As your native title claim has been registered over the area of the Mineral Lease, section 31 of the Native Title Act (NTA) requires the Department of Mines & Energy (the department), the grantee (the applicant) and the native title party (represented by the Northern Land Council) to sign an agreement (tripartite deed) to enable the grant of the Mineral Lease 29881.
It is also expected that the native title party may require an ancillary agreement with the grantee prior to them signing the tripartite deed.
To enable the three parties to reach agreement and sign a tripartite deed, the NTA requires that the native title party have the opportunity to make submissions in regard to the proposed grant of the Mineral Lease 29881.
Your written submission can be forwarded to the department to the attention of the Native Title and Aboriginal Land Right Unit. A copy of any submission lodged by you will be forwarded by the department to all parties as soon as possible after receipt.
Furthermore, the department expects that you will negotiate in good faith:
• with the view to reaching an agreement;
• by keeping the department informed of progress; and
• providing the department with copies of any documents exchanged.
18 Thereafter, approximately seven months elapsed during which period no s 31 negotiations were undertaken. That inaction is most likely explained by the contents of a letter Mr Kevin Stephens of Ward Keller, lawyers acting on behalf of Mount Isa Mines, sent to the Department on 20 April 2015. In that letter, Mr Stephens expressed concerns that "the correct procedures are not being followed under the [NTA], which may invalidate the grant of MLA 29881 to the extent it affects native title". Specifically, he claimed:
(a) that while they contained "significantly different statements of the nature of the acts", neither of the s 29 notices published with respect to the application was accurate;
(b) that the "right to negotiate" provisions in s 26(1)(c)(i) and the provisions of s 24MD(6B) of the NTA did not apply to the application because "[t]he proposed grant of MLA 29881 is neither the creation nor a variation of a right to mine";
(c) that instead the application passed the freehold test under s 24MD(1) of the NTA and any native title holders were therefore vested with the same procedural rights as freehold title owners under s 24MD(6A) of the NTA.
The letter concluded with the following summary and requests:
[Mount Isa Mines] is concerned to ensure that it has good title to any grant of MLA 29881. Purporting to comply with the right to negotiate process, when it is not the applicable NTA provision, will not ensure the valid grant of MLA 29881 in relation to native title rights and interests. We request that the [Department] reconsider its position in relation to MLA 29881 based upon the above.
If you have any queries, or wish to discuss any aspect of the above, please contact me. I look forward to hearing from you in due course.
19 About two and a half months later, on 10 July 2015, the Department wrote to the NLC informing it that it had received the letter from Mr Stephens mentioned above and stating, among other things, that it was seeking legal advice on the issues raised in it, as follows:
…
The details in the [23 April 2014] Notification are not accurate in that the proposed purpose for the [mining lease] is not for a loading facility, but a storage area for dredge spoils from the harbour. Therefore re-notification of the proposed act will be required to accurately reflect the use of the [mining lease] once granted.
…
The Department of Mines and Energy is currently reviewing the applicable NTA process to ensure the future act is valid and for the re-notification of ML 29881, which is specifically for a dredge spoils storage area and has sought legal advice on that issue.
To ensure the future act is valid, the Department does not propose to effect the grant of the title in the first instance until the matter is resolved, however does support in principle that section 24MD(6A) of the NTA is the more appropriate section for of [sic] grant.
…
20 A further 12 months elapsed during which period the Department sought the legal advice mentioned above. In the meantime, as mentioned at the outset, on 26 November 2015, the Ngajapa determination was made.
21 Ultimately, on 13 July 2016, the then Northern Territory Minister for Mines and Energy and the Chief Executive of the Department caused a new notice to be published in the NT News newspaper concerning the grant of MLA 29881. That notice was provided under s 71 of the MTA. It stated that the purpose of the grant was "to construct, use, repair and maintain a dredge spoils area to support mining operations under another Mineral Lease granted to the title holder". It was in the following form:
22 The Department provided a copy of that notice to the Top End PBC by letter dated 18 July 2016. That letter adopted the theme of Ward Keller's letter above (at [18]). However, it stated the purpose of the grant in slightly different terms (but significant for the purposes of this matter) as follows:
Re: Application by Mount Isa Mines Limited for Mineral Lease (ML 29881) - Native Title Act 1993 (NTA) future act processes - Section 24MD(6A) notice
Please note that an application for Mineral Lease 29881 ("the Mount Isa Mines application") has been made by Mount Isa Mines Limited for the purpose to construct, use, repair and maintain a dredge spoils area to support a mining operation on the adjacent Mineral Lease Northern (MLN) 1126, also held by Mount Isa Mines Limited.
A notice as required by section 24MD(6A) of the Native Title Act 1993 is attached, together with a map of the proposed mineral lease area. The notice sets out in summary from [sic], the particular infrastructure or activities ancillary to mining that are required on the Mount Isa Mines application area, and provides the timeframe within which any objection by a Registered Native Title Body Corporate, or any comment by the Recognised Aboriginal/Torres Strait Islander Body for the area, must be provided.
Also attached is a copy of the public notice placed in the NT News on the 13 day of July 2016, in accordance with section 71 of the Mineral Titles Act.
(Errors in original. Italics and emphasis added)
23 Part 4 of the attached "notice as required by s 24MD(6A)" was headed "Future Act". Among other things, it repeated the purpose of the grant in similar terms to those above as follows:
Background:
Mount Isa Mines Limited, the holder of Mineral Lease 29881 ('the ML') has applied pursuant to section 41 Mineral Titles Act (NT) for the grant of a mineral lease for ancillary purposes, to enter the area of the proposed future act for the purpose to construct, use, repair and maintain a dredge spoils storage area to support mining activities conducted on adjacent Mineral Lease (MLN) 1126.
