Harvey & Ors v Minister for Primary Industry and Resources & Ors [2022] HCATrans 229 (16 December 2022)

Last Updated: 20 December 2022

[2022] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D4 of 2022

B e t w e e n -

DAVID HARVEY

First Applicant

THOMAS SIMON

Second Applicant

TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC ICN 7848

Third Applicant

and

MINISTER FOR PRIMARY INDUSTRY AND RESOURCES

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

MOUNT ISA MINES LIMITED ACN 009 661 447

Third Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

GAGELER J: As the Court is sitting remotely, I will note the appearances.

MR S.A. GLACKEN, KC appears with MR R.W. KRUSE for the applicants. (instructed by Northern Land Council)

MR S.B. LLOYD, SC appears with MR L.S. PEATTIE for the first and second respondents. (instructed by Solicitor for the Northern Territory)

MR R.N. TRAVES, KC appears with MR M.A. EADE for the third respondent. (instructed by Ward Keller)

GAGELER J: Mr Glacken.

MR GLACKEN: If the Court pleases, your Honours will appreciate from the papers that the case raises two points about proper scope of the future Act provisions of the Native Title Act concerning the conferral of mining rights for infrastructure purposes. The two points are reasonably narrow as points of construction, but they have broad consequences for the operation of the Act. One is the “right to mine” point, the other is the infrastructure facility point. The points are cast in the language of constituent parts of the composite phrase used in the sections of the Act dealing with when native title parties have the right to negotiate or the substitute right to independent hearing in relation to certain high impact future Acts.

An underlying contest of principle, which we will develop in a moment, is that the Full Court wrongly, in our submission, deconstructed the composite phrase into
two distinct elements when the whole phrase is not merely the sum total of its constituent parts. That was a view adopted by the trial judge that we endorsed in saying that the larger phrase should be read compendiously, application book 67, paragraph 130.

Now, your Honours, the special leave question is framed on the facts of this case, as to whether the grant of an ancillary infrastructure mining tenement under State and Territory mining laws triggers the right of native title holders to be heard on the Act under section 24MD(6B)(b) of the Native Title Act. That was the view of things at the level of single Federal Court judges and in the Native Title Tribunal and in the Western Australia Mining Warden’s Court before the Full Court’s judgment, we collect the cases in our application – application book 175, footnote 1, and in reply, application book 298, footnote 1. Your Honours, that in itself is a large question for the Act; given the frequent occurrence of mining infrastructure grants bound up with large mining projects and their severe impacts on native title. In addition ‑ ‑ ‑

GAGELER J: Mr Glacken, may I just ask. I see in the Northern Territory mining legislation a reference to activities “ancillary to mining”, is that a common expression in mining legislation in other States and Territories?

MR GLACKEN: It has some variation. In Western Australia – and we have included the provisions in the application book – the expression is “directly connected”. We have collected the provisions generally in our application – I think it was at footnote 32 – I will turn it up in a moment. All States and Territories have what I might call secondary or ancillary mining tenements for infrastructure purposes.

One of our complaints is that the Native Title Act dovetails the national land administration system established by State and Territory laws. It is in our application, paragraph 32, footnote 5 – application book 182. One of our complaints – which I will come to in a moment – is the Full Court’s construction introduces uncertainty in the intersection of the national law – the Native Title Act – and the State and Territory laws.

Could I come to that in a moment, your Honours, in terms of the generality of this case, but what I wanted to say is that in addition to the mining infrastructure point there is another aspect which we have not put in writing about the general importance of the case, and that is the second point, the infrastructure facility point, to which the Territory response provide no response and do not engage, has ramifications for the scope of section 24MD(6B)(a) dealing with compulsory acquisitions for the purpose of providing an infrastructure facility as defined in section 253. The Full Court considered that the definition was exhaustive and, therefore, that has ramifications for the other aspect of the future Act provisions dealing with compulsory acquisitions.

