Bullen v State of Western Australia

The parties to this proceeding were Malcolm John Bullen and James Edward Dimer, who were the registered applicants of the Esperance Nyungar native title claim, and the State of Western Australia, which granted two mining leases without reaching an agreement under the Native Title Act. The dispute centred on whether the mining leases could be granted without an agreement under the Act, as both Bullen and Dimer, the registered applicants, had died before the leases were granted. The Federal Court of Australia was tasked with determining the legal issues arising from this dispute.

The primary legal issues the court had to address were whether the deaths of Bullen and Dimer affected the status of the native title claim, and whether the State was required to reach an agreement under the Act before granting the mining leases. Specifically, the court had to determine if section 28(1)(b) of the Native Title Act applied, which exempts certain acts from the requirement to reach an agreement when no registered applicant is involved. The court also had to consider whether the registered applicant remained valid despite the deaths of Bullen and Dimer, and if the State's failure to reach an agreement rendered the mining leases invalid.

The court found that the deaths of Bullen and Dimer did not nullify the status of the registered applicant for the native title claim. Consequently, the State was required to reach an agreement under the Act before granting the mining leases, as section 28(1)(b) did not apply. The court held that the registered applicant remained valid, and the State's failure to reach an agreement meant the mining leases were invalid. The court's reasoning was based on the principle that the existence of a registered applicant for a native title claim is not automatically extinguished by the death of the applicants, and that the statutory requirement for an agreement under the Act was mandatory and not discretionary.

The Federal Court declared that at the time of the grant of the mining leases, there was a registered applicant for the Esperance Nyungar native title claim, and that section 28(1)(b) of the Native Title Act did not apply. Consequently, the mining leases were invalid due to the State's failure to reach an agreement under the Act. The court's decision underscored the importance of adhering to the procedural requirements of the Native Title Act to ensure the protection of native title rights.