Cheinmora, Delores v Striker Resources NL & Ors Dann, Jack v The State of Western Australia & Anor [1996] FCA 1147

Cheinmora, Delores v Striker Resources NL & Ors Dann, Jack v The State of Western Australia & Anor [1996] FCA 1147

The Cheinmora appeal failed because the Tribunal did not ultimately impose an erroneous burden of proof, correctly treated sites of particular significance as sites of special or more than ordinary significance, correctly assessed major disturbance by broader community standards, was entitled to consider State legislative and administrative controls in predicting likely interference or disturbance, did not fail to consider ministerial discretions, and the Government party's prior consideration of s.237 was not a jurisdictional precondition. The Dann appeal succeeded only because the Tribunal had treated direct interference with community life under s.237(a) as physical interference,...

Jurisdiction
Australia
Judgment Date
19 December 1996
Procedural Posture
Appeals Under S.169(1) of the Native Title Act 1993 (cth) From National Native Title Tribunal Determinations Under S.32(4) That Proposed Grants of Exploration Licences Attracted the Expedited Procedure / Federal Court Appeal Heard and Determined
Outcome
Cheinmora appeal dismissed. Dann appeal allowed; the Tribunal's expedited procedure determination for Exploration Licence 04/998 set aside and remitted for determination of s.237(a) according to law.
Legal Topics
['future Acts' 'expedited Procedure' 'right to Negotiate' 'exploration Licences' 'native Title Tribunal Arbitral Function' 'community Life of Native Title Holders' 'areas or Sites of Particular Significance' 'major Disturbance to Land or Waters' 'aboriginal Heritage and Reserve Access Regulation']
['native Title' 'administrative Law' 'mining and Resources' 'statutory Interpretation'] ['future Acts' 'expedited Procedure' 'right to Negotiate' 'exploration Licences' 'native Title Tribunal Arbitral Function' 'community Life of Native Title Holders' 'areas or Sites of Particular Significance' 'major Disturbance to Land or Waters' 'aboriginal Heritage and Reserve Access Regulation']

Case Brief

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Procedural Posture

Appeals Under S.169(1) of the Native Title Act 1993 (cth) From National Native Title Tribunal Determinations Under S.32(4) That Proposed Grants of Exploration Licences Attracted the Expedited Procedure / Federal Court Appeal Heard and Determined

Legal Issues

  1. 1 ['Whether the National Native Title Tribunal imposed an erroneous burden or onus of proof on the native title parties in determining whether the expedited procedure applied.' 'Whether direct interference with community life under s.237(a) of the Native Title Act 1993 (Cth) is confined to physical and immediate interference.' 'Whether areas or sites of particular significance under s.237(b) must be of special or more than ordinary significance to native title holders in accordance with their traditions.' 'Whether major disturbance under s.237(c) is to be assessed by standards of the broader Australian community or by the standards of the native title parties.' 'Whether the Tribunal took into account irrelevant considerations by considering State legislation, ministerial powers, administrative procedures and guidelines concerning Aboriginal reserves and heritage sites.' 'Whether the Tribunal failed to take into account relevant considerations concerning ministerial discretion under the Aboriginal Heritage Act 1972 (W.A.) and related legislation.' "Whether the Tribunal's jurisdiction depended on proof that the Government party had considered and applied the s.237 criteria before including an expedited procedure statement in its s.29 notice."]

Ratio Decidendi

The Cheinmora appeal failed because the Tribunal did not ultimately impose an erroneous burden of proof, correctly treated sites of particular significance as sites of special or more than ordinary significance, correctly assessed major disturbance by broader community standards, was entitled to consider State legislative and administrative controls in predicting likely interference or disturbance, did not fail to consider ministerial discretions, and the Government party's prior consideration of s.237 was not a jurisdictional precondition. The Dann appeal succeeded only because the Tribunal had treated direct interference with community life under s.237(a) as physical interference,...

Court Disposition

Cheinmora appeal dismissed. Dann appeal allowed; the Tribunal's expedited procedure determination for Exploration Licence 04/998 set aside and remitted for determination of s.237(a) according to law.

Orders

  • ['In Delores Cheinmora v. Striker Resources NL, Australian United Gold NL, Mark J. Thompson and the State of Western Australia, No. WAG 6005 of 1995, the appeal be dismissed.' "In Delores Cheinmora v. Striker Resources NL, Australian United Gold NL, Mark J. Thompson and the State of Western Australia, No. WAG 6005...