Evans, Ted Comanoo & Anor on Behalf of the Koara People v State of Western Australia & Ors [1997] FCA 741

Evans, Ted Comanoo & Anor on Behalf of the Koara People v State of Western Australia & Ors [1997] FCA 741

The Tribunal erred in law by construing s48 and s50 of the Native Title Act 1993 (Cth) as precluding the imposition of a compensation condition under s38(1)(c) other than under Division 5. The Tribunal has the power to impose such conditions which are to be held in trust in accordance with s41(3) until paid per s52. However, the Tribunal cannot adjourn to impose conditions or assessments at a later stage post-determination, nor can it require arbitration to set substantive conditions, nor can it leave conditions unresolved by requiring only negotiation without further sanction. Conditions 3.1-3.7, which only provide for negotiation without ensuring resolution, fail to meet legislative...

Jurisdiction
Australia
Judgment Date
08 August 1997
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part; matter remitted to Tribunal for determination according to law; costs to be determined.
Legal Topics
['future Acts Determinations' 'compensation for Native Title' 'tribunal Powers and Conditions' 'delegation of Arbitral Functions' 'certainty and Validity of Conditions' 'public Interest Test in Mining Approvals']
['native Title' 'mining Law' 'administrative Law'] ['future Acts Determinations' 'compensation for Native Title' 'tribunal Powers and Conditions' 'delegation of Arbitral Functions' 'certainty and Validity of Conditions' 'public Interest Test in Mining Approvals']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the Tribunal has power to impose a compensation condition under s38(1)(c) of the Native Title Act 1993 (Cth) other than in accordance with Division 5' 'Whether the Tribunal can adjourn assessment of negotiated compensation for future determination' 'Whether the Tribunal can impose further conditions at the mining stage' 'Whether the Tribunal may require arbitration at the mining stage as a condition' 'Whether conditions providing for negotiation without sanction are valid' 'Whether the Tribunal applied the public interest test correctly']

Ratio Decidendi

The Tribunal erred in law by construing s48 and s50 of the Native Title Act 1993 (Cth) as precluding the imposition of a compensation condition under s38(1)(c) other than under Division 5. The Tribunal has the power to impose such conditions which are to be held in trust in accordance with s41(3) until paid per s52. However, the Tribunal cannot adjourn to impose conditions or assessments at a later stage post-determination, nor can it require arbitration to set substantive conditions, nor can it leave conditions unresolved by requiring only negotiation without further sanction. Conditions 3.1-3.7, which only provide for negotiation without ensuring resolution, fail to meet legislative...

Court Disposition

Appeal allowed in part; matter remitted to Tribunal for determination according to law; costs to be determined.

Orders

  • ['The matter be remitted to the Tribunal to be heard and decided again in accordance with the law with or without the hearing of further evidence as the Tribunal shall decide.' 'Counsel be heard as to costs.']