Harvey v Minister for Primary Industry and Resources [2024] HCA 1 | Case summary

Harvey v Minister for Primary Industry and Resources [2024] HCA 1 | Case summary | Zoe

Having regard to the terms of ML 1121 to 1126, two aspects of the McArthur River Project should be observed. First, the mining takes place in a very remote part of Australia. Secondly, it is an essential part of the McArthur River Project that its zinc-lead-silver concentrate be transported to the Bing Bong loading facility, and thereafter to ships in the Gulf of Carpentaria. As the Full Court observed below, the Gulf is "very shallow".[4] Because of this, a navigation channel from the Bing Bong loading facility as well as a swing basin had initially to be dredged and then maintained. Thus, the terms of ML 1126 expressly authorise "the dredging of a channel and swing basin for a barge loading facility". Mt Isa Mines uses a bulk-carrier to deliver its concentrate along this channel and out to sea for delivery to ocean-going vessels.
The maintenance of the channel and swing basin produces silt and sand in slurry form known as "dredge spoil". This spoil is pumped to the present DSEA, which is located partly on land forming part of ML 1126 and partly on the same pastoral lease which will be used for the new DSEA and which is nearby the Bing Bong loading facility. The presently existing DSEA comprises a series of ponds (or cells) and a retention basin surrounded by a perimeter drain, which is an open-air drain. The walls of each cell are made from dried natural material. Gravity separates the water from the silt, resulting in dry silt which is then used to make or remake the walls of each cell. The perimeter drain extends around the DSEA to a discharge point on the tidal mud flats east of the Bing Bong loading facility.
All of these activities are needed for Mt Isa Mines to export the product of its mine. They are all part of one singular enterprise, namely the McArthur River Project. Within that project, there are no boundaries between different activities; everything is directed at the delivery of concentrate by the bulk-carrier to the ships at anchor in the Gulf of Carpentaria.
In that respect, certain observations of this Court in Federal Commissioner of Taxation v Broken Hill Pty Co Ltd are apt.[5] In that case, the taxpayer had a manganese mine on Groote Eylandt in the Gulf of Carpentaria. It undertook an offshore survey to determine where port facilities might best be established and what dredging and navigational aids might be needed. One of the questions for determination was whether the survey constituted the carrying on of "mining operations" on a "mining property" for the purposes of s 122(1) of the then Income Tax and Social Services Contribution Assessment Act 1936-1964 (Cth). This Court found that it did. Barwick CJ, McTiernan and Menzies JJ said:[6]

It was submitted before the primary judge that s 24MD(6B)(b) contains two distinct limbs: first, it requires the creation of a "right to mine"; and secondly, it requires that this right be for the "sole purpose" of constructing an "infrastructure facility ... associated with mining". Reliance was placed upon an earlier interlocutory decision of the Federal Court in Smith v Tenneco Energy Queensland Pty Ltd.[36] That case concerned the grant of a licence pursuant to the Petroleum Act 1923 (Qld) to construct a natural gas pipeline to carry gas from a gas field over hundreds of kilometres to consumers. Drummond J decided that the licence did not confer a "right to mine" for the purposes of s 26(2)(a) of the Native Title Act in the form it took before the 1998 amendments.
The primary judge rejected that approach. Section 24MD(6B) was instead a "standalone provision" and the phrase "the creation ... of a right to mine for the sole purpose of the construction of an infrastructure facility ... associated with mining" needed to be "read compendiously".[37] On this basis, the questions to be asked were: does the right meet the sole purpose test; does it involve an infrastructure facility as defined; and is it associated with mining?[38] Affirmative answers to each of these questions would result in the satisfaction of s 24MD(6B)(b) to the exclusion of s 26(1)(c)(i) of the Native Title Act. This construction of s 24MD(6B)(b) was also said to be supported by an earlier decision of the Federal Court in Banjima People v Western Australia [No 2], where Barker J decided that the words of the provision comprised a "compendious phrase" which should be construed as "standing alone".[39]
Applying this test, the primary judge decided that proposed ML 29881 did not satisfy the words of s 24MD(6B)(b); that was because the new DSEA would not be an "infrastructure facility" as defined. In that respect, the word "includes" in the definition was to be construed as "means and includes"; this was said to be "common ground" amongst the parties.[40] The DSEA therefore had to fall within one of the listed types of infrastructure set out in the definition of that term at paras (a) to (h). The two most likely were paras (f) and (g).
The primary judge decided that the proposed DSEA did not fall within either paragraph. The dredge spoils did not constitute "coal, any other mineral or any mineral concentrate" for the purposes of para (f) and the construction of a drain to remove sea water from the DSEA would not be a "water management, distribution or reticulation facility" for the purposes of para (g).[41] His Honour otherwise decided that it was premature to adjudicate upon what freeholder rights the appellants might have had for the purposes of s 24MD(6A).[42]

