Walley v WA

Case [1996] FCA 490


C A T C H W O R D S

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.

Native Title Act 1993 (Cth) ss.26, 29, 31, 35, 147, 148

North Ganalanja Aboriginal Corporation v. Queensland (1996) 135 ALR 225
Parisienne Basket Shoes Pty Ltd v. Whyte (1937) 59 CLR 369
R. v. Blakeley; Ex parte Association of Architects (1950) 82 CLR 54
R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers & Ors (1949) 78 CLR 529
Scurr v. Brisbane City Council (1973) 1 ALR 420

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

  1. 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…

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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.

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