We submit, with respect to the Full Court, that the approach adopted by their Honours introduces uncertainty in the Act’s operation, and, with respect, is unworkable. The uncertainty is the factually dependent and variable test of what is a right to mine introduced by the Full Court, which appears at paragraph 127 of the reasons, to which I will come to in a moment. Their Honours conclude by saying that the test “will always be fact specific”. We say that the statutory text requires one particular characterisation or factual inquiry, and not a further inquiry of the kind posited by the Full Court, and, as we say, that introduces uncertainty as to the operation of the Act and its relationship with State and Territory mining laws. The unworkability ‑ ‑ ‑

STEWARD J: Mr Glacken, can I ask you a question? On your case, do you read the phrase “right to mine” as a reference to a species of mineral title, as issued under a relevant State Act, or is it a reference to a statutory right to do something – namely, mine – regardless of what particular mineral title you might have, whether it is an exploration lease, a production licence, or what have you?

MR GLACKEN: It would be the latter, your Honour, although the statutory right will be expressed in various forms, typically a mining or mineral lease, but there are other forms such as authorities or licences. But, just on that point, your Honour, this is a short point of construction I will come to in a moment. We submit that “right to mine” embraces, by the text of the Act, what we might call ancillary infrastructure tenements. That is the textual debate.

Can I just deal with the general importance of the Full Court’s construction of the operation of the Act by referring to the unworkability point, and that is their Honours’ restrictive interpretation of the infrastructure facility definition is that unless a thing is one of the things listed in paragraphs (a) to (i) of the definition, then it is not an infrastructure facility and that is contrary to the dicta of another Full Court in South Australia v Slipper and that introduces unworkability because there are many things associated with mining that are not listed in paragraphs (a) to (i) of the definition, and therefore there is a lacuna on that front.

Can I ask your Honours to turn up the statutory provisions at application book 210. Your Honours will find a heading “Subdivision Page – Right to negotiate”, and then section 25 is one of those chatty Commonwealth overviews and your Honours will note in paragraphs (1)(a) and (b) that Subdivision P applies to:

(a) certain conferrals of mining rights;

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

Hence the word “certain” is because there is a carve‑out to which I will come to at the moment. If your Honours then go to section 26 which specifies when Subdivision P applies, and then over the page, to subsection (1), it will apply if (a) and (b) are met – not in issue here – and then:

(c) subject to this section, the act is:

(i) the creation of a right to mine, whether by the grant of a mining lease or otherwise –

which answers Justice Steward’s question – the “whether by a mining lease or otherwise”:

except one created for the sole purpose of the construction of an infrastructure facility (see section 253) –

an unusual form of drafting which specifically draws the reader’s attention to the definition to be incorporated:

associated with mining –

Then, there is a note, as part of the Act:

Note: Rights to mine created for the sole purpose of the construction of an infrastructure facility associated with mining are dealt with in subsection 24MD(6B).

Which is the carve‑out where there is a substitute procedural right to an independent hearing in place of the right to negotiate and arbitrate under Subdivision P. If your Honours would also note (iii), which deals with:

(iii) the compulsory acquisition of native title rights –

Again, in paragraph (B), there is a carve‑out where:

(B) the purpose of the acquisition is to provide an infrastructure facility –

Again, there is a similar note that that carve‑out is dealt with in section 24MD(6B). Hence, my point that the Full Court’s construction of the definition of “infrastructure facility” has equal importance for that aspect of the future Act provisions.

Can I just deal with the short construction point? It is that the way section (1)(c)(i) is cast is that “the creation of a right to mine” necessarily includes one created for the sole purpose of the construction of an infrastructure facility. That, your Honours, is really, simply the point. It is open textually to say – and this was the view taken by the trial judge – that whatever might be the expression of “a right to mine” in ordinary terminology or in excise and tax cases, the Act treats one created for the sole purpose of the construction of an infrastructure facility as a right to mine.

The key factual findings in this case are threefold in terms of the characterisation exercise. First, the works to be constructed pursuant to the grant comprise an infrastructure facility, which is in the ordinary meaning of that term – Full Court paragraph 162. Second, the sole purpose of the grant is for the construction of the infrastructure facility – Full Court, 136. Third, the infrastructure facility is associated with mining – trial judge, paragraph 135; no issue on appeal – Full Court, paragraph 135. The “right to mine” point is therefore, whether, by the use of the composite phrase, in each of section 26(1)(c)(i) and 24MD(6B)(b) – I will come to that in a moment. I apologise, I did not take your Honours to this section.

The point is whether in each of those provisions the composite phrase means the creation of a right to construct an infrastructure facility associated with mining is treated as “the creation of a right to mine” for the purposes of what I might call the infrastructure carve‑out.