The Full Court rejected an attempt to read the phrase "right to mine" as a reference to a mineral lease or licence. It recognised that such a lease or licence might confer "a right to conduct activities that are ancillary to mining and in a different area to the mining activities".[49] But, their Honours said, such a lease was not a "right to mine" because the Native Title Act used the term "mineral lease" elsewhere in the Act (such as s 46) and Parliament had made a conscious choice not to use that term in s 26(1)(c)(i) or in s 24MD(6B)(b).[50]
The Full Court concluded that ML 29881 would not, when granted, create a "right to mine". That was so for two reasons. First, the DSEA would be constructed on land which is separate from the land upon which mining takes place.[51] Secondly, the DSEA would be concerned with the shipment of ore. The ordinary meaning of mining "does not encompass the transportation of mined ore to customers".[52] As a result, the activities which would be undertaken at the DSEA would be too "remote" from mining and could not "be regarded as necessary for the meaningful exercise of a right to mine", thus precluding the characterisation of ML 29881 as a "right to mine".[53]
The Full Court went on to consider whether the DSEA would constitute an "infrastructure facility" as defined. It decided that the DSEA would be an infrastructure facility within the ordinary meaning of that phrase.[54] No challenge has been made to that conclusion.
However, departing from the view earlier adopted in South Australia v Slipper,[55] the Full Court held that Parliament did not intend to use that ordinary meaning but instead intended that the items listed in the definition of "infrastructure facility" were to be an exhaustive list of qualifying facilities. Several reasons were given for this conclusion. They principally included the "highly specific nature" of some of the items listed;[56] the Minister's power to determine that "any other thing that is similar to" the matters listed is an infrastructure facility;[57] and that it was understandable that Parliament would wish to be prescriptive when defining an exception to the right to negotiate afforded by Subdiv P of Div 3 of Pt 2 of the Native Title Act.[58]
The Full Court did not consider that the statement in the 1997 Explanatory Memorandum that the term "infrastructure facility" was to have "its ordinary meaning" justified a contrary conclusion. That was because the Native Title Amendment Bill 1997 (Cth) was subject to significant further amendments following the publication of that Memorandum, including with the introduction of para (b) of s 24MD(6B) and other amendments made to provisions which had used the term "infrastructure facility". The Full Court reasoned as follows:[59]

The variety of mining tenements that may be issued under the Mineral Titles Act is not unusual. State and Territory laws which regulate the exploitation of natural resources recognise that activities which are ancillary or subordinate to the central activities of getting at and getting out a mineral may form part of the exploitation of a mine. Indeed, a mining tenement might authorise only ancillary activities and nothing else. Contemporary examples sufficiently illustrate these propositions.
First, s 85(1)(d) of the Mining Act 1978 (WA) provides that the holder of a mining lease may "do all acts and things that are necessary to effectually carry out mining operations in, on or under the land". Section 87(1) of the same Act provides for the grant of a general purpose lease for the purpose of erecting, placing and operating machinery in connection with the mining operations carried on by the lessee; for depositing or treating minerals or tailings obtained from any land in accordance with the Act; and for using the land for any other specified purpose directly connected with mining operations.[63]
Secondly, there is s 73(1)(c) of the Mining Act 1992 (NSW). It provides that the holder of a mining lease may carry out "ancillary mining activity". That is a term defined in the Dictionary to that Act to mean any activity prescribed by the regulations as an ancillary mining activity. Clause 7 of the Mining Regulation 2016 (NSW) defines "ancillary mining activity" relevantly to include the construction, maintenance or use (in or in connection with mining operations) of: any building or mining plant; any road, railway, tramway, bridge or jetty; any reservoir, dam, drain or water race; any cable, conveyor, pipeline, telephone line or signalling system; any bin, magazine or fuel chute; and any plant nursery.[64]
Thirdly, there is s 14(1) of the Mineral Resources (Sustainable Development) Act 1990 (Vic), which provides that the holder of a mining licence not only may carry on "mining" but may also "construct any facilities specified in the licence, including drives, roads, water races, tailing dumps, tailing dams, drains, dams, reservoirs and pipe-lines", and "do anything else that is incidental to that mining". This Act also provides for the issue of an "infrastructure mining licence", which is defined in s 4(1) to mean "a mining licence solely for the construction of a facility or other infrastructure to be used for the purpose of mining under another mining licence".[65]
Fourthly, there is s 234(1)(b) of the Mineral Resources Act 1989 (Qld), which provides that the Minister may grant a "mining lease" for "such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining" (emphasis added). Section 316(2) of the same Act permits the Minister to grant to a person a "mining lease" for the transportation of a thing through, over or under land that is not part of the person's existing or prospective mining lease so long as, relevantly, the Minister is satisfied that the proposed lease is for a purpose "associated with" activities performed under the person's mining lease.[66]
Fifthly, there is Pt 8 of the Mining Act 1971 (SA), which is entitled "Miscellaneous purposes licences". Section 48(1) in Pt 8 provides that a miscellaneous purposes licence is a "mineral tenement that is granted for ancillary operations". Section 6(1) of that Act relevantly defines the term "ancillary operations" as "ancillary operations for the carrying on of any business that may be conducive to the effective conduct of mining operations or operations associated with providing amenities for persons engaged in the conduct of mining operations".[67]
Sixthly, there is s 106(1) of the Mineral Resources Development Act 1995 (Tas). It permits the holder of a mining lease or "former lessee" to apply for a lease, amongst other things, to store any building, machinery, mining product or other property on the land or to enable work "associated with" mining on other land to be carried out. Pursuant to s 84(1)(a) of that Act, a mining lease permits the holder to carry out "mining operations". This term is relevantly defined in s 3 to mean any operations or work on a lease area to obtain or treat minerals, or to store or contain minerals or waste material generated by mining on that lease area, or operations or work "associated with" mining.[68]
It is also now well recognised that the treatment, processing, storage and transport of a mine's product following extraction of a mineral may also constitute a part of a given mining project. There are no necessary or artificial boundaries of when a mining project starts or finishes. It will all depend on the nature and circumstances of the mining project in question. Thus, albeit in a different statutory context, a majority of the Full Court of the Federal Court decided that the transportation of low-grade bauxite by a 51-kilometre-long "conveyer" to a refinery formed part of the carrying on of "mining operations".[69] Again in a different statutory context, the Federal Court recognised that railway equipment used to transport iron ore to a port where a crushing facility was located constituted the use of machinery in carrying out mining operations.[70] These cases emphasise that modern mining will often involve highly integrated processes in order to produce a product that can be sold. Illustrating that fact, the Full Court of the Federal Court made the following observations in Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd:[71]

