Castledine Gregory Law and Mediation

Full Federal Court to decide extent of good faith negotiation obligation


On 8 December 2017, the Full Federal Court will hear an appeal by the Mount Jowlaenga Polygon #2 claim group from the decision of Barker J of the Federal Court in Charles on behalf of the Mount Jowlaenga Polygon #2 v Sheffield Resources Limited [2017] FCA 1126.


In that decision, Barker J rejected the claim group’s grounds of appeal from the National Native Title Tribunal’s determination in Sheffield Resources Ltd and another v Charles and others on behalf of Mount Jowlaenga Polygon #2 [2017] NNTTA 25 that the grantee party had negotiated in good faith with the claim group regarding its application for a mining lease.


The Native Title Act 1993 (Cth) requires the native title party, the State and the grantee party to negotiate in good faith for a minimum period of 6 months before an application can be made to the Tribunal for a determination as to whether the act (in this case, the grant of a mining lease) can be done.


In dismissing the appeal, Barker J found that:


  • a lack of good faith on behalf of the government or grantee party in negotiations after a future act determination application has been made is not fatal to the application proceeding; and


  • in this case, the relevant party’s conduct after filing the future act determination application did not influence the Tribunal’s conclusion regarding that party’s negotiation conduct prior to lodging the application.


The Full Federal Court’s decision will establish important guidelines on the question whether the parties have a continuing obligation to negotiate in good faith after a future act determination application has been made to the Tribunal.


We will provide a further update on this matter once the Full Court’s decision is known. For further information, please contact Emily Wilson or Graham Castledine.


Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.


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