State of Western Australia v Allen on behalf of Nyamal #1 [2021] FCA 574

State of Western Australia v Allen on behalf of Nyamal #1 [2021] FCA 574

The appeal failed because the Tribunal was entitled to treat the grantee party's submission, signed by its director, that major disturbances must be kept to a minimum and disclosed to the native title party as an assurance or admission relevant to the predictive assessment under s 237(c). It was open to the Tribunal...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 May 2021
Procedural Posture
Appeal on a Question of Law Under S 169(1) of the Native Title Act 1993 (cth) From a National Native Title Tribunal Expedited Procedure Objection Determination / Determined on the Papers
Outcome
Appeal dismissed.
Legal Topics
['expedited Procedure' 'right to Negotiate' 'exploration Licence' 'major Disturbance to Land or Waters' 'predictive Assessment' 'no Evidence Ground']
['native Title' 'mining and Resources' 'administrative Law'] ['expedited Procedure' 'right to Negotiate' 'exploration Licence' 'major Disturbance to Land or Waters' 'predictive Assessment' 'no Evidence Ground']

Source-derived case record

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Procedural Posture

Appeal on a Question of Law Under S 169(1) of the Native Title Act 1993 (cth) From a National Native Title Tribunal Expedited Procedure Objection Determination / Determined on the Papers

Legal Issues

  1. 1 ['Whether the National Native Title Tribunal erred in law by failing to undertake the predictive assessment required for a determination under s 32(4) of the Native Title Act 1993 (Cth).' "Whether there was no evidence to support the Tribunal's determination that the proposed grant of the exploration licence was not unlikely to involve major disturbance to land or waters." "Whether the Tribunal was entitled to rely on the grantee party's submission that major disturbances would be kept to a minimum as an admission or assurance relevant to s 237(c) of the Native Title Act 1993 (Cth)."]

Ratio Decidendi

The appeal failed because the Tribunal was entitled to treat the grantee party's submission, signed by its director, that major disturbances must be kept to a minimum and disclosed to the native title party as an assurance or admission relevant to the predictive assessment under s 237(c). It was open to the Tribunal to conclude from that assertion that the grantee party seemed to assert a right to cause major disturbance if kept to a minimum, and therefore it was not satisfied that there was no likelihood of relevant major disturbance. Reliance on that material was not an error of law and did not amount to making a finding without evidence.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'There be no order as to costs.']