Widjabul Wia-Bal v Attorney General of New South Wales (2020) 376 ALR 204

Between: Murray John Roberts, Reginald Leslie King, June Gordon, Michael Ryan, Jim Speeding, Queenie Speeding, Ashley Moran, Steven Roberts, Jenny Smith and Lois Johnson (Wibjabul Wia-Bal) (Applicants) and Attorney General of New South Wales, Byron Shire Council, Lismore Shire Council, Jali Local Aboriginal Land Council, New South Wales Aboriginal Land Council, NTSCORP Ltd, Telstra Corporation Ltd, Transgrid and Ngulingah Local Aboriginal Land Council (Respondents)

Judges: Reeves, Jagot and Mortimer JJ

Judgment:

Wibjabul Wia-Bal v Attorney General of New South Wales (2020) 376 ALR 204 (Wibjabul Wia-Bal) is an interlocutory (or interim) decision made during the mediation of a native title claim.

The Applicants, a native title claim group, and the Attorney General of New South Wales (the Attorney General) were in the process of negotiating an agreement for a determination of native title by consent. It was alleged that the Attorney General had breached an obligation to act in good faith in his conduct during mediation.

The application was dismissed due to lack of proof. However, the Full Court held that s 94E(4) of the Native Title Act 1993 (Cth) (the NTA) imposes a 'clear and unambiguous' duty on all to act in good faith in the mediation of a native title claim [38].

Background

The Applicants in Wibjabul Wia-Bal were the claim group for the Wibjabul Wia-Bal native title claim in New South Wales.

Proceedings for their native title claim were referred to mediation on 26 August 2015 [53]. On 25 May 2019, the Applicants made an interlocutory application to the Federal Court (the Application) for either a separate question to be answered or a declaration to be granted regarding the Attorney General's conduct in mediation.

The Application alleged that the Attorney General had breached an obligation of good faith owed to the Applicants under the NTA [1]. Specifically, it alleged that it was not in good faith to require the Applicants to agree to an Indigenous Land Use Agreement (ILUA) as a pre-condition of the Attorney General agreeing to the making of a native title consent determination [1].

Details of the judgment

The duty of good faith

Section 94E(5) of the NTA states that '[e]ach party, and each person representing a party, must act in good faith in relation to the conduct of the mediation [of native title claim proceedings].'

The Court held that the existence of a duty to act in good faith in the conduct of mediation was 'beyond argument' [36]. A breach of this duty might include conduct which is 'irrational, unreasonable, unfair or oppressive in all the circumstances' [72].

In particular, withholding consent to a native title determination in order to secure agreement on matters outside of the scope of the determination would constitute a breach of the duty to negotiate in good faith. Unless there is a genuine dispute about the existence of the claimed native title rights, consent could not be withheld in this way [38]. In the absence of such a dispute, parties cannot 'use the carrot of consent to the determination as leverage to secure agreement on other matters' [36].

'Horse trading' in good faith

Where there is a genuine dispute over claimed native title rights, the Court held that there is 'significant scope' for 'horse trading' [73].

In other words, negotiating for a mix of accepted native title rights and interests and other orders, or even for non-native title outcomes. Such negotiation would be in good faith because it would occur in light of the parties' genuine belief about the strengths and weaknesses of their respective legal positions [73].

Remedies

The Attorney General argued that, even if a duty of good faith existed, there was no legal remedy available for a breach of this duty.

The Court rejected this argument. Remedies against parties who breach this duty of good faith are similar to the remedies for an abuse of court process [39]. Examples of such remedies include an order that a person cease to be a party to the claim (under the NTA s 84(8)), and an order for costs to be paid (under the NTA s 85A(1)) (Flynn & Moss, 2020).

Application to the facts of the case

The Applicants did not provide the Court with the material given to the Attorney General to support their native title claim.

The Court did, however, have evidence that the Attorney General denied the existence of a 'credible basis' for some of the claimed native title rights. On the evidence available, the Court concluded that there was a genuine dispute about the existence of at least some of the claimed native title rights in this case [68].

The Court suggested that the Attorney General may still have breached the duty by insisting on an ILUA as a pre-condition to an agreement confined to those rights over which there was no dispute [71]. However, the lack of evidence before the Court about the material provided to the Attorney General and the terms of the draft ILUA made it impossible to properly evaluate the Attorney General's position.

As a result, the Court could not determine whether the Attorney General was irrational, unreasonable, unfair or oppressive in the circumstances or otherwise in breach of the duty of good faith [69].

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References

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