Widjabul Wia-Bal v Attorney General of New South Wales

• Jurisdiction: Australia Federal only
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] FCAFC 34
• Date: 10 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34

File number:	NSD 1213 of 2018
Judges:	REEVES, JAGOT AND MORTIMER JJ
Date of judgment:	10 March 2020
Catchwords:	NATIVE TITLE – interlocutory application – proposed separate question and/or declarations – whether State can require entry into an indigenous land use agreement as pre-condition of consent determination – duty to act in good faith in conduct of mediation – duty enforceable by appropriate remedy if duty breached – insufficient evidence to enable Court to find lack of good faith in conduct of mediation – application dismissed ; PRACTICE AND PROCEDURE – application of overarching purpose of the civil practice and procedure provisions pursuant to ss 37M and 37N Federal Court of Australia Act 1976 (Cth) – Court not confined to make order based on civil practice and procedure provisions for breach of duty – Court not confined to making costs order for breach of duty – Court has power to control its own processes
Legislation:	Evidence Act 1995 (Cth) s 131(2)(i) Federal Court of Australia Act 1976 (Cth) ss 23, 37M, 37M(3), 37N, 37N(1), 37N(2), 37N(4) Federal Court Rules 2011 (Cth) rr 6.01, 16.21, 26.01 Native Title Act 1993 (Cth) Preamble, ss 4, 4(7), 10, 13, 13(3), 24BA, 24BB, 24BC, 24BD, 24BE, 24CA, 24CB, 24CC, 24CD, 24CE, 24DB, 61, 66, 66(3)(a)(i), 66(3)(a)(ii), 66(3)(a)(iii), 66(3)(a)(iv), 66(3)(a)(v), 66(3)(a)(vi), 79A, 54, 84(3), 84(4), 84(5), 84(8), 85A, 85A(1), 86A, 86A(1), 86B(1), 86C, 86E, 86F, 87, 87(1), 87(1)(c), 87(2), 87(4), 87(5), 87A, 87A(4), 87A(5), 94A, 94D, 94D(4), 94E(5), 94P, 94Q, 133, 225 Native Title Amendment Act 2009 (Cth)
Cases cited:	Brown v South Australia [2010] FCA 875; (2010) 189 FCR 540 Charles v Sheffield Resources Ltd and Another [2017] FCAFC 218; (2017) 257 FCR 29 Irwin v Irwin [2016] FCA 1565 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184 Watson v Western Australia (No 6) [2014] FCA 545
Date of hearing:	19 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	77
Counsel for the Applicant:	Mr C Horan QC with Dr A Frith
Solicitor for the Applicant:	NTSCORP Limited
Counsel for the First Respondent:	Mr G Kennett SC with Ms T Jowett and Mr E Lee
Solicitor for the First Respondent:	Crown Solicitor’s Office

ORDERS

		NSD 1213 of 2018
BETWEEN:	WIDJABUL WIA-BAL Applicant
AND:	ATTORNEY GENERAL OF NEW SOUTH WALES (and others named in the Schedule) First Respondent

JUDGES:	REEVES, JAGOT AND MORTIMER JJ
DATE OF ORDER:	10 MARCH 2020

THE COURT ORDERS THAT:

1. The interlocutory application filed on 25 May 2019 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

The dispute

1. By an amended interlocutory application filed on 25 May 2019 the applicant, a native title claimant, seeks that a separate question be stated and answered and/or that declarations be granted in respect of the conduct of the first respondent, the Attorney General of New South Wales (the Attorney General). The substance of the proposed separate question and declarations is the same. They embody the applicant’s contention that, on the facts as have been proven, the Attorney General cannot lawfully require that the applicant agree an indigenous land use agreement (ILUA) as a condition of the Attorney General being willing to agree to the making of a native title determination by consent. According to the applicant, the Attorney General’s conduct is in breach of an obligation of good faith he owes to the applicant in relation to the negotiation of an agreement for a native title determination by consent.

2. We have decided that the applicant’s case, whether framed as a proposed separate question or declarations, fails for lack of proof. In short, the applicant has not proved a sufficient factual foundation to enable the Court to find that the Attorney General has acted other than in good faith in respect of the negotiation of an agreement enabling the Court to make a native title determination by consent. To understand why this is so it is necessary to explain both the statutory scheme for the negotiation of an agreement for a native title determination and the limited evidence which is before the Court.

The statutory scheme

3. The Preamble to the Native Title Act 1993 (Cth) (the NT Act) provides that:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b) proposals for the use of such land for economic purposes.

4. The Preamble thus establishes the intention of the Commonwealth Parliament that the ascertainment of native title rights and interests is to be achieved through a conciliatory process of negotiation, facilitated by governments, rather than by the conventional method of resolving disputes about rights through adversarial litigation.

5. Section 4 provides an overview of the NT Act including s 4(7) which, in part, says that:

This Act also:

(a) provides for the Federal Court to make determinations of native title and compensation; and

(aa) provides for the Federal Court to refer native title and compensation applications for mediation; and

(ab) provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

…

6. Section 10 provides that native title is recognised and protected in accordance with the NT Act.

7. By s 13 an application may be made to the Court for a determination of native title. A determination of native title is an approved determination of native title: s 13(3). Applications for an approved determination of native title are made in accordance with s 61 including, relevantly, an application by a native title claim group for a determination of native title.

8. By s 94A an order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in s 225 (which defines determination of native title).

9. Section 225 provides that:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of...