CONSTITUTIONAL LAW - whether a determination of the National Native Title Tribunal as to the non-existence of native title in an unopposed non-claimant application, once registered under the Native Title Act 1993 (Cth), involves a constitutionally invalid exercise of Commonwealth judicial power - whether subdivision E of Div 5 of Pt 6 the Native Title Act is valid.
CONSTITUTIONAL LAW - whether a decision of the President of the National Native Title Tribunal directing Registrar not to accept claimant application on the grounds that a prima facie claim cannot be made out involves a constitutionally invalid exercise of Commonwealth judicial power.
NATIVE TITLE - whether the constitution of land as a public road pursuant to a statutory procedure for the opening of public roads extinguishes native title.
[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.
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AGLC
Fourmile v Selpam Pty Ltd [1998] FCA 67
Case
[1998] FCA 67
Decision Date
CaseChat Overview and Summary
The applicants, Henick Fourmile and the Gimuy clan of the Yidinji nation, sought to review and appeal determinations of the National Native Title Tribunal (NNTT) relating to the existence of native title over land in Queensland. The respondents were Selpam Pty Ltd and the State of Queensland, with the Attorney-General for the Commonwealth intervening. The applicants contended that native title survived the dedication of certain land as a road and that the NNTT's determinations involved an invalid exercise of Commonwealth judicial power. The Federal Court considered these issues, along with the validity of the NNTT's determinations under the Native Title Act 1993 (Cth). The Court found that the road had been effectively constituted as a public road under the Crown Lands Act 1884 (Qld), and thus extinguished any native title that might have existed over that land. The Court also determined that the NNTT's scheme for determining native title in unopposed applications, once registered in the Federal Court, involved an invalid exercise of Commonwealth judicial power, as it effectively made binding determinations that should have been made by a court under Chapter III of the Constitution. Consequently, the Court declared that the relevant sections of the Native Title Act were invalid. The Court dismissed the applicants' appeal against the NNTT's decision not to accept their claim, as it was not properly before the Court.