Brownley v State of Western Australia [1999] FCA 1139

Brownley v State of Western Australia [1999] FCA 1139

The Tribunal correctly understood that good faith under s 31(1)(b) is assessed objectively by considering the whole of the Government party's conduct, and there was material on which it could find that the State had made a genuine attempt to negotiate. Although the Tribunal misstated that it was not permitted to consider the reasonableness of offers except in a narrow sense, it assessed the State's overall conduct and found the proposals and conduct were not so unreasonable as to show absence of good faith. The applicants identified material that could have supported a contrary conclusion, but did not show that the Tribunal was bound to reach that conclusion or that reviewable error had...

Jurisdiction
Australia
Judgment Date
19 August 1999
Procedural Posture
Application for Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a National Native Title Tribunal Decision Concerning Negotiation in Good Faith Under the Native Title Act 1993 (cth) / Judgment on Application to Set Aside the Tribunal's Decision
Outcome
Application dismissed.
Legal Topics
['permissible Future Acts' 'proposal to Grant Mining Leases' 'obligation of Government Party to Negotiate in Good Faith' 'judicial Review of National Native Title Tribunal Decision' 'compensation, Environmental and Heritage Issues in Native Title Negotiations']
['administrative Law' 'native Title' 'mining Law'] ['permissible Future Acts' 'proposal to Grant Mining Leases' 'obligation of Government Party to Negotiate in Good Faith' 'judicial Review of National Native Title Tribunal Decision' 'compensation, Environmental and Heritage Issues in Native Title Negotiations']

Case Brief

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Procedural Posture

Application for Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a National Native Title Tribunal Decision Concerning Negotiation in Good Faith Under the Native Title Act 1993 (cth) / Judgment on Application to Set Aside the Tribunal's Decision

Legal Issues

  1. 1 ['Whether the National Native Title Tribunal erred in law in finding that the State had negotiated in good faith with the applicants as required by s 31(1)(b) of the Native Title Act 1993 (Cth).' 'Whether the obligation to negotiate in good faith required the State to make reasonable substantive offers or imported a subjective standard.' "Whether there was evidence to support the Tribunal's findings that the State negotiated beyond individual tenements and had negotiated in good faith." "Whether the State's position on compensation demonstrated an absence of good faith." 'Whether delay by the State in the course of negotiations demonstrated an absence of good faith.' "Whether the State's conduct concerning implementation of the Memorandum of Understanding and environmental and heritage proposals demonstrated an absence of good faith."]

Ratio Decidendi

The Tribunal correctly understood that good faith under s 31(1)(b) is assessed objectively by considering the whole of the Government party's conduct, and there was material on which it could find that the State had made a genuine attempt to negotiate. Although the Tribunal misstated that it was not permitted to consider the reasonableness of offers except in a narrow sense, it assessed the State's overall conduct and found the proposals and conduct were not so unreasonable as to show absence of good faith. The applicants identified material that could have supported a contrary conclusion, but did not show that the Tribunal was bound to reach that conclusion or that reviewable error had...

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' 'The parties are to file submissions on costs.']