Little v State of Western Australia [2001] FCA 1706
NATIVE TITLE – determinations of objections to expedited procedure – refusal of adjournment; refusal of further evidence – whether denial of procedural fairness – whether admission of further evidence could have made any difference
ALBERT LITTLE ON BEHALF OF THE BADIMIA PEOPLE v THE STATE OF WESTERN AUSTRALIA and WILDBEACH CORPORATION PTY LTD
RD NICHOLSON J 6 DECEMBER 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 6003 of 2001
BETWEEN:
ALBERT LITTLE ON BEHALF OF THE BADIMIA PEOPLE APPLICANTS
AND:
THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT
WILDBEACH CORPORATION PTY LTD SECOND RESPONDENT
JUDGE:
RD NICHOLSON J
DATE OF ORDER:
6 DECEMBER 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application by way of appeal be dismissed.
2.The second respondent have liberty to apply as to costs before 28 February 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 6003 of 2001
BETWEEN:
ALBERT LITTLE ON BEHALF OF THE BADIMIA PEOPLE APPLICANTS
AND:
THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT
WILDBEACH CORPORATION PTY LTD SECOND RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
6 DECEMBER 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicants appeal from determinations of the Hon E M Franklyn QC constituting the National Native Title Tribunal (“the Tribunal”) given on 9 May 2001 at Perth in which the…
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.
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AGLC
Little v Western Australia [2001] FCA 1706
Case
[2001] FCA 1706
Decision Date
CaseChat Overview and Summary
Little v Western Australia was a case heard in an Australian court where the dispute involved Little and the state of Western Australia. The nature of the dispute centred around objections raised by Little regarding the consideration of certain affidavits by the Tribunal in their determinations. The case was ultimately decided by the court, which had to address various legal issues, including the fairness of the Tribunal's process and the proper application of statutory provisions.
The primary legal issues the court had to decide were whether the Tribunal had acted fairly in its objections and if it had correctly applied the relevant sections of the Act. The court also had to determine whether the Tribunal erred in its decision-making process by not considering the protection status of Lake Moore under the Aboriginal Heritage Act. The appeal hinged on the interpretation of procedural fairness and the application of specific statutory provisions as outlined in the objections raised by Little.
In its reasoning, the court found that the submissions for the Grantee were correct. The court held that the Tribunal had indeed acted fairly and had properly applied the relevant statutory provisions. The court concluded that the Tribunal's decisions were not flawed and that the objections raised by Little were not well-founded. Consequently, the appeals were dismissed.
The final orders of the court were to dismiss the application by way of appeal and to grant the second respondent the liberty to apply for costs before a specified date. This decision effectively upheld the Tribunal's determinations and rejected Little's objections.
Orders
Orders of the court
1. The application by way of appeal be dismissed.
2. The second respondent have liberty to apply as to costs before 28 February 2002.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Tribunal then proceeded to its second determination which was also published on 9 May 2001. Evidence Two books of agreed documents were admitted into evidence on the hearing of this appeal. Included in the documents so admitted were affidavits of Messrs Hill and Davies, the tender of which had been rejected by the Tribunal. Additionally, there were affidavits of Messrs Fleet, Robinson and Bynder. Objections were taken on behalf of the Grantee to the tender of these latter three affidavits on the grounds that they were not material tendered to the Tribunal; were irrelevant to the issues raised in the appeal and contained material which is hearsay, speculation and assertion rather than evidence. Nevertheless, senior counsel for the Grantee accepted that these affidavits could be admitted for the limited purpose of being considered in relation to what the applicants contend should have been permitted by the Tribunal to have been placed in evidence. Examination of the affidavit of Mr Fleet shows that he describes himself as an anthropologist employee of the Council who has been engaged in conducting research and writing the connection report for the Badimia native title claim. He recounts conversations spoken to him in the course of that work and refers to a report and survey. His conclusion is that the Lake Moore area has a great cultural and spiritual significance to the Badimia people. The affidavit of Mr Robinson states that he is an anthropologist employed at The University of Western Australia. He gives evidence also relative to Lake Moore and supports the reasons why it is necessary to determine through an Aboriginal heritage survey involving Aboriginal people with traditional knowledge and responsibility for the area, whether Lake Moore has a special significance. The affidavit of Mr Bynder shows him to be a Badimia man. He gives evidence in relation to Lake Moore and its significance to Badimia people.Grounds of appeal There are three grounds of appeal. The first is that in determining the objection applications the Tribunal failed to accord procedural fairness to the applicants. The second is that the Tribunal erred in law in the reliance which it placed on ss 36(1) and (3) of the Act. Thirdly, in respect of the objection application the subject of the second determination, it is maintained that the Tribunal also erred in law in deciding the application without determining whether the Aboriginal Heritage Act protected area no 6 on Lake Moore situated within tenement E59/977. The second and third grounds of appeal relate to specific statutory provisions. The first ground of appeal requires an understanding of the statutory context within which the Tribunal was required to proceed in order to make the determinations. This is because “where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute”: Kioa v West (1985) 159 CLR 550 at 584 per Mason J.
Decision
Reasons for decision
In my opinion the submissions for the Grantee are correct.Conclusion For these reasons I consider that the appeals should be dismissed.