Federal Court of Australia
The Nyamal Palyku Proceeding (No 7) [2023] FCA 528
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. On or before 9 June 2023, each of the Nyamal applicant, the Palyku applicants and the State of Western Australia do file and serve a minute of proposed orders to give effect to these reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J:
1 Competing applications for the determination of native title over an area of land to the north of Nullagine and to the south of Marble Bar in the Eastern Pilbara region of Western Australia have been brought by applicants on behalf of the Nyamal and the Palyku respectively. Adopting the description of the parties, I will refer to the area as the Overlap Area.
2 The trial of a separate question was ordered to determine the holders of native title in the Overlap Area, subject to any extinguishment. The parties actively participating in the trial of the separate question were the Nyamal applicant, the Palyku applicants and the State of Western Australia. As contemplated by the Native Title Act 1993 (Cth), the Nyamal applicant and each of the two Palyku applicants were comprised of a group of authorised individuals with authority to conduct the native title applications. The other parties to the relevant proceedings did not take an active part in the trial of the separate question and agreed to abide by the orders of the Court in relation to the separate question.
3 On the trial of the separate question the question posed was: 'But for any extinguishment of native title, who are the persons holding the native title rights and interests (as defined in s 223 of the Native Title Act) in the [Overlap Area]'. The separate question was formulated in that way because native title had already been determined in favour of the Nyamal for the area to the north of the Overlap Area and for the Palyku for the area to the south of the Overlap Area. The issue between the parties was whether those determined native title interests extended into the Overlap Area and, if so, how far. Each of the Nyamal and the Palyku claimed native title as to the whole of the Overlap Area.
4 The position of the State has been that it accepts that native title rights and interests are held in the Overlap Area and the issue to be resolved is the identity of the people who hold those rights and interests. The consequence of that position is that the controversy as between the parties actively participating in the trial of the separate question has been about identifying the right people for that country.
5 However, during the trial of the separate question, the Nyamal applicant and the Palyku applicants as well as the State came to recognise the possibility that if the evidence was insufficient to establish native title in respect of some or all of the Overlap Area then native title may not be determined to exist for that part of the Overlap Area.
6 The fact that the separate question posed a boundary issue of the kind just described assumes some significance as the context in which subsequent contentious events unfolded. The significance lies in the fact that the issue in dispute was confined to the extent of native title rights and interests that were otherwise accepted to exist.
Agreement at mediation
7 Preservation evidence for the purposes of the determination of the separate question was taken in December 2021. In May and June 2022 all other evidence was taken. Save for closing submissions, the trial of the separate question concluded on 30 June 2022.
8 At the direction of the Court, the active parties in the conduct of the trial of the separate question participated in a mediation convened at Gratwick Hall in Port Hedland on 30 June and 1 July 2022 (Mediation). The Mediation was conducted by a judicial registrar of the Court with substantial experience in native title matters. In attendance were legal representatives, authorised individuals from amongst those comprising the Nyamal applicant and the Palyku applicants and some of the claim group members for each of the claim groups.
9 The Mediation resulted in an agreement subject to endorsement at both Nyamal and Palyku native title claim group meetings. With the agreement of the legal representatives of the Nyamal applicant and the Palyku applicants, the mediation outcomes were communicated by the registrar to the Court by a report dated 5 July 2022. It referred to the parties having reached an 'in-principle agreement' that was 'subject to endorsement at both Nyamal and Palyku native title claim group meetings' that were to occur by 4 August 2022. It will be necessary, in due course, to refer to the detail of the report of the Mediation.
10 The native title group meetings were convened and held on 3 August 2022. Thereafter, on 5 August 2022, the legal representatives for the active parties in the trial of the separate question sent an agreed joint email communication to the judicial registrar (5 August Email). Amongst other things, the email said that the outcome of the native title group meetings was 'that the Nyamal and Palyku Applicants now seek to have consent determinations made in respect of the whole of [the Overlap Area]'. The email also said:
In light of these matters, we do not consider that it will be necessary for his Honour to consider or determine any substantive matter at the case management hearing on Monday 8 August 2022.
11 A minute of proposed orders that the parties requested be made at that case management hearing was attached. The minute provided for the order for the determination of the separate question to be vacated, for all outstanding directions as to the conduct of the hearing of separate question to be vacated and for the proceedings to be referred for case management by the registrar 'with reference in particular to the form and timing of the proposed consent determinations as outlined in the attached map'.
12 The attached map was a detailed map that had been prepared by the National Native Title Tribunal depicting the boundaries of the Overlap Area. The map also depicted a line which divided the Overlap Area into two areas, one to the north and one to the south. The area to the north was identified as 'Nyamal native title determination area' (Area N) and the area to the south was identified as 'Palyku native title determination area' (Area P). The line appeared to be drawn with considerable accuracy by reference to identifiable features depicted on the map. However, precise coordinates of the kind ordinarily used in a consent determination as to the existence of native title had not been prepared at that time.
13 The Court made orders in accordance with the enclosed minute.
14 The proper characterisation of what occurred thereafter is contentious. Broadly speaking, the position of the Nyamal applicant is that no legally binding agreement was reached and it was doing no more than participating in a good faith process to negotiate and agree further matters that were necessary in order to make the consent determinations as contemplated. It now wants to end that process and resume the trial of the separate question. The position of the Palyku applicants is that there was a binding agreement which it was proceeding to carry into effect. It seeks to proceed with its claim on the basis of the agreed terms.
Nyamal applicant disavows agreement
15 For a time, the parties took steps to arrange the consent determination. However, by sometime in September a number of key Nyamal people had concerns about whether they were doing the right thing. Eventually, there were meetings in October 2022 that culminated in a Nyamal native title claim group meeting held on 10 October 2022 (October Nyamal Meeting). Those present at the October Nyamal Meeting resolved to no longer support the decision of the native title group meeting on 3 August 2022 to settle the native title claims to the Overlap Area and expressed their desire that the question whether anyone holds native title be determined by the Court. The fact of the meeting and the resolution that had been passed were promptly communicated to the Court.
Competing interlocutory applications
16 By interlocutory application dated 24 October 2022, the Nyamal Applicant sought orders that would result in a reinstatement of the trial for the determination of the separate question. By interlocutory application dated 11 November 2022, the Palyku applicants sought orders summarily dismissing the Nyamal application insofar as it related to Area P of the Overlap Area, alternatively a costs order. At the hearing of the interlocutory applications, affidavit evidence was received on the basis that it was evidence in each of the interlocutory applications.
17 After the decision on the competing interlocutory applications was reserved, the Court raised further issues for consideration which focussed upon what was to occur in relation to the determination of native title in respect of Area N if an order was made to summarily dismiss the claim by the Nyamal applicant over Area P (being the relief sought by the Palyku applicants on their interlocutory application). In particular, an issue was raised as to whether any order for summary dismissal of the claim over Area P by the Nyamal applicant should only be made if a determination of native title in favour of the Nyamal applicant could be made over Area N. Concern was also raised as to what was to occur if there was an appeal against any summary dismissal order. The view was expressed that the most efficient way forward would be for the Court to receive closing submissions on the separate question on a provisional basis. The Court would then deliver its decision on the interlocutory applications and, if appropriate, its reasons on the separate question.
18 A further case management hearing to consider these matters was convened on 12 April 2023. At that hearing, it was the position of all parties that they did not wish to proceed with any closing submissions on a resumed trial of the separate question until the interlocutory applications had been determined. In addition, the Palyku applicants and the State both confirmed that they would support a consent determination in favour of the Nyamal applicant over Area N if the summary dismissal application by the Palyku applicants was upheld. In short, if the Palyku applicants succeeded on their summary dismissal application, there would be no need to make evidentiary findings based upon the evidence that had been received on the trial of the separate question in order to determine the application by the Nyamal applicants over Area N. Further, it was the position of all parties that there were no known extinguishment issues in respect of the Overlap Area and any such issues that may arise before any consent determination could be the subject of a confined separate hearing with the outcome being accommodated by the terms in which the relevant consent determination was expressed.
19 At the conclusion of that further hearing, I indicated that I would provide to the parties certain further topics that had arisen concerning the interlocutory applications and would invite further submissions. A letter was sent to the parties on 14 April 2023 communicating questions which the parties were invited to address by way of further submissions. In addition to receiving written submissions as to those questions, a further hearing for the interlocutory applications took place on 11 May 2023 to receive oral submissions.
20 At the further hearing, no party contended that there was a form of agreement for the purposes of s 87 of the Native Title Act. Significantly for present purposes, that provision requires agreement as to the terms of an order to which all the parties to the proceedings are parties. Further, the agreement must be in writing, signed by or on behalf of the parties and the agreement must be filed with the Court. Plainly, there was no compliance with these requirements.