It is against the foregoing background that the phrase "right to mine" in s 26(1)(c)(i) of the Native Title Act must be construed. Contrary to the reasons of the Full Court, a "right to mine" is not a reference to a specific authority or permission which a mining lease might convey, such as a right of extraction. It is not, for example, referring to one of the "rights" listed in s 40(1) of the Mineral Titles Act. Nor should it be confined to the activity of "getting at and getting out" minerals.
In its particular statutory context, the phrase "right to mine" should be construed as a composite term used to denote all those mining tenements which are capable of being issued under State and Territory natural resource laws. The Native Title Act uses such a phrase precisely because it is sufficiently descriptive of the very many different types of mining tenements that can be created under State and Territory natural resource laws and of the very many different names by which such tenements are identified. And, as set out above, mining tenements can convey a wide variety of permissions or authorities not confined to the act of getting at and getting out a mineral. That is why the term "right to mine" is followed by the phrase "whether by the grant of a mining lease or otherwise". That phrase is an express recognition of the very many types of mining tenements which exist. That is to say, the inclusion of that phrase makes plain that Parliament intended that the phrase "right to mine" have a broad application which would embrace every sort of mining tenement issued by the States and the Territories and that a "mining lease" as defined is merely one type of such a tenement. The term "mining lease" is otherwise needed for Div 2 of Pt 2 of the Native Title Act, which is concerned with the validation of past acts. Thus, for example, a "category C past act" is defined in s 231 as a past act consisting of the grant of a "mining lease".
A similar issue of construction concerning a "right ... to mine" petroleum was considered by the Full Court of the Federal Court in Mitsui & Company (Australia) Ltd v Federal Commissioner of Taxation.[73] Whilst the case concerned a very different statutory context, it has utility here in understanding the meaning to be attributed to the phrase "right to mine". In Mitsui, in issue was the definition of a "mining, quarrying or prospecting right" in s 995-1 of the Income Tax Assessment Act 1997 (Cth). The relevant part of that definition is as follows:

The foregoing conclusion is also supported by the language of s 24MD(6B)(b). Two observations should be made. First, in 1998 Parliament was plainly of the view that there could exist or did exist under State and Territory laws a power to create a "right to mine" which would be confined to the creation of an infrastructure facility which would be associated with mining. Given, for example, the terms of s 40(1)(b)(ii) of the Mineral Titles Act, and the various State Acts described above dealing with mining leases which authorise ancillary activities, Parliament's consideration of State and Territory natural resources laws was correct. In that respect, proposed ML 29881 will be a "mineral lease" which will not authorise mining, in the sense understood by the Full Court, but will instead be limited to the construction of the DSEA.
Secondly, the phrase "associated with mining" is important. The presence of these words contradicts the interpretation of this provision favoured by the Full Court. If, as the Full Court reasoned, a "right to mine" in s 24MD(6B)(b) is a reference to "a right to engage in mining activities, which typically involve the exploration for and extraction of a mineral (or petroleum or gas) from the ground, and encompasses rights necessary for its meaningful exercise",[78] the phrase "associated with mining" would have no work to do. It would not be needed. But those words are required when the phrase "right to mine" bears the broad meaning described above when combined with the "sole purpose" test. It ensures that any mineral tenement authorising the construction of an infrastructure facility, and nothing else, must be linked in some way to an actual mine. That link is necessary because the type of tenement that s 24MD(6B)(b) has in mind is not one that authorises actual mining in the sense described by the Full Court below. Such a tenement would fail the "sole purpose" test. So much was confirmed by the terms of the Supplementary EM set out above. The type of tenement which will be subject to s 24MD(6B)(b) will thus bear a narrow character; it must only authorise the construction of an infrastructure facility, and no other substantive activity.
It follows that, in the usual case, a grant of a mining tenement should be governed by the negotiation procedure set out in Subdiv P of Div 3 of Pt 2 of the Native Title Act; in contrast, the procedure set out in s 24MD(6B) is likely to apply in only a narrower class of cases involving the grant of a mining tenement, given the presence of the sole purpose test. In either case, the creation of a right to mine (and putting aside any express exclusions such as those found in s 26(2) of the Native Title Act) does not result in the conferral upon native title holders of only freeholder rights, and no more.

Two considerations suggest that the Full Court was incorrect to depart from the view adopted in South Australia v Slipper[79] that the term "infrastructure facility" bears its ordinary meaning and is not confined to the items of equipment listed in the definition of that term. The first is the statement in the 1997 Explanatory Memorandum set out above that the term was to have "its ordinary meaning" in addition to the facilities listed in the table and referred to above. That table then refers to the "[t]hings specifically listed as infrastructure facilities".[80] It is true that after this was written in 1997 a great many more amendments were made to what was then the Native Title Amendment Bill 1997 (Cth) (which subsequently became the Native Title Amendment Act 1998 (Cth)). Importantly, this included the introduction of s 24MD(6B)(b). However, nothing is said in the Supplementary EM that followed which contradicts what was said in the 1997 Explanatory Memorandum. If Parliament had wanted to reverse its earlier explanation of the meaning of the term "infrastructure facility" it could easily have done so.
Secondly, there is the statutory architecture employed in s 253. That provision contains 75 definitions. On 51 occasions Parliament uses the word "means" to indicate that what follows is an exhaustive definition. On 16 occasions the phrase "has the meaning given by" is used and there is a cross-reference to another section in the Native Title Act where the applicable meaning may be found. On seven[81] occasions Parliament has used the word "includes" and on one occasion the phrase used is "has a meaning affected by" certain other sections. Throughout s 253 Parliament has thus made choices about how to express a given definition and uses the word "includes" in contrast to the word "means". The function served by using the word "includes" in contrast to the word "means" in a definition, as it was put in Corporate Affairs Commission (SA) v Australian Central Credit Union,[82] "is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases".
In the case of the definition of "infrastructure facility", the word used is "includes", and there is no reason to doubt that this word was chosen with deliberation. The word signifies that what follows after it is not intended to be an exhaustive expression of meaning and that the words "infrastructure facility" must also bear their ordinary meaning. That signification is not altered by the addition of the words "any of the following".
The 1997 Explanatory Memorandum sufficiently expresses that ordinary meaning when it describes an infrastructure facility as a "facility (generally a fixture) necessary for the provision of services or to support the development and operation of major developments. The infrastructure can be provided either by a government or the private sector."[83] Given that it is accepted that the DSEA would be an "infrastructure facility" as that term is ordinarily understood, it is unnecessary to consider whether the DSEA would fall within the ordinary and natural meaning of the words found in paras (f) and (g) of the definition.
The reasons of the Full Court do not sufficiently support a contrary conclusion. First, it is true that the items listed in paras (a) to (i) of the definition on occasion use specific qualifying words. Thus, para (f) describes a "storage or transportation facility" but only for "coal, any other mineral or any mineral concentrate". The Full Court reasoned that any other type of storage or transportation facility would surely be excluded. This "drafting style" was, their Honours said, difficult to reconcile with an inclusionary definition.[84] The better view, however, is that the use of specific qualifying words serves the purpose of putting beyond any doubt the status of particular infrastructure.
Secondly, the Full Court relied upon the content of para (i), which confers on the Minister a power to determine that a thing "similar to any or all of the things mentioned in paragraphs (a) to (h)" is also an infrastructure facility. If the definition was inclusive, it was said, para (i) would not have been needed.[85] But, if the function or purpose of listing specific items of infrastructure was for the sake of greater clarity and certainty, then it follows that the existence of the power conferred by para (i) is to serve the same end. It permits miners to seek clarification about particular items of possible infrastructure associated with mining. As such, the presence of this power is not inconsistent with a definition which is inclusive.
Thirdly, the Full Court observed that the term "infrastructure facility" is used only three times in the Native Title Act: as part of an exception to each of s 26(1)(c)(i) and (iii) and in delineating the application of s 24MD(6B)(b). After noting the explanation given in the Supplementary EM for the exclusion from Subdiv P for rights to mine which permit the construction by non‑government entities of "roads, gas pipelines and the like", the Full Court said that it was "understandable" that Parliament would wish to deploy a definition of "infrastructure facility" that would be "exhaustive" in nature.[86] But again, that assumed understanding is directly contrary to the ordinary meaning of the word "includes" and the language of the 1997 Explanatory Memorandum. Moreover, there is nothing in the language of the Supplementary EM, or in any other extrinsic materials, that supports such an understanding. Rather, it makes more sense that Parliament would want to use an open‑ended definition that would permit it to include all of the various types of infrastructure that might be needed, now and in the future, associated with mining. The cornucopia of different mining tenements, described above, which presently under State and Territory laws authorise ancillary works for a mining project supports that conclusion.
It follows that the term "infrastructure facility" serves to identify circumstances in which native title holders have the right to negotiate and when they have the different rights conferred by s 24MD(6B). The purpose of providing for the different rights was to ensure that the special rights of native title holders were adequately protected but without affording the right to negotiate, which was considered inappropriate in the case of the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining. Treating the definition of "infrastructure facility" as inclusive is congruent with that purpose.