In summary, the particular infrastructure or activities ancillary to mining that are required on the Proposed Future Act are:
a) storage of dredge spoils waste rock
b) surface water management works to control the discharge of sea water run-off and sediment from the project site.
Proposed Future Act/s
The Minister proposes to grant the ancillary mineral lease to Mount Isa Mines Limited for the purposes sought by Mount Isa Mines Limited (the Proposed Future Act). The Proposed Future Act will not permit mining.
The Northern Territory has formed the view that Subdivision M of Division 3 of Part 2 NTA applies to the Proposed Future Act because it is an act passing the freehold test under s24MB NTA given that the act could be done in relation to the land concerned if the native title holders instead held ordinary title.
The Proposed Future Act will NOT extinguish native title rights and interests in the land affected as the non-extinguishment principle will apply.
(Italics and emphasis added)
24 On 19 July 2016, Ms Rebecca Hughes, a lawyer employed by the NLC, made a request of Mr Alan Holland, Senior Director Mines, that she be provided with a copy of the application for MLA 29881. Mr Holland responded on 20 July:
Sorry, we cannot provide a copy of the application to you without the approval of the applicant.
Best to contact McArthur River Mine or Mr Kevin Stephens from Ward Keller.
25 Ms Hughes then sent an email to Mr Stephens in which she set out the history of the application, emphasised that "[t]he nature of the proposed act is critical" and requested that she be urgently provided with a copy of the application for MLA 29881 as follows:
…
As you are aware, the NLC was initially notified about the proposed grant on the basis that it triggered sections 29 and 30 of the Native Title Act, and accordingly the right to negotiate. We were subsequently provided with correspondence from Ward Keller to [the Department] dated 20 April 2015, which contended that the proposed grant of MLA 29881 is a future act to be validated by section 24MD(6A) of the NTA. This letter advised that the "activities to be authorised by, and conducted under, MLA 29881 are outlined in the 'Summary of Proposed Works' attachment to the MLA 29881 application." We were not provided with a copy of this application.
The nature of the proposed act is critical to Ward Keller's analysis and this analysis, which has been adopted by [the Department], has significant implications for our clients' rights in the circumstances. Accordingly, we would be grateful if you can urgently forward a copy of that application so that we are able to make our own assessment.
26 Having not received a response to Ms Hughes' email, on 4 August 2016, Mr Michael O'Donnell, the NLC's Principal Legal Officer, wrote to Mr Holland of the Department seeking clarification as to whether the Department's 18 July letter above (at [22]) was intended to give notice under s 24MD(6A) or s 24MD(6B) of the NTA. Mr O'Donnell's letter also repeated the earlier request to be provided with a copy of the application for MLA 29881 and pointed out that the Department, rather than Mount Isa Mines, had provided the notification of 18 July 2016, which was not in compliance with s 66 of the MTA. It was in the following terms:
MINERAL LEASE APPLICATION 29881 - MOUNT ISA MINES LIMITED - DREDGE SPOILS STORAGE AREA BING BONG
I act for the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC.
I refer to your letters of 18 July 2016 and attached notices, purporting to give notification under section 24MD(6A) of the Native Title Act 1993 (Cth) (NTA) of a proposed future act, being the proposed grant of ML 29881 to Mt Isa Mines Limited under the Mineral Titles Act (Proposed Future Act).
I note that section 24MD(6A) provides that native title holders and any registered native title claimants 'have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned'. The effect of this would be to give native title holders the benefit of notification under section 66 of the Mineral Titles Act, whereby the applicant for the grant of a mineral title must give notice to each landowner whose land comprises all or part of the title area. We note that the letters and purported notification of 18 July 2016 come from Department of Mines and Energy, rather than the applicant for the grant (Mt Isa Mines Limited) and therefore do not comply with section 66 of the Mineral Titles Act.
We also note that an additional notification requirement is contained in section 24MD(6B)(c) of the NTA and that section 24MD(6B)(d) provides that 'any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests'.
We seek your urgent confirmation as to whether your letters of 18 July 2016 are actually an attempt to supply a notice pursuant to section 24MD(6B) of the NTA and confirmation that, if so, our client will have the benefit of the other consequences set out in that clause.
In any event, we reserve our client's position as to whether or not the Proposed Future Act has been correctly classified and notified by the Northern Territory, including as to whether Subdivision P - Right to Negotiate is applicable.
We also seek a copy of the application for the Proposed Future Act so that we are able to properly advise our client and obtain full and complete instructions in relation to this matter. You have advised that the [Department's] practice is not to release, without the approval of the applicant, applications for MLs under section 41 of the Minerals Titles Act to native title holders whose interests may be affected by the application and who also have legal rights pursuant to the NTA. If this position is maintained it will cause unnecessary delay in progression of this matter and we will need to seek instructions as to how this can be remedied including applications pursuant to the Information Act. We would be grateful if you can please reconsider this position given the potential effects on our client's rights.
…
(Errors in original)
It should be noted that Ms Hughes sent a letter to the Department in similar terms to the above letter on the previous day.
27 On 9 August 2016, Mr Stephens wrote to the NLC and formally rejected its requests for a copy of the application for MLA 29881. He did so in the following terms:
…
[Mount Isa Mines] does not propose to release to the Northern Land Council either [Mount Isa Mines'] application to the Department of Mines and Energy (DME) for the MLA or a copy of MLN 1126, the mineral lease for the Bing Bong Loading Facility. The publicly available STRIKE Tenure and Geoscience Information System operated by the DME and the public notification of the proposed grant of the MLA provide the requisite level of information.
