Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors [1995] FCA 1165

Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors [1995] FCA 1165

The appeals raised substantial arguable questions about the construction of s.237, and the Tribunal had found that sites of significance existed within the proposed licence areas and that exercise of Exploration Licence rights may lead to interference with those sites. Because the exact locations of those sites had not been disclosed, there remained a risk of inadvertent or unintended interference, and success on appeal could be overtaken by events. Rather than imposing a general stay, the Court made a protective conditional order requiring any licences issued before the appeals were heard to include conditions protecting the sites unless agreements with the applicants already provided...

Jurisdiction
Australia
Judgment Date
14 December 1995
Procedural Posture
Appeals on Questions of Law Pursuant to S.169 of the Native Title Act 1993 (cth) From Determinations of the National Native Title Tribunal / Applications Under Sub S.170(2) of the Native Title Act 1993 (cth) to Stay the Effect of the Tribunal's Determinations Pending the Hearing of the Appeals
Outcome
Protective conditional orders made; liberty to apply; costs reserved.
Legal Topics
['future Acts' 'expedited Procedure' 'exploration Licences' 'stay Pending Appeal' 'sites of Particular Significance' 'national Native Title Tribunal Determinations']
['native Title' 'administrative Law' 'mining Law'] ['future Acts' 'expedited Procedure' 'exploration Licences' 'stay Pending Appeal' 'sites of Particular Significance' 'national Native Title Tribunal Determinations']

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Procedural Posture

Appeals on Questions of Law Pursuant to S.169 of the Native Title Act 1993 (cth) From Determinations of the National Native Title Tribunal / Applications Under Sub S.170(2) of the Native Title Act 1993 (cth) to Stay the Effect of the Tribunal's Determinations Pending the Hearing of the Appeals

Legal Issues

  1. 1 ['Whether the appeals raised an arguable case that the Tribunal erred in its construction and application of s.237 of the Native Title Act 1993 (Cth).' 'Whether a stay or protective order was necessary to prevent material circumstances changing so that success in the appeals might be negated.' 'Whether proposed Exploration Licences should be subject to conditions protecting sites of particular significance pending determination of the appeals.']

Ratio Decidendi

The appeals raised substantial arguable questions about the construction of s.237, and the Tribunal had found that sites of significance existed within the proposed licence areas and that exercise of Exploration Licence rights may lead to interference with those sites. Because the exact locations of those sites had not been disclosed, there remained a risk of inadvertent or unintended interference, and success on appeal could be overtaken by events. Rather than imposing a general stay, the Court made a protective conditional order requiring any licences issued before the appeals were heard to include conditions protecting the sites unless agreements with the applicants already provided...

Court Disposition

Protective conditional orders made; liberty to apply; costs reserved.

Orders

  • ['If the State pursuant to the determinations of the Tribunal the subject of these appeals, decides to issue an Exploration Licence or Licences pending the hearing of the appeals and the State is not satisfied at the time of issue of the Licences that the proposed licensees have made agreements with the applicants...