The issue on this appeal concerns the rights that the appellants, who are native title holders, have under the Native Title Act 1993 (Cth) over land which is the subject of a proposed mineral lease to Mount Isa Mines Ltd, the third respondent ("Mt Isa Mines"), for the construction of a proposed Dredge Spoil Emplacement Area ("DSEA"). The background is carefully set out in the joint reasons of Gageler CJ, Gordon, Steward and Gleeson JJ ("the joint reasons"). I agree with the orders proposed in the joint reasons and I gratefully adopt their Honours' description of the background.
The first issue on this appeal arises because the Full Court of the Federal Court of Australia held that the native title holders have only ordinary freeholder rights[87] because the proposed mineral lease that Mt Isa Mines applied for would not constitute the creation of a "right to mine".[88] The native title holders submit that they also have statutory rights of notification, objection and consultation because the proposed mineral lease would constitute the creation of a "right to mine".[89] I agree with the joint reasons that, contrary to the conclusion of the Full Court, the mineral lease for which Mt Isa Mines applied would constitute the creation of a right to mine. The phrase "right to mine" describes all the rights that arise under any State or Territory mining or mineral tenement, whether described as a "mining lease" or otherwise.
The effect of Mt Isa Mines having a right to mine is that the native title holders were entitled to greater rights than the ordinary freeholder rights to which the Full Court limited them. Subject to a possible exception, the native title holders would be entitled to the suite of rights in Subdiv P of Div 3 of Pt 2 of the Native Title Act, compendiously entitled the "right to negotiate". An alternative suite of rights, which would arise if the exception applied, still involves greater rights than ordinary freeholder rights but involves what the parties on this appeal and the Full Court described as "lesser protections" than the right to negotiate.[90] That alternative suite of rights is made up of the rights in s 24MD(6B) of notification, objection and consultation. The native title holders would lose their statutory right to negotiate, and obtain instead the lesser protection of that alternative suite of rights, if Mt Isa Mines' right to mine was "created for the sole purpose of the construction of an infrastructure facility".[91]
The sole purpose of Mt Isa Mines' proposed mineral lease is the construction of the DSEA. So, if the DSEA is an infrastructure facility, the native title holders are not entitled to a statutory right to negotiate and would be limited to the lesser statutory rights of notification, objection and consultation.[92]
The second issue in this Court concerns the reasoning of the Full Court that although the DSEA is an infrastructure facility within the application of the ordinary meaning of that phrase,[93] the definition of "infrastructure facility" in s 253 of the Native Title Act is exhaustive[94] and the DSEA does not fall within that exhaustive definition.[95] Perhaps for forensic reasons designed to emphasise the breadth of a "right to mine" to support their argument on the first issue, the native title holders argued that "infrastructure facility" should have an extremely broad meaning, removing their statutory right to negotiate in a wide range of circumstances, and limiting them in those circumstances to diminished statutory rights of notification, objection and consultation (albeit rights that are still greater than ordinary freeholder rights). In departing from the conclusion of the Full Court in this respect, this argument of the native title holders can now be seen to have been contrary to their interests.
In this Court, the joint reasons depart from the conclusion of the Full Court on the second issue by concluding that the definition of "infrastructure facility" in s 253 is not exhaustive so that the definition includes the ordinary denotation of an infrastructure facility. Since it was common ground that the DSEA fell within the ordinary denotation of "infrastructure facility", the joint reasons do not explore the boundaries of that ordinary meaning. Nor do these reasons.
During the hearing, and for a time subsequently, I held the contrary view that the Full Court was correct on this point. As the Full Court said, the "statutory text, context and purpose are strong indications that the definition of 'infrastructure facility' is an exhaustive definition".[96] On the other hand, as the joint reasons in this Court point out, the Explanatory Memorandum (a source of extrinsic context which did not feature heavily in written or oral submissions) is very clear and specific in its explanation that the definition of "infrastructure facility" is not intended to be exhaustive.[97]
This appeal therefore presents a rare instance of a clash between (i) apparently strong indications of intention to be attributed to Parliament derived from the statutory text and its context in the Act and (ii) an apparently clear expression of an intention to the contrary to be attributed to Parliament from context arising from extrinsic materials (or, perhaps more accurately, information contained in documents extrinsic to the legislation). That clash is not to be resolved by an attempt to adopt one and to disregard the other. All context must be reconciled. There can be only one manifested parliamentary intention. For the reasons below, the extrinsic material in this appeal, which was neither redundant, contrived, nor obviously mistaken, is so clear and so specific on this point that it must reshape the understanding of what might otherwise be seen as strong indications of a contrary intention to be attributed to the Parliament from the statutory text and its context within the Act. Contrary to my initial view, the definition of "infrastructure facility" is not exhaustive and the native title holders do not have a statutory right to negotiate but have only the lesser statutory rights of notification, objection and consultation. This issue is the focus of the remainder of these reasons.