GAGELER J: Mr Glacken, you refer to the excise and tax cases.

MR GLACKEN: Yes.

GAGELER J: No doubt, you have looked very carefully at them. Do you get anything out of them that assists in understanding the ordinary meaning, perhaps, of the word “mine”?

MR GLACKEN: Well, you might, and can I say, what the Full Court got out of that was what we respectfully submit was not of assistance and dangerous. Can I come to that in a moment? It is a case called Dampier Salt ‑ ‑ ‑

STEWARD J: Mr Glacken, before you do that, if the “right to mine” is not a reference to a species of mineral title, then what work does the word use if you have got something which is for the sole purpose of infrastructure and which is also associated with mining?

MR GLACKEN: What the sole purpose test does, your Honour, is ‑ ‑ ‑

STEWARD J: Well, in light of all that, what work does the “right to mine” do in the section?

MR GLACKEN: The work that the “right to mine” does is part of the composite phrase – and this is the difference between the trial judge and the Full Court – is that in each of 26(1)(c)(i) and 24MD(6B)(b), a right to mine encompasses, if I can call it, an infrastructure grant. This Act expands – and remember “mine” is just defined as an inclusive definition of section 253 – that this Act embraces, or expands the concept of a “right to mine” to include infrastructure grants associated with mining. That is the work done, and that is the view taken by Justice Barker in Banjima People applied by the trial judge, application book 67, paragraphs 130 to 131.

Your Honour Justice Steward, the sole purpose test is directed to what I might call the structural fit by way of a carve‑out. In other words, if the grant permits both mining and infrastructure, which is a typical mining lease, that grant engages the right to negotiate within section 26, and if the grant only permits infrastructure associated with mining it engages the right to a hearing within section 24MD(6B).

That is the structural fit effectuated by the sole purpose test – and I should say this view is confirmed by the 1997 explanatory memorandum, and quoted by the Full Court at paragraph 116. Could I just briefly take your Honours to section 24MD – just to complete the statutory picture – at application book 206. It is the operative carve-out your Honours see at (6B) at the bottom of the page. (a) deals with “compulsory acquisition”, and then (b) deals with:

(b) the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining –

So, if the sole purpose of the grant is “construction of an infrastructure facility”, that is, for the Act, a species of a right to mine. It may ‑ ‑ ‑

STEWARD J: Mr Glacken, can I ask, what you say about this, that in analogous statutory circumstances – in particular in the tax and excise cases to which Justice Gageler has referred to – it has generally been held that infrastructure associated with the export or sale of that which is won from the land is excluded from the concept of mining. So, for example, building a port and associated facilities – unless, of course, the statute expressly brings them in to the picture.

In other words, the distinction is drawn between those things which are ancillary to the winning of the product from the ground and those things which are ancillary to what you do with the product thereafter. Is this not a case where we are looking at work done for the purpose of assisting in the transportation of the product to ships in the Gulf of Carpentaria?

MR GLACKEN: Yes, and that is why I said in answer to Justice Gageler that reliance upon that line of authority is, with respect, dangerous. The Full Court relied upon it at application book 153 to 154, and from that, at paragraph 127, construed the concept of a “right to mine” for the Native Title Act as being something “directly associated with” and forming “part of the mining activity on a given parcel of land”, and that, in our respectful submission, is a gloss on the statutory text. Their Honours introduced conditions of direct association, physical proximity, and degrees of necessary operational integration borrowed from the excised case Dampier Salt, but the relevant criteria is whether the facility is associated with mining.

To take Justice Steward’s question about a port, the sections say – unusual drafting – “see section 253” for what is an infrastructure facility, and that includes a “port”, a “transportation facility” – not for ore, but for ore concentrate – that is why, and this is really the nub of the debate on the “right to mine” point, your Honours, we say that that analogy, in the excise cases, that the concept of mining ends when a saleable product is produced, is in an entirely different statutory setting and a different statutory text and context.

Consider, for example, in the context of the way the Native Title Act operates, large iron ore projects in the Pilbara, depending upon the rail and shipment of ore at large distances from the mine. Can I then say something about the facts‑specific issue, this appears at the end of paragraph 127 of the Full Court’s judgment, then they return to it the paragraph 131. We submit that it is unsatisfactory to say that the question will always turn on the nature of the activities authorised by the tenement, or what is fact‑specific, that factual proviso introduces uncertainty into the operation of provisions which dovetail State and Territory mining laws that provide for ancillary or secondary mining tenements for infrastructure purposes, and I have said we collect the references in the application, page 182, footnote 5.

