.

134    Section 140 is an isolated example from a different Division about different subject matter (an inquiry by the National Native Title Tribunal) and does not advance the applicant's case.

The significance of s 24IC(2) and s 24IC(2A)

135    The applicant placed considerable weight on an argument based on the similarity in wording between s 24IC(1)(a) and s 26D(1)(a), the legislative history of those provisions, and the lack of anything in s 26D that corresponds with s 24IC(2) or s 24IC(2A). All those provisions are set out above. To recap, the point is that both s 24IC(1)(a) and s 26D(1)(a) refer to:

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term …

of a previous instrument such as a 'lease, licence, permit or authority' (s 24IC) or a 'right to mine' (s 26D). But s 24IC(2) and s 24IC(2A) expressly provide for splits or consolidations as between the original and subsequent instruments, while s 26D does not.

136    From this the applicant seeks to draw at least two inferences:

(a)    the fact that the legislature saw a need to make express provision for splits and consolidations in s 24IC shows that, without that express provision, the wording of s 24IC(1)(a) would not accommodate them, from which it follows that the similar wording of s 26D(1)(a) also does not accommodate them; and

(b)    it can be inferred from the decision to make that express provision in s 24IC but not in s 26D that the legislature intended for the former section to encompass splits and consolidations and intended for the latter section not to do so.

137    The applicant also makes the same point by reference to the history of the provisions. It submits that the introduction of s 24IC(2A) in 2007 indicates that the legislature considered that without that provision, s 24IC(1) would not provide for the consolidation of multiple leases etc., and that the amendment would have been unnecessary if s 24IC(1) did provide for it. No similar amendment was made to s 26D.

138    All this is reasoning by inference. The applicant puts an inference that, because Parliament saw a need to insert the deeming provisions in s 24IC, splits and consolidations would not have come within the section if those provisions were absent. The applicant also puts an inference that, because Parliament expressly provided for splits and consolidations in one place, the omission of a similar provision in another, comparable place was deliberate (this is essentially the principle of expressio unius est exclusio alterius, though the applicant did not put it in those terms).

139    I accept that those inferences are open. The task of statutory interpretation is to discover the intention of 'a notional person', a Parliament, with its intentions, objects, purposes and designs attributed from context: "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have"': Harvey HC at [107] (Edelman J) quoting from Project Blue Sky at [78]. If qualities such as omniscience, absolute thoroughness, rigorous consistency and logical infallibility are attributed to that notional person, then the inferences may be strong.

140    But that is not what the process of statutory interpretation requires. Reality is permitted to intrude. That is certainly so with legislation as cumbersome, labyrinthine and frequently amended as the NTA. In Australian Rail Track Corp Ltd v Dollisson [2020] NSWCA 58 at [47]-[48] Bell ACJ (Macfarlan JA agreeing) said of different legislation (the Accident Compensation Act 1985 (Vic) or ACA):

Expressio unius reasoning of the kind sought to be invoked by ARTC attributes a rigorous linguistic logic and consistency to the author of the statute or instrument under consideration. Such characteristics, whilst not unattainable, are far from inevitable, especially when the authorship of a frequently amended statute undoubtedly changes over time and where it may be that amendments to existing Acts or the passage of new bills are subject to last minute political debate and compromise cf. Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15]. 'Patchwork' statutes, to borrow Lord Hoffmann's language in National Grid Co plc v Mayes [2001] 1 WLR 864 at [55] (Mayes), rarely contain the linguistic logic and consistency upon which the expressio unius maxim depends for it to operate as a useful construction tool. His Lordship described such arguments as 'often perilous': Mayes at [55].

In this regard, the ACA is a statute that has, as has been illustrated, grown 'like topsy', coinciding with changes of government and changes of policy in Victoria in relation to the ambit and quantum of benefits available to injured workers. The amendments made to the ACA since the 1990s have been extensive and often of byzantine complexity.

