FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49

Western Australia
Federal Court
Legislation considered: 
s 31 Native Title Act 1993 (Cth)
s 35 Native Title Act 1993 (Cth)
s 38 Native Title Act 1993 (Cth)

Spender, Sundberg and McKerracher JJ

The case concerned a review of a finding by the National Native Title Tribunal (NNTT) that a party did not fulfill its obligation to negotiate in good faith. It was concerned with the scope of the obligation to negotiate in good faith, in particular the relevance of the stage of negotiations and if there was a requirement to negotiate specifically about a future act.

The finding by the NNTT was that FMG had not fulfilled its obligation to negotiate in relation to a 'future' act in good faith. The NNTT concluded that by reason of this failure, it did not have jurisdiction to conduct an inquiry and to make a determination pursuant to s 38 of the Native Title Act 1993 (Cth).

The issue in this case is whether the proper construction of s 35, read with s 31(1)(b), gives the NNTT the power to make a s 38 determination regardless of the stage which negotiations have reached provided that the six month period referred to in s 35(1)(a) has elapsed and the negotiation party had negotiated in good faith during that period. The Court found that FMG had negotiated in good faith and that the NNTT had the power to make the s 38 determination even though only preliminary stages of negotiation had been reached.

The Court also found that FMG could negotiation in relation to the whole claim or project, and did not have to specifically negotiate the particular future act. 

The Court allowed the appeal and ordered that the decision of the NNTT be set aside.