However, he then went on to provide a copy of the "Summary of Proposed Works" attached to the application and stated that those works were "ancillary to mining conducted elsewhere, being the McArthur River Mine and not MLN 1126", as follows:
Because the 'Summary of Proposed Works' was referred to in our letter to [the Department] dated 20 April 2015 (provided by the DME to the NLC) I attach a copy of the 'Summary of Proposed Works' that accompanied MIM's application for the MLA. As set out in our letter to [the Department] dated 20 April 2015 the MLA will only provide rights pursuant to section 40(1)(b)(ii) of the MTA to conduct activities that are ancillary to mining conducted elsewhere, being the McArthur River Mine and not MLN 1126.
…
(Bold in original)
The attached "Summary of Proposed Works" was in the same form as that set out at [9] above.
28 On 26 August 2016, Mr O'Donnell sent a further letter to Mr Holland of the Department and sent a copy thereof to Mr Stephens of Ward Keller. In that letter, Mr O'Donnell claimed that MLA 29881 was invalid under both the NTA and the MTA. It is to be noted that the propositions advanced in this letter are essentially the same as those pursued by the applicants in this proceeding as outlined later in these reasons. The pertinent parts of that letter are as follows:
MINERAL LEASE APPLICATION 29881 - MOUNT ISA MINES LIMITED - DREDGE SPOILS STORAGE AREA BING BONG
I refer to the notification of the application for the grant of ML 29881 given on 18 July 2016 and to previous correspondence in the matter, including my letter of 4 August 2016 to which I have had no reply.
The Registered Native Title Body Corporate (the PBC) and the native title holders of the land affected by the proposed grant of mineral lease ML 29881 consider that the application is invalid and does not, as required by ss 4 and 74 of the Mineral Titles Act 2011 (NT), follow the procedures under [the] Native Title Act 1993 (Cth) (the NTA) relevant to the application.
The application and proposed grant are not valid under s 40 of the Mineral Titles Act because:
1. The proposal does not involve activities to be conducted on the ML 29881 area that are ancillary to mining conducted under another mineral lease (ML) granted to the title holder (MIM) within s 40(l)(b)(ii). The notification states that ML 29881 is to be granted for the purpose of a dredge spoils area to support mining conducted on adjacent MLN 1126. Mining (as defined in s 12 of the Act) is not being conducted on MLN 1126. What is being conducted under MLN 1126 involves storage and transport of concentrate from ore and a barge loading facility, not mining as defined in the Act. Also, in view of the transitional provisions (s 202(2)), it is questionable whether MLN 1126 is "another ML" within s 40(l)(b)(ii).
2. The Mineral Titles Act, properly construed, only permits what is being proposed as activities that can be undertaken on land outside a mineral title area pursuant to a right of entry conferred by an access authority granted in accordance with s 84 of the Act (assuming MLN 1126 is, notwithstanding the transitional provisions, a mineral title for the purposes of the Act). Section 84 contains limitations and qualifications as to notification and consent from landowners of the relevant land, such that the Act, properly construed, does not permit use of the general powers in s 40 for activities covered by the specific provisions of s 84, which would avoid and negate those limitations.
In relation to s 84, the Mineral Titles Regulations 2011 (NT) prescribes for s 84(3)(c) that the title holder is required to obtain consent to the entry from the owners of the prescribed classes of land that includes private land (freehold or lease hold land) but not native title land (reg 76(2)). The effect is that an access authority could not be granted if the native title holders instead held ordinary title (freehold) in the land. Therefore, a grant of an access authority would not pass the freehold test in s 24MB of the NTA. As contemplated by the note to s 14 of the Mineral Titles Act, it is necessary to have an indigenous land use agreement (ILUA) under the NTA for consent to be given by the relevant (native title) landowner to the grant of an access authority over native title land.
Nonetheless, Mr O'Donnell went on to state that the Top End PBC was willing to enter negotiations:
.. for the making of an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM. This has been done in relation to other mining arrangements in the region to facilitate the grant of an access authority under s 84.
29 In the balance of his letter, Mr O'Donnell then set out the Top End PBC's position that MLA 29881 would involve the creation of a right to mine within the terms of s 24MD(6B) of the NTA as follows:
Further, if (which is not accepted) the application and proposed grant of ML 29881 would be valid and within s 40(l)(b)(ii) of the Mineral Titles Act, if granted, ML 29881 would involve the creation of a right to mine for the sole purpose of an infrastructure facility associated with mining within s 24MD(6B)(b) of the NTA, and the further procedural consequences in that subsection apply. Those consequences include the requirements that:
1. notification be given to the PBC and the NLC that the act is to be done;
2. the PBC may object, within two months after notification, to the doing of the act so far as it affects the native title rights;
3. MIM must consult with the PBC about ways of minimising the act's impact on the native title rights; and
4. the Territory must ensure that the objection is heard by an independent person or body.
The Territory has not taken the necessary steps to comply with the requirements of s 24MD(6B) of the NTA. That means that the Minister cannot be satisfied, as required by s 74 of the Mineral Titles Act, that the procedures under the NTA relevant to the application have been followed.
30 Mr O'Donnell concluded his letter with the following requests and stating that he had provided a copy of the letter to Ward Kelly Lawyers:
In these circumstances, the PBC requires your written acknowledgement that the Minister (and relevant Territory officers) will not act upon the application for MLN 29881 and will refuse the application.
