Walley, Kevin v The State of Western Australia & Ors Taylor, Johnson v The State of Western Australia & Ors Collard, Donald & Anor v The State of Western Australia & Ors Smith, Clarrie v The State of Western Australia & Ors [1996] FCA 490

Walley, Kevin v The State of Western Australia & Ors Taylor, Johnson v The State of Western Australia & Ors Collard, Donald & Anor v The State of Western Australia & Ors Smith, Clarrie v The State of Western Australia & Ors [1996] FCA 490

Compliance by the Government party with the obligation to negotiate in good faith under s.31(1)(b) of the Native Title Act 1993 (Cth) is a condition precedent to making an application to the Tribunal under s.35 for a determination; accordingly, if such compliance has not occurred, the Tribunal lacks jurisdiction to determine the application and must dismiss it.

Jurisdiction
Australia
Judgment Date
20 June 1996
Procedural Posture
Administrative Law—application for Judicial Review / First Instance—federal Court Judgment on Orders of Review
Outcome
Third respondent's (Tribunal's) decision set aside; matters remitted for re-determination; costs awarded as specified.
Legal Topics
['obligation to Negotiate in Good Faith' 'condition Precedent for Tribunal Application' 'future Act Determination Under Native Title Act' 'procedural Requirements for Mining Lease Grants']
['native Title' 'administrative Law' 'mining Law'] ['obligation to Negotiate in Good Faith' 'condition Precedent for Tribunal Application' 'future Act Determination Under Native Title Act' 'procedural Requirements for Mining Lease Grants']

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Procedural Posture

Administrative Law—application for Judicial Review / First Instance—federal Court Judgment on Orders of Review

Legal Issues

  1. 1 ['Whether compliance by Government party with obligation to negotiate in good faith under s.31(1)(b) of the Native Title Act 1993 (Cth) is a condition precedent to application under s.35 for a Tribunal determination;' 'Whether the National Native Title Tribunal may proceed to determine an application if the Government party has not negotiated in good faith;' 'Whether the Tribunal can dismiss such an application on grounds of failure to negotiate in good faith.']

Ratio Decidendi

Compliance by the Government party with the obligation to negotiate in good faith under s.31(1)(b) of the Native Title Act 1993 (Cth) is a condition precedent to making an application to the Tribunal under s.35 for a determination; accordingly, if such compliance has not occurred, the Tribunal lacks jurisdiction to determine the application and must dismiss it.

Court Disposition

Third respondent's (Tribunal's) decision set aside; matters remitted for re-determination; costs awarded as specified.

Orders

  • ["Tribunal's decisions to refuse applicants' applications for dismissal of Government party's s.35 applications set aside in each proceeding." 'Each matter remitted to the Tribunal for re-determination in accordance with law.' "In WAG 6004 and WAG 6005, first and second respondents to pay applicant's costs." "In WAG...