FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49

On the Tribunal's own findings, FMG negotiated conscientiously and bona fide with an open mind during the required six month period, and the fact that negotiations had reached only a preliminary or embryonic stage did not amount to a failure to negotiate in good faith because the Act imposes no requirement that negotiations reach any particular stage. FMG could satisfy s 31(1)(b) by negotiating on a whole of claim or ILUA basis where those negotiations included the proposed tenement and were conducted in good faith with a view to agreement to the future act. Accordingly, FMG fulfilled its good faith obligation and the Tribunal had power to conduct an inquiry and make a determination under...

Jurisdiction
Australia
Judgment Date
30 April 2009
Procedural Posture
Appeal From the National Native Title Tribunal Concerning a Future Act Determination Under the Native Title Act 1993 (cth) / Federal Court Full Court Appeal on Questions of Law
Outcome
Appeal allowed; National Native Title Tribunal decision set aside; declaration made that FMG fulfilled its obligation to negotiate in good faith and the Tribunal had power to conduct an inquiry and make a determination under s 38 of the Native Title Act 1993 (Cth).
Legal Topics
['future Acts' 'obligation to Negotiate in Good Faith' 'mining Lease' 'indigenous Land Use Agreement' 'national Native Title Tribunal Power to Make a Determination Under S 38']
['native Title' 'administrative Law'] ['future Acts' 'obligation to Negotiate in Good Faith' 'mining Lease' 'indigenous Land Use Agreement' 'national Native Title Tribunal Power to Make a Determination Under S 38']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From the National Native Title Tribunal Concerning a Future Act Determination Under the Native Title Act 1993 (cth) / Federal Court Full Court Appeal on Questions of Law

Legal Issues

  1. 1 ['Whether the Tribunal has power to make a determination under s 38 of the Native Title Act 1993 (Cth) regardless of the stage negotiations had reached, provided the six month period in s 35(1)(a) had expired and the negotiation party had negotiated in good faith during that period.' 'Whether a negotiation party can satisfy s 31(1)(b) by negotiating on a whole of claim basis where the whole of claim included the grant of the proposed tenement, rather than conducting negotiations specifically directed only to that future act.' 'Whether negotiations directed to an Indigenous Land Use Agreement which included the future act could also be relied upon as negotiations in good faith for s 31(1)(b).']

Ratio Decidendi

On the Tribunal's own findings, FMG negotiated conscientiously and bona fide with an open mind during the required six month period, and the fact that negotiations had reached only a preliminary or embryonic stage did not amount to a failure to negotiate in good faith because the Act imposes no requirement that negotiations reach any particular stage. FMG could satisfy s 31(1)(b) by negotiating on a whole of claim or ILUA basis where those negotiations included the proposed tenement and were conducted in good faith with a view to agreement to the future act. Accordingly, FMG fulfilled its good faith obligation and the Tribunal had power to conduct an inquiry and make a determination under...

Court Disposition

Appeal allowed; National Native Title Tribunal decision set aside; declaration made that FMG fulfilled its obligation to negotiate in good faith and the Tribunal had power to conduct an inquiry and make a determination under s 38 of the Native Title Act 1993 (Cth).

Orders

  • ['On the facts found by the National Native Title Tribunal, the applicant fulfilled its obligation to negotiate in good faith and the Tribunal had the power to conduct an inquiry and make a determination under s 38 of the Native Title Act 1993 (Cth).' 'The appeal be allowed and the decision of the National Native...