21 Rather, the contention advanced by the Palyku applicants was that there had been an agreement reached with the Nyamal applicant as to the terms on which the subject matter of the separate question would be resolved, namely by determining that there was the requisite connection to Area N on the part of the Nyamal and to Area P on the part of the Palyku. It was the existence of that agreement that provided the main foundation for the orders sought by the Palyku applicants on their interlocutory application. In that regard, as has been noted, the trial of the separate question did not give rise to any real issue as to the nature and extent of any native title rights and interests but rather concerned which, if any, people held such rights and interests in respect of the Overlap Area.
22 The position of the Palyku applicants was to the effect that the agreement that had been reached dealt with connection issues and that the Nyamal applicant had committed the Nyamal in a binding and enforceable way to a manner of resolution of the separate question. Further, the State had indicated that it was an agreed position that it would support. It was submitted that if contentious issues arose concerning extinguishment (which was unlikely as there were no known issues that still required adjudication) then those issues could be addressed in due course - just as they would have been required to be addressed if the separate question had been adjudicated by the Court rather than agreed.
23 Further, it was contended that there was an obligation on the part of the Nyamal to carry the agreement into effect by acting reasonably and in good faith in attending to the matters that were necessary to be addressed in order for the competing applications to be resolved by way of consent determination. That is, having made the agreement concerning the areas where the requisite connection existed for the purposes of a determination of native title, the Nyamal were bound to act consistently with that agreement in all future dealings concerning the determination of native title in respect of the Overlap Area. For its part, the Palyku accepted that it had assumed the same obligation. Hence its position that it would support an application for a consent determination in favour of the Nyamal in respect of Area N.
24 It was also submitted for the Palyku applicants that the consent that was communicated to the Court by the 5 August Email operated as a form of admission that could not be withdrawn without leave of the Court. Further, any application for leave to do so should be refused.
25 The Palyku applicants also sought to characterise what the Nyamal applicant now sought to do as a change of position that was not consistent with its obligations to act in good faith in the conduct of the Mediation, was in breach of its obligations under the Federal Court of Australia Act 1976 (Cth) in the conduct of the proceedings and was an abuse of process.
26 The position of the Nyamal applicant was that there was no agreement to a consent determination. Further, the consent that was communicated to the Court on 5 August 2022 was no more than a consent to orders bringing an end to the trial of the separate question without any determination. On the basis that the orders were interlocutory, it submitted that the Court had authority to undo the effect of the orders as made on 5 August 2022 if it was persuaded it was appropriate to do so. The Nyamal applicant maintained that it did not need leave to withdraw its consent to those orders in order to be able to seek orders reinstating the trial of the separate question. However, if it was determined that orders reinstating the determination of the separate question could not be made without such leave being given, then the Nyamal applicant sought such leave.
27 As to the consent that was communicated by the 5 August Email, the Nyamal applicant contended that it was appropriate to take that step having regard to the outcome of the Mediation and what had occurred at the native title group meetings. Indeed, it said that it was required to report to the Court on what had happened at those meetings and that given the point that had been reached in the determination of the separate question it was appropriate for it to consent to orders that would bring that process to an end so that the parties could pursue arrangements for a consent determination. It was submitted that the orders consented to and made did no more than provide for the parties to pursue a consent determination path which came with no guarantees that such an outcome might be able to be concluded by way of an agreement. The Nyamal applicant said that by consenting it was committing to no more than going down the path to seek to agree the terms of a consent determination. Inherent in that submission was a recognition that it had assumed an obligation to participate in the process, which was to give effect to the outcome of the Mediation, in good faith. It maintained that it had done so and that the change in heart on the part of the members of the Nyamal native title claim group was undertaken sincerely and for cultural reasons and was not simply a change of position.
28 The Nyamal applicant maintained that the orders vacating the order for the separate question (and vacating the other programming orders for final submissions) did not commit the Nyamal applicant to a consent determination and, at the time of the making of the consent orders (and now) there were matters that could arise that would require further agreement in order for there to be a consent determination in accordance with the statutory procedure in s 87 of the Native Title Act. In effect, the position of the Nyamal applicant was that the orders ending the trial of the separate question were provisional and were made in circumstances where it was expected that the trial of the separate question might be reinstated (and resumed from where it had been ended) if the parties did not reach agreement as to the final terms of a consent determination.
29 The following contentions were advanced to support a submission that the agreement that had been reached at the Mediation (and confirmed at the native title claim group meetings) was no more than an in-principle agreement or otherwise was not sufficiently certain to be enforced:
(1) the description in-principle agreement had been used by the parties to describe the nature of their agreement;
(2) any agreement to a consent determination of native title could only be made in accordance with the procedure set out in s 87 of the Native Title Act and to find that there may be an enforceable agreement to consent to a determination in circumstances where the requirements of s 87 had not been met would be to undermine the statutory scheme;
(3) the process of reaching a written agreement with all parties to the competing native title applications for the purposes of making a consent determination under s 87 was one which might be derailed by unexpected events with one example being the possibility that another party may seek to be heard on the outcome of the applications;
(4) the boundary depicted on the map provided to the Court by the parties and attached to the orders made on 5 August 2022 was indicative and the boundary still had to be 'bedded down';
(5) as part of the agreement, areas were indicated by small blue circles on the map (as identified by the Palyku applicant at the time that agreement was reached) in respect of which there was to be an application for formal registration through the heritage process, those areas were indicative only and the way in which the making of the applications would work was a matter for discussion;
(6) the Nyamal and the Palyku having agreed that they would split certain identified mining royalties, there was a need to agree arrangements as to the payment of those royalties in order to ensure their 'workability'; and
(7) after the communication in the 5 August Email the parties had proceeded to negotiate the terms of a deed of agreement which supported the position that there were still matters requiring agreement.
Issues for determination
30 Accordingly, the following issues arise for determination:
(1) Did the parties conclude a binding and enforceable agreement?
(2) Can the Palyku applicants rely upon any such agreement to prevent the Nyamal applicant from continuing to apply for a determination of native title in respect of Area P?
(3) What is the effect of the consent by the Nyamal applicant to the order vacating the order for the trial of a separate question?
(4) Having regard to the answers to (1) to (3), should the application by the Nyamal applicant to native title in respect of Area P be summarily dismissed?
(5) If no to (4), would the course proposed by the Nyamal applicant be: (a) an abuse of the process of the Court; (b) a breach of the duties imposed by s 37N(1) of the Federal Court Act; or (c) a breach of the duty to act in good faith in the conduct of the mediation under s 94E(5) of the Native Title Act?
(6) Having regard to the answer to (5) should the application by the Nyamal applicant to native title in respect of Area P be summarily dismissed?
31 It was accepted that if the Palyku applicants were unable to insist upon summary dismissal of the claim by the Nyamal applicant over Area P then it was appropriate for the orders sought by the Nyamal applicant to be made. However, in that event, the Palyku applicants sought an order for costs (being, in effect, an order for costs thrown away on the basis that the costs of the Mediation, the costs of convening the Palyku native title claim group meeting on 3 August 2022 and the costs of seeking to give effect to the agreement had all been wasted if the trial of the separate question was to proceed). Therefore, depending on the determination of Issues (4) and (6), there may be a further issue as to those costs.
The factual circumstances
32 For the most part, the factual circumstances as to the dealings between the parties are not contentious. I make the following findings as to those facts.
33 Over the course of the proceedings there have been a number of unsuccessful attempts to resolve the competing claims by mediation.
34 The parties were directed by the Court to participate in the Mediation which took place immediately after the conclusion of the taking of evidence in the trial of the separate question.
35 The Mediation was held in Port Hedland on 30 June and 1 July 2022. Representatives of the Nyamal applicant, the Palyku applicants and the State participated. Other members of the claim groups were in attendance. Each party was represented by counsel who had participated in the hearing of the separate question. An agreement, described as an in-principle agreement, was reached between the Nyamal applicant and the Palyku applicants.
36 On 5 July 2022, orders were made varying the terms of the separate question to make clear that the question was not confined to identifying who held native title rights and interests in the Overlap Area but included the question whether anyone held native title. This was a matter that had been raised with the parties during the trial of the separate question.
37 Also on 5 July 2022, a report as to the outcome of the Mediation was provided to the Court by the judicial registrar. It reported that the parties had reached an in-principle agreement. The report stated that the legal representatives of the Nyamal and the Palyku had agreed that the section of the report titled 'Mediation Outcomes' could be reported to the Court. It also stated that the legal representatives of the State had confirmed, subject to final instructions, that they supported the proposed resolution of the matter in the terms agreed between the applicant parties.
38 On the basis of the above statements, the report of the mediation outcomes has been accepted by those parties as an accurate statement of the outcomes that were agreed at the Mediation.
