Glencore Coal Pty Limited v Franks [2021] FCAFC 61 (27 April 2021) (Reeves, Perry and Abraham JJ)


Catchwords:


PRACTICE AND PROCEDURE – application for release from implied Harman undertaking with respect to expert report borne out of mediation process in discontinued native title proceedings – report sought to be used by Glencore Coal for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act) by former applicants in the native title proceeding – where s 10 of Heritage Act concerns an exercise of executive power of a largely political character – consideration of circumstances in which a release from the implied Harman undertaking has been granted and applicable principles – whether primary judge erred in declining to exercise discretion to grant release from implied Harman undertaking – where strong public interest exists in ensuring Aboriginal peoples are not deterred from agreeing to the use of court processes in native title proceedings to assist in resolving their claims – appeal dismissed