extractive mineral deposits); ... but does not include, when the expression is used in Part IV, any such lease, licence, interest or right that is an exploration licence or exploration retention lease;" Where an "intending miner" seeks the grant of a mining interest the terms of s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth) apply. An "intending miner" is defined in the Act, inter alia, as follows: "'intending miner', in respect of Aboriginal land, means: (a) a person who makes application, under a law of the Northern Territory relating to mining for minerals, for the grant of a mining interest in respect of that land, while the person: (i) holds an exploration licence under that law in respect of that land; or (ii) being a person who has held an exploration licence in respect of that land, holds under that law an exploration retention lease or exploration retention licence, or has made an application for the grant of such a lease or licence, in respect of that land or a part of that land; or ..." Section 46(1)(a) of the Act provides: "Terms and conditions to which grant of mining interest subject 46. (1) An intending miner who seeks the grant of a mining interest in respect of Aboriginal land in respect of which that intending miner holds or held an exploration licence or an exploration retention lease (whether that licence or lease was granted before or after the land became Aboriginal land) shall submit

to the relevant Land Council a statement, in writing, setting out: (a) a comprehensive proposal in relation to the mining works that the intending miner proposes to conduct on the land which includes, but is not limited to, the following particulars: ..." Once a statement is submitted to the relevant Land Council, the intending miner and the Council shall "agree upon the terms and conditions to which the grant of the mining interest will be subject" (s.46(3)). If the two parties do not agree upon terms and conditions, then s.46(7) makes provision for the terms and conditions to be settled by conciliation, and failing that, arbitration. 3. At issue in these proceedings is whether the processing of ore mined from EL2508 at the Nabarlek Plant on SML94 is matter which can be included in a s.46(1)(a) statement, and as such be subject to the terms and conditions of a grant of a mining interest over EL2508, such terms and conditions to be settled by conciliation and arbitration should the parties fail to agree. 4. The plaintiff seeks declaratory relief to the effect that in the event it finds uranium ore within EL2508 and obtains a mining interest therein, it can use the Nabarlek Plant to process such ore once mined, and that if necessary it can enjoin the defendant to conciliation or arbitration in respect of such a proposal. 5. The plaintiff argued that the title of EL2508 extends to SML94 thus attracting the application of s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth). Alternatively, it says that even if title to EL2508 does not extend to SML94, that statutory provision would still apply as the mill is 'infrastructure' for the purposes of s.46(1)(a)(xii), the root of such right lying in its title to EL2508. The latter argument could also be supported, so said the plaintiff, in that the operation of the mill on SML94 is something "in relation to the mining works" to be conducted on EL2508, as per s.46(1)(a). 6. The plaintiff holds an exploration licence (EL2508) and should it make an application for the grant of a "mining interest" in respect of that land it would qualify as an "intending miner". 7. However, as I have already said, within EL2508 is the Nabarlek plant area, ie SML94. The plaintiff's argument is that the title for EL2508 extends to SML94, and hence, upon application for a mining interest, it becomes an "intending miner" in respect of SML94 with the consequence that the provisions of s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth) apply. 8. The plaintiff offered two arguments to support this; first it argued that the SML94 area was part of the EL2508 area, or putting it another way, SML94, although a distinct legal title nevertheless coexisted as part of EL2508; and secondly, that SML94 if discrete from EL2508, will by operation of law become part of EL2508 if and when SML94 is surrendered. 9. In arguing that SML94 is part of EL2508, the plaintiff submitted the reason why special mineral leases are excluded from the definition of "mining tenement" in the 1980 Act is that s.191(12) of the Mining Act 1980 provides for the continued existence of special mineral leases under the 1939 Mining Act (special mineral leases are not available under the 1980 Act). Section 191(12) provides: "(12) Subject to subsections (13) and (14), where immediately before the commencement of this Act there was in force a special mineral lease granted under the repealed Act, that lease shall continue in force as though this Act had not come into operation." 