This is an important point of principle, your Honours. The design of the Native Title Act is to have native title accommodated into the national land management system established by State and Territory laws. I notice the time. But if the tenement is the sole purpose of constructing an
infrastructure facility associated with mining, we submit that no factual inquiry beyond that high characterisation is called for by the statutory text.

GAGELER J: Thank you. I note the time, Mr Glacken, thank you. Mr Lloyd.

MR LLOYD: Thank you, your Honour. We will address the “right to mine” issue only. In short, we say the Full Court made no error on this issue, and that issue was sufficient to resolve the matter. The Full Court’s construction accords with the relevant text and its context, legislative history and purpose; the Full Court’s reasoning, we say, was orthodox. It is the applicant’s contentions that depart from principle. The applicant assumes the answer decrying a lacuna in their submissions that must be avoided, and then he reasons backwards to justify the position he starts with.

The applicant contends that the Full Court’s construction at section 24MD(6B) gives it no work to do. But that is contrary – that is unsupported – and it can be seen from paragraph 131 that the Court itself recognises that it has work to do, so it is just not a consequence of the Full Court’s decision, so that is wrong. The applicant contends that the Full Court’s construction fails to native title holders special protection beyond that given to freeholders. We say that is wrong, it just that that protection only extends where the Act says it extends, which is to where there is the creation of a right to mine of a particular kind.

The applicant assumes that the Subdivision MD was intended to give such protection to all grants made for the purpose of constructing an infrastructure facility associated with mining. One sees that as they posit the special question in paragraph 3 of their submissions. In so doing, the applicant’s construction gives the words “right to mine” in the provision no work to do. He assumes that every grant done for their stated purpose must be a right to mine, and we say that there is no basis for that assumption, and it is contrary to principle as to how one would construe the provisions.

But in relation to my friend’s submission about it being a composite expression or a compendious expression, we say that the legislative history speaks against that. The position is – and I will be very succinct with this – Subdivision M applies in essence to all non-legislative Acts that could be done in relation to land concerned if the native title holder’s concern instead held freehold. That is to say, Acts that could be done on freehold land, and that is what is called the so-called freehold test.

When that freehold test is met by a future Act, the Act is valid. That is the effect of section 24MD(1). That is, however, subject to subdivision P, which concerns the right to negotiate procedure. When the right to negotiate applies, those procedural steps must be undertaken for future Act to be valid. When originally enacted, that is to say, the Native Title Act when it was originally enacted, Subdivision P as it then was not called, but still section 26, applied to the creation or variation of a “right to mine”, just simpliciter, there was no subdivision of that notion of a “right to mine”, whether that right was granted in a mining lease or in any other document.

At that time and with that construction, Justice Drummond in a case called Tenneco referred to in, 112 of the Full Court’s reasons construed that provision and said that the grant to construct and operate a pipeline to convey gas, the gas being the finished product of the mining, was not “the creation of a right to mine”. Two years later in 1998, a legislative decision was made to divide the notion of “the creation of a right to mine” into two subcategories. One would still enliven the right to negotiate procedure, and the other would enliven a less onerous procedure in 24MD(6B). But those two special procedures still were only directed to rights to mine. This reform, we said, did not apply either the right to negotiate procedure or the (6B) procedure to grants that were not rights to mine.

STEWARD J: Mr Lloyd, section 40(1)(b)(ii) of the Mineral Titles Act provides for the grant of a mineral lease to:

conduct activities in the title area that are ancillary to mining conducted under another ML –

And I think that is the provision which is the subject of the application 29881, the subject of this application. If the word or the phrase “right to mine” is a reference to a species of mineral title that might be granted under a State or Federal Act, why would not mining lease application 29881 not be characterised as a right to mine for, in this case, the sole purpose of the construction of an infrastructure facility – and just leave aside what that term “infrastructure facility” means – associated with mining? Why would that not fall within it?

