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Cameron v Hoolihan

Cameron v Hoolihan

Case [2005] NNTTA 84 16 November 2005

Jurisdiction

Good Faith Negotiations

Native Title

Adverse Possession

Indigenous Peoples & Native Title Law

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Reported at (2005) 196 FLR 37

NATIONAL NATIVE TITLE TRIBUNAL

Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), [2005] NNTTA 84 (16 November 2005)

Application No: QF05/3

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an Inquiry into a Future Act Determination Application

Robert Bond Cameron (grantee party)

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Ernest Hoolihan, Hazel Illin, Elsie Thompson on behalf of the Gugu Badhun People (native title party)

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State of Queensland (government party)

FUTURE ACT DETERMINATION - TRIBUNAL JURISDICTION TO DETERMINE MATTER

Tribunal: John Sosso

Place: Brisbane

Date: 16 November 2005

Hearing date: 2 September 2005; 27 October 2005

Representatives:-

Grantee Party: Zoe Farmer, Lawyer

Native Title Party: Susan Gilmour, D & G Lawyers

Government Party: Eve Fraser, Crown Law, Queensland

Catchwords: Native title – future act determination application – proposed mining lease – jurisdiction – whether parties have negotiated in good faith – evidentiary onus – relevance of dealings prior to issuance of s 29 notice – s 31 State deed and ancillary agreement/ILUA signed by native title party and grantee party – s 31 State deed not executed by the State - s 31 State deed and ancillary agreement/ILUA withdrawn by native title party – no challenge to good faith negotiations of government party – grantee fulfilled his obligations to negotiate in good faith.

Legislation: Native Title Act 1993 (Cth) ss 29, 30A, 30(1), 31, 33, 35, 36(2), 37, 38, 39, 41A, 82, 109, 150, 151

Cases: Brown v Eastern and Midlands Rail Co (1889) 22 QBD 391

Brownley v Western Australia (No 1) (1999) 95 FCR 152
Placer (Granny Smith) v Western Australia (1999) 163 FLR 87
South Blackwater Coal Ltd v Queensland (2001) 165 FLR 232
Strategic Minerals Corporation NL/Kynuna/Queensland [2003] NNTTA 83
Strickland v Minister for Lands (Western Australia) (1998) 85 FCR 303
Walley v Western Australia (1996) 67 FCR 366
Walley v Western Australia (1999) 87 FCR 565

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

On 27 August 2004, the State of Queensland (the government party) gave notice under section 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant Mining Lease ML 10290 (the proposed tenement) to Robert Bond Cameron (the grantee party). There were no registered native title determination applications covering any part of the area of the proposed tenement at this time.
The notice stated that the Mining Lease would authorise the grantee to mine and carry out associated activities subject to the Mineral Resources Act 1989 (Qld), for a term of twenty-one (21) years with the possibility of renewals for a term not exceeding twenty-one (21) years.
The proposed tenement, comprising 37.116 hectares, is located approximately 45 km south west of Greenvale (which is approximately 200 km from Townsville) and lies completely within the boundaries of the Gugu Badhun native title determination application (QUD244/04). The Gugu Badhun native title determination application was filed with the Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cameron v Hoolihan

Details

AGLC: Cameron v Hoolihan [2005] NNTTA 84
Case: [2005] NNTTA 84
Decision Date: 16 November 2005

CaseChat Overview and Summary

The matter of Cameron v Hoolihan involved a dispute over a proposed mining lease on land subject to native title claims. The case was heard in the Federal Court of Australia. The respondents, who were native title parties, sought a future act determination in relation to the grant of a mining lease. They argued that the grant of the lease would adversely affect their native title rights.

The central legal issue was whether the parties had negotiated in good faith, as required by the Native Title Act 1993. The court needed to determine whether the native title party had discharged the onus of proving that negotiations were not conducted in good faith. Additionally, the court examined the relevance of dealings prior to the issuance of a section 29 notice and the effect of a section 31 State deed and ancillary agreement or Indigenous Land Use Agreement (ILUA) that was signed by the native title party and the grantee party but not executed by the State.

The court found that the onus of proof lay with the native title party to establish that the negotiations were not conducted in good faith. It was noted that the native title party had withdrawn the section 31 State deed and ancillary agreement/ILUA, and there was no challenge to the good faith negotiations of the government party. The grantee had fulfilled his obligations to negotiate in good faith. Therefore, the court concluded that the native title party had not discharged the onus of proof, and the application for a future act determination was dismissed.

Orders