In view of our previous correspondence in the matter, and noting that the close of notification day is 18 September 2016, the PBC requires that written acknowledgement no later than 4.00pm 5 September 2016. Failing that acknowledgment, the PBC will consider itself at liberty to seek appropriate declaratory and other relief in the Federal Court.
I have provided a copy of this letter to the solicitors for MIM, Ward Keller, inviting MIM to withdraw the application (under 69 of the Mineral Titles Act) and repeated the advice that the PBC is ready and willing to enter into negotiations for the making of an ILUA for the grant of an access authority.
31 The Department responded to Mr O'Donnell's letter of 4 August 2016 above (at [26]) in a letter dated 29 August 2016. This letter appears to have been sent before Mr O'Donnell's letter of 26 August 2016 above (at [28]) was received. It was in the following terms:
Re: Mineral Lease Application 29881 - Mount Isa Mines Limited
In responding to a letter from Mr Michael O'Donnell dated 04 August 2016,1 can confirm the following.
The Notices with respect to Mineral Lease application 29881 were provided to the Northern Land Council (NLC), the Representative Native Title Body Corporate Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (C/O the NLC GPO Box No.) and the Registered Native Title Claimant NNTT No. DCD2015/008 Top End (Default PBC/CLA Aboriginal Corporation RNTBC (C/O the NLC GPO Box No.) on the 18th July 2016 under Section s24MD (6A) of the Native Title Act 1993 (CTH)[.]
With reference in your letter to complying with section 66 of the Mineral Titles Act, (MTA), this requirement was satisfied by the applicant following the initial application of Mineral Lease 29881 in March 2013. At that time, the applicant provided a list of landowners, and served a notice of the making of the application on each of the landowners as they are defined under the MTA.
To the last part of your letter, I can also confirm that a copy of the application for Mineral lease 29881 can be forwarded to you once the applicant provides written approval to the Department to do so.
I am advised that you have lodged an application under the Information Act for such documents and cannot comment on that further at this stage.
32 On 5 September 2016, in apparent response to the requests contained in the final paragraph of Mr O'Donnell's 26 August letter above (at [28]-[30]), Mr Stephens wrote to Mr Holland of the Department and stated that Mount Isa Mines was agreeable to any decision on MLA 29881 being deferred on certain terms as follows:
MCARTHUR RIVER MINE - APPLICATION FOR ML 29881
I refer to the letter from the Northern Land Council (NLC) to you dated 26 August 2016 in relation to mineral lease application 29881 (MLA 29881) made by Mount Isa Mines Limited (MIM).
MIM does not agree that an Access Authority pursuant to section 84 of the Mineral Titles Act is the correct form of tenure for the activities proposed. Furthermore, MIM does not agree that the right to negotiate provisions of the Native Title Act 1993 (Cth) apply to the grant of a mineral lease for downstream operations that are ancillary to mining.
Given the above, and that any grant of MLA 29881 is an act of the Territory, MIM is not proposing to withdraw its application for MLA 29881. However, in the circumstances MRM is willing to support a deferral of any decision by the Minister as to whether to grant MLA 29881 and for the Department of Mines and Energy to give to the NLC not less than 21 days' prior notice in writing of any intention by the Minister to grant MLA 29881.
…
33 On 5 September and 7 September 2016, Mr O'Donnell wrote to Mr Stephens and Mr Holland, respectively, in similar terms, seeking clarification of the terms on which MLA 29881 was to be deferred. The letter to Mr Stephens relevantly stated:
I refer to your letter of today's date.
First, your letter advises that, 'in the circumstances MRM is willing to support a deferral of any final decision by the Minister as to whether to grant MLA 29881 and for the Department of Mines and Energy to give to the NLC not less than 21 days' prior notice in writing of any intention by the Minister to grant MLA 29881'.
I note that it is not clear on the face of the correspondence whether this position is agreed between your client and the Department of Mines and Energy (DME). It is also not clear as to whether DME has been copied into the correspondence. I would be grateful if you can please confirm these matters as soon as possible.
Second, while your letter advises your client does not accept that the right to negotiate provisions are applicable to the proposed grant of ML 29881, it remains silent as to whether nevertheless, the consequences in s 24MD(6B) would apply to the grant of the mineral lease, if otherwise valid.
Again, I would be grateful if your client's position on the applicability of s 24MD(6B) can be confirmed as soon as possible.
34 Mr Holland's response to Mr O'Donnell's letter is critical in this matter. It was contained in a letter dated 12 September 2016. It was addressed to the "Chairman" and commenced with the salutation "Dear Mr Bush-Blanasi". It was in the following terms:
Re: Mineral lease Application 29881 - Mount Isa Mines Limited
I refer to a letter from Mr Michael O'Donnell Principal Legal Officer dated 07 September 2016, requesting to defer any final decision to grant ML 29881 to Mount Isa Mines Limited (MIM) without giving the Northern Land Council (NLC) at least 21 days' notice of the intention to grant.
As the Department was advised by MIM on 05 September 2016 that they are willing to support a procedure providing 21 days' notice to the NLC of any decision to grant ML 29881, the Department agrees to your request in this case.