MR LLOYD: We say that “right to mine” is not meant to be equivalent to a mining tenement. That could easily have been said, and the Native Title Act has the definition in section 245 for a mining lease. If there was a desire to use that expression, it could have been used. The right to mine engages the definition of the verb “to mine,” which is also a defined term. It is actually talking about – and as my friend took the Court to – in section 26(1)(c), it makes it clear that it is a right to mine whatever is the nature of the tenement. It is dividing the concept of the “right to mine” to a substantive right to mine, which is talking about – we would say – the extractive processes involved in mining.

In whatever form that is in, that is what engages it. The right to mine has its meaning, I would not necessarily say its natural meaning, it has the meaning as effected by the defined term “to mine” in the Native Title Act. We say that in that sense, it should not be understood as just being any mining tenement. We say that there is no lacuna, the legislature has divided up matters that pass the freehold test, in effect, into three categories.

There is the category of rights to mine other than for the sole purpose of infrastructure facility, and that is covered by the right to negotiate. Then there are the rights to mine which are covered by the sole purpose for the infrastructure facility. That is covered by (6B). Then, there is every other grant, which does not involve a right to mine at all, and that is covered by (6A). There is no lacuna, there is just a legislative choice as to what procedures apply to what kind of grants.

GAGELER J: But Mr Lloyd, you were referring to the decision of Justice Drummond given two years before the legislative amendments that produced the provision in its current form. My concern is the extent to which the construction arrived at by the Full Court in this case is a departure from what had been the previous understanding. There is an express departure from Justice Barker’s judgment in 2013. Mr Glacken, in footnote 1 of his reply, says it goes back even further than that, there had been a settled understanding since the turn of the century; do you accept that?

MR LLOYD: No, we do not accept that. We, in fact, deny that those cases are so settled. The high‑water mark for them in Banjima, and even Banjima, we say the Full Court explained correctly why Banjima does not even assist the meaning that they say. There are some decisions where something may have been assumed, but there is nothing where those cases of the Western Australian Mining Warden, or whatever, has determined these matters in this way.

I mean, ultimately, we say that, other than Tenneco, there is not really much on the point. There is maybe a bit of obiter in Narrier, but this decision is the decision that has looked at it most closely. We say that they have done it in an orthodox manner. It is often said that the best guide to statutory construction is the text. We say if that is the position the applicants’ appeal must fail. His construction effectively omits the words, the creation or variation of a right to mine in (6B), and just inserts the words any grant. So, if you read “any grant for the sole purpose of” that is what they say is the meaning.

That ignores the legislative history I have already noted. The applicants’ justification for ignoring the text is that they assume that unless these words are ignored, no interest in land would create a right to mine that is solely for the purpose of the construction of an infrastructure facility. So that is how they get there. But that is not what the Full Court has held, nor to the effect of what the Full Court said. From the terms of the provision it can be inferred – and the Full Court says this at paragraph 124:

The legislature contemplated that a right to mine might be created for the sole purpose of the construction of an infrastructure facility associated with mining.

We say that that is correct. It cannot be inferred, or assumed, that the legislature considered that on every occasion when a grant was done for that purpose it had to be characterised as a right to mine. That is not an inference or an assumption that should be made from the text when one has regard to the definition of the verb “to mine”.

The Full Court considered that the special procedure in (6B) and section 26 were for rights to mine. One could not simply assume that something was a right to mine, it was a question of fact, whether a grant conferred a right to mine. Here, the tenement in issue was not for the purpose of exploring or prospecting of minerals, which would certainly be a right to mine. It was not for the purpose of extracting minerals from the ground, which would be a right to mine. It was not for the purpose of extraction of minerals from the rocks and soil that had been extracted from the ground.

I note that, because that process – which we would accept came within the concept of a right to mine – would involve infrastructure associated with mining such as grinders and ball mills, and the like, or other chemical or other processes. All of that gives the provision work to do. There could well be grants in relation to that kind of infrastructure or storage facilities for matters that are mined which would all fall within the natural extractive processes of mining that gives the provision work to do.

The tenement, we say, granted solely for the purpose of constructing and operating this kind of extractive infrastructure that I have just mentioned would create a right to mine. It would enliven 6B. The current tenement was not even for the purposes of refining the mined rocks into the products of mining. It was not even for the purposes of transporting the mined good – which is what Justice Drummond rejected in that Tenneco Case. The current tenement is for the purposes of depositing dredge spoil so a harbour used for the transportation of minerals would work efficiently.