141    'The need for caution in the application of the expressio unius rule has often been remarked upon': O'Sullivan v Farrer (1989) 168 CLR 210 at 215 (Mason CJ, Brennan, Dawson and Gaudron JJ). In this case, it would be unwise to place too much store on canons of construction or any similar inference that attribute to the notional person of Parliament the often fictional qualities mentioned above. There are many reasons for that: the frequency of amendment of the NTA over time; the byzantine complexity of Pt 2 Div 3; the variety of future acts covered by the Division; and the palpable air of political compromise that permeates it.

142    That is especially so where, as here, there is no evident purpose or policy that would be served by facilitating splits and consolidations in one place and not in another: see Esso Australia at [71] quoted at [78] above. There is no apparent reason why the purpose and policy of the NTA, or any part of it, would be served by doing both of the following things:

(a)    permitting a number of 'original lease[s] etc.' under s 24IC to be consolidated into one (with the same term, total area and accompanying rights), which becomes a 'permissible lease etc. renewal' and so potentially valid under Subdiv I; and

(b)    providing that the consolidation of a number of mining leases, say, into one mining lease (with the same term, total area and accompanying rights) will trigger the right to negotiate, when renewing those leases without consolidation will not.

143    In all its submissions, the applicant was unable to point to a reason why this should be so. The closest it got was when, in oral submissions, counsel for the applicant said that the scheme of the NTA was, in effect, to extend 'a certain level of grace' to acts done pre-Wik, which was not necessarily extended to post-Wik acts. But that does not explain why consolidations and splits would be treated differently as between s 24IC and s 26D, as both potentially encompass acts that trace their 'root of title' (in AngloGold's phrase) to pre-Wik acts: s 24IC(b)(i) and s 26D(1)(b)(i).

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

145    In that case, not only would Parliament be facilitating consolidations in one place and not in another, it would be approaching the question differently at different points in the analysis of the same future act. The applicant has identified no plausible rationale as to why the NTA would recognise continuity of tenure for the purpose of setting the precondition for validity in Subdiv I, which is subject to Subdiv P, and yet not recognise that continuity in the application of Subdiv P itself.

146    One way of reconciling s 24IC and s 26D, suggested by the State, may be discarded immediately. The State submitted that s 24IC(2) and s 24IC(2A) may be read as applying directly to s 26D. I do not see how that can be so. As the applicant pointed out, each of the subsections says in terms that it operates for the purposes of s 24IC(1). It is impossible to somehow read them in to s 26D as well.

147    There is a more promising way of explaining the difference between the provisions, and why Parliament included s 24IC(2) and s 24IC(2A). It emerges after it is remembered that, while s 24IC and s 26D can both apply in a particular situation, they have different places in the statutory scheme, and do different things. Section 24IC, and Subdiv I generally, are part of the cascading hierarchy of categories of future acts that may be valid. Subdivision P is not part of that hierarchy. It provides for a further requirement - the right to negotiate - in relation to certain acts that may be valid under that cascading hierarchy, and stipulates when that requirement does and does not apply.

148    Further, it is important to recall that s 24IC applies to a much wider range of acts than s 26D. Section 26D applies to mining tenements and, as various as they may be, they are a discrete class of instrument with well-understood characteristics. As already outlined, there is no difficulty in applying s 23(b) of the Interpretation Act to them. Section 24IC, in contrast, applies to a 'lease, licence, permit or authority'.

149    As the State points out, s 24IC thus would, for example, provide for the valid renewal of a wide range of interests and rights, including a fishing licence or a pastoral lease, none of which have any intersection with s 26D. In view of that, the drafters of Pt 2 Div 3, conscious of its much broader potential application compared to s 26D, could well seek to make it clear for the avoidance of doubt that the grant of multiple leases, licences, permits or authorities in the place of a single lease, licence, permit or authority (and vice versa) will not result in invalidity. Sections 24IC(2) and (2A) therefore have utility. In relation to the narrower class of instruments covered by s 26D, however, the drafters may well have been content to rely on the Interpretation Act.

