Justices North, McKerracher and Jagot
Appeal by State of Western Australia and FQM Australia Nickel Pty Ltd that the primary judge had erred in holding that there were registered native title holders in the mining lease areas of M74/169 and M74/172 (see Bullen v State of Western Australia [2010] FCA 900). One of the registered claimants was deceased and the primary judge held that the applicant in relation to a claim to hold native title in relation to land or waters continues to be the ‘registered native title claimant’ after the death of that person or persons. The appellants relied on s 28 of the Naive Title Act 1993 (Cth), which states that ‘the right to negotiate’ provisions apply is invalid to the extent that it affects native title unless one of the conditions in that section is satisfied. They also include circumstances where (s 28(1)):
By the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;
After the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act.
However, Justices North, McKerracher and Jagot noted that the decision involved reconciling the provisions of the NTA that assume that a registered native title claimant is a living person (s. 28(1)(b)) and other provisions that constitute a registered native title claimant as a representative or the native title claim group and can be replaced (s. 66B). They rejected the appellant’s argument noting that ‘the answer follows from the language of the statute construed in context.’