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