35 Notwithstanding the agreement to defer MLA 29881, on 16 September 2016, the NLC lodged an objection to the grant of MLA 29881 on behalf of the Top End PBC "as agent on behalf of the native title holders". Among other things, the "Introduction" section of that objection noted the agreement to defer MLA 29881 and stated that the objection was provided "without prejudice to the position outlined in the letters dated 26 August 2016 from the NLC". While it is lengthy and substantially reiterates the position as stated in the aforesaid letter, since the Department's subsequent treatment of this objection is critical to one of the applicants' issues later in these reasons, it is appropriate to set the relevant parts of it out in full, as follows:
Introduction
1. The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End PBC) is the registered native title body corporate in respect of native title determination made in Ngajapa v Northern Territory of Australia [2015] FCA 1249 over the area of land known as McArthur River Station (Native Title Determination).
2. The Department of Mines and Energy (Department) has given notice of application for mineral lease ML 29881 by Mt Isa Mines Ltd (MIM) over part of the land covered by the Native Title Determination (ML 29881 Area) by letter dated 18 July 2016 that attached a document titled "Notification under NTA s 24MD(6A)" (the notification). MIM seeks the grant of ML 29881 to construct, use, repair and maintain a dredge spoils storage area on land adjacent to Mineral Lease MLN 1126.
3. The notification states that any comments or objections must be provided within 60 days, that is, by 18 September 2016. It appears that the Department is inviting the Top End PBC to provide objections to the proposed grant under s 24MD(6A) of the Native Title Act 1993 (Cth) (NTA) by which the native title holders would have the procedural rights in Pt 5 Div 2 of the Mineral Titles Act 2010 (NT) (esp. s 71(3)(d)). Neither the Department nor the proponent (MIM) who applied for the grant intends to consult with the Top End PBC in accordance with s 24MD(6B) of the NTA.
4. The Top End PBC as agent on behalf of the native title holders of the ML 29881 Area objects to the proposed grant of ML 29881 on the following grounds that come within two groups. The first is that the application is not valid; the second is that if the grant were made, there would be unreasonable and adverse impacts on the native title rights.
5. By letters dated 26 August 2016 from the NLC to the Department and MIM, the NLC for the Top End PBC requested that the Department confirm that the Minister will not act upon the application and that MIM will withdraw the application. The Department by letter dated 2 September 2016 advised that the matter had been referred to the Solicitor for the Northern Territory for advice, and by further letter dated 12 September 2016 advised that it would provide the NLC 21 days' notice of any decision to grant ML 29881.
6. These objections are provided in response to the notification deadline and without prejudice to the position outlined in the letters dated 26 August 2016 from the NLC.
The application for grant is not valid
7. As advised in the letters dated 26 August 2016 the application is invalid for a number of reasons.
8. First, the activities proposed to be undertaken on the ML 29881 Area are not ancillary to mining conducted under another mineral lease granted to MIM pursuant to s 40(1)(b)(i) of the Mineral Titles Act. Mining is not being conducted on MLN 1126. What is being conducted under MLN 1126 involves storage and transport of concentrate from a barge loading facility. Accordingly, the Minister cannot be satisfied that the applicant has met the necessary criteria for the application, as required by s 70 of the Mineral Titles Act.
9. Second, the proposed activities may only be undertaken pursuant to an access authority under s 84 of the Mineral Titles Act. The Mineral Titles Regulations 2011 (NT) prescribes for s 84(3)(c) that the title holder is required to obtain consent to entry to the land from the owners of the prescribed classes of land that includes private land (freehold or leasehold land) but not native title land (reg 76(2)). The effect is that an access authority could not be granted if the native title holders instead held ordinary title in the land. Therefore, the grant of an access authority would not pass the freehold test ins 24MB of the NTA. For the grant of an access authority to be valid, it is necessary to have an indigenous land use agreement under the NTA. The Top End PBC is ready and willing to enter into negotiations for the making of an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM.
10. Third, if, contrary to the above, the application and the proposed grant of ML 29881 would be valid and within s 40(l)(b)(ii) of the Mineral Titles Act (which is not accepted), the grant would involve 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 NTA. As noted, neither the Department nor MIM have complied with the procedures set out in s 24MD(6B) of the NTA. That means that the Minister cannot be satisfied, as required by s 74 of the Mineral Titles Act, that the procedures under the NTA relevant to the application have been followed. For example, under s 24MD(6B)(e) of the NTA, MIM is required to consult with the Top End PBC (on behalf of native title holders) about ways to minimise the impact of ML 29881 on the registered native title rights and interests in relation to ML 29881 Area, access to ML 29881 Area or the way in which any thing authorised by ML 29881 may be done. The Top End PBC has not yet been consulted about any of these matters.
11. Fourthly, MIM did not serve the native title holders with notice of the making of the application for ML 29881, as required by s 66 of the Mineral Titles Act.
Impacts of grant if made
12. The Top End PBC also objects to the grant of ML 29881 on behalf of the native title holders on the basis that it will interfere with the native title rights of those native title holders and with access by the native title holders to the ML 29881 Area and have unreasonable and adverse impacts on the enjoyment of those rights.
13. The grant of ML 29881 will impact on native title holders' ability to exercise their native title rights, pursuant to the Native Title Determination, which are as follows:
(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas;
(e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct and to participate in the following activities on those areas:
(i) cultural activities;
(ii) cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;
(h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
(i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(j) the right to be accompanied on to those areas by persons who, though not native title holders, are:
(i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas;
(ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;
(iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas;
(k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
14. The ML 29881 Area falls within the estate areas of the Mawuli Wuyalia and Wurruwuji Wurdaliya estate groups. Members of the Mawuli Wuyalia and Wurruwuji Wurdaliya have used and continue to use the ML 29881 Area to exercise the native title rights described above, and the ML 29881 area is an important hunting area. The grant of ML 29881 will have a significant impact on the following practical exercise of native title rights:
(a) right to move through country to visit, in particular, old camps and shelters;
(b) right to hunt and fish on country, in particular for hunting goanna, longneck turtle; crab, bush turkey, emu and kangaroo, and
(c) the right to gather food, firewood and medicine on the ML 29881 Area, in particular native sandalwood, water lilies, sugarbag, medicine grass, eucalyptus, paperbark, native blackberries, white berries, banyan tree (for making rope) and pandanus (for making baskets) and other trees (for making a nail-like tip for harpoons to hunt).