10. The plaintiff then argued that special mineral leases (granted under the 1939 Act) and exploration licences (granted under the 1980 Act) can coexist, though the rights of the grantee of the former were to take priority. The plaintiff then contended that the exclusion of the special mineral leases from the definition of "mining tenement" ensures that this principle of coexistence of title continues by operation of s.191(12) of the 1980 Act. The plaintiff then argued that this explains why the exploration licence, in its terms, does not exclude SML94 because the intention of the Minister was to allow the coexistence of titles in EL2508 and SML94. 11. I do not know what the intention of the Minister was, but I do not think it matters. Section 191(12) of the Mining Act (1980) provides a regime for the continued operation of special mineral leases under the 1939 Act. Whilst title to special mineral leases (under the 1939 Act) and exploration licences (under the 1980 Act) can coexist, it seems to me this is unrelated to the question of what area EL2508 extends to. The plaintiff's contention that the Minister, in granting EL2508, ignored the purported exclusion of SML94 may be met by s.22(1) of the Mining Act (1980) which provides: "22(1) The Minister may, at his discretion, grant an exploration licence in respect of all, or part (including, subject to section 16(2), part or parts of a block), of the land in respect of which an application under this Part is made." 12. The defendant argued that since the express words of the application for EL2508 exclude the SML94 area and because of the provisions of s.22(1), EL2508 does not include SML94. However, as I have said, the exploration licence itself, in its terms, includes the area of SML94. Am I permitted to look behind the licence itself to its antecedents in order to scrutinize its integrity? I think not, and because of s.164A of the Mining Act 1980 (introduced by the Mining Amendment Act 10/89) which entrenches the state of the register. That section provides: "164A. SUBSTANTIAL COMPLIANCE (1) Notwithstanding any other provision of this Act, the Minister may grant an exploration licence, exploration retention licence or mining tenement, and a mining registrar may grant an extractive mineral permit, notwithstanding that the applicant for the licence, tenement or permit may not have complied in all respects with the provisions of this Act or the Regulations. (2) Except in the case of fraud, the grant or renewal of an exploration licence, exploration retention licence or mining tenement shall not be impeached by reason or on account of an informality or irregularity in the application or in any proceedings previous to the grant or renewal of the application for the licence or tenement." I conclude that at the present time SML94 and EL2508 are distinct interests which coexist over the SML94 area and that the plaintiff upon making an application for a "mining interest" in respect of EL2508 will become an "intending miner" in respect of the SML94 area. 13. It is for the plaintiff to also establish that the Nabarlek Plant relates "to the mining works that the intending miner proposes to conduct on the land." 14. The plaintiff argued that it is "an intending miner" with respect to SML94 because of the inherent relevance and connection of the Nabarlek Plant to any "mining interests" the subject of a s.46(1) Aboriginal Land Rights (NT) Act 1976 (Cth) statement relating to operations upon EL2508. The plaintiff argued that s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth) contemplates that "an intending miner" in making a statement under s.46(1)(a) in respect of the EL2508 area may embrace factors and circumstances outside the physical perimeters of that area. Notable among these are subsections (iii) and (iv) of s.46(1)(a) as well as subsections (viii), (ix) and (x). The criterion for the inclusion in the s.46(1)(a) statement is that the "comprehensive proposal be in relation to the mining works that the intending miner proposes to conduct on the land". Can the processing of ore at Nabarlek on the SML94 area be said to be "in relation to the mining works that the intending miner proposes to conduct on the land" (ie the EL2508 area)? Counsel for the defendant contended that "the nexus between the grant of the mining interest and the use of the mill for the purposes of s.46 is too remote" and that the "use of other land for milling purposes has nothing to do with mining on the subject land" (transcript p 118). Counsel said, "In conclusion, it is submitted that s.46(1) does not envisage inclusion in a s.46 statement for a proposal for terms and conditions for the use of land other than the land the subject of the application for a mining interest. So far as it provides for the arguing of terms and conditions, the section is concerned only with the land the subject of the application for a mining interest." 15. There are two distinct arguments here. One says that milling cannot be regarded as being "in relation to the mining works to be conducted on the land." The other says use of land to which the plaintiff does not have a mining interest cannot be regarded as being "in relation to the mining works". Counsel for the defendant also urged such agreement affecting "other" land would not require the consent of the traditional owners of the land, a proposition, it was said, which is contrary to the statutory scheme. The consent of the traditional owners to "terms and conditions" is required under s.46(4)(a). Section 46(4)(a) of the Aboriginal Land Rights (NT) Act 1976 (Cth) provides that the Land Council shall not agree the terms and conditions unless it has consulted the "traditional Aboriginal owners of the land concerning the terms and conditions". However, that relates to the land to be mined in the EL2508 area. But the answer to this part of the defendant's argument lies in s.46(4)(b) and (c) of the Aboriginal Land Rights (NT) Act 1976. If the terms and conditions of mining Aboriginal land (in this case the EL2508 area) include use of other Aboriginal land, (in this case the SML94 area), the interests of the traditional owners of that other land are protected under s.46(4)(b) and (c). 16. I do not accept the defendant's submission that the section is concerned only with land the subject of the application. Section 46(1)(a) uses the expression "in relation to". It is envisaged by the particulars enumerated in s.46(1)(a)(i)-(xiii) that the proposal may cover aspects outside of the land on which the mining works are to be conducted. Section 46(1)(a)(iii) refers to environmental impact "inside and outside the affected land". Section 46(1)(a)(x) refers to "social impact" of the mining works. Section 46(1)(a)(xii) refers to "infrastructure requirements". The plaintiff submitted that the milling operation is infrastructure for the purposes of s.46(1)(a), thus allowing it to be included in a s.46(1) statement, which accordingly will be subject to conciliation and arbitration. The plaintiff also contended that even if the milling operation was not infrastructure under s.46(1)(a)(xii) it would still satisfy s.46(1)(a) as being something "in relation to the mining works to be conducted on the land". I accept this submission. Whilst I would find that the milling operation is in the nature of infrastructure it is in any event "related" to the mining works. Milling operations are recognised by s.60(1)(b)(iii) of the Mining Act 1980 to be related to mining operations. It follows that proposals relating to the use of the Nabarlek Plant may be included in a s.46(1)(a) statement. Terms and conditions relating to, inter alia, the milling operations would thereby, in the absence of agreement, become subject to conciliation and arbitration pursuant to s.46. 17. In my view, even if the plaintiff was not an "intending miner" with respect to the SML94 area, it could nevertheless still bring the Nabarlek Plant within s.46(1)(a) as being something "in relation to the mining works", albeit that the mining works are on land other than the SML94 area. 18. I should mention that on 24 June 1988, the parties entered into a deed for exploration in respect of the area of EL2508. Article 32.1 of that deed provides, inter alia, that the plaintiff may only seek such mining interests as are required in relation to a mining operation for the mining of uranium ore and associated minerals from one uranium ore body and the processing of that ore and those minerals at the Nabarlek Plant. That article contemplates that ore mined on EL2508 will be processed at the Nabarlek Plant, and the use of Nabarlek for this purpose is subject to further agreement under either article 32.1 or 32.2. The defendant conceded that the words in article 32.1 do not exclude the operation of s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth). This being so the question of whether s.46 applies is resolved by the construction of that section in light of the plaintiff's respective titles and not by the wording of article 32.1. Article 32.1 clearly contemplates the interrelation of the mining of ore on the exploration area and the processing of that ore at Nabarlek on the special mineral licence area. Whether the parties believed SML94 to be part of EL2508 or whether they believed SML94 would become part of EL2508 or whether they believed only ore from SML94 could be mined at Nabarlek, it seems to me are all beside the point. It seems to me that the plaintiff's position is resolved by the construction of the Act alone. What article 32.1 does show is that it was clearly contemplated by the parties that ore mined from EL2508 would or could be processed at Nabarlek subject to an agreement for the continuing use of the Nabarlek Plant. If my construction of the Aboriginal Land Rights (NT) Act 1976 (Cth) is correct, superadded to the contractual relationship between the parties is the s.46 procedure for conciliation and arbitration. 19. Finally, it was argued by the defendant that the questions raised by the plaintiff were hypothetical and academic and of no practical use. The defendant argued that the court should, in the exercise of its discretion, refuse any declaratory relief until at least the plaintiff had discovered a mineable deposit on EL2508 and sought a mining interest in respect thereof. 20. Although there have been experiments, Leverington v State Planning Authority (1970) SASR 387, subsequently regretted, In re S.A. Barytes Limited (1976) 12 SASR 527 at 558, it is still true to say with Fisher J. - C.S.S. v Lopiron (1987) 76 ALR 463 at 469 - that "(d)oubtless courts have in more recent years shown less reluctance to make declaratory orders." 21. In In re S.A. Barytes Limited, supra, Bray C.J. said: "The court is willing and anxious to do all it can to assist parties to litigation to resolve their differences, but it is not the function of the court to formulate their dispute for them or to give advice about the propriety or legality of one or more of several hypothetical courses of action, except in certain defined and limited contexts", and in Rediffusion (Hong Kong) Ltd v A.G. of Hong Kong (1970) AC 1136 at 1158, Lord Diplock spoke of hypothetical matters being "... purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs". In the instant case, the questions arising for resolution affect the future legal rights of the plaintiff, and mere futurity does not render a matter hypothetical in any relevant sense: re Trade Practices Act and Tooth and Co [1978] FCA 10; (1978) 19 ALR 191 at 207, per Brennan J. 22. In considering whether or not to grant declaratory relief it is for the court to have regard to the circumstances. Most importantly the court recognises that "Responsibility and utility are the touchstones in this field of jurisprudence": Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation (1977) 1 NSWLR 43 at 53 and that it is for the Court to weigh the relative "immediacy and reality of a controversy": re Trade Practices Act and Tooth and Co, supra, at 208, 209. 23. The plaintiff in seeking declaratory relief wishes to know in advance if it can require conciliation and arbitration under s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth) with regard to the possible future use of the Nabarlek Plant for processing ore mined on EL2508. 24. It seems to me the issues in this case are not merely abstract or hypothetical and that a declaration would have utility. The elements of utility and reality are present here; the plaintiff does intend to conduct its future activities in a particular way. Whether s.46 will apply to the plaintiff's proposed conduct affects its present and immediately proposed activities. The plaintiff has formulated a definite course of action for the future, that is to retain and maintain the Nabarlek Plant, explore EL2508, if economically feasible to mine any discovery, and process such discovery at the Nabarlek Plant. The legal position apropos any future processing at the Nabarlek Plant practically affects both its future operations on EL2508 (in particular its proposed exploration expenditure thereon) and the retention and future use of the Nabarlek Plant and the SML94 area. If the defendant is correct, in the absence of its agreement, the plaintiff shall have to dismantle the Nabarlek Plant and reinstate the SML94 area and thereafter apply for an exploration licence of the SML94 area and ultimately reestablish the Nabarlek Plant or some substitute. Such a drastic consequence calls for an early determination as to whether the defendant can be required to 'agree' via arbitration. In my opinion the present case does call for appropriate declaratory relief sufficient to clarify the parties' rights and obligations with respect to conciliation and arbitration in the absence of reaching agreement as to the future use of the Nabarlek Plant. 25. In the present matter, on balance, it seems to me these circumstances justify the making of a declaration. 26. Having considered the various forms of declaration sought by the plaintiff and having resolved the issues without recourse to the exploration deed, it seems appropriate to declare as follows: declare that conciliation and arbitration pursuant to s.46 of the Aboriginal Land Rights (NT) Act 1976 (Cth) are available to the plaintiff in the event that the plaintiff and defendant can not agree as to the terms and conditions upon which the Nabarlek Plant on the SML94 area is to be used in relation to any mining operation on the area of EL2508. 27. I shall hear the parties as to the precise form of declaration and as to costs, and direct the plaintiff to bring in minutes of order to be settled by me. Liberty to the parties to speak to the minutes.