150    In my view, the legislative history of the relevant provisions does not add much to the analysis. Both Subdiv I containing s 24IC and Subdiv P containing s 26D were introduced in the Native Title Amendment Act 1998 (Cth), which was passed to take account of what the government of the day perceived to be consequences of the Wik decision. Before that amending legislation was passed, the right to negotiate applied to a wider category of 'permissible future act', including the creation of a right to mine, the variation of such a right to extend the area to which it related, and the extension of the period for which it had effect (other than under an option or right of extension or renewal inherent in the instrument that created the right to mine): ss 26(1) and (2) of the NTA as it stood before it was amended by the Native Title Amendment Act 1998. Relevantly, acts that renewed rights created before 1 January 1994 were excluded from these provisions.

151    After the changes in the Native Title Amendment Act 1998 came into force, the much more intricate regime that has been described above applied. Section 24IC(2) was introduced as part of the Act. The extrinsic material sheds no light on why it was introduced, with the EM merely describing the effect of the subsection. The inference that it was because of the need to avoid doubt in connection with the wide variety of things covered by s 24IC remains open.

152    Section 24IC(2A) was introduced some 10 years later, in 2007, in the Native Title Amendment (Technical Amendments) Act 2007 (Cth). The title of that Act is self-explanatory. It is easy to see why the Parliament, some 10 years after it had included a provision deeming splits of leases, licences, permits and authorities to be renewals of those things would see, as a desirable technical amendment, a provision making it clear that the converse situation, a consolidation, would also be a renewal. The expressio unius inference would otherwise be strong within s 24IC itself. But as to why no provisions similar to s 24IC(2) and s 24IC(2A) were included in s 26D, the history provides no clue.

153    The explanation I have posited above is not contradicted by the text or context of the relevant provisions. No more plausible explanation has been advanced. The inquiry is not, of course, a forensic one as to why, as a matter of fact, the legislation is how it is. It is part of the process of attributing an intention to the notional person that is the Parliament. In my view, this explanation is sufficient to displace the inferences that the applicant seeks to make on the basis of ss 24IC(2) and (2A), which were already weak given the complicated nature of the NTA and the lack of any apparent purpose that would be served by reading the legislation that way. As 'deliberately structured' as Pt 2 Div 3 is (see Harris at [37] above), it is unlikely that the inferences the applicant puts are a deliberate feature of that structure.

154    On the contrary, reading both s 24IC and s 26D to permit of splits and consolidations in relevant leases etc. or rights to mine gives the Division a harmonious operation in the context of the statutory scheme as a whole. It prioritises substance over form, it avoids the need for distinctions that make no real difference - distinctions that might otherwise need to be drawn at different stages in relation to the same act - and it promotes the purpose of s 26D(1) that emerges from the text of the provision itself.

Policy and purpose of the Native Title Act

155    The applicant also makes a broad appeal to what it says is the policy and purpose of the NTA. It submits that its construction of s 26D is a beneficial construction of the Act. The right to negotiate regime is an element of the protection of native title that is one of the main objects of the NTA, and it is not to be construed narrowly or in a way that excludes its operation in cases like the present.

156    It may be accepted that the NTA is a beneficial piece of legislation intended to facilitate the recognition of native title, and that the right to negotiate is an important aspect of that: see [14]-[16] and [49] above. But putting these matters at that level of generality is of little assistance in resolving the question of the bounds of s 26D. Clearly, the provision is intended to limit the circumstances in which the right to negotiate is engaged; the question is what the limits are.

157    One clear indication of a purpose of the 1998 amendments that introduced Subdiv P appears in the EM. This sets out the '10 Point Plan', which was developed by the Howard government in response to the Wik decision. Point 6 of the Plan said:

Point 6 Future mining activity

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

158    The EM then outlines which parts of the Bill address Point 6 (p 19):

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

159    I therefore do not accept the applicant's submission that the reference to 'only one right to negotiate per project' is most obviously a reference to the 'project act' provisions referred to in the EM. Subdivision P as a whole was the Government's enactment of Point 6, and was intended to achieve the purpose of 'only one right to negotiate per project'. That purpose is promoted by a construction of s 26D that encompasses consolidations of mining leases where there is no change to the total area covered, to the duration of the leases, or to the rights conferred by them.