15. The ML 29881 Area is spiritually significant to the Mawuli Wuyalia and Wurruwuji Wurdaliya as an important sacred area associated with rain Dreaming. Accordingly, they are concerned that the grant of the ML 29881 will affect not only their ability to access and protect this sacred area, and also affect the area itself and the associated rain Dreaming.
16. It is clear that the activities sought to be undertaken by MIM pursuant to the grant of ML 29881, namely the construction, use, repair and maintenance of a dredge spoils area, will affect the exercise of the recognised rights of the native title holders set out above.
17. Furthermore, these activities will have the following impact on the rights of the native title holders:
• restrictions on access (either physical or safety related) by the native title holders to carry out rites, ceremonies or other activities of cultural significance on the ML 29881 Area;
• physical impact on the land and resources in the area caused by the construction of a dredge spoils area which will impact on the native title holders' enjoyment of their native title rights and interests; and
• the presence of strangers on or near sacred sites or the location of spiritual, cultural and communal activities.
The application should be refused
18. For these reasons, the Minister should refuse the application for the grant of ML 29881.
…
(Emphasis in original)
36 Thereafter the application for the grant of ML 29881 lay in abeyance for more than two and a half years. It was reactivated on 4 April 2019, when Mr Stephens sent an email to the Department attaching a copy of its letter of 12 September 2016 above (at [34]) and stated:
I refer to my telephone conversation with Carla McConachy of the Mineral Titles Division of the Department of Primary Industry and Resources yesterday and confirm that I still act for Mount Isa Mines Limited ("MIM") in relation to its application for ML 29881.
MIM requests the Department and Minister proceed with the grant of ML 29881 to MIM. In this regard I note the attached correspondence from the Department to the NLC dated 12 September 2016, in which the Department agreed not to proceed with the grant without first giving 21 days' notice to the NLC.
I look forward to hearing from you in due course regarding the progress of the grant of ML 29881. If you have any queries, please contact me.
37 On the same day, Ms Turnbull, in her capacity as Director Mineral Titles, sent an email response to Mr Stephens in the following terms:
Thank you Kevin. I have asked Carla to do an 'audit' on the file to ensure that nothing has been overlooked by us and we will then proceed, as requested, after taking the NLC's request into account.
Given that it is [McArthur River Mine] we may need to also advise the Minister prior to grant, as he may wish to sign the documents.
I will keep you in the loop.
38 On 11 April 2019, the Department wrote to Mount Isa Mines advising that MLA 29881 could not proceed until the area of the proposed lease was duly surveyed in accordance with s 76(4) of the MTA and the apposite provisions of Part 3 Divisions 1 and 2 of the Mineral Titles Regulations 2011 (NT).
39 On 17 April 2019, the Department sent an email to Mr Stephens in response to his email of 4 April 2019 above (at [36]) and belatedly provided him and, through him, Mount Isa Mines with a copy of the NLC's objection set out above (see at [35]). That email relevantly stated:
On 04/04/2019 you advised the Department that you acted on behalf of Mount Isa Mines Limited and requested that we proceed with grant of ML 29881.
As you are aware a review of ML29881 is being conducted and as such it appears that a letter from the NLC dated 16/09/2016, regarding an objection under 24MD(6A) (giving procedural rights like a landowner) has not been provided to the applicant.
A copy is provided for your information and no further action is required.
We will continue to proceed towards grant of the ML[.]
…
40 The next significant step in processing MLA 29881 occurred on 24 September 2019, when Ms Carla McConachy, a Departmental officer with the designation "Team Leader", sent a memorandum with respect to the application to Ms D Turnbull, the Director Mineral Titles appointed under the MTA (the Director). That memorandum set out the background of the application and a summary of the objection lodged by the NLC on 16 September 2016 (see at [35] above), as follows:
An application for ML 29881 held by Mount Isa Mines Limited (MIM) was lodged on 14/03/2013 for a term of twenty five (25) years, in the Bing Bong locality over an area of 785.98 hectares.
• The underlying land is PPL 1051 (NT Portion 4319), which is held by Mount Isa Mines Limited.
• The application was advertised on 13/07/2016 in the NT News and attracted one (1) Mineral Titles Act 2010 submission. A separate memorandum has been prepared for the submission.
• On 19/07/2016 notices under section 24MD(6A) of the Native Title Act 1993 (NTA) were sent to the Northern Land Council (NLC), Registered Native Title Claimant (RNTC), Registered Native Title Body Corporate (RNTBC). MT2013/0173~0035
• The NLC, on behalf of the RNTBC lodged an objection on 16 September 2016. To date the objection has not been withdrawn.
