Harvey v Minister for Primary Industry and Resources [2024] HCA 1

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD AND GLEESON JJ

DAVID HARVEY & ORS APPELLANTS

AND

MINISTER FOR PRIMARY INDUSTRY AND

RESOURCES & ORS RESPONDENTS

Harvey v Minister for Primary Industry and Resources

[2024] HCA 1

Date of Hearing: 5 September 2023

Date of Judgment: 7 February 2024

D9/2022

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders made by the Full Court of the Federal Court of Australia on 29 April 2022 and in its place:

(a) order that the appeal be allowed;

(b) declare that the grant of ML 29881 under s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT) is a future act that is the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining within s 24MD(6B)(b) of the Native Title Act 1993 (Cth); and

(c) order that the first respondent be restrained from deciding the application for ML 29881 until completion of the procedures in s 24MD(6B) of the Native Title Act 1993 (Cth).

3. Each party bear its own costs of the appeal.

On appeal from the Federal Court of Australia

Representation

S A Glacken KC with R W Kruse for the appellants (instructed by Northern Land Council)

S B Lloyd SC with L S Peattie for the first and second respondents (instructed by Solicitor for the Northern Territory)

R N Traves KC with M A Eade for the third respondent (instructed by Ward Keller)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Harvey v Minister for Primary Industry and Resources

Native title – Native title rights – Mining – Mineral leases – Where s 24MD(6B) of Native Title Act 1993 (Cth) entitles native title holders to certain procedural rights in relation to future acts that, relevantly, involve "the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility ... associated with mining" – Where Mount Isa Mines Limited carries on mining enterprise in Northern Territory – Where Mount Isa Mines Limited applied for mineral lease ("ML 29881") under Mineral Titles Act 2010 (NT) to construct Dredge Spoil Emplacement Area ("DSEA") on pastoral lease – Where first and second appellants native title holders in respect of land comprising pastoral lease – Where third appellant relevant prescribed body corporate for the purposes of Native Title Act – Whether appellants entitled to procedural rights in s 24MD(6B) of Native Title Act – Whether proposed grant of ML 29881 constitutes creation of right to mine for sole purpose of construction of infrastructure facility associated with mining pursuant to s 24MD(6B)(b) of Native Title Act – Whether definition of "infrastructure facility" in s 253 of Native Title Act exhaustive – Whether DSEA infrastructure facility.