Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188

Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 

Between: Jonathon Malone & Ors on Behalf of the Western Kangoulu People (Applicant) and State of Queensland & Ors (Respondent)  

Judge: O'Bryan J    

Judgment: This was an interlocutory application seeking to strike out the State's response to the Western Kangalou People's application for a native title consent determination.

The Court dismissed the application, finding that the Respondent, in refusing to agree to the native title determination, did not:

• act inconsistently with the overarching purpose of civil litigation (Part VB of the Federal Court of Australia Act 1976 (Cth) (the FCA Act));
• abuse the court process;
• fail to act in good faith as required under s 94E(5) of the Native Title Act 1993 (Cth) (the NTA); or
• breach its duties under its own state Model Litigant Principles (see below). On this ground, the Court held that the Queensland Model Litigant Principles are internal guidelines for state litigants; they do not create rights and, therefore, cannot be used to strike out the State's response [74].

The Queensland Model Litigant Principles consist of three guidelines that establish a norm of conduct for State actors within the context of legal proceedings. Accordingly, the State is to:

• adhere to principles of fairness;
• adhere to principles of firmness; and
• not commence litigation unless other methods of dispute resolution have been considered.

Background

The Western Kangoulu filed their native title application on 9 May 2013.

In February 2019, the parties' expert anthropologists attended two conferences, with both making separate reports concluding that the Western Kangoulu could show that their claim to native title was evidenced [2].

Subsequently, the Applicant sought a consent determination in the Federal Court. The State of Queensland (the State) responded in May 2019, asserting that the Western Kangoulu claim lacked a 'credible basis' and refused to enter into negotiations with the claimant. 

Details of the Judgment

Applicant's submissions

The Western Kangalou claim group submitted that there was a credible basis for a consent determination based on the anthropologists' consensus that they had maintained a connection to the land and that the State's refusal to enter into an agreement was:  

• inconsistent with the overarching purpose of civil litigation (Part VB of the FCA Act);
• an abuse of process under general law principles; 
• a failure to act in good faith contrary to the legislative intent of s 94E(5) of the NTA; and
• a breach of the State's Model Litigant Principles

 State's submissions

The State submitted that its response had been proper, fair, and appropriate and that it was also required to test native title claims appropriately [64]. 

Decision

The Court found that the State had not acted in bad faith, nor had it acted inconsistently with the FCA Act or breached the Model Litigant Principles [84]. 

The Court dismissed the application.

Reasons for the decision

Community interests

The Court held that as a respondent to a native title claim, the State must represent the interests of the community. To support this proposition the Court referred to Munn for and behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (Munn) [68]. The Court in Munn held that the State was acting in the best interests of the community if the State had given proper consideration to the evidence upon which the Applicant relied. This reasoning was followed in the current interlocutory application. O'Bryan J was satisfied that in refusing to enter into an agreement with the Western Kangalou people, the State had considered the interests of the community [71]. 

Credible basis

The Court also noted that the State must be satisfied that there is a credible basis for the claim. This his Honour noted was in accordance with North J's judgment in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA (Lovett) [68]. In Lovett, at [37], North J said that a court must be satisfied that the State has taken steps to satisfy that there is a credible basis for a native title application.

In the current interlocutory application, O'Bryan J was satisfied that the State had taken all necessary steps to satisfy that there was no credible basis for an application. This was because the State's solicitors had outlined its view in a letter to the Applicant stating that the basis for the opinions expressed in the expert reports were not apparent. Further, that having considered the totality of the material, the State was not satisfied that the relevant society was understood, that the composition of the claim group was settled, or that there was continuing acknowledgment of traditional law and custom and connection to the claim area [38].

Good faith

O'Bryan J was not satisfied that the State in rejecting that the claim has a credible basis was not acting in good faith [82]. This is because the State is expected to test all claims and has consistently maintained their position that it does not accept that there is a credible basis to the Applicant's native title claim. 

Model Litigant Principles

Related Entries

References

Glossary