The following is a summary of the information contained in the objection under section 24MD(6A) of the NTA:
• that the application is not valid, listing four (4) points in detail;
i. firstly, the activities proposed to be undertaken on the ML29881 are not ancillary to mining conducted under MLN1126, as MLN1126 is an Ancillary Mineral Lease.
ii. second, the proposed activities may only be undertaken pursuant to an access authority under s84 of the MTA, and the MTA states that the holder is required to obtain consent to entry to the land from the owners of the prescribed classes of land that includes private land (freehold or leasehold) but not native title land. The effect is that an access authority could not be granted if the native title holders instead held ordinary title in the land. Therefore the grant of an access authority would not pass the freehold test in s24MB of the NTA. For the grant of an access authority to be valid it is necessary to have an ILUA under the NTA, which the Top End PBC is willing to enter into negotiations for the making of an ILUA.
iii. third, if, contrary to the above, the application would be valid and within s40(1)(b)(ii) of the MTA (which is not accepted), the grant would involves the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining with s24MD(6B) of the NTA. As noted, neither the Department nor MIM have complied with the procedures set out in s24MD(6B) of the NTA.
iv. Fourthly, MIM did not serve the native title holder with notice of the making of the application for ML29881 as required by s66 of the MTA.
• The Top End PBC also objects to the grant of ML29881 on behalf of the native title holders on the basis that it will interfere with the native title rights and have unreasonable and adverse impacts on the enjoyment of those rights.
• The grant of ML29881 will impact on native title holders' ability to exercise their native title rights.
• The ML areas falls within the estate areas of the Mawuli Wuyalia and Wurruwuji Wurdaliya estate groups and members of these groups have used and continue to use the areas to exercise their native title rights, and the area is an important hunting area.
• The ML area is spiritually significant to the Mawuli Wuyalia and Wurruwuji Wurdaliya as an important sacred area associated with rain Dreaming.
• The activities on ML29881 will impact the rights of native title holders by restricting access to carry out rites and ceremonies.
The NLC also wrote to the Department asking whether 24MD(6B) of the NTA was the more appropriate form of notification for ML29881, and the department agreed to provide 21 days notice to the NLC of any decision to grant ML29881 while awaiting legal advice.
[Redacted]
The department provided Ward Keller Lawyers, who are acting on behalf of the applicant, a copy of the objection on 17 April 2019. In 2016 when the objection was lodged, it was not realised that a copy would need to be provided to the applicant. Given the time that had passed they were advised that a response was not required. In a verbal conversation with Kevin Stephens from Ward Keller, he requested that if the application was to be viewed negatively that they should be allowed to submit a response.
It should also be noted and considered (since approx. 2009) that the area already has an existing dredge spoil, which the Pastoral Land Board approved and issued a number of non-pastoral use approvals in relation to the dredge spoils within the ML area. MT2013/0173-0033 & MT2013/0173-0034.
In relation to the native title significant and/or sensitive areas, it is a requirement that the applicant obtains a clearance of any sacred sites from the Aboriginal Areas Protection Authority.
(Errors in original)
41 Ms McConachy concluded her Memorandum by making the following recommendation:
That you, as Delegate of the Minister for Primary Industry and Resources sign below approving your intention to continue processing the application for Mineral Lease 29881 towards grant.
At the bottom of the Memorandum, this recommendation was recorded as "Supported" by Ms Nicole Wear, Assistant Manager of Mineral Titles and "Signed" by Ms Turnbull as Director on 27 September 2019.
42 The next step occurred on 10 October 2019 when Mr Stephens sent an email to Ms McConachy referring, among other things, to the Department's letter to Mount Isa Mines of 11 April 2019 concerning the need for a survey of the lease area (see at [38] above) and stated:
Further to your e-mail below and your letter to Mount Isa Mines Limited (MIM) dated 11 April 2019 requiring a plan of survey approved by the Surveyor-General to enable the grant of ML 29881, please find attached Survey Plan S2019-066 duly approved by the Surveyor-General.
MIM requests that the Minister proceed to grant ML 29881.
MIM would appreciate advice from the Department as to when it has given notice to the Northern Land Council (NLC) of the intention to grant ML 29881, in accordance with the Department's letter to the NLC dated 12 September 2016.
If you have any queries in relation to the above, please contact me. I look forward to hearing from you and MIM looks forward to the grant of ML 29881.
43 Two weeks later, on 24 October 2019, in her capacity as the Director, Ms Turnbull wrote to the Chairman of the NLC, Mr Bush-Blanasi, in the following terms:
Re: Issue of Notice of Intention to Grant - ML 29881
I refer to the departments [sic] letter dated 12 September 2016 regarding an undertaking to provide the Northern Land Council (NLC) 21 days' written notice prior to any final decision to grant Mineral Lease (ML) 29881 to Mount Isa Mines Limited.
All legislative requirements have now been satisfied and the department intends to issue the above notice on 18 November 2019. The ML will be granted upon payment of the prescribed rent outlined in the notice.
…
44 A copy of this letter was provided to Mr Stephens and he responded by email to the Department on the same day saying: "Thank you very much for notice of the notification".
45 The originating application in the present proceeding was filed about three weeks later, on 19 November 2019. It was supported by a statement of claim.
46 In the days before filing this proceeding, the Top End PBC applied to the Northern Territory Civil and Administrative Tribunal (NTCAT) for a hearing in relation to the objection that had been lodged on its behalf with the Department (see at [35] above). It made that application on 15 November 2019 under s 24MD(6B)(d) of the NTA. On the same day, Ms Marion Scrymgour, the Chief Executive Officer of the NLC, sent a letter to the Chief Minister of the Northern Territory and to the Minister, enclosing a copy of a letter to Ms Turnbull, Director Mineral Titles, stating:
I am bringing this letter to your direct attention as a matter of upmost [sic utmost] concern to the Northern Land Council and to the native title holders it represents. The Department, having failed to engage with the native title holders of the land for more than 3 years in relation to the proposed grant, notified the NLC on 24 October 2019 that it intends to grant the Mineral Lease on 18 November 2019.