160    This illustrates how a broad beneficial purpose of legislation may need to yield to the way the legislature has balanced competing imperatives in the particular provision in question. I have touched on this at [80]-[81] above. The temporal component of disapplying the right to negotiate, discussed at [86](7)-(8) above, demonstrates this balancing act. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232, Gageler J explained, in connection with similarly 'beneficial' legislation, at [92]-[94] (footnotes removed):

The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation 'rarely pursues a single purpose at all costs' and that '[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling'.

Evidently employing 'legislative intent' as an orthodox expression of the constitutional relationship that exists between an enacting legislature and a court doing its best to extract and articulate the meaning of an enacted text, the Supreme Court of the United States warned of the danger of overzealous or insufficiently nuanced purposive construction when it stated in Rodriguez v United States 480 US 522 at 526 (1987) (emphasis in original):

Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.

The beneficial purpose of the [Aboriginal Land Rights Act 1983 (NSW)] is reflected in its recital and has repeatedly been acknowledged. Yet the beneficial purpose of the [Aboriginal Land Rights Act 1983 (NSW)] says nothing of itself about how far the Act goes in pursuit of that purpose. …

161    I do not accept that the broad beneficial purpose of the NTA supports the construction of s 26D advanced by the applicant. To the extent that a purpose of the right to negotiate provisions can be extracted from the extrinsic materials, the construction put by the State and AngloGold promotes that purpose.

Section 26D(1)(c)

162    Finally, it is necessary to consider the applicant's argument concerning s 26D(1)(c). That is the paragraph that imposes, as a condition of the application of s 26D (and the disapplication of Subdiv P) that 'the area to which the earlier right relates is not extended'. According to the applicant, the area of each of the previous leases has been extended to the larger area of M39/1096. The requirement in s 26D(1)(c) is therefore not satisfied. The applicant submits that, on its proper construction, s 26D(1)(c) does not permit the aggregation of the area of the previous leases for the purpose of comparison with the area of M39/1096. That construction is confirmed, the applicant says, by s 26(1)(c)(ii), which provides that Subdiv P applies to the variation of a right to mine to extend the area to which it relates.

163    Correctly, the applicant put this submission on the basis that its construction of s 26D(1)(a) was accepted. For the simple answer to it is that, on the contrary, I have determined that s 23(b) of the Interpretation Act does apply to s 26D. The parts of s 26D(1) relevant here are as follows:

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

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

(i)    the renewal; or

(ii)    the re-grant or re-making; or

(iii)    the extension of the term;

of an earlier right to mine; and

…

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

164    Section 23(b) of the Interpretation Act effectively permits 'earlier right to mine' to be read in the plural in both places where it appears here. Once that is done, the grant of M39/1096 fulfills the requirement in s 26D(1)(c) of the NTA. I do not accept the applicant's submission in relation to s 26D(1)(c).

Conclusion

165    Section 23(b) of the Interpretation Act applies to s 26D of the NTA in the ordinary way. No contrary intention appears in or from the NTA. Therefore, 'earlier right' in s 26D may be read as 'earlier right or rights'. The replacement of the previous mining leases by mining lease M39/1096 is a 're-making' (at least) of those previous leases, to which s 26D(1)(a) applies. The area to which the earlier rights to mine, that is the previous leases, relate has not been extended for the purposes of s 26D(1)(c). The grant of M39/1096 was not invalid to the extent that it affected native title. The separate question, 'Was the grant of mining lease 39/1096 an act consisting of the creation of a right to mine to which s 26D(1) of the Native Title Act 1993 (Cth) applied?' will be answered, 'Yes'.

Associate:

Dated:    8 July 2024

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