Gray, Peek and Blue JJ
In this decision, the Full Court of the Supreme Court of South Australia considered an appeal against the decision of the Environment, Resources and Development Court (Maldorky Iron Pty Ltd v Native Title Services SA [2011] SAERDC 16) refusing an application by Maldorky Iron Pty Ltd (Maldork Iron) for a summary determination authorising Maldork Iron to enter onto land for the purposes of carrying out and conducting mining operations.
The respondent is South Australian Native Title Services Ltd.
Background
In 2010, Maldorky Iron received exploration authority over four mineral claims (about 750 hectares) southeast of Olary, South Australia. It then gave notice of its intention to seek a native title agreement over the land.
Maldorky Iron published notice of its intention to apply for mining leases over the land and stated that if, after two months, there were no parties holding or claiming native title over the land, it would apply for summary determination from the Environment, Resources and Development Court authorising entry for the purposes of carrying out mining operations on the land.
Native Title Services sent an email to Maldorky Iron’s solicitors stating that the land appeared to fall within the area in which the Wilyakali people assert native title rights and interests.
Following a request from Maldorky Iron, the National Native Title Tribunal certified that, as at that date, there were no Native Title claims or determinations with respect to the land the subject of Maldorky Iron’s mineral claims.
In May 2011, the Environment, Resources and Development Court dismissed Maldorky Iron’s application for a summary determination. The Judge concluded that an applicant is not entitled to initiate negotiations for a native title mining agreement unless they hold or have already applied for a relevant production tenement. As Maldorky Iron did not fit this description, it was not entitled to initiate negotiations. Further, the Judge held that Maldorky Iron was in substance seeking a conjunctive authorisation, as its claim related to a future production tenement. In accordance with s 63N(4) Mining Act 1971 (SA) (Mining Act) the Court found that it had no power to make a summary determination in these circumstances. The issue on appeal was whether the Environment, Resources and Development Court was correct to dismiss Maldorky Iron’s application.
Appeal Grounds
Maldorky Iron argued that the judge's reading of the Mining Act was incorrect and if Parliament intended an application for a production tenement to be a precondition for a summary determination, authorising entry onto the land to conduct mining operations it would have used express terms. It argued that the relevant provisions of the Mining Act are based on a proponent first obtaining agreement or determination and then having a production tenement grated or registered.
South Australia Native Title Services submitted that as Maldorky Iron was not an applicant or holder of a production tenement, it was not entitled to make an application for summary determination. It also argued that Maldorky Iron was seeking an authorisation that was beyond the Court's power to grant because the Mining Act limits the scope of the authorisation that can be granted when no determination or declaration has been made that there is no native title in relation to the land.
If the Full Court upheld the first instance decision, Maldory Iron asked the Full Court make orders in its original jurisdiction dispensing with the requirement that it was a party to an agreement with the Minister or had been the applicant for a mining lease at the time of the hearing of its application for summary determination.
Consideration
The Full Court considered the legislative scheme and upheld the decision of the Judge of the Environment, Resources and Development Court.
The Full Court found that the combined operation of sections 63H, 63I, 63K and 63N of the Mining Act ensures that a proponent, a mining operator, is at the very least an applicant for a production tenement before that operator is entitled to make an application for summary determination under section 63N.
The Court held that s 63N(4) Mining Act prevents the Court from conferring a conjunctive authorisation during summary determination proceedings. This is because conjunctive authorisations may only be granted where native title parties come forward, are represented in proceedings, and agree to the authorisation. Underlying this restrictive interpretation is the intention to avoid pre-authorising future mining operations, which have not yet been precisely defined or delimited, in the absence of native title parties’ consent.
The Full Court upheld the Court’s decision and in reaching its conclusion, affirmed the proposition that native title rights should not be eroded until all interests have been heard.
The Full Court also refused to excuse Maldory Iron's failure to comply with the Mining Act as the necessary preconditions for the Environment, Resources and Development Court to exercise its jurisdiction under section 63N did not exist.
The Full Court found that this conduction cannot be characterised as a mere “failure to comply with the requirement of [any] Act” nor can it constitute something which the Court can simply excuse.
Conclusion
The appeal is dismissed.