Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources Limited

Charles, on behalf of the Mount Jowlaenga Polygon #2, appealed against decisions made by the National Native Title Tribunal (NNTT) in relation to a native title claim over land in Western Australia. Sheffield Resources Limited, the respondent, was involved in mining activities on the land and had opposed the claim. The dispute primarily concerned the application of s 36(2) of the Native Title Act 1993 (Cth) to the native title claim. The Federal Court was required to determine whether the NNTT correctly applied the law in dismissing the claim and whether the NNTT’s decisions were legally sound.

The court had to decide whether the NNTT erred in law by not considering whether s 36(2) of the Native Title Act applied to the native title claim. This section provides that native title can be extinguished by a past act of the Commonwealth if the act is for a public purpose and is not inconsistent with the holders’ right to enjoy their native title. The court also needed to consider whether the NNTT correctly interpreted the relevant legislation and case law in dismissing the claim. The court examined whether the NNTT’s decision was open to the findings it made and if the decision was rational and legally sound.

The court found that the NNTT had failed to consider whether s 36(2) applied to the native title claim, which was a critical legal issue. The court held that this omission constituted a significant error in law, as the application of s 36(2) could have potentially extinguished the native title claim. The court concluded that the NNTT’s decision was not legally sound and that the matter should be remitted for a re-hearing limited to the issue of whether s 36(2) applied. The court allowed the appeal, set aside the NNTT’s decisions, and remitted the matter back to the NNTT for further consideration. The court also stayed the implementation and operation of the NNTT’s decision dated 14 June 2017 until further order and required the respondents to notify the court of the NNTT’s decision arising from the remitter. The court further ordered that the parties have liberty to apply on 48 hours’ notice and that the respondents pay the appellant’s costs of the appeal.