39 The report of the mediation outcomes stated that the parties were able to reach an in-principle agreement 'as set out below' and reflected on an attached map. It then stated: 'this in-principle agreement is subject to endorsement at both Nyamal and Palyku native title claim group meetings of the Nyamal and the Palyku' to occur by 4 August 2023.
40 The in-principle agreement identified (a) an area to be determined as Nyamal country; (b) an area to be determined as Palyku country; (c) an area in the immediate vicinity of Nullagine in respect of which the Court was to make a determination based upon the terms of a more confined separate question (Red Area); and (d) areas where it was intended that there be application for formal registration through the heritage process to allow for heritage protection (Blue Areas).
41 Therefore, the in-principle agreement described in the mediation report (as reflected in the map provided with the report) contemplated that the trial of the separate question would continue but that it would be confined to a small part of the Overlap Area, namely the Red Area around Nullagine as depicted on the map. Significantly, the Red Area was wholly surrounded by the area that, under the terms of the in-principle agreement, was to be determined as Palyku country.
42 The precise terms in which the in-principle agreement were reported were as follows;
5. The parties were able to reach an in-principle agreement as set out below and reflected on the map labelled Map NPP attached to this mediation report. It is noted this in-principle agreement is subject to endorsement at both Nyamal and Palyku native title claim group meetings. These meetings are to occur by 4 August 2022.
6. The Map NPP reflects the agreement the Applicant parties have reached in respect of the whole of the disputed area and this map shows areas which are to be:
a) determined as Nyamal country;
b) determined as Palyku country;
c) an area outlined in red in respect of which there is to be an answer by the Court to the separate question:
Pursuant to Rule 30.01 of the Federal Court Rules 2011 (Cth), the following question (Separate Question) is to be decided separately from any other question in the Nyamal Palyku Proceeding:
But for any question of extinguishment of native title, who are the persons (if anyone) holding the native title rights and interests (as defined in s 223 of the Native Title Act) in that part of the Nyamal Palyku Proceeding Area that is outlined in red on the attached map.
Noting this is the wording of the revised expression of the separate question, as agreed by the Court and the parties on Thursday 30 June 2022 with additional changes suggested by the parties and intended to reduce the area to which the separate question relates in accordance with [6(c)] above; and
d) Areas marked by small blue circles where it is intended that sites identified by the Palyku Applicant be formally registered through the heritage process to allow for heritage protection.
7. The parties have agreed that, in relation to existing mining agreements, the Nyamal retain benefits accruing under the Mt Webber mining agreement and, in respect of the Sanjeev and McPhee Creek tenement areas, any agreements negotiated or currently existing will be shared between both Nyamal and Palyku equally.
43 As to the Red Area, in early July 2022 (immediately after the provision of the mediation report) the Court raised concerns as to the difficulties that might arise if the parties proposed a consent determination which left, in effect, an island of disputed country around Nullagine that was surrounded by an area that was agreed by the Nyamal applicant to be the subject of Palyku native title rights and interests. The concern was to the effect that if such a course was followed and the Court was to be asked to make the consent determination as proposed in circumstances where there was to be an ongoing dispute as to the Red Area then that may be a reason why the consent determination should not be made. Or it may be a reason why the making of any consent determination would have to await the outcome of the determination of the more confined separate question in respect of the Red Area - because any such determination may have consequences for whether a consent determination could be made in the terms proposed. No reason of traditional law and custom under which native title rights and interests may be possessed was advanced as to why a resolution of the area surrounding the Red Area might be different to that for the Red Area. These matters were a significant part of the context in which the native title group meetings were convened and held on 3 August 2022.
44 Separate native title claim group meetings were held almost a month later, on 3 August 2022. On the day of the meetings there were communications between the groups concerning what was to occur in respect of the Red Area around Nullagine. Both meetings endorsed the terms of the in-principle agreement with one change, namely that the Red Area would be determined as Palyku country by consent rather than determined by the Court. This meant that the parties had reached agreement as to the whole of the Overlap Area.
45 I interpose to observe that no issue arises as to the manner in which the native title claim group meetings were convened or the procedure followed to reach agreement. In particular, it was not contended that the decision reached at the Nyamal native title claim group meeting did not conform to the requirements for a group decision or somehow lacked the requisite authority of the group.
46 The terms in which the resolutions were passed at the Nyamal native title claim group meeting included the following:
Endorsement of in-principle agreement
Given the Palyku People passed the resolution read out by [counsel for Nyamal], the Nyamal people endorse the in-principle agreement recorded in the mediation report dated 5 July 2022 with the following amendments:
…
the area outlined in red on the map attached to the mediation report be included as part of the Palyku area with the intention that this area will be included in a Palyku consent determination of Native Title.
47 The above resolution was passed with 63 votes in favour, 27 against and no abstentions.
48 After the native title group meetings, the 5 August Email was sent by the solicitors on the record for the Nyamal applicant to a registrar of the Court as 'as an agreed communication between the Nyamal Applicant and the Palyku Applicants'. It was copied to the State Solicitor's Office acting for the State. The 5 August Email was in the following terms:
We refer to the mediation report you filed on 5 July 2022 ('mediation report').
We write formally to advise the Court that separate meetings of the Nyamal native title claim group and the Palyku native title claim group took place in Port Hedland on Wednesday 3 August 2022, as foreshadowed in Outcome 5 of the mediation report.
The outcome of those meetings is that the Nyamal and Palyku Applicants now seek to have consent determinations made in respect of the whole of Nyamal Palyku Proceeding Area, that is without the need for the Court to determine whether native title exists in any part of that area. The Applicant parties have agreed that the area that was to be the subject of a separate question as foreshadowed in Outcome 6 of the mediation report ought to be included in the area to be determined as Palyku country. A map reflecting the revised proposed consent determination areas is attached to this email. We confirm the First Respondent has been informed of this further agreement and is content with it.
The parties thank you for your presence in Port Hedland on the day of the meetings and for your involvement in the meetings; it provided continuity from the mediation on 30 June and 1 July 2022 and underscored the importance of the matters that were addressed at the meetings.
In light of these matters, we do not consider that it will be necessary for his Honour to consider or determine any substantive matter at the case management hearing on Monday 8 August 2022.
We attach a minute of proposed orders that both Applicants and the First Respondent request be made at the case management hearing.
49 The reference in the 5 August Email to the parties having agreed that 'the area that was to be the subject of a separate question' was to be included in the area that was to be determined to be Palyku country is a reference to the Red Area around Nullagine that had been depicted on the map provided as part of the report of the outcome of the Mediation.
50 The minute attached to the 5 August Email provided for the order for the trial of the separate question as well as the orders as to the further conduct of the trial of the separate question to be vacated and for an order that:
The proceedings are referred for case management by the Registrar with reference in particular to the form and timing of the proposed consent determinations as outlined in the attached map, with a case management hearing to take place at a date and time fixed by the Registrar, but, in any event, before [insert date].
The minute of orders was signed by the solicitors for the Palyku applicants and the State respectively. The consent of the solicitors for the Nyamal applicant to those orders may be inferred from the fact that they sent the 5 August Email to the Court.
51 On 5 August 2022, orders in terms of the minute attached to the 5 August Email were made by consent of the parties to the trial of the separate question. As has been noted, those orders included an order vacating the order that there be a trial of the separate question.
52 Thereafter, the legal representatives for the parties took steps to arrange the proposed consent determination, including attending case management conferences before a Registrar for that purpose. Tenure information and submissions for a consent determination were exchanged. A draft consent determination was prepared. A draft deed of agreement dealing with non-native title matters was also prepared and exchanged between the solicitors for the Nyamal applicant and the Palyku applicants. Arrangements were made for the National Native Title Tribunal to prepare technical boundary descriptions and mapping to reflect the boundary that had been agreed.
53 On 25 September 2022, Ms Doris Eaton, a Nyamal elder, informed the solicitor with the carriage of the conduct of the proceedings for the Nyamal applicant that while she voted for the in-principle agreement at the claim group meeting she felt very bad about it and did not want to go ahead with the settlement. Later, Mr Tony Taylor and Mr Willy Jumbo expressed a similar view to the solicitor. Ms Eaton, Mr Taylor and Mr Jumbo are senior members of the Nyamal native title claim group.
54 Thereafter, various steps were taken by certain Nyamal people which culminated in a meeting of the Nyamal native title claim group on 10 October 2022, being the October Nyamal Meeting. Notice had been given that re-consideration of the in-principle agreement was to be considered at the meeting. The registrar who had conducted the Mediation was informed of these developments.
55 At the October Nyamal Meeting, those present decided to adopt a different decision-making process to that which had been followed at the meeting that had been held on 3 August 2022. It involved those present breaking up into apical ancestor groups with each group then voting on the proposed resolution.