There are four features of statutory text and context in the Act that combine strongly to suggest that the listed items constitute the exhaustive content of an infrastructure facility so that any dispute about the content of an infrastructure facility must be resolved only by reference to that list.
First, the definition is expressed as one that "includes any of the following" (emphasis added). On the one hand, it is possible to see this expression merely as a compendious way of saying "includes" (rather than "means") like in numerous other instances in the Native Title Act where the definition is one that "includes" a list of matters. On the other hand, a different expression has been chosen. The different expression can be seen to address cumulative possibilities and to contain the matters that would be expected to be included. The same expression, "includes any of the following" rather than "includes", is also used in s 226(2), which is said to "affect[] the meaning of act in references to an act affecting native title and in other references in relation to native title".[99] In s 226(2), the expression ("includes any of the following") departs from the ordinary meaning of an "act" and provides what appear to be cumulative but exhaustive possibilities for matters that fall within the defined term "act".
The use of the expression "includes any of the following" in this exhaustive way is also consistent with the ordinary conversational maxim of quantity. A child who is told that they can have an ice cream which "includes any of the following: scoop of ice cream, cone, flake" would not, without unreasonable ambition (but perhaps with different words), ask whether the ice cream also includes content at the periphery of the application of its ordinary meaning, such as sprinkles.
Secondly, the term "infrastructure facility" is not one that has a single ordinary meaning capable of consistent application. The application of its ordinary meaning can change according to context and over time. For instance, in the context of government infrastructure facilities, core examples might be schools, hospitals or sporting fields.[100] In the context of military infrastructure facilities, a core example might be military barracks.[101] But, as Gageler J rightly pointed out during oral argument, and in polite understatement, the submission by the native title holders that schools, hospitals, sporting fields or military barracks fell within the application of the ordinary meaning of "infrastructure facility" in the context of mining was likely not their best point.
Thirdly, to the extent that "infrastructure facility" has an ordinary meaning that falls to be applied in the context of mining, the definition of "infrastructure facility" does not appear to follow the usual technique of a non-exclusive list which provides for matters that extend the application of an ordinary meaning or which clarifies applications that might be in doubt. Instead, the definition provides for matters that are the core examples of mining infrastructure facilities, namely those matters that are fundamental or necessary for the mining operation itself (such as roads, railways, and bridges) as well as generalisations from those matters (other "distribution ... facility" or "other communication facility").[102] Indeed, with the detail of the content of the listed matters, it strains the imagination to identify any infrastructure facility that is part of an integrated mining operation which is not contained in the list. Assuming, without the need to decide, that the DSEA - a storage area for dredge spoil - does not fall within para (f) or para (g) of the definition of "infrastructure facility", then the DSEA would be similar to matters in those paragraphs and capable of being the subject of a determination by the Commonwealth Minister under para (i).
Fourthly, the likely intention that the listed matters in the definition of "infrastructure facility" be exhaustive is reinforced by the catch-all provision, in para (i), for the Commonwealth Minister to determine by a legislative instrument that "any other thing that is similar" to the listed matters is an infrastructure facility. In its original form prior to a 2007 amendment,[103] para (i) provided that the determination by the Commonwealth Minister was required to be in writing, with a separate provision making such a determination a disallowable instrument.[104] If the purpose of para (i) were merely for a determination to remove any doubt about matters that fell within the application of the ordinary meaning of "infrastructure facility" then it is difficult to see why such a determination would be disallowed and what utility there could have been in disallowance.
Despite the strength with which these four matters suggest that the definition of "infrastructure facility" is exhaustive, there remains some ambiguity. An alternative possibility is that the listed items in s 253 are merely examples of the application of the ordinary meaning of "infrastructure facility" in the context of mining, designed to put those matters beyond doubt with a power for the Commonwealth Minister to determine, by legislative instrument, to put further (and similar) matters beyond doubt. That possibility is reflected in the approach that is preferred by the joint reasons. That possibility also means that the clear terms informing the extrinsic context to s 253 cannot be dismissed as redundant, contrived or obviously mistaken.

