Dann, Jack v The State of Western Australia & Anor [1997] FCA 332

CATCHWORDS NATIVE TITLE - proposed future act - whether proposed future act is an act attracting the expedited procedure - whether grant of exploration licence does not involve major disturbance - meaning and effect of "the act does not" - whether National Native Title Tribunal (the "tribunal") required to make a predictive assessment - whether tribunal required to examine the nature of the rights created - tribunal required to assess future act according to its nature - legal character of future act relevant, not intended future activities - assessment of "major disturbance" - whether tribunal required to consider cultural concerns of Aboriginal peoples - "major disturbance" to be given ordinary meaning as understood by community generally - views and concerns of Aboriginal peoples relevant to determination of whether major disturbance - assessment of major disturbance - burden of proof - whether burden of proof incorrectly imposed on native title party - no legal burden of proof on parties - standard of proof - whether major disturbance likely - "real chance" test not appropriate. Native Title Act 1993, ss 226(2), 233(1), 234, 235, 237, 253, Aboriginal Heritage Act 1972 (WA), s 18, Mining Act 1978 (WA), s 63AA, 63, 66 Land Act 1933 (WA), s 116 Ward v Western Australia (1996) 136 ALR 557, cited State of Western Australia v Ward (1996) 141 ALR 753, cited Dann v Western Australia (1996) 142 ALR 21, cited Western Australia v Bropho (unreported, 18 November 1996) cited Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited JACK DANN - v - THE STATE OF WESTERN AUSTRALIA & GPA DISTRIBUTORS No WG 3 of 1997 Wilcox, Tamberlin, RD Nicholson JJ Sydney Heard in Perth 8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No WG 3 of 1997 GENERAL DIVISION ) ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JACK DANN Appellant AND: THE STATE OF WESTERN AUSTRALIA First Respondent GPA DISTRIBUTORS Second Respondents CORAM: WILCOX, TAMBERLIN & RD NICHOLSON JJ PLACE: SYDNEY (Heard in Perth) DATED: 8 MAY 1997 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The matter be remitted to the National Native Title Tribunal for further determination in accordance with law. 3. The first respondent pay the appellant's costs. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.