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

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

The grant of ML 29881, intended for constructing and operating a dredge spoil emplacement area, is not the creation of a 'right to mine' for the purposes of s 24MD(6B)(b) of the Native Title Act, as such activities are too remote from mining, being ancillary to ore transport rather than extraction or processing. Furthermore, the DSEA does not fall within the exhaustive definition of 'infrastructure facility' in s 253. As a result, the procedural rights in s 24MD(6B) are not triggered. Native title holders have instead the procedural rights in s 24MD(6A), equivalent to those of freehold owners.

Jurisdiction
Australia
Judgment Date
29 April 2022
Procedural Posture
Appeal / Judgment on Appeal From Single Judge (friday V Minister for Primary Industry and Resources [2021] FCA 794)
Outcome
Appeal dismissed
Legal Topics
['future Acts' 'right to Mine' 'infrastructure Facility' 'procedural Rights Under Native Title Act' 'statutory Construction' 'mining Tenements']
['native Title' 'statutory Interpretation'] ['future Acts' 'right to Mine' 'infrastructure Facility' 'procedural Rights Under Native Title Act' 'statutory Construction' 'mining Tenements']

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Procedural Posture

Appeal / Judgment on Appeal From Single Judge (friday V Minister for Primary Industry and Resources [2021] FCA 794)

Legal Issues

  1. 1 ['Whether the grant of ML 29881 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)' "Whether the grant of ML 29881 creates a 'right to mine' within the meaning of the Native Title Act" "Whether the proposed facility is an 'infrastructure facility' as defined in s 253 of the Native Title Act" 'Whether procedural rights under s 24MD(6B) or s 24MD(6A) of the Native Title Act apply']

Ratio Decidendi

The grant of ML 29881, intended for constructing and operating a dredge spoil emplacement area, is not the creation of a 'right to mine' for the purposes of s 24MD(6B)(b) of the Native Title Act, as such activities are too remote from mining, being ancillary to ore transport rather than extraction or processing. Furthermore, the DSEA does not fall within the exhaustive definition of 'infrastructure facility' in s 253. As a result, the procedural rights in s 24MD(6B) are not triggered. Native title holders have instead the procedural rights in s 24MD(6A), equivalent to those of freehold owners.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'Within 14 days, the parties are to file agreed proposed orders as to costs of the appeal or, failing agreement, submissions on costs limited to 5 pages.' 'Any dispute on costs will be determined on the papers.']