In the circumstances, where it is now necessary for the native title holders to commence proceedings in the Federal Court of Australia to protect their rights, I trust and seek your assurances that the Northern Territory will not take any precipitative action to frustrate the Court's processes.
47 The enclosed letter to Ms Turnbull stated, in part:
1. I refer to your letter dated 24 October 2019 stating that the Department of Primary Industry and Resources (the Department) intends to issue a notice of intention to grant Mineral Lease (ML) 29881 to Mt Isa Mines Ltd (MIM) on 18 November 2019.
2. On 26 August 2016 we wrote to the Department (then, the Department of Mines and Energy) on behalf of the Registered Native Title Body Corporate (the PBC) and the native title holders of the land affected by the proposed grant of ML 29881 setting out detailed reasons why the application and proposed grant is invalid and does not follow the requisite statutory procedures. We invited discussions on negotiating an ILUA to facilitate the grant of an access authority to authorise the activities that are being proposed by the application made by MIM.
3. In a response dated 2 September 2016, the Department stated that it had referred our letter to the Solicitor for the Northern Territory for advice, and that it would respond once that advice was received.
4. On 16 September 2016, we wrote again to the Department on behalf of the PBC providing a detailed objection to the grant of ML 29881 on grounds that the application is not valid and that, if granted, there would be unreasonable and adverse impacts on the native title rights.
5. We have had no further response to our August 2016 letter, and no response to our September 2016 objection. Only now, more than three years later, we have received the 24 October 2019 letter giving 25-days' notice of an intention to make the grant.
6. No explanation has been given in response to the detailed analysis set out in our previous correspondence as to (1) why the grant is not valid and (2) the unreasonable and adverse impacts of the grant on native title rights.
7. Further, no effort has been made to consult or engage with the native title holders.
8. The PBC and the native title holders are now forced into a situation where it is necessary to commence proceedings in the Northern Territory Civil and Administrative Tribunal for a hearing and recommendation in relation to the objection made on 16 September 2016 to the application for the grant of ML 29881, and in the Federal Court of Australia for determination of the validity of the proposed grant of ML 29881.
9. Please advise as to the officer in the Solicitor for the Northern Territory who may have instructions to accept service of the proceedings.
10. Further, noting the obligations of the Northern Territory to behave as a model litigant when handling claims and litigation, we assume, and seek your assurance, that the Department will not take any precipitative action that would frustrate the proceedings, including to make the threatened grant of ML 29881, either before proceedings are issued or while the proceedings are on foot once commenced, which will be shortly.
11. We have copied this letter and enclosures to the legal representative of MIM.
12. The NLC has also written to the Minister for Primary Industry and Resources and the Chief Minister of the Northern Territory providing a copy of this letter. That covering letter is attached for your information.
48 Ms Turnbull responded to this letter by email that afternoon stating:
… I will be away from the office from Monday 18/11 and returning on 25/11 at which time your letter will be fully considered.
49 On 10 December 2019, Mount Isa Mines wrote to the Department requesting an extension of time pursuant to s 167 of the MTA to provide the applicants with notice of MLA 29881 pursuant to s 66(2) of the MTA. The circumstances relied on by Mount Isa Mines for that extension of time were set out in that letter as follows:
(a) the lack of understanding of the requirement for notice by MIM and the Department at the time (and over the intervening years) arising from the difficulty in appreciating the import of the NTA and MTA when read together;
(b) the fact that section 66 only requires that notice be given (rather than affording a right to comment or object of itself) and that the NLC (as representatives of native title holders) were specifically (and separately) advised of the application by the Department and were afforded an opportunity to object, and did so object; and
(c) the fact that adverse weather events in the Gulf (which increase in likelihood over the wet season) may require dredging to be bought [sic] forward which will require access to the area of MLA 29881 for dredge spoil deposition to maintain the sale of product from the mine such that the time taken to withdraw the existing application, lodge a new application, have a new application advertised and let the same objections occur before a grant is possible may materially interfere with the sales of product.
50 On 13 December 2019, the Manager of Mineral Titles as the Delegate for the Minister made the following decision:
I, as Delegate of the Minister for Primary Industry and Resources, pursuant to section 167 of the Mineral Titles Act 2010, allow until the 30 December 2019 to serve a notice of making an application to the landowner/s of land likely to be affected by the grant of Mineral Lease 29881 and to provide proof of service, required under the provision of section 66 of the Mineral Titles Act 2010.
51 On 13 December 2019, Mount Isa Mines sent a letter to the NLC in the following terms:
Mount Isa Mines Limited (MIM) is the applicant for mineral lease 29881 (MLA 29881). MIM applied for MLA 29881 on 14 March 2013. At the time of application native title had not been determined over the land (part of the McArthur River pastoral lease owned by MIM) though the Borroloola Region #2 (Coastal) registered native title claim (NTD 5/2009, NNTT DC2009/001) was in existence.
Pursuant to section 66 of the Mineral Titles Act (NT) (MTA), and an extension of time granted to MIM by the Minister under section 167 of the MTA, MIM hereby notifies:
1. the registered native title claimants of the land the subject of MLA 29881 (as at the application date of 14 March 2013); and
2. the registered native title body corporate for the land the subject of MLA 29881 (from 26 November 2015),
of the application for MLA 29881. Attached is a duly completed Approved Form 24 - Notice of Application for the Grant of a Mineral Title.
MIM as the owner of the McArthur River Mine, operated by McArthur River Mining Pty Ltd, is well known to the NLC and to most native title holders …