Court decision

Native title update: High Court clarifies how section 24MD(6B) of the Native Title Act operates

Jonathan Fulcher, Alison Cooper, and Hannah Watson / 09 February 2024

Earlier this week the High Court clarified the types of activities that fall within section 24MD(6B) of the Native Title Act 1993 (Cth) (NTA). This section of the NTA provides a right to object to mining activities which only involve the provision of infrastructure facilities related to mining.

As a part of Glencore’s McArthur River Project, Mount Isa Mines applied for a mineral lease in 2013 under the Mineral Titles Act 2010 (NT) to process sediment pumped from a channel leading to the Gulf of Carpentaria to a Dredge Spoil Emplacement Area (DSEA).  Notice was given under section 24MD(6A) of the NTA, however the native title holders sought a declaration that the notice process followed was incorrect, and the mineral lease should have been notified in accordance with section 24MD(6B).  No production of minerals was proposed on the mineral lease for the DSEA.

For the mineral lease to fall under the requirements in section 24MD(6B), it must relate to the “creation or variation of a right to mine for the sole purpose of constructing an infrastructure facility”.  

While the grant of a mineral lease for a DSEA doesn’t immediately look like a “right to mine” as it involves the dumping of dredge spoil but no mineral production, the High Court determined that it was a “right to mine” with the sole purpose of being an infrastructure facility.  

In making this decision, they made two key points: 

  1. That a mineral lease, mineral licence, mining lease, or any other term used in any State or Territory legislation, should not be read narrowly.  For the activity to be a “right to mine”, it does not have to be one that only involves mineral extraction. It should be read more expansively to enable or involve many activities related to mining.  

However the use of the words “sole purpose” means that, by way of example, if the tenement was to be for mining the product as well as the infrastructure, then the full right to negotiate process under the NTA would apply.

  1. The definition of “infrastructure facility” in the NTA is not exhaustive or restricted to the items listed in section 253 of the NTA, and it can include many activities that relate to mining. 

This has provided a corrective to some of the rather technical (not to say strained) readings given to section 24MD(6B) in the judgments of the Courts below.

If you would like to discuss this further, or have any queries, please contact our Native Title or Resources and Energy practice.

Key Contacts
Jonathan Fulcher
Partner
Jonathan is a Partner and leads our Resources and Energy practice, as well as our Native Title practice.
Alison Cooper
Senior Associate
Alison is a Senior Associate in our Resources and Energy practice.
Hannah Watson
Associate
Hannah is an Associate in our Resources and Energy practice.

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