56 The following resolution was passed at the October Nyamal Meeting:
Members of the Nyamal people present at this meeting no longer support the decision of the Nyamal meeting on 3 August 2022 to settle the native title overlap between Nyamal and Palyku, and would like the Judge to decide whether anyone holds native title in the whole of the overlap area.
57 The voting on the resolution recorded votes by the ancestor descendants of 25 out 33 apical ancestors as listed in the native title determination that had been made in favour of Nyamal people for the land to the north of the Overlap Area. The outcome was 24 votes in support of the resolution and one against. It was not in issue that a vote counted on the basis of individuals for and against would also have been overwhelmingly in favour of the resolution.
58 The resolution was not itself a repudiation of the agreement that had been reached. It was a statement of the position of the Nyamal native title claim group. However, the necessary consequence of the resolution was that unless the group met again and committed to the proposed consent determination, the Nyamal native title claim group would not provide authority to support a consent determination. On the evidence before the Court, even assuming that a majority of the persons comprising the Nyamal applicant wished to proceed to a consent determination in the agreed terms, the authority of the Nyamal applicant does not extend to consenting to a determination. Their appointment was on the basis that they would require decisions of that character to be made at Nyamal community meetings.
59 The resolution of the October Nyamal Meeting was communicated to the Court on 11 October 2022.
60 Again, I interpose to observe that no issue was raised as to the manner in which the October Nyamal Meeting was convened or the procedure followed at the meeting or the authority of those present at the meeting to pass the resolution for the Nyamal native title claim group represented by the Nyamal applicant.
Other evidence from the Nyamal
61 Affidavit evidence was received from three Nyamal people concerning their change of heart about the agreement reached with the Palyku concerning the Overlap Area. I make the following findings based on that evidence.
62 Ms Doris Eaton is a senior women's leader in Nyamal law business. Before the Mediation, she had participated in a number of other attempts to resolve the competing claims to the Overlap Area by agreement. By reason of her experience in those earlier attempts and the matters stated in her affidavit, I infer that she understood that the purpose of the Mediation was to seek to reach a compromise to resolve the dispute between the Nyamal and the Palyku by agreeing the boundary between the competing claims. Further, in infer that Ms Eaton understood that the purpose of making a compromise was so that determinations of native title would be made on the basis of that agreement.
63 Ms Eaton's sense of connection to country is spiritual. In her words, the spiritual connection is 'like a hidden connection' that exists even though she does not live in the Overlap Area. The sincerity of these views was not in issue.
64 Ms Eaton said that her view always had been that the Overlap Area is Nyamal country and that you cannot give your country away to anyone else because this was what she had been taught by the old Nyamal people. I do not accept this statement as evidence of some form of absolute cultural obligation that would prevent compromise of a boundary dispute in any circumstance. In that regard, Ms Eaton's understanding at the time of the Mediation of the purpose of the Mediation and her subsequent participation in the Nyamal native title claim group meeting on 3 August 2022 are inconsistent with such an absolute position. Importantly, there was no evidence adduced from which a more general finding might be made as to matters of traditional Nyamal law and culture concerning the resolution of boundary disputes.
65 I consider below the intersection between matters of traditional law and culture and the conferral upon this Court of a jurisdiction to adjudicate disputes as to whether native title exists and to make a determination of native title in the circumstances provided for by the Native Title Act. An understanding of that intersection is essential to the resolution of the competing interlocutory applications presently before the Court.
66 Ms Eaton was in two minds as to what to do at the Mediation. She says that she was sitting on the fence and that her personal feeling was that she did not want to reach an agreement. These feelings are understandable and to be expected given the importance of the subject matter. However, they do not detract from the fact that informed instructions were given to reach the in-principle agreement reached at the Mediation.
67 Evidence was given as to a conversation that Ms Eaton had with Ms Ursula Wilson another Nyamal native title claim group member in the course of the Mediation and as to certain discussions that Ms Eaton says that she had with her lawyers. However, Ms Eaton accepts that instructions were given at the Mediation, in her words, 'to give away half the country'. She says she cannot remember how this happened. As she accepts that the instructions were given, I do not see any relevance in her evidence as to these conversations or that she cannot remember what occurred.
68 Ms Eaton participated in the Nyamal native title claim group meeting on 3 August 2022. She was the only elder to speak at that meeting. She accepts that there was a vote at the meeting to support the decision to agree a line dividing the Overlap Area and to include the Red Area in the country to be determined as Palyku country. She understood the nature and effect of the resolution at the time. Again, she was conflicted as to what to do, but even so, Ms Eaton participated in the meeting without objection and voted to support the decision.
69 After the meeting she felt guilty and left the meeting with a bad feeling. She explains what happened the night after the meeting in the following way:
I had a dream that night and woke wondering what the hell did I do. It was a spiritual dream. I believe the spirits are alive - that is how I was brought up. I believe that something bad could happen to me and my family in a spiritual way because I gave the country away. The bad feeling did not go away. I still have it now. Like a guilty conscience. I feel like I stole something.
I accept that Ms Eaton has a sincere view that these experiences are a spiritual consequence of the decision in which she participated that was reached at the meeting on 3 August 2022.
70 Ms Eaton sought to give evidence about her subsequent conversations with elders and senior Nyamal people about what had happened at the Nyamal native title claim group meeting. Those people were not at the meeting and did not provide affidavit evidence. I accept that evidence but only to the extent that it concerns who was present at the meeting. Otherwise, I place no reliance on the hearsay evidence as to what others thought about the agreement that had been reached. If it was to be relied upon in any significant way then those persons should have provided affidavit evidence. Further, if it was said that there were particular beliefs held by senior people that were founded on traditional law and culture that were relevant in some way to the determination of the issues raised by the interlocutory applications then the evidence needed to be expressed in those terms.
71 Therefore, there was no evidence from which it might be concluded that there was some form of absolute barrier as a matter of traditional Nyamal law and culture that prevented a compromise being reached about the boundary between Nyamal and Palyku country. The significance of a proposition of that kind and its consequence for mediations under the Native Title Act would need to be carefully considered having regard to the scheme of the legislation (as to which, see below).
72 Ms Eaton described the events of the October Nyamal Meeting. I accept that there were elders in attendance at that meeting who were not at the meeting on 3 August 2022. I also accept that the elders in attendance at the meeting took a more prominent role in conducting the meeting than had been the case for the 3 August 2022 meeting.
73 Ms Eaton concluded her affidavit with the following statement:
I still feel overturning the decision made on 3 August 2022 is the right thing to so. I am asking myself the question whether we will get the Overlap Area back for Nyamal people. I will feel really sad if Nyamal do not get native title for that area. If that happens, at least it will be the judge who decides we do not have native title; we will not be responsible for giving the country away.
74 I accept that Ms Eaton has genuinely held beliefs based in her own understanding of traditional law and culture that have caused her personally to be greatly troubled about the decision that was made on 3 August 2022. However, the evidence falls short of establishing a law and culture reason for the Nyamal people as a group not to adhere to the agreement that was reached in order to compromise the boundary dispute the subject of the separate question.
75 Mr Willie Jumbo is a member of the Nyamal Applicant. He is a senior lawman for Nyamal and an elder, but is not a senior elder in the high category of law and culture for Nyamal. He participated in the Mediation. He supported the agreement reached at the Mediation because he was worried that Nyamal might lose the court case about the Overlap Area.
76 Before the October Nyamal Meeting there was a meeting of the Nyamal Council of Elders. It was held on 3 October 2022. Ms Eaton and Mr Jumbo and others attended. At that meeting, Ms Eaton said that she wanted to go back to Court for the Overlap Area and all the other elders supported her. They all said that the Overlap Area was Nyamal country. Mr Jumbo is also of the view that he just wants to see what the Court decides. He understands that there is a risk that the Court will decide against Nyamal. He does not identify any traditional law and culture reason why the Nyamal elders or the Nyamal people were not able to make an agreement to resolve the boundary dispute.
77 Ms Ursula Wilson is a Nyamal person. She claims to have a connection to the Nullagine area. Her family made separate claims to land around Nullagine and to the west. They removed their claims to an area to the south west of Nullagine including an area known as the Saddle Area and joined the Nyamal claim which included the land around Nullagine. She is still upset about removing the claim to the Saddle Area. She says that she felt like she was giving country away when she agreed to remove her claim to that area. The Saddle Area forms part of the land that has been determined to be Palyku country.
78 In the Mediation, Ms Wilson insisted on going to Court about the Red Area (being the area around Nullagine). She maintained that her family could not give away their country around Nullagine.
79 At the Nyamal native title claim group meeting on 3 August 2022, Ms Wilson voted against including the Red Area in the area that was to be agreed to be Palyku country. She was not happy with the decision. The majority, in her words, 'voted against my family'. After that Ms Wilson wanted to stop what was happening.