That this tenement did not create a right to mine, we say, is compelling. It may be a grant for work that is associated with mining but that does not create a right to mine in any plausible meaning of the
expression “right to mine”. The applicant can succeed only if every infrastructure facility associated with mining, however distantly, necessarily confers a right to mine. That outcome, we say, is unsupported by any possible reading of the definition of “mine” in section 253, which is set out in the book at 229. That definition certainly – talking about extraction of petroleum or gas – extraction of petroleum or gas would need storage facilities, that is infrastructure which, we would say, falls within it. The definition also refers to:

extracting, producing or refining minerals from the sand –

Those processes could also be understood to confer a right to mine but not the processes involved, we say, in this case. We say that there is insufficient prospect of success and special leave should be refused.

May it please the Court.

GAGELER J: Thank you, Mr Lloyd. Mr Traves.

MR TRAVES: Thank you, your Honour. The parties – the applicants and the respondents – really separate two important points. The first is whether or not in the text of section 24MD(6B)(b) creation of a right to mine is a separate inquiry from the further inquiry relating to infrastructure. And the second point of difference is what effect ought to be given to the definition of infrastructure facility.

Can I deal briefly with the issue about the creation of the right to mine. We probably adopt the submissions of Mr Lloyd in this regard, but can I start with the statute and with section 26, which your Honours will find on page 211 of the record. We would submit, as the Full Court found, that the statutory text and the statutory context strongly support the proposition that in section 24MD(6B)(b) there are two inquiries – not one, effectively.

Your Honour Justice Steward asked Mr Glacken, what role do you give to the words “creation of a right to mine”? The short answer to that is none. The creation of the right to mine on the applicants’ case is a deduction to be made by the satisfaction of the remainder of the section. We would say that that is not an approach which is open in the statutory text or the context for these reasons. If you look at page 211, at (1)(c)(i), you will see that:

(c) subject to this section, the act is: –

and this is creating a right to negotiate:

(i) the creation of a right to mine, whether by the grant of a mining lease or otherwise –

If you stop there, those rights to mine engage Subdivision P, the “right to negotiate”. So, a right to mine for extraction, for example, or exploration, engages the right to negotiate. Then an exception is created in respect of “one” – those words “except one” are important because they direct attention to the separate requirement of the right to mine:

except one created for the sole purpose of the construction of an infrastructure facility . . . associated with mining –

Now, something is made in the applicants’ submissions about the words “sole purpose” in the construction of an infrastructure facility associated with mining – and the question is posed, what work does sole purpose have to do – and a similar question arises in 24MD, it is only if sole purpose of the creation of the right to mine is the construction of an infrastructure facility associated with mining that MD(6B) is engaged as opposed to Subdivision P – but it may be, for example, the creation of a right to mine for the purpose of the construction of infrastructure facilities, some of which are associated with mining and some of which are not.

So, to take the creation of a right to mine for a storage or transport facility for a mineral, which would fall within (f) of the section 253 definition, which includes the right to build an airport, or a dam or a communication tower – which could also be an infrastructure facility. The exemption from the right to negotiate in Subdivision P only applies if the sole purpose is infrastructure associated with mining. And, arguably, you would see in that example that the building of an airport or a dam may not be – so that the intent of the words “associated with mining” is to prevent the piggybacking of infrastructure which is not associated with mining out of Subdivision P, “Right to negotiate”.

Similarly, looking at it the other way, the reason that you cannot have something which is in fact for a purpose related to mining and piggyback out the right to extract from Subdivision P. So, that is why the sole purpose of an infrastructure facility associated with mining is the requirement. Because if it is not the sole purpose, and other forms of infrastructure facility are included in the application for the grant, then that would cause the piggybacking out – or permit the piggybacking out from the right to negotiate of something like an airport or a dam, to use my example.

STEWARD J: Mr Traves, can I ask you a question, please. In the language you are looking at, when it refers to “except one created for the sole purpose”, what, in your view, is the “one” they are referring to there?

MR TRAVES: Thank you, it is a reference to a right to mine in the previous words. So, the creation of a right to mine “except one”, that is, except the creation of a mine of a right to mine which is for the stated purpose. And that is where the bifurcation in 24MD(6B)(b) is irresistible as a matter of statutory context. And then there is emphasis on that, I will take you to it ‑ ‑ ‑

STEWARD J: Can I ask – I am sorry to labour this – but when you say it is the right to mine, it is a thing, something which is held by a miner.

