FQM Australia Nickel Pty Ltd v Bullen

In FQM Australia Nickel Pty Ltd v Bullen, the respondents, who were the current registered native title claimants, sought a declaration that there was a registered native title claimant immediately before the grant of mining leases. The appellants, who were the holders of the mining leases, opposed the application. The dispute was about the existence of a registered native title claimant prior to the mining leases being granted and whether the validity of the mining leases could be challenged if native title was subsequently proven. The court had to decide if the respondents could obtain a declaration regarding the status of the native title claimant before the mining leases were granted, and if such a declaration would be within the scope of judicial power.

The court found that the declaration sought by the respondents was not an advisory opinion and was relevant to the real dispute between the parties. The status of the registered native title claimant before the mining leases were granted involved a real, not hypothetical, question. The declaration would settle the controversy between the parties and had utility beyond its relevance to the validity of the mining leases if native title was found to exist. The court held that the primary judge's discretionary decision could not be challenged based on the appellants' selection of a relevant consideration that was overlooked.

The appeals were dismissed, and the court concluded that the points raised by the appellants were important to the construction of the legislation and were reasonably pursued. Unless written submissions to the contrary were filed within ten days, there would be no order as to costs. The declaration sought by the respondents was within the exercise of judicial power, and the status of the registered native title claimant before the mining leases were granted was a real and not hypothetical question.