Glencore Coal Pty Limited v Franks

Glencore Coal Pty Limited appealed against an order made by the Federal Circuit and Family Court of Australia that denied its request for release from an implied Harman undertaking concerning an expert report borne out of a mediation process in discontinued native title proceedings. The report, prepared by Dr Sackett, was sought to be used by Glencore for an application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The court had to determine whether the primary judge erred in declining to exercise the discretion to grant release from the implied Harman undertaking. The appeal raised several grounds, including whether the primary judge erred in considering the fact that the report was borne out of mediation and whether there was a strong public interest in ensuring Aboriginal peoples are not deterred from using court processes in native title proceedings.

The court found that the primary judge did not err in taking into account the fact that the Sackett report was borne out of mediation. The court held that the report was conceived as a vehicle to assist in the settlement of the proceeding or issues in the proceeding. The court was cautious about granting relief from the Harman undertaking in these circumstances, as it could affect the willingness of First Nation peoples to cooperate with, or participate in, the Court’s processes. The court also found that the primary judge was correct in considering the strong public interest in ensuring Aboriginal peoples are not deterred from using court processes in native title proceedings. The appeal was dismissed, and Glencore was ordered to pay the respondents' costs of the appeal.