MR TRAVES: Yes.

STEWARD J: What is that thing, divorced from the mineral tenement? If one assumes it is not the mineral tenement, what is it?

MR TRAVES: The . . . . . there is a hint, because the rule is the creation of a right to mine is whether by the grant of a mining lease or otherwise, and then to extend to, for example, in section 26(1A)(c) at the top of page 211, renewals, re-grants, re-making or extensions. So, it is a right which is created by some form of lease, but not necessarily – sorry, I should not say some form of lease, but not necessarily – a lease, a licence or some other grant, which is non-specific.

STEWARD J: If one held such a thing, then what work would you need to give to the phrase “associated with mining”? Would not all such rights be associated with mining?

MR TRAVES: No, for this reason, and can I just come back to it – it was the point I made imperfectly – true it is that the point of the section, in that it has dealt with the words “solely” and “associated with”, if it had distinguished between, to state the obvious, infrastructure facilities associated with mining and some which are not – now, some of those infrastructure facilities may permit or constitute the creation of a right to mine. So that, on the approach adopted by the Full Court, the creation of a route to mine for the sole purpose of a storage facility for mineral would satisfy the sole purpose test.

But the importance of “sole purpose” and “associated with mining” is to prevent, as I have described it, the piggybacking out of broader infrastructure rights from a grant. So, that if you have a grant of a right to mine, for example, for storage facility mineral, but which application also contemplates permission from the Minister to create an airstrip – build an airstrip or a dam – there is a real issue about whether the airstrip or the dam might be associated with mining in such a ways to fit the definition of “infrastructure facility”.

Yet, if not associated with mining, but the section were otherwise operative, that right could be piggybacked out of Subdivision P, effectively. I know it is confusing, this section is in many ways confusing, but have I made the point clear?

STEWARD J: I understand your answer, thank you.

MR TRAVES: Thank you. We have struggled . . . . . so when one looks at the note to 26(1)(c)(1), rights to mining “for the sole purpose”, and so on. It is again indicated in the note that it is a separate requirement, which is fundamentally contrary to the applicant’s position. Then, next, subsection (c)(ii):

the variation of such a right –

is again a reference to the right to mine, so the proposition that somehow the right to mine is a deduction from the other words in 24MD(6)(b) just cannot stand. Then, in subparagraph (iii), the compulsory – and so it stands. While I am here, in section 26, you will see that the exception to section 26(1) in respect of infrastructure, and it is similar to an exception which is created in section 26C(3)(b) for compulsory acquisitions, so that compulsory acquisitions for infrastructure facilities and the creation of mining rights for infrastructure facilities associated with mining are both excisions from the right to negotiate in Subdivision P.

There is an underlying theme in the applicant’s submissions that somehow the Full Court’s interpretation, particularly in infrastructure facility, is to do a disservice to native title holders by holding them out of rights under 24MD(6B), but we would make the obvious point that because these are exceptions to the right to negotiate, the wider the definitional meaning you give to infrastructure facility; the broader the carve‑out from Subdivision P right to negotiate, so this really is, essentially, a double‑edged sword for native title holders, because the broader the interpretation given to “infrastructure facility”, the bigger the carve‑out for the right to negotiate. That is why we submit that the exception to the right to negotiate is intended to be confined.

Then just to go back to 24MB(6B)(b), which is the one that we are immediately concerned with, I started at 26(1)(c)(i) because the two sections have to be read together and in that circumstance when one comes to 24(6B)(b) it is plain, we would submit, that there are two inquiries required, not one, and it is just simply impermissible as a matter of statutory construction to deduce the existence of a right to mine from the existence of satisfaction of the other elements.

