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Dann v Western Australia

Dann v Western Australia

Case [1997] FCA 332 8 May 1997

Native Title Act 1993

Indigenous Peoples & Native Title Law

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CATCHWORDS

NATIVE TITLE - proposed future act - whether proposed future act is an act attracting the expedited procedure - whether grant of exploration licence does not involve major disturbance - meaning and effect of "the act does not" - whether National Native Title Tribunal (the "tribunal") required to make a predictive assessment - whether tribunal required to examine the nature of the rights created - tribunal required to assess future act according to its nature - legal character of future act relevant, not intended future activities - assessment of "major disturbance" - whether tribunal required to consider cultural concerns of Aboriginal peoples - "major disturbance" to be given ordinary meaning as understood by community generally - views and concerns of Aboriginal peoples relevant to determination of whether major disturbance - assessment of major disturbance - burden of proof - whether burden of proof incorrectly imposed on native title party - no legal burden of proof on parties - standard of proof - whether major disturbance likely - "real chance" test not appropriate.

Native Title Act 1993, ss 226(2), 233(1), 234, 235, 237, 253,

Aboriginal Heritage Act 1972 (WA), s 18,

Mining Act 1978 (WA), s 63AA, 63, 66

Land Act 1933 (WA), s 116

Ward v Western Australia (1996) 136 ALR 557, cited

State of Western Australia v Ward (1996) 141 ALR 753, cited

Dann v Western Australia (1996) 142 ALR 21, cited

Western Australia v Bropho (unreported, 18 November 1996) cited

Chan v Minister for Immigration and Ethnic Affairs (1989)
169 CLR 379, cited

JACK DANN - v -
THE STATE OF WESTERN AUSTRALIA & GPA DISTRIBUTORS

No WG 3 of 1997

Wilcox, Tamberlin, RD Nicholson JJ
Sydney
Heard in Perth
8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA     )
WESTERN AUSTRALIA DISTRICT REGISTRY   )    No WG 3 of 1997
GENERAL DIVISION  )

ON APPEAL FROM A DECISION OF A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JACK DANN
Appellant

AND:                   THE STATE OF WESTERN
  AUSTRALIA
  First Respondent

GPA DISTRIBUTORS
Second Respondents

CORAM:       WILCOX, TAMBERLIN & RD NICHOLSON JJ
PLACE:       SYDNEY
             (Heard in Perth)
DATED:       8 MAY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal be allowed.

The matter be remitted to the National Native Title Tribunal for further determination in accordance with law.

The first respondent pay the appellant's costs.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)No. WG3 of 1997

NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )

ON APPEAL FROM A DECISION OF A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:JACK DANN

Applicant

AND:THE STATE OF WESTERN AUSTRALIA

Respondent

CORAM:WILCOX, TAMBERLIN and R D NICHOLSON JJ

PLACE: SYDNEY (HEARD AT PERTH)
DATE: 8 MAY 1997

REASONS FOR JUDGMENT

WILCOX J: I have read in draft form the reasons of Tamberlin and R D Nicholson JJ. I agree with each…

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 Dann v Western Australia

Details

AGLC: Dann v Western Australia [1997] FCA 332
Case: [1997] FCA 332
Decision Date: 8 MAY 1997

CaseChat Overview and Summary

The appeal in Dann v Western Australia was heard in the Federal Court of Australia by Wilcox, Tamberlin, and RD Nicholson JJ. The appeal concerned the interpretation and application of section 237 of the Native Title Act 1993, which delineates the circumstances in which "future acts" will attract the expedited procedure. The primary dispute was over whether the grant of exploration licences by the State of Western Australia constituted a future act attracting the expedited procedure, thereby exempting it from the negotiation requirement under the Act. The Court found that the tribunal and the primary judge had erred in applying a predictive assessment approach to determine whether the grant of exploration licences involved major disturbance to land or waters. Instead, the Court preferred an approach that assessed the nature of the future act according to the rights it created, without requiring evidence or factual findings as to likely future events and consequences. The Court also clarified that the term "major disturbance" should be given its ordinary English meaning, taking into account the views and concerns of the Aboriginal community, but not exclusively determined by them. The appeal was allowed, and the matter was remitted to the National Native Title Tribunal for further determination in accordance with law, with the first respondent ordered to pay the appellant's costs.

Orders