|
|
[Home] [Databases] [Search] [Feedback] [Help] |
|
Australian Indigenous Law Reporter |
Federal Court of Australia (Nicholson J)
9 February 2006
[2006] FCA 66
Aboriginal law — native title — right to negotiate — consolidation of native title applications — amendment of Act — whether claim met registration test under Amending Act — whether applicants retained the right to negotiate — duty to consider registration test pursuant to transitional provisions of Amending Act — whether prior decision should be distinguished — application granted — permanent injunction granted — Native Title Act 1993 (Cth) — Native Title Amendment Act 1998 (Cth)
The applicants registered six applications for native title before June 1996, pursuant to the Native Title Act 1993 (Cth) (the Act). The claims were later combined into one claim pursuant to s 64(2) of the Native Title Amendment Act 1998 (Cth) (the Amending Act).
Following the Amending Act, the first respondent issued notices under s 29 of the Act seeking the grant of mining tenements to land subject to the applications. The Native Title Registrar declared the applicants’ consolidated claim failed the registration test pursuant to s190A of the Act and removed the original claims from the Register of Native Title Claims.
The applicants sought a declaration that they were still registered as native title claimants under the Act. The applicants also sought a permanent injunction restraining the respondents from granting interests in land subject to the s 29 notices. The applicants submitted that the Amending Act included transitional provisions to protect claims registered prior to that date and that the applicants retained the right to negotiate over the s 29 notices. The respondents submitted that the prior decision of Bullen v State of Western Australia [1999] FCA 1490 was wrongly decided and should not be followed.
1. The prior decision was not clearly or plainly wrong, meaning that applicants retained the right to negotiate: [54], Bullen v State of Western Australia [1999] FCA 1490 applied.
2. The Amending Act contained transitional provisions to protect claims registered prior to that date. The transitional provisions in subitem 11(8)of the Amending Act envisage that steps must or may be taken by applicants to address the requirements of the registration test and to ensure the satisfactory compliance of documentation: [57].
3. Subitem 11(11) of the transitional provisions regarding retaining the right to negotiate, takes effect only where the application was made before 27 June 1996 and the s 29 notices was given under the Act: [58], Bullen v State of Western Australia [1999] FCA 1490 applied.
4. The applicants’ consolidation of the claim satisfactorily reflected an attempt to satisfy the criteria of the Amending Act, rather than a qualitive or quantitive change to the nature of the claim: [59]. Bullen v State of Western Australia [1999] FCA 1490, applied.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AILR/2006/7.html