Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66

Federal Court of Australia

Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66 Appeal from: Friday v Minister for Primary Industry and Resources [2021] FCA 794

File number: NTD 16 of 2021

Judgment of: JAGOT, CHARLESWORTH AND O'BRYAN JJ

Date of judgment: 29 April 2022

Catchwords: NATIVE TITLE – where the first respondent intends to grant a mineral lease (ML 29881) to the third respondent under the Mineral Titles Act 2010 (NT) – where land subject to the proposed lease would be used for the construction of a "dredge spoil emplacement area" to deposit dredged material from a loading facility located on adjacent land subject to a mineral lease already held by the third respondent – where loading facility is used to load ore concentrate from the McArthur River Mine for transhipment to ocean going vessels for export – whether the proposed grant of ML 29881 is a future act within s 24MD(6B)(b) of the Native Title Act 1993 (Cth), being the "creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining" STATUTORY INTERPRETATION – interpretation of s 24MD(6B)(b) of the Native Title Act – meaning of "a right to mine" in the context of the Native Title Act – meaning of "infrastructure facility" as defined by s 253 of the Native Title Act

Legislation: Acts Interpretation Act 1901 (Cth) ss 13(1), 15AB(1) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1) Native Title Act 1993 (Cth) ss 3, 24AA, 24MB, 24MD(1), 24MD(6A), 24MD(6B), 24OA, 25, 26(1)(c)(i), 28, 29, 227, 233, 253 Native Title Amendment Act 1998 (Cth) Native Title Amendment Bill 1993 (Cth) Native Title Amendment Bill 1997 (Cth) Native Title Amendment Bill (No 2) 1997 (Cth) Native Title Amendment Bill 1998 (Cth) Explanatory Memorandum, Native Title Amendment Bill 1993 (Cth) Explanatory Memorandum, Native Title Amendment Bill (No 2) 1997 (Cth) Supplementary Explanatory Memorandum, Native Title Amendment Bill (No 2) 1997 (Cth) McArthur River Project Agreement Ratification Act 1992 (NT) McArthur River Project Agreement Ratification Amendment Act 1993 (NT) Mineral Titles Act 2010 (NT) ss 4(1), 8, 12(1), 14, 40(1)(b)(ii), 44(1), 71, 72, 74(2) Mining Act 1980 (NT)