FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30

FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30

Section 66B of the Native Title Act 1993 (Cth) is the leading provision for the effect of the death of an applicant. Construed in context, the Act permits replacement of a deceased applicant without the registered claim or the deceased applicant's status as registered native title claimant lapsing before amendment of the Register. Accordingly, immediately before the grant of mining leases M74/169 and M74/172 there was a registered native title claimant. The declaration was also properly made because the mining leases had been granted and the status of the registered native title claimant immediately before grant was a real controversy with potential legal and practical consequences, not a...

Jurisdiction
Australia
Judgment Date
09 March 2011
Procedural Posture
Appeals From Federal Court Decision Granting Declaratory Relief in a Native Title Matter / Full Court Judgment on Appeals
Outcome
Appeals dismissed.
Legal Topics
['meaning of Registered Native Title Claimant' 'death of Applicant for Native Title Claim' 'register of Native Title Claims' 'future Acts and Right to Negotiate' 'declaratory Relief']
['native Title' 'statutory Interpretation' 'administrative Law'] ['meaning of Registered Native Title Claimant' 'death of Applicant for Native Title Claim' 'register of Native Title Claims' 'future Acts and Right to Negotiate' 'declaratory Relief']

Case Brief

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Procedural Posture

Appeals From Federal Court Decision Granting Declaratory Relief in a Native Title Matter / Full Court Judgment on Appeals

Legal Issues

  1. 1 ['Whether persons whose names appeared on the Register of Native Title Claims as the applicant continued to be the registered native title claimant after their deaths and pending replacement on the Register.' 'Whether the primary judge should have refused declaratory relief because, in the absence of a determination of native title, the dispute was hypothetical.']

Ratio Decidendi

Section 66B of the Native Title Act 1993 (Cth) is the leading provision for the effect of the death of an applicant. Construed in context, the Act permits replacement of a deceased applicant without the registered claim or the deceased applicant's status as registered native title claimant lapsing before amendment of the Register. Accordingly, immediately before the grant of mining leases M74/169 and M74/172 there was a registered native title claimant. The declaration was also properly made because the mining leases had been granted and the status of the registered native title claimant immediately before grant was a real controversy with potential legal and practical consequences, not a...

Court Disposition

Appeals dismissed.

Orders

  • ['In WAD 251 of 2010, the appeal be dismissed.' 'In WAD 251 of 2010, in the absence of written submissions to the contrary within 10 days, there will be no order as to costs.' 'In WAD 252 of 2010, the appeal be dismissed.' 'In WAD 252 of 2010, in the absence of written submissions to the contrary within 10 days,...