In this case, Reeves J dismissed a claim by a group of native title holders, Graham Friday, David Harvey, and Thomas Simon and others, seeking to prevent the Northern Territory Minister for Primary Industry and Resources from granting a mineral lease application to Mount Isa Mines.
Background
Mr Friday, Mr Harvey and Mr Simon are native title holders as per Ngajapa v Northern Territory of Australia (Ngajapa) [2015] FCA 1249 (‘Ngajapa determination’). The Ngajapa determination applies to an area of land in the Northern Territory. On 23 April 1993 Mount Isa Mines Limited became the registered proprietor of the land and at the time of proceedings operated the McArthur River Mine in the area. The applicants sought to prevent the Norther Territory Minister for Primary Industry and Resources from granting a mineral lease application to Mount Isa Mines that, if granted, would cover part of the land that fell under the Ngajapa determination.
Issues
The issues to be determined were:
Whether the grant of the mineral lease was authorised under s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT) (MTA);
Whether the procedural rights under s 24MD(6B) of the Native Title Act 1993 (Cth) (NTA) were relevant and had been afforded to the applicant;
Whether a final and substantive decision had been made regarding the grant.
Submissions
Issue 1
The applicants submitted that the proposed grant was not authorised by s 40 of the MTA and that the construction, use, and maintenance of a dredge spoil storage area under Mount Isa Mines’ application was not ancillary to mining conducted under their pre-existing mineral lease. Mount Isa Mines argued that this activity was ancillary to their previous mining lease and was therefore authorised under s 40(1)(b)(ii) of the MTA.
Issue 2
The applicants submitted that the granting of the lease would create a right to mine for the sole purpose of an infrastructure facility associated with mining per s 24MD(6B)(b) of the NTA. Given this, they submitted that the procedural requirements in s 24MD(6B)(c)-(g) of the NTA applied. The respondents dismissed this and asserted that the granting of the lease would not amount to the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility. Thus, the procedural requirements in s 24MD(6B)(c)-(g) would not apply.
Issue 3
Counsel for the respondent submitted that Ms Turnball, the Minister’s delegate, had not communicated a final decision but rather a notice of intention to make a final decision regarding the grant. Reference was made to written and oral evidence to indicate the Ms Turnball had not applied the mental process necessary to make a decision about the grant. The applicant submitted that the written and oral evidence indicated a final decision as they amounted to overt acts.
Decision
Issue 1
Reeves J noted that the activities described in s 40(1)(b)(ii) of the MTA were not expressly related to any particular authorised activity under s 44 of the MTA. His Honour therefore inferred that the expression ‘activities’ should not be limited to the listed authorised activities and should only be confined by the words following it in the provision. This led to the conclusion that the limitations on activities were that the activities be geographically confined to the title area and conducted for a purpose that was related to mining. In light of this, Reeves J concluded that a grant of the mineral lease application would be authorised under s 40(1)(b)(ii) of the MTA.
Issue 2
Relying on Barker J’s judgment in Banjima People v State of Western Australia (No 2) (2013) 305 ALR 1, Reeves J concluded that for the procedural rights under s 24MD(6B) of the NTA to attach to a specific lease application, the proposed activity would have to meet the sole purpose test, involve an infrastructure facility as defined in s 253 of the NTA and be associated with mining. As established in issue 1, Reeves J concluded that the proposed activity was ancillary to mining. Furthermore, Reeves J held that the activities were not for the sole purpose of constructing an infrastructure facility as the expanding of a Dredge Spoil Emplacement Area did not amount to the definition of an infrastructure facility under s 253 of the NTA. Given this, His Honour concluded that the procedural requirements under s 24MD(6B) of the NTA were not required to be complied with or owed to the applicants.
Issue 3
Reeves J, relying on Pintarich v Deputy Commissioner of Taxation (2018) 262 FCR 41; [2018] FCAFC 79 and Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422, held that the Minister’s delegate had not made a final decision. His Honour considered that a final decision required the application of a mental process to come to a conclusion regarding the lease application and actions to translate that conclusion to Mount Isa Mines.
The applicant’s case was dismissed on the basis that the Minister had the power to grant the lease application, the procedural requirements under s 24MD(6B) of the NTA were not owed to the applicants and a final and substantive conclusion had not been reached at the time the proceedings began.