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Cox v Western Australia

Cox v Western Australia

Case [2008] NNTTA 90 11 July 2008

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NATIONAL NATIVE TITLE TRIBUNAL

Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/ Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2008] NNTTA 90 (11 July 2008)

Application No: WF07/40

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

Angelina Cox, Angie Cox, Annabelle Stewart, Arness James, Charleston Cox, Chloe Hayes, Darryl Hughes, Gary Hughes, Harold Ashburton, Lily Mackay, Maudie Diowton, Mitchell Drage, Maurice Daublin on behalf of Puutu Kunti Kurrama Pinikura People (WC01/5) (first native title party)

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Wintawari Guruma Aboriginal Corporation (WC97/89) (second native title party)

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State of Western Australia (government party)

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FMG Pilbara Pty Ltd (grantee party)

FUTURE ACT DETERMINATION - TRIBUNAL JURISDICTION TO DETERMINE MATTER

Tribunal: John Sosso
Place: Brisbane

Date: 11 July 2008

Hearing dates: 11 January, 19 March, 9 May, & 20 June 2008

Representatives:-

Grantee Party: Mr Ken Green, Green Legal Pty Ltd

First Native Title Party: Mr Shahzad Rind, Yamatji Barna Baba Maaja Aboriginal Corporation
Second native Title Party: Ronald Bower, Corser & Corser Lawyers

Government Party: Mr Domhnall McCloskey, State Solicitor’s Office

Ms Paola O’Neill, Department of Industry and Resources

Catchwords: Native title – future act determination application – proposed mining lease – jurisdiction – whether grantee party has negotiated in good faith – evidentiary onus – no challenge to good faith negotiations of government party – grantee party has not negotiated in good faith – no jurisdiction to make a determination pursuant to s. 38.

Legislation:
Native Title Act 1993 (Cth) ss 24EB, 29, 31, 35, 36, 37, 38, 39, 42A, 75, 150, 193

Cases:Brownley v Western Australia (1999) 95 FCR 152
Cameron v Hoolihan (2005) 196 FLR 37
Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) WF06/21 [2006] NNTA 153 (24 November 2006) Member Sosso
Fejo v Northern Territory (1998) 195 CLR 96
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365
Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375
Placer (Granny Smith) v Western Australia (1999) 163 FLR 87
Risk v Williamson (1998) 87 FCR 202
South Blackwater Coal Ltd v Queensland (2001) 165 FLR 232
Walley v Western Australia (1996) 67 FCR 366
Walley v Western Australia (1999) 87 FCR 565
Western Australia v Dimer (2000) 163 FLR 426
Western Australia v Taylor (1996) 134 FLR 211
Western Australia/Thomas on behalf of the Waljen People/Anaconda Nickel Ltd WF98/7 [1998] NNTTA 8 (4 September 1998) Hon. C J Sumner
Western Australia/West Australian Petroleum Pty Ltd & Anor/Hayes & Ors on behalf of the Thalanyji People WF00/07 [2001] NNTTA 18 (9 March 2001) Deputy President Sumner
Williams v Minister for Land and Water Conservation (2003) 128 FCR 517
WMC Resources Limited/Western Australia/Evans on behalf of the Koara People WF00/1 [2000] NNTTA 259 (7 July 2000) Deputy President Sumner

REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT…

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 Cox v Western Australia

Details

AGLC: Cox v Western Australia [2008] NNTTA 90
Case: [2008] NNTTA 90
Decision Date: 11 July 2008

CaseChat Overview and Summary

In the case of Cox v Western Australia, the plaintiff sought a determination under section 38 of the Native Title Act 1993 (Cth) regarding a proposed mining lease on land that was the subject of native title claims. The dispute centred on whether the state government had negotiated in good faith with the native title parties prior to granting a mining lease. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the state government had fulfilled its obligation to negotiate in good faith under section 38(1) of the Native Title Act. This section mandates that if a future act is to be undertaken on native title land, the parties must negotiate in good faith. The court was required to determine if the state government had indeed negotiated in good faith and if the plaintiff had discharged the evidentiary burden to show otherwise.

The court found that the state government had not been challenged on the good faith of its negotiations. The plaintiff, however, had not met the evidentiary burden to demonstrate that the state government had not negotiated in good faith. As a result, the court held that it lacked jurisdiction to make a determination under section 38 of the Native Title Act. Consequently, the plaintiff's application was dismissed.

The final orders of the court were that the plaintiff's application for a future act determination was dismissed and that the plaintiff was to pay the costs of the proceeding. The court clarified that the absence of evidence showing bad faith negotiations on the part of the state government meant that it could not exercise its jurisdiction to make a determination under the statute.

Orders