NATIVE TITLE - "future act" - proposed grant of mining leases - registered native title claim to the affected land - Government party obliged to negotiate in good faith with a view to obtaining agreement of native title parties - right of negotiation parties (including Government party) to apply to arbitral body (National Native Title Tribunal) if no such agreement within six months - Tribunal to determine whether future act may be done - whether compliance by Government party with its obligation to negotiate in good faith is a condition precedent to an application to the Tribunal for a determination.
KEVIN WALLEY v. THE STATE OF WESTERN AUSTRALIA and WESTERN MINING CORPORATION LTD and NATIONAL NATIVE TITLE TRIBUNAL No. WAG 6004 of 1996
JOHNSON TAYLOR v. THE STATE OF WESTERN AUSTRALIA and GARY MULLAN and NATIONAL NATIVE TITLE TRIBUNAL No. WAG 6005 of 1996
DONALD COLLARD & ANOR v. THE STATE OF WESTERN AUSTRALIA and AZTEC MINING COMPANY LTD and FORRESTANIA GOLD NL and NATIONAL NATIVE TITLE TRIBUNAL No. WAG 6006 of 1996
CLARRIE SMITH v. THE STATE OF WESTERN AUSTRALIA and PLUTONIC (BAXTER) PTY LTD and NATIONAL NATIVE TITLE TRIBUNAL No. WAG 6007 of 1996
CARR J. PERTH 20 JUNE 1996
IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY )No. WAG 6004 of 1996 GENERAL DIVISION )
B E T W E E N : KEVIN WALLEY
Applicant and
THE STATE OF WESTERN AUSTRALIA
First Respondent and
WESTERN MINING CORPORATION LIMITED
Second Respondent and
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
No. WAG 6005 of 1996
JOHNSON TAYLOR
Applicant and
THE STATE OF WESTERN AUSTRALIA
First Respondent
GARY MULLAN
Second Respondent
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
No. WAG 6006 of 1996
DONALD COLLARD & ANOR
Applicant and
THE STATE OF WESTERN AUSTRALIA
First Respondent
AZTEC MINING COMPANY LTD and FORRESTANIA GOLD NL
Second Respondents
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
No. WAG 6007 of 1996
CLARRIE SMITH
Applicant and
THE STATE OF WESTERN AUSTRALIA
First Respondent
PLUTONIC (BAXTER) PTY LTD
Second Respondent
NATIONAL NATIVE TITLE TRIBUNAL
Third Respondent
CORAM: CARR J. PLACE: PERTH DATE: 20 JUNE 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
A.Kevin Walley v. The State of Western Australia and Western Mining Corporation Ltd and National Native Title Tribunal:
No. WAG 6004 of 1996
The third respondent's decision, on 8 March 1996, to refuse the applicant's application for an order dismissing the first respondent's application under s.35 of the Native Title Act 1993 (Cth) for a determination, be…
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 Walley v WA
Sign in free to access the full text
Details
AGLC
Walley v WA [1996] FCA 490
Case
[1996] FCA 490
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Carr J. presided over four cases: Walley v. The State of Western Australia and Western Mining Corporation Ltd and National Native Title Tribunal (WAG 6004 of 1996), Johnson Taylor v. The State of Western Australia and Gary Mullan and National Native Title Tribunal (WAG 6005 of 1996), Donald Collard & Anor v. The State of Western Australia and Aztec Mining Company Ltd and Forrestania Gold NL and National Native Title Tribunal (WAG 6006 of 1996), and Clarrie Smith v. The State of Western Australia and Plutonic (Baxter) Pty Ltd and National Native Title Tribunal (WAG 6007 of 1996). The applicants in these cases sought to have the National Native Title Tribunal's decision to refuse their applications for an order dismissing the Government party's application for a determination under s.35 of the Native Title Act 1993 (Cth) set aside. The applicants argued that the Government party had not negotiated in good faith with the native title parties and the grantee parties as required by s.31(1)(b) of the Act. The applicants contended that compliance with s.31(1)(b) was a condition precedent to the making of an application under s.35 of the Act. The respondents, however, argued that there was no such condition precedent. The central issue before the court was whether the Government party's obligation to negotiate in good faith was a condition precedent to the making of an application under s.35 of the Act. The court found that the Government party's obligation to negotiate in good faith was indeed a condition precedent to the making of an application under s.35 of the Act. The court held that if the Government party had not complied with its obligation under s.31(1)(b), none of the parties could move to the next stage of making an application under s.35 for a determination. The court further held that the Tribunal erred in law by deciding that it did not have the power to dismiss such an application on the ground that the Government party had not negotiated in good faith. The court set aside the Tribunal's decision not to consider the matter and remitted the matter to the Tribunal to decide whether the Government party had complied with the obligation to negotiate in good faith. If the Government party had not complied with the obligation, the application should be dismissed under s.148 of the Act. If the Tribunal found that there had been such compliance, the normal procedures of inquiry and determination should take place as required by the Act.