Federal court finds earlier right to mine valid

In Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729 (the Proceedings), the Federal Court (the Court) considered, as a separate question, whether the grant of M39/1096 was an act consisting of the creation of a right to mine to which [the right to negotiate in] s 26D(1) of the Native Title Act 1993 (Cth) applied (separate question).

This was material because if the answer to the Separate Question was yes, the result would be that the right to negotiate did not apply when the previous leases were replaced with M39/1096, so there would be no dispute that the grant of the tenement was valid. However, if the answer to the separate question was no, the right to negotiate would have applied when the previous leases were replaced with M39/1096, meaning the grant of the tenement would be invalid to the extent that it affects native title.

The Court held that the replacement of the earlier mining leases by mining lease M39/1096 fell within the definition of ‘the re-making of’ those earlier leases. Accordingly, the right to negotiate did not apply.

Background

Almost a decade prior, in Lake Rason, east of Laverton in Western Australia, the State of Western Australia granted M39/1096 to IGO Ltd (previously known as Independence Group NL) and AngloGold Ashanti Ltd. The grant comprised a consolidation of 31 mining leases previously held by these entities. M39/1096 was granted on the same terms, covering the same total area, for the same duration, and attaching the same rights and obligations.

The State was obliged to give notice to affected parties and the public under s 29 of the Native Title Act 1993 (Cth) (Act) prior to granting M39/1096, which is a required step in the right to negotiate procedure set out in the Act. It was common ground that the State failed to give the required notice under s 29 and, if right to negotiate procedures applied to the grant of M39/1096, they were not followed, and the grant of the tenement was invalid to the extent it affects native title.

Section 26D of the Act sets out circumstances when the right to negotiate, does not apply. The crux of the issue in the Proceedings was whether the requirement to observe the right to negotiate had been excluded.

The relevant exclusion considered by the Court was whether the grant of the tenement was the creation of a right to mine by the renewal, re-grant, or re-making of an earlier right to mine.

Within the Separate Question, the Court was also required to consider two additional issues, being:

1. Whether the grant of M39/1096 should be characterised as the renewal, re-grant or re-making of an earlier right to mine or rights to mine (including whether right to mine should be read in the plural); and
2. Whether the grant of M39/1096 has the result that the area to which each of the previous mining leases relates has been extended.

The Court held that the replacement of the earlier mining leases by mining lease M39/1096 fell within the ordinary meaning of, the re-making of’ those earlier leases. Therefore, the exclusion relating to re-making an earlier right to mine applied and the grant of M39/1096 was not invalid, to the extent that it affected native title.

Commentary

This decision clarifies that if the grant of a tenement occurs because of the renewal, re-grant or extension of the term of an earlier right to mine, right to negotiate requirements are not required to be followed.