High Court: April 2024

NATIVE TITLE

Mining

In Harvey v Minister for Primary Industry and Resources [2024] HCA 1 (7 February 2024) the High Court was required to determine whether the proposed grant of a mineral lease under the Mineral Titles Act 2010 (NT) (‘MTA’) would constitute ‘the creation… of a right to mine for the sole purpose of the construction of an infrastructure facility… associated with mining’ for the purpose of s 24MD(6B)(b) of the Native Title Act 1993 (Cth) (‘NTA’).

The third respondent (‘Mount Isa Mines’) carries on a mining enterprise in the Northern Territory known as the McArthur River Project. The McArthur River Project consists of the mining of zinc-lead-silver ore, the processing, treatment and concentration of the ore, the storage of the ore and the transportation of the ore for sale. The ore concentrate is transported by road to the ‘Bing Bong’ loading facility located on the Gulf of Carpentaria. At Bing Bong, the ore concentrate is loaded onto a bulk-carrier vessel for trans-shipment to larger ocean-going ships. Because the gulf around Bing Bong is shallow, the bulk-carrier must use a navigation channel. This navigation channel must be maintained by regular dredging of sediment. The dredged sediment is pumped onshore to a Dredge Spoil Emplacement Area (‘DSEA’). The DSEA has limited capacity and has been filling up. In 2013, Mount Isa Mines applied for a new mineral lease (‘ML 29881’) under the MTA to enable it to construct a new DSEA on a pastoral lease it owns near Bing Bong. The first and second appellants are native title holders in respect of land comprising the pastoral lease. The third appellant is the relevant prescribed body corporate for the purposes of the NTA. The appellants argued that they were entitled to the procedural rights provided under s 24MD(6B) of the NTA on the basis that the proposed grant of ML 29881 would constitute ‘the creation… of a right to mine for the sole purpose of the construction of an infrastructure facility… associated with mining’.