80 Ms Wilson was very happy with the decision made at the meeting on 10 October 2022 and felt that everyone had supported her family 'this time around'.
Other evidence for the Palyku
81 For the Palyku applicants, Mr Peter Jaffrey provided an affidavit. He is an applicant member for each of the Palyku applicants. I make the following findings as to his evidence.
82 Mr Jaffrey was involved in making offers to settle the dispute about the Overlap Area in May 2019 and in April 2022. The offers were difficult for him to make because he believes the whole of the Overlap Area to be Palyku country. He made the offers in a spirit of compromise and to protect Palyku country.
83 As to the Mediation, Mr Jaffrey was in attendance and involved in the decision to compromise and agree about the line on the map. He agreed to the line because it would guarantee that some of the overall area that he believed to be Palyku country would be protected. His statement that 'in our customs, when you make an agreement you can't go back on it' was not challenged. Similarly to the evidence of Ms Eaton, this evidence was given in a manner that makes it difficult to reach any conclusion as to whether there was a law and culture reason why an agreement about the Overlap Area reached in the circumstances that have been described must be adhered to by the parties to the agreement.
84 Mr Jaffrey has strong feelings about the Overlap Area but his view is that having compromised their claims the Palyku should not go back on their agreement. He is distressed by what is happening and is worried that the Palyku might end up with no country to protect.
Relevant provisions of the Native Title Act concerning mediation
85 The Native Title Act is an exceptional piece of legislation. The Preamble to the Act sets out the considerations taken into account by Parliament when enacting the law. It is a significant contextual statement that informs an understanding of all that follows. It begins by recognising the progressive dispossession of Aboriginal peoples and Torres Strait Islanders from their lands 'largely without compensation' or 'lasting and equitable agreement … concerning the use of their lands'.
86 The Preamble refers to the rejection by the High Court of the doctrine by which Australia was once considered to be a land that belonged to no-one at the time of European settlement. It states that 'the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands'. It then states: 'It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests'. Significantly for present purposes it then says:
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.
87 The Preamble then articulates responsibilities of Governments including that they 'should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to … claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders'.
88 In that context, the Preamble expresses Parliament's intention in the following terms:
The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.
89 The main objects of the Native Title Act include establishing 'a mechanism for determining claims to native title': s 3(c).
90 Even allowing for the way in which the Preamble presents the legislation through the lens of the responsibilities of the dispossessors to rectify the consequences of past injustice, when it comes to ascertainment of native title rights and interests the Preamble commits to conciliation as the manner in which that will occur or otherwise to 'a manner that has due regard to [the] unique character [of such rights and interests]'.
91 Section 10 of the Native Title Act provides: 'Native title is recognised, and protected, in accordance with this Act'. The terms of this provision reflect a fundamental premise upon which the legislation is based, namely that the common law of Australia 'recognises a form of native title that reflects the entitlement of indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands' which 'is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests': Preamble. Therefore, native title does not owe its existence to the common law or any governmental act. Rather, its juridical existence is founded entirely in traditional law and custom.
92 Nevertheless, the Native Title Act provides for the mechanisms by which native title will be determined to exist for the purposes of the system of laws that have applied in Australia since sovereignty. In particular, the Native Title Act entrusts to this Court a jurisdiction to made determinations as to the existence of native title: s 81. The making of those determinations requires an adjudication as to whether rights and interests possessed under traditional laws and customs at the time of effective sovereignty are recognised by the common law of Australia (because they have continued, allowing for adaption in accordance with those laws and customs, since effective sovereignty, without extinguishment). If such rights or interests are found to exist in relation to a particular area then the Court determines the relevant characteristics of those rights and interests, including their nature and extent and the people who hold them. In effect, the Court's determination both recognises the continued existence of those rights and interests and states them in a form that enables and ensures their recognition under and for the purposes of the system of laws applying by reason of the assertion of sovereignty.
93 In exercising this unique jurisdiction, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders but not so as to prejudice unduly any other party to the proceedings: s 82(2). This is a significant provision that applies to all aspects of the proceedings conducted by the Court in respect of an application for determination of the existence of native title. It affords more than cultural respect. It reflects the character of the jurisdiction as one which is concerned with a mechanism by which the observance of the norms of traditional law and custom (being one system of laws) may be adjudicated according to the precepts and processes of a common law system (being a different system of laws). It involves the exercise of judicial power to determine the nature and extent of any interests in land that are to be recognised. However, uniquely, by operation of s 82(2), that judicial power may be exercised in a manner that takes account of cultural and customary concerns where to do so would not unduly prejudice any other party, that is will not prejudice their right to a judicial determination according to law.
94 Therefore, in every respect when considering an application for the determination of the existence of native title, the Court should not resort in an unqualified way to the practices and procedures that it would ordinarily observe in exercising its jurisdiction. It must always have regard to whether it should modify those practices and procedures to take account of cultural or customary concerns to the extent that such modification will not prejudice unduly any other party to the proceedings.
95 Further, consistently with the Preamble and its focus upon conciliation, the Native Title Act provides for mediation. Specifically, subject to limited instances where the Court can and does make an order that there be no mediation (see s 86B(3)), the Court must refer each application for a determination of native title to an appropriate person for mediation: see s 86B(1). A registrar is an appropriate person: s 86B(2A). The expressly stated purpose of referral to mediation is to assist the parties to reach agreement on some or all of various matters, including (see s 86A(1)):
(1) whether native title exists or existed in relation to the area the subject of the application; and
(2) if native title exists or existed, who holds or held native title.
96 The Native Title Act also has detailed provisions concerning the way in which the Court may request and receive reports as to the conduct of any mediation and mechanisms by which the Court may determine a limited question of fact or law referred by the mediator or act on the basis of facts agreed between the parties during a mediation.
97 The Native Title Act also has provisions that deal with making and giving effect to agreements concerning applications before the Court including applications for determination of native title. Section 86F(1) provides:
Some or all of the parties to a proceeding in relation to an application may negotiate with a view to agreeing to action that will result in any one or more of the following:
(a) the application being withdrawn or amended;
(b) the parties to the proceeding being varied;
(c) any other thing being done in relation to the application.
The agreement may involve matters other than native title.
98 The parties may request assistance from the National Native Title Tribunal in negotiating such an agreement: s 86F(2). The Court may also order an adjournment to allow time for negotiations: s 86F(3). There is also power to make orders in relation to unopposed applications: s 86G. These provisions contemplate that the parties, including the people who are authorised by the native title claim group to make the application for a determination of native title (in the present case, the Nyamal applicant and the Palyku applicants), may negotiate about action to be taken in relation to the application. These provisions together with the mediation provisions manifest an intention that all those involved in such applications will seek to reach agreement rather than simply insist upon some form of adjudication by the Court. Further, this intention is properly understood as a response to the unique character of the task of undertaking the just and proper ascertainment of native title rights and interests. It manifests regard not only to the consequences of past dispossession for the task of ascertaining those rights and interests but also the incongruity involved in the judicial ascertainment of those rights by a Court acting according to a different system of law.
99 Then there is s 87 which has already been mentioned. Relevantly for present purposes, s 87(1) provides:
This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(aa) all of the following are parties to the agreement:
(i) the parties to the proceedings;
(ii) the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
100 Section 87 goes on to provide that if the agreement is on the terms of an order then the Court may make an order without holding a hearing: s 87(2). It may also make an order to give effect to terms of the agreement that involve matters other than native title: s 87(4), (5) and (6).
101 Section 87A confers express power to make a determination of native title as to part of the area the subject of an application for a determination of native title on the basis of agreement. It too requires agreement of all parties to a proposed determination that is in writing and signed by all of the parties: s 87A(1)(c) and (d).
102 It is now well established that as to determinations under s 87 and s 87A, the support of the State will provide a basis upon which a consent determination will be made and that the State is 'not required to obtain proof from an applicant which would demonstrate to a civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist': Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [51] (Reeves, Jagot and Mortimer JJ). If agreement on the terms of a determination of native title is reached with an applicant, if all parties agree, if the terms of the agreement are recorded in writing signed on behalf of the parties to the agreement (and the Commonwealth if intervening) and if the Court is satisfied that an order would be within power, the Court may make a determination in the terms agreed if 'it appears to the Court to be appropriate to do so': s 87. If the State (acting on behalf of the community generally), through competent legal representation, is satisfied that there is a credible or cogent basis for the requirements of the Native Title Act to be met in the terms to be expressed in the proposed determination then it will be appropriate (for the purposes of statutory requirement in s 87) to make the determination: Lander v State of South Australia [2012] FCA 427 at [11]-[13] (Mansfield J); Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56] (Mortimer J); and Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 at [39]-[50] (McKerracher J).