An attempt to understand the meaning of speech without any context is like an attempt to understand the meaning of a painting before the paint is applied to the canvas. Context conveys meaning. The same is true of the words used in Acts of Parliament. "It is the legislative provision as an item of speech, not its words in isolation considered as language, which must be understood."[107] The speech conveyed by the words of an Act of Parliament must be understood by ordinary people, "those who are subject to the law's commands", who "are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage".[108] In order to put those words in context, the most fundamental aspect of the process of understanding ordinary usage of words generally involves a reader or listener inferring the intentions, objects, purposes and designs of the speaker. Hence, for centuries, the common law interpretative process of reading words in their context has been described as a search for the "intention of the Legislature".[109]
Almost from the inception of this Court, there was an insistence upon interpreting statutory words according to the intention of Parliament. As Griffith CJ said, referring to a passage which he reiterated and summarised in numerous later cases,[110] "the only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act".[111] This is not the intention of a real person or an aggregated intention of a group of people. Instead, statutory interpretation adapts the ordinary interpretative techniques of understanding language by reference to intention of a real person to treat statutory words as spoken by a notional person, a Parliament, with its intentions, objects, purposes and designs attributed from context: "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have".[112]
Until relatively recently in the life of the common law, it was impermissible to have regard to information contained in extrinsic materials as part of the context to determine the meaning that Parliament was taken to have intended.[113] That older approach had the benefit of simplicity and clarity for an ordinary reader of legislation who might not consider all extrinsic material. The older approach avoided the wastage of time and expense in trawling through extrinsic materials which rarely contain information that can shed light on an issue in court. But the older approach was highly artificial. Extrinsic information or knowledge, including reasonable expectations of compliance by Parliament with social norms or fundamental common law principles, is often employed in the process of interpretation. It is hard to justify ignoring extrinsic information that reveals specific purposes and intentions merely because it is contained in extrinsic material.
One way in which the rule which purported to exclude extrinsic materials was relaxed was by permitting consideration of information contained in extrinsic materials but only if that information would not contradict a plain meaning of the statutory text. On that approach the information in extrinsic materials could not contradict a so-called "plain meaning" of statutory text even if the information revealed that the "plain meaning" of the text was contrary to the clear intention of Parliament. For instance, in Re Bolton; Ex parte Beane,[114] Mason CJ, Wilson and Dawson JJ said, in the context of considering statements in a second reading speech that were "quite unambiguous[]":

This approach incorrectly appeared to suggest that the words of a statute have meaning independently of the intention with which Parliament is understood to have used them. If applied strictly, this approach would mean that if oversight or error led to an obvious mistake in the text of a written law then courts would be required to apply the words of the statute consistently with a "plain" semantic meaning divorced from extrinsic information or knowledge, even where the extrinsic information or knowledge is no more than the recognition of reasonably expected social norms or fundamental common law principles that Parliament is generally taken to respect. For instance, a statute which provided that the evidence of a witness could be impeached "in any unlawful way" was correctly interpreted by a court as meaning "in any lawful way".[115] "[I]f the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance."[116]
The modern common law approach is not so constrained. The modern approach has now been approved and applied many times,[117] even if its spirit has not always been entirely respected. That modern approach was set out by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd.[118] Referring to information in the reports of law reform bodies and speaking of context "in its widest sense", which includes the identification of external matters such as "the existing state of the law and the mischief which ... the statute was intended to remedy", their Honours said that context is "considered in the first instance, not merely at some later stage when ambiguity might be thought to arise". Their Honours clarified that context is not limited to information contained in extrinsic documents but also includes the application of reasonable expectations concerning any "inconvenience or improbability of result" that could arise on one interpretation of the statutory text which would then be inconsistent with "the legislative intent".[119] The modern approach thus generally aligns the techniques for interpretation of statutes with the techniques for interpretation of ordinary speech. Nevertheless, since the intention is that of a notional Parliament, and not any individual member or collection of members, even statements in second reading speeches or Explanatory Memoranda are only part of the context to be considered.

