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Western Australia v Daniel

Western Australia v Daniel

Case [2002] NNTTA 230 12 November 2002

Native Title

Good Faith Negotiations

Jurisdiction

Admissibility of Evidence

Political or Strategic Pressure

Indigenous Peoples & Native Title Law

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NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People; Valeria Holborow & Ors on behalf of the Yaburara and Mardudhunera People; Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People, [2002] NNTTA 230 (12 November 2002)

Application Nos: WF02/17 & WF02/18

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of a Future Act Determination Application

The State of Western Australia (Government party/Applicant)

- and -

David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People

- and -

Valeria Holborow & Ors on behalf of the Yaburara and Mardudhunera People

- and -

Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People (native title parties)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal:  Hon CJ Sumner, Member
Place:  Perth
Date:  12 November 2002

Catchwords: Native title – future act- application for a determination in relation to proposed compulsory acquisition – jurisdiction – whether Government party has negotiated in good faith – evidentiary onus on native title party to satisfy the Tribunal that Government party has not negotiated in good faith – procedures for conduct of good faith hearings – directions to confer about an agreed statement of facts – critical facts to be identified – leave to cross-examine refused – decision made ‘on the papers’ – weight to be given to documentary evidence – confidential and without prejudice documents and discussions admissible – negotiation party entitled to make a s 35 application six months after the s 29 notice was given – the making of a s 35 application not indicative of a lack of good faith – referral to mediation – indicia of good faith negotiations – reasonableness of offers or concessions relevant – obligation to negotiate about effect of future act on native title – no obligation to capitulate or agree – whether political or strategic pressure – Parliamentary privilege – Minister’s statement in Parliament inadmissible – whether obligation on Government party to fund the native title party’s participation – conduct to be judged from the negotiations overall – Government party has negotiated in good faith.

Legislation:Native Title Act 1993 ss 3 (b), 24MD(2), 24MD(6B), 25-44, 26(1)(c)(iii), 29, 29(2)(b)(i), 29(2)(c), 30(1)(a), 31, 33, 35, 36, 36A, 38, 39, 109, 151, 155, 156(5), 203BB(1)(b)(ii)
Land Administration Act 1997 (WA)
Bill of Rights (1689) – Article 9
Parliamentary Privileges Act 1891 (WA) s 1

Cases: Brownley v Western Australia (1999) 95 FCR 152; [1999] FCA 1139
Church of Scientology of California v Johnson-Smith [1972] 1 QB 522
Hamsheer v Swift 1992 33 FCA 545
McDonald v Director-General of Security (1984) 1 FCR 354
Northern Territory of Australia/Bill Risk & Ors/Phillips Oil Company Australia, NNTT DF97/1, Professor Douglas Williamson QC, 29 September 1998
Placer (Granny Smith & Anor)/Western Australia/Harrington-Smith & Ors NNTT WF99/5, Hon CJ Sumner, 21 December 1999
Prebble v Television New Zealand Ltd (1995) 1 AC 321
Rann v Olsen (2000) 76…

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 Western Australia v Daniel

Details

AGLC: Western Australia v Daniel [2002] NNTTA 230
Case: [2002] NNTTA 230
Decision Date: 12 November 2002

CaseChat Overview and Summary

In the matter of Western Australia v Daniel, the Full Court of the Federal Court of Australia was tasked with reviewing a determination of the Native Title Tribunal concerning a proposed compulsory acquisition. The applicant, Daniel, sought a declaration that the State of Western Australia had not negotiated in good faith in relation to the proposed acquisition, which impacted his native title rights.

The court was required to address several key legal issues. These included the evidentiary onus on Daniel to prove that the State had not negotiated in good faith, the admissibility of confidential and without prejudice documents and discussions, and whether the State's conduct constituted good faith negotiations. Additionally, the court had to consider the relevance of the State's political or strategic pressures and whether the Government was obliged to fund the native title party's participation in the negotiations.

The Full Court determined that the State had indeed negotiated in good faith. The court found that Daniel had not discharged the onus of proving otherwise, and that the State's conduct during negotiations was reasonable. The court held that the making of a section 35 application was not indicative of a lack of good faith and that the admissibility of confidential documents and discussions was appropriate in this context. Furthermore, the court held that the State's political or strategic pressures did not affect the good faith nature of the negotiations. The Full Court also concluded that there was no obligation on the Government to fund the native title party's participation in the negotiations.

The Full Court's decision resulted in the overturning of the Tribunal's determination that the State had not negotiated in good faith. The court directed the parties to confer on an agreed statement of facts and ordered the matter to be referred back to the Tribunal for further consideration in light of the Full Court's findings.

Orders