Now, in the time available to me, could I just say a few words about the infrastructure facility. Could I ask your Honours to go to page 227 of the application book. Your Honours can see this is a definition of “infrastructure facility” towards the base of the page. In the chapeau:

infrastructure facility includes any of the following –

And the court below found that “includes” was a strong indicator that the definition of “infrastructure facility” was intended to be inclusive, while acknowledging authorities that when one had regard to text and context of . . . . . that might not necessarily be the case. But then it went on to deal with those particular textual factors. The first point we made was that each of the matters enumerated in paragraphs (a) to (h) appear to fall within the ordinary meaning of the phrase “infrastructure facility”, and agreed, perhaps, to the view that was an indicator and failure of – and we would submit correctly – an exhaustive definition. Secondly, you will see that some of the subparagraphs are highly specific. So if you look at subparagraph (f):

a storage or transportation facility for coal, any other mineral or any mineral concentrate –

The court found, and we would support the proposition that that suggests that other sorts of storage facilities will be excluded, again an indicator that what is in fact here is an exhaustive definition. Thirdly, and importantly, if your Honours were to go to subparagraph (i), it empowers the Minister, by legislative instrument, to determine that:

any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) –

is an infrastructure facility for the purposes of the definition. We would submit it is significant that the Minister’s power is limited to determining only those things similar to the things already enumerated . . . . . infrastructure facilities, and we ask rhetorically why would that be so if the definition was intended to be inclusive?

Although, perhaps, less persuasive, the words “any of the following” in the chapeau, we submit, is a further statutory indicator. Fifthly, as the Full Court discussed, there is a discernible statutory purpose, we would submit, in having excluded specific items as discussed in the explanatory memorandum, which the Full Court has set out. We emphasise the point – we have really made it, but this – that infrastructure facilities are a carve‑out
from the right to negotiate. The broader the definition, the bigger the carve‑out in respect of compulsory acquisition rights and, indeed, in respect of creations of right to mine. For that reason – the reasons discussed by the Full Court – there was intent in the way the Parliament defined “infrastructure facility” and that was to limit the impact rather than to extend it on the right to negotiate.

Those are our submissions, thank you.

GAGELER J: Thank you, Mr Traves. Mr Glacken, do you have anything in reply?

MR GLACKEN: Yes, three points – “right to mine” – if I can return to Justice Steward’s question and ask your Honours to turn up section 26 again, at application book, 211. The expression is:

the grant of a mining lease or otherwise –

“Mining lease” is a defined term in section 245, which appears at the book at page 222, and it is a lease:

that permits the lessee to use the land or waters covered by the lease solely or primarily for mining –

There is an open view that, in terms of the characterisation of what is a “right to mine”, whether it is – it has to be a title of some sort – a tenement – and there is a view that mining lease or otherwise, the “or otherwise” will pick up what I would call, “ancillary mining tenements”. In terms of the general application, if your Honours turn up application book page 182, footnote 5, we collect what I might call these “other” mining tenements dealing with infrastructure in the various State and Territory jurisdictions which either use the expression “ancillary” to mining activity or “associated” with mining, or “connected” with mining.

It is not to say that the expression “right to mine” has no meaning in section 26 and 24MD for the carve‑out, the submission is that the right to mine necessarily includes an infrastructure tenement. The sole purpose is the pivotal part of the sections – and that was the view taken by the trial judge and Justice Barker. Secondly, the infrastructure facility point – if your Honours turn to page 228 – and the first observation, paragraph (f), dealing with, perhaps, the “right to mine” point, but the expression is a:

transportation facility for coal, any other mineral or any mineral concentrate –

So, there could be a transportation facility at the mine for mineral, and there could be a transportation facility somewhere else, here, at the port for mineral concentrate, which is the facts of this case, and there is a map at application book page 85 or 86 which shows the locations of the different tenements. It is page 86. If your Honours turn that up, the mine site is the bottom set of tenements, and then up the top is the port with an existing lease, and then the further continuous leases to be granted in this proceeding.

Going back to the definition, what does (i) do, that is, to list in the other matter, on the Slipper view of things, if a thing is not a subordinate part of an activity it is not an infrastructure facility for the ordinary meaning, and if it is not otherwise listed, then (i) works so things could be added. The third point ‑ ‑ ‑

GAGELER J: Mr Glacken, I am afraid the time is up. We need to keep to a timetable. The Court will adjourn momentarily to consider the course it will take.

AT 10.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

GAGELER J: There will be a grant of special leave to appeal in this matter. Would it be a one‑day case, Mr Glacken?

MR GLACKEN: Yes, your Honour. There could be a possibility of a Commonwealth intervention, but still one day.

GAGELER J: Yes. Is there any difference of view amongst the other counsel?

MR LLOYD: No, thank you, your Honour.

GAGELER J: Very well. Thank you. The Court will then adjourn until 10.40 am for the next application.

AT 10.32 AM THE MATTER WAS CONCLUDED