Section 15AB of the Acts Interpretation Act was enacted before the modern common law approach to statutory interpretation had solidified. There are, superficially, two main differences between the operation of the common law rules of statutory interpretation and s 15AB. First, rather than considering all text and all context at once, s 15AB contemplates that the court will first consider the text and the context within the Act before then considering context that arises from information in extrinsic material. Secondly, s 15AB contains various gateways to the consideration of information in extrinsic material, in effect: (i) to "confirm" a meaning that would arise from the text of the provision, its context in the Act, and the Act's purpose or object;[120] (ii) to determine a meaning where the text of the provision is ambiguous or obscure (including when an ambiguity, including a latent ambiguity, arises because an apparently unambiguous meaning is not confirmed);[121] or (iii) to reject a manifestly absurd or unreasonable meaning that would arise from the text of the provision, its context in the Act, and the Act's purpose or object.[122]
These two differences should not be overstated. There will very rarely be a difference in practice between the common law rules of statutory interpretation and the application of the discretion in s 15AB in relation to either (i) the information in extrinsic materials to which regard can be had, or (ii) the process by which information in extrinsic materials will be considered. As to the information in extrinsic materials to which regard can be had, the extent to which the s 15AB gateways will restrict resort to such information might often depend only upon the extent of judicial imagination because s 15AB has no minimum threshold of ambiguity and without full context there is almost always potential for some patent or latent ambiguity. As to the process by which information in extrinsic materials will be considered, the iterative, two-stage, approach ultimately still requires the information in extrinsic materials to be assimilated with the text of the provision, its context within the Act, and the Act's purpose or object in order to ascertain a single meaning.
An expansive approach to the extrinsic materials to which s 15AB permits recourse is also consistent with the nature of that provision as generally facilitative and as one which is designed to expand resort to information in extrinsic materials, and not as one that is intended to constrain the development of the common law rules of statutory interpretation.[123] But one respect in which the common law rules of statutory interpretation must conform with s 15AB is the weight to be given to information contained in extrinsic materials. Only one approach can be taken to the weight to be given to the information in extrinsic materials when assimilating statutory text with all context.
As s 15AB(3)(a) provides, in considering the weight to be given to the information in extrinsic materials it is necessary to have regard to "the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act". The effect of s 15AB(3)(a) is therefore that in the process of assimilating all context, s 15AB requires that some extrinsic information or knowledge, such as that which is based on reasonable expectations of social norms or fundamental common law principles, generally be given greater weight than other information which is derived from extrinsic materials.
This general consideration of the weight of information in extrinsic materials does not prevent the reconsideration of even an apparently strong meaning of the statutory text and context within the Act if the information in the extrinsic materials is particularly cogent, clear and specific. Nor does this general consideration deny that information derived from some kinds of extrinsic materials may often have greater general weight than information derived from others. An Explanatory Memorandum, for instance, is an important and weighty extrinsic source of information. As Dharmananda has observed of Explanatory Memoranda generally,[124] the central role of Ministers and their departments in drafting Explanatory Memoranda, unlike other extrinsic materials apart from second reading speeches, "invites the available implication that these materials are more reflective of 'government intent'".

The approach taken by the Full Court followed the iterative process of s 15AB. The Full Court first dealt with the textual and contextual matters within the Native Title Act, which by themselves provided strong support for a conclusion that the listed matters in the definition of "infrastructure facility" were exhaustive.[125] After reaching this conclusion based on these matters in isolation, the Full Court proceeded to address the statements in the Explanatory Memorandum "[a]gainst those textual and contextual indications".[126] The Full Court treated the statements in the Explanatory Memorandum as having "little weight" because it was said that the treatment in the Explanatory Memorandum of "the infrastructure facility exclusion only applied to future acts that were compulsory acquisitions, not rights to mine", a concept added later.[127]
As explained above, however, Parliament cannot be taken to have had a different intention in relation to the meaning of "infrastructure facility" when applied to compulsory acquisitions from that which it had when applying that meaning to the creation of a right to mine. And the Explanatory Memorandum is crystal clear that the definition of "infrastructure facility" is not intended to be exhaustive.
The clarity and specificity of the statements in the Explanatory Memorandum and its relevance to the second issue on this appeal require that the text and context of the definition of "infrastructure facility" in s 253 be viewed through the prism of the clear manifested intention expressed in the Explanatory Memorandum. Independently of the information in that extrinsic material, the text and context of s 253 provide strong support for an exhaustive definition of "infrastructure facility" but there remains some ambiguity and a degree of uncertainty. When viewed through the prism of the clarity and specificity of the statements in the Explanatory Memorandum, the text and context must be understood in the manner expressed in the joint reasons.

Harvey v Minister for Primary Industry and Resources

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