What is a “right to mine” and what is an “infrastructure facility” in the Native Title Act?

9 February 2024

The High Court this week delivered its decision in Harvey v Minister for Primary Industries and Resources [2024] HCA 1.

To summarise an already concise judgment, the Court held that:

• the phrase “right to mine” is more a descriptor of the various types of mining and petroleum titles that arise under Commonwealth and State laws. It is not a reference to one of the underlying rights that is an incidence of a mining title; and

• the phrase “infrastructure facility” is to have its ordinary meaning and, as such, the list of infrastructure facilities in the definition is not an exhaustive list.

Implications

There are two impacts of this decision worth considering.

The first is that the phrase “right to mine” is to be read very broadly. Rights or tenements that form the class of mining and petroleum titles under Commonwealth and State laws will be assumed to be a “right to mine” for the purpose of the Native Title Act. This will mean that rights or tenements that do not (strictly speaking) give the holder the ability to “mine” as defined in the Native Title Act will now be considered a “right to mine”. The impact of this will vary depending on the policy settings in each State or Territory and may mean a change in ”future act” pathways for certain mining and petroleum tenements.

The second implication is that a much broader class of infrastructure will now be considered to be an “infrastructure facility” for the purpose of the NTA. This means that the infrastructure facility provisions in section 24MD(6B) of the NTA will now apply to a greater number of mining and petroleum tenure applications instead of the “right to negotiate” in the  Native Title Act. This will likely provide greater optionality to project proponents, particularly in project design and land assembly.

Our Projects, Infrastructure & Construction and Environment & Planning teams provide specialist legal services to support the delivery of major infrastructure and construction projects. Contact Partner William Oxby with any questions.