103 Therefore, a determination of native title based upon a mediated outcome need not be justified by reference to evidentiary material that would be sufficient for a Court to determine the existence of native title. The Court need only be satisfied that it is appropriate for a determination of native title to be made and the participation by the State acting for the community in supporting the making of the consent determination will usually be sufficient. Again, these matters reflect the unique circumstances involved in establishing a mechanism by which the rights and interests under a traditional system of law and custom may be recognised for the purposes of the system of law that has applied since the assertion of sovereignty.
104 Further, as to mediations, parties may be directed to attend: s 94E(1). Parties may be directed to produce documents for the purposes of a mediation conference: s 94G. The question whether a party has an insufficient interest to participate in a mediation may be referred to the Court for consideration as to whether the party should cease to be a party to the proceeding s 94J(1). The mediator must report on the progress of the mediation to the Court: s 94N.
105 If a person conducting a mediation considers that a party or a person representing a party has not acted in good faith in the conduct of the mediation then the failure to do so may be reported: s 94P(1). The same applies to legal practitioners: s 94P(2). There may also be a report to the Court: s 94P(4). If the person conducting the mediation is a member of the National Native Title Tribunal then a report to the effect that any government parties or their legal representatives have not acted in good faith may be included in the annual report of the Tribunal: s 94Q. Accordingly, the existence of a duty on the part of each party and its representatives to act in good faith in relation to the conduct of a mediation, including a willingness to compromise, is beyond argument: Widjabul Wia-Bal v Attorney General of New South Wales at [36]-[38].
106 Therefore, mediation and the outcomes agreed at mediation are fundamental to the operation of the Native Title Act. The legislation emphasises conciliation. It requires governments to facilitate negotiation. It requires the Court to refer matters to mediation unless there is good reason not to do so. It requires parties to participate in mediations and to do so in good faith, which includes a willingness to compromise. It establishes a mechanism by which reports as to the conduct of all mediations must be provided to the Court including as to whether parties have been willing to compromise and have otherwise acted in good faith. It allows for the Court to supervise who participates in the mediation and for the determination of discrete issues in order to facilitate agreement. It empowers the Court to give effect to mediated outcomes by making a determination of the existence of native title based upon the agreement of all parties.
107 In short, the Act elevates mediation and agreement to be the preferred means for the resolution of controversies as to the existence of native title. It requires all those involved to act accordingly.
108 In addition to the above analysis, see also Brown v The State of South Australia [2010] FCA 875; (2010) 189 FCR 540 at [38] (Mansfield J); Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971 at [3] (Griffiths J); and Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [12]-[13] (Jagot J).
109 The effectiveness of mediation and compromise as a means for resolving such controversies with due regard to the effects of dispossession upon native title to traditional lands as well as the content of the traditional laws and customs that continue to be observed would be substantially undermined if parties could simply insist upon the Court determining the outcome or could recant agreements concluded at mediation and included in a report to the Court. It would tend to disempower those with claims to native title and sustain a lack of due regard to the unique character of such rights. In the case of disputes between those claiming native title or overlapping claims to such rights or interests, it would tend to foment division and, potentially, a disregard for traditional ways of resolving disputes which would not be given effect in a Court determination.
110 For all those reasons, it is not the case that parties have an unqualified right to insist upon an adjudication of native title by the Court. Only where sincere efforts at mediation and compromise have failed will the Court conduct proceedings in order to make a determination as to the whether or not native title exists. Further, those sincere efforts at mediation and compromise are not to be guided by an assessment as to what the likely outcome may be if the question was determined by a Court according to available evidence or by the view that a Court determination is to be preferred to making an agreement. Parties are expected to have regard to the intention that the Native Title Act is a means by which the consequences of past injustices may be rectified by providing a special procedure for the just and proper ascertainment of native title rights and interests. A contested hearing with an imposed adjudication based upon admissible evidence is less likely to rectify past injustice than a conciliated outcome which has due regard to traditional law and custom. This is especially so when an imposed adjudication may result in a determination that no native title exists due to the evidentiary burden that must be met in respect of matters that stretch back to effective sovereignty.
The making of consent orders in native title proceedings
111 In order to enable an application for the determination of native title to be commenced and for proceedings in relation to that application to be conducted by the Court, it is necessary to identify an applicant with the requisite authority. In the case of an application for a determination of native title being brought by those who claim to hold native title, the application must be commenced by a person or persons 'authorised by all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed': s 61(1). The Native Title Act deals with how the applicant (being the authorised person or persons) may come to be authorised to make an application for a native title determination and to deal with matters arising in relation to the application: s 251B. Conditions may be imposed upon the authority conferred by the native title claim group. Subject to those conditions, an authorised applicant has authority to 'deal with all matters arising under this Act in relation to the application': s 62A.
112 The role of an authorised applicant in the context of mediation, negotiation and agreement as to action to be taken in relation to a native title proceeding was explained by Mortimer J in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551 at [59] in the following terms:
It is the applicant who will, as the applicable party, participate in any mediation referred under s 86B, or conduct a negotiation under s 86F (that function being limited to parties). It is the applicant who will have to bring an application for a consent determination, and it is an applicant who will be able, consistently with s 62A, to agree to orders under s 87 of the Native Title Act (the agreement being one made between the parties: see s 87(1)). Granted that latter function may well be performed by an applicant only after what is commonly called an 'authorisation meeting', but in terms of the way the Native Title Act is intended to operate, that will be necessary because some conditions were originally placed on the scope of an applicant's authority, which may include not agreeing to any consent determination without the express authorisation of the claim group. If that is the case, and assuming the placing of such conditions on the authority of an applicant is valid, the fact of such a condition being placed on an applicant's authority to agree under s 87 does not alter the character and function of an applicant for the purposes of the Native Title Act. The same reasoning applies to s 87A.
113 Reference has been made to s 86F concerning negotiation between the parties to a native title proceeding with a view to agreeing particular action including as to matters other than native title. Section 86F is concerned with authority of parties to negotiate (as distinct from authority to participate in a mediation).
114 The nature and extent of the authority conferred by s 86F(1) must be understood in the context of s 87(1). Section 86F(1)(a) refers to the application being 'withdrawn or amended', but not to the application being determined. However, as has been noted, general authority to deal with all matters arising under the Native Title Act in relation to an application for a determination of native title is conferred by s 62A, albeit subject to any conditions under s 251BA imposed by the native title group (it being common to include a condition requiring approval at a native title group meeting of any agreement as to the terms of a determination of native title).
115 Section 86F(1)(b) refers to the parties to the proceedings being varied. Then, s 86F(1)(c) refers to 'any other thing being done in relation to the application'. It also states that the agreement may involve matters other than native title.
116 It must also be noted that s 86F does not provide, in terms, what the Court may do if the negotiations referred to in s 86F(1) result in agreement. The only express provision as to what the Court may do in relation to such negotiations in s 86F(3) which provides:
The Federal Court may order an adjournment of the proceeding to allow time for the negotiations. It may do so on its own motion or on application by a party.
117 In contrast, s 87 is concerned expressly with conferring power upon the Court to make an order that is consistent with the terms of an agreement that conforms to the terms of s87(1): see s 87(2) to (7). Section 87(1) refers to an agreement 'on the terms of an order … in relation to … the proceedings … a part of the proceedings … or a matter arising out of the proceedings'. However, as has been noted, it has very specific requirements that must be satisfied before that broad power may arise (and those requirements have not been met in the present case). Likewise, s 87A is in relation to part of an area the subject of an application for a determination.
118 Nevertheless, the circumstances in which the Court may make orders with the consent of the parties as to the conduct of native title proceedings are not confined to instances where the requirements of s 87(1) are met. It is usual for courts to make procedural and other interlocutory orders with the consent of the parties. There is no reason to construe s 87 as imposing a restriction upon these usual aspects of the practice and procedure of the Court. Significantly, s 87 is concerned with instances where the agreement relates to the proceedings, a part of the proceedings or a matter arising out of the proceedings. Section 87A is concerned with agreement reached on a proposed determination of native title in relation to part of the area covered by an application. Language of that kind is apt to identify instances where agreement has been reached as to the disposal of all or part of the controversy that is the subject of the application. It is not concerned with an order as to the ongoing conduct of the proceedings.
119 Given the authority that is conferred upon an applicant by s 62A and the authority that any other party would have at law to reach agreement as to the conduct of Court proceedings, it is most unlikely that the procedure set out in s 87 was required to be followed whenever the Court was invited to make procedural orders as to the ongoing conduct of the proceedings. Rather, the reference in s 87(1) to an agreement that is 'reached on the terms of an order … in relation to … the proceedings … a part of the proceedings … a matter arising out of the proceedings' should be construed as a reference to an agreement as to an order that determines part or all of the controversy.
120 Significantly, in my view, s 87(1) does not refer to an order to be made in the proceedings or in the course of the proceedings. An order in relation to the proceedings or a matter arising out of the proceedings is an order addressing those proceedings or that matter, that is the subject matter of the proceedings - namely the claim to native title (or compensation) or a controversy arising out of that claim. An order of that kind, quelling part or all of the controversy on the basis of agreement reached between the parties, can only be made in writing signed by all of the parties and in circumstances where it appears to the Court to be appropriate to give effect to the agreement. The observance of those requirements ensures that there is due formality involving all parties and a clear record of the nature and extent of any determination of native title bearing in mind that any such order takes effect against the whole world and has inter-generational consequences. Otherwise, the Court may make procedural and interlocutory orders in accordance with its usual practice and procedure provided there is regard to the terms of s 82(2) concerning the taking account of cultural and customary concerns.
Relevant principles as to certainty of enforceable agreements
121 At common law there is no enforceable agreement if the objective circumstances (that is, the outward manifestations of intention) demonstrate that the parties did not intend to be immediately bound. In deciding that question, intention is to be objectively ascertained from the terms of any document read in the light of the surrounding circumstances at the time of the agreement as well as the parties' subsequent conduct: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 551 (Gleeson CJ, Hope and Mahoney JJA agreeing). Despite the oft quoted passage from Masters v Cameron (1954) 91 CLR 353 at 360-362 it is now clear that 'not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so': Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25] (Gaudron, McHugh, Hayne and Callinan JJ).
122 In addition, the parties must be agreed as to the essential terms of an agreement that is capable of enforcement. An incomplete agreement is not enforceable. However, it is only if the Court is unable to put any definite meaning on the agreed terms that it can be said to be uncertain: Meehan v Jones (1982) 149 CLR 571 at 578; and Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429. The uncertainty must be more than ambiguity: McDermott v Black (1940) 63 CLR 161 at 175.
123 'An agreement does not have to be worked out in meticulous detail. A bargain can be made containing certain terms, regarded as essentials, whilst the parties recognise that a formal document will eventually be drawn up in the full expectation that a number of additional terms will, by consent, be included in that document': Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144 at 159 (Kennedy J).
124 Where a court concludes that the parties intended to make a binding agreement, the court will strive to uphold the bargain of the parties despite any lack of clarity: Trustees, Executors & Agency Co Ltd v Peters (1960) 102 CLR 537.
125 Further, where an agreement is made at a mediation and is presented to the Court as a resolution of the dispute and the parties also consent to an order for the trial of a separate question being vacated then that context supports the conclusion that the parties intended to make a binding agreement. As to mediation as an important aspect of context, see Jigalong Pty Limited v Todd [2015] NSWCA 7 at [78] (Sackville AJA, Meagher and Leeming JJA agreeing).
Relevant principles concerning enforcement of settlement agreements by interlocutory application
126 If the Court is satisfied as to the terms of a binding agreement to settle proceedings then it may make orders to give effect to the settlement upon interlocutory application in the proceedings: Otto Energy (Tanzania) Pty Ltd v Swala Energy Ltd (No 2) [2017] FCA 1180 at [13]-[14] (McKerracher J); and Hafertepen v Network Ten Pty Limited [2020] FCA 1456 at [46]-[56] (Katzmann J). The appropriate form of application is an application for summary judgment based upon the settlement agreement. The Court has a discretion whether to entertain such an interlocutory application and may require separate proceedings to enforce the alleged agreement if the interests of justice require such a course: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16 at [37]-[44] (Kenny J). For example, in cases where there are significant questions of fact to be determined the Court may require separate proceedings. Matters that may be relevant to whether justice can be done by enforcing a settlement agreement without separate proceedings were listed in Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [57] (Daly AsJ). As with any application for summary judgment, the power will be exercised with caution (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118) and therefore only on the basis that the Court is satisfied that the existence of an enforceable agreement has been demonstrated.
Relevant principles concerning setting aside consent orders
127 An order made by consent has the same force and validity as if it was made after a hearing by the judge making the order: r 39.11 of the Federal Court Rules 2011 (Cth). An interlocutory order may be varied or set aside after it has been entered: r 39.05. Subject to what follows, an interlocutory order made with the consent of a party may be varied or set aside.
128 The Court approaches consent orders with particular regard to the consequences for the administration of justice if any party could simply invite the Court to revoke, set aside or recall an order made with the party's consent. The position was put in the following terms by Fry J in Attorney-General v Tomline (1877) 7 Ch D 388 at 389-390:
… when a consent order has been drawn up, passed, and entered, it is not competent to this Court to vary that order, except for reasons which would enable the Court to set aside an agreement.
129 It is a position that is further reflected in the principles concerning the authority of counsel to enter into a compromise on behalf of the client. Those principles were addressed by the High Court in Harvey v Phillip (1956) 95 CLR 235 in the following terms at 242-244:
If the question whether the compromise should be set aside was a matter depending upon the discretion of the court, the course of events which led her, after she left the judge's chambers, at length to give way and express a consent might be very material. But in the circumstances of this case it does not appear to us that the court possesses a discretion to set aside the compromsie or to intercept the formal entry of judgment. It is not a case of misapprehension or mistake made by counsel in consenting to an order or settlement … It is not a case where the assistance of the court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract. It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or in excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside …
[Then, after referring to authority concerned with whether the Court should enforce a compromise entered into by counsel contrary to a restriction on the authority of counsel to do so]
It is said that this power of the courts is to be exercised as a matter of discretion when in the circumstances of the case to allow the compromise to stand would involve injustice in view of the restriction on counsel's authority … But in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
(citations omitted)
130 Significantly for present purposes, the reasons of the High Court in Harvey v Phillips concluded in the following terms:
Once it appears that the plaintiff did in fact give an assent which had not been withdrawn up to the moment when the terms of settlement were signed, it can be nothing to the point to say afterwards to the defendants that it was the result of her real desires or her judgment being overborne by her advisers, whatever may have been the degree of moral pressure that she felt.
131 Therefore, a consent order that is made and entered in order to give effect to a compromise can only be rescinded or set aside on the application of one party in circumstances where an agreement would not be enforced.
132 In cases where an interlocutory order was made by the consent of a party but not in order to give effect to a compromise then, in any circumstances where it is appropriate for the interlocutory order to be varied or set aside, the Court may do so upon the application by any party including a party who consented to the order being made.
133 The position is different in relation to final orders. In Australia, res judicata applies to a final judgment entered by consent: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; and Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [27]-[33].
The nature of the agreement and the parties to the agreement
134 In due course it will be necessary to consider matters that bear upon whether the agreement reached between the parties in the present case is an enforceable legal agreement and, irrespective of whether it is enforceable, whether the Nyamal applicant ought to be allowed to recant the commitment it made at the Mediation that was carried into effect with its consent at least insofar as the trial of the separate question was concerned when orders were made on 5 August 2022. However, it is convenient to first consider the nature of what was agreed and the parties to the agreement.
135 The terms of the agreement reached between the parties (by resolution of the two native title group meetings) dealt with three matters. First, it agreed the terms of a boundary between the competing claims (thereby reaching agreement as to the issue that was the subject of the separate question). Second, it agreed that the royalties being received from particular mining operations would be split between the two groups (thereby reaching an agreement as to a non-native title matter not the subject of the proceedings before the Court). Third, it agreed that the parties would seek a consent determination in terms that reflected the agreed boundary (thereby committing to undertake future action to seek and obtain a consent determination under s 87 of the Native Title Act).
136 Each of the above matters was agreed between the Nyamal and the Palyku. The State's position was that it supported the agreement that had been reached. That was the manner in which its position was stated in the report as to the outcome of the Mediation (being a position confirmed by the State at that time). However, this position was subject to the State obtaining final instructions. In the 5 August Email (sent to the registrar and copied to the State), the State was said to be 'content' with the outcome of the native title group meetings by which the Red Area was agreed to be part of Palyku country.
137 In those circumstances, in my view, the State was not a party to the agreement reached. Rather, as it was necessary for the State to support the proposed consent determination if the agreement was to be performed, the parties sought and secured a statement from the State as to its position.
138 Significantly, after the agreement was reached, the State consented to the orders which brought the trial of the separate question to an end. Further, in the context of the hearing of the competing applications it has confirmed that its position is that it would support a consent determination in the terms agreed, if sought.
139 In those circumstances, it is important, in my view, to differentiate between the making of the agreement (on the one hand) and the effect of the consent to the order bringing the trial of the separate question to an end (on the other hand).
140 The consent by the Nyamal applicant, the Palyku applicants and the State to the order vacating the order for the trial of a separate question brought that trial to an end. It was an order sought by the Nyamal applicant and the Palyku applicants in performance of the agreement that had been reached. It involved the parties to that agreement and the State (being all of the parties participating in an active way in the conduct of the trial of the separate question). Significantly, at the time that the consent order was proposed vacating the trial of the separate question it was not suggested that it might be appropriate for the trial to be adjourned or deferred so that the parties could reach a final agreement. Indeed, if an order of that kind had been sought, it is unlikely that the delivery of final submissions would have been delayed indefinitely in the manner that has occurred by reason of the order for the trial of the separate question being vacated.
141 Further, the making of the order ending the trial of the separate question was itself an act that had consequences for the proceedings irrespective of whether the agreement was otherwise performed. It may be accepted that the order sought and made did not involve a determination of the separate question in terms that reflected the agreement. Instead, it simply vacated the order for the separate question. However, an order of that kind brought the trial of the separate question to an unqualified end and was intended to do so. Importantly, it did so with the consent of the active parties to the trial of the separate question and in circumstances where the reason advanced by those parties was that they had reached agreement in terms communicated to the Court as to the manner in which the question should be determined.
142 For reasons that have been given, an order determining the separate question by agreement could not be made unless the requirements of s 87 of the Native Title Act were satisfied. The need to meet those requirements arises because any such order would quell part of the controversy. In particular, it would determine the nature and extent of native title interests in the Overlap Area (subject to extinguishment). However, the consent order made was not of that character. It was an order that did no more than vacate the trial of the separate question. An order of that kind could be made on the basis of the authority of the Nyamal applicant as the party with carriage of the application for a determination of native title over the Overlap Area in circumstances where agreement to that course had been reached at the Nyamal native title claim group meeting on 3 August 2022. No submission was advanced to the contrary.
Issue (1): Did the parties conclude a binding and enforceable agreement?
143 No issue arose as to the authority to make an agreement in the terms that have been described, and properly so. The agreement was reached by the communication between the two native title groups of the decisions that were made at each of the native title group meetings that took place on 3 August 2022. On the evidence, the Nyamal native title claim group meeting was duly convened and conducted. The communication of the outcome of that meeting reflected the terms of the decision made at the meeting. Thereafter, the fact of the agreement was communicated to the Court and was the basis upon which the Court was asked to make the consent orders bringing the trial of the separate question to an end. It was an agreement that was further performed by subsequent dealings between the lawyers for the Nyamal applicant, the Palyku applicants and the State.
144 Further, no issue arose as to whether an agreement could be made committing the Nyamal applicant and the Palyku applicants to the course of consenting to determinations of native title in the terms agreed by the native title group meetings. The subject matter of the agreement concerned the rights to seek a determination as to the existence of native title in accordance with the procedures established by the Native Title Act. Given the terms of the Native Title Act and the extent to which resolution by agreement is to be encouraged, it is difficult to see how it might be claimed that the subject matter was not amenable to resolution by enforceable agreement. To conclude otherwise would mean that the considerable steps required to undertake a mediation or negotiation, reach agreement as to a compromise to resolve the extent of any controversy and arrange for an application to be brought before the Court could be undone at the last moment for any reason at any time before a consent determination was made. In short, the scheme of the Native Title Act as to the resolution of applications for determinations as to whether or not native title exists would be made unworkable in a practical sense if the law as to enforceability of agreements did not apply to agreements reached through mediation or negotiation concerning native title claims.
145 By providing for mechanisms by which agreement may be reached in relation to applications for the determination of native title and giving those mechanisms such prominence as a means of resolving controversies as to native title, the Native Title Act imports the general law as to the circumstances in which an agreement that is concluded using those mechanisms is binding on the parties. Different considerations may apply to agreements that are alleged to have been concluded outside the statutory framework.
146 As to the provision in s 82(2) of the Native Title Act to the effect that the Court may have regard to cultural and customary concerns in conducting its proceedings, it is concerned with the manner in which proceedings are conducted, including the manner in which any mediation is conducted. It was not suggested that the Mediation was conducted without appropriate regard to cultural and customary concerns. The legal consequences of the parties reaching agreement is a different and separate matter.
147 Finally, no issue arose as to whether a consent determination could be made in the terms proposed by the Agreement. In particular, no issue arose as to whether there was a credible or cogent basis for the making of such a determination by the Court in the exercise of the power conferred by s 87 of the Native Title Act. In that regard, the consistent position of the State was that it would support such an application. There was no suggestion that there was any other necessary party to such a determination who would not consent. Issues in relation to extinguishment had been addressed and to the extent that any further issues arose, they will be able to be accommodated as part of the process to be followed in order to make consent determinations in the terms agreed.
148 The contentions advanced for the Nyamal applicant were concerned with uncertainty. They were to the effect that the agreement was either (a) an agreement in principle that was not intended to be binding in effect; or (b) it was insufficiently certain as to its essential terms to be enforceable.
149 As to contention (a), it is the case that the agreement reached at the Mediation was an in-principle agreement. The adoption of that description is understandable in circumstances where the parties contemplated that there would be native title group meetings to decide whether to commit to the agreement. The description of the agreement in those terms in the record of the resolution of the Nyamal native title claim group meeting is also to be explained by the fact that the report of the Mediation used that terminology. However, the resolution that was passed at that meeting was to endorse the in-principle agreement with an amendment to include the Red Area in the area that was to be part of the Palyku consent determination. Endorsement by the meeting brought the 'in-principle' character of the agreement to an end.
150 In any event, as has been explained, it is the objective circumstances of the dealings between the parties that are relevant. There is no suggestion that the communications by the Nyamal or their solicitors that followed the meeting were to the effect that the agreement that had been reached was an in-principle agreement or that it was, in some respect, not intended to be binding.
151 On the contrary, the 5 August Email reported the outcome of the native title group meetings as being that the Nyamal and Palyku applicants seek to have consent determinations made in respect of the whole of the Overlap Area without the need for the Court to determine whether native title exists. It proposed the consent orders bringing the trial of the separate question to an end. Viewed objectively, the joint communication was to the effect that the issue the subject of the separate question had been resolved on terms with which the State was content. It was followed by the making of consent orders vacating the order for the question and vacating the procedural orders as to the future conduct of the trial of the separate question. Those orders were not qualified in any way. The parties took other steps to give effect to the agreement that had been reached. All the conduct was consistent with an objective intention to make a binding agreement to resolve the competing applications for determinations as to the existence of native title.
152 The objective intention of the parties is also to be informed by the point that had been reached in the hearing of the separate question. All evidence had been received and hearing days had been set aside for receiving final submissions. If indeed there was some form of 'in-principle' character to the agreement then it would not have been appropriate for the parties to propose that the submissions not be received on the basis that agreement had been reached if indeed there was no binding agreement. Further, the agreement followed the conduct of a mediation at a late stage of the proceedings. The obvious purpose of the mediation was to reach an agreement by way of compromise to resolve part or all of the controversy between the parties without the Court proceeding to resolving that controversy by making findings on the evidence that had been presented. In the present case the terms of proposed agreement were presented to meetings of the native title groups that were duly convened for the purpose of considering whether to make a compromise. Each of those groups passed a resolution agreeing to the same terms and that outcome was reported to the Court. These are all matters which support the existence of a binding agreement.
153 The fact that the parties thereafter prepared and exchanged comments on a draft deed is not, of itself, contrary to the conclusion that there was a binding agreement. It is well recognised that parties may make a binding agreement that they intend to be carried into effect by recording in a more detailed way their agreement. No argument was developed by reference to the terms of the draft deed and the matters addressed in the deed to suggest that the parties had not reached a binding agreement.
154 Finally, I do not accept the submission to the effect that any agreement to a consent determination of native title is not binding unless and until the terms of a written agreement have been prepared and signed by all parties as described in s 87 because to conclude otherwise would be to undermine the statutory scheme. The terms of s 87 are concerned with what must be done in order for the Court to be able to exercise its jurisdiction to make a determination of native title without conducting a hearing and making findings. It is not concerned with curtailing the circumstances in which a party might, in order to facilitate an application under s 87, reach agreement. Of course, any such agreement will only be able to be carried into effect (that is, performed by the parties according to its terms) if the requirements of s 87 can be satisfied. However, that does not mean that an agreement could not be made which would commit a party to that course. In accordance with general principle, any such agreement would commit a party to do that which is necessary in order for the other party to have the benefit of the agreement: Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607-608; and Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; (2009) 279 CLR 75 at [83]. That would include providing a written consent for the purposes of s 87.
155 For those reasons, contention (a) should not be accepted.
156 As to contention (b), the matters raised by the Nyamal applicant do not demonstrate uncertainty in the relevant sense (namely, incompleteness as to the agreement of essential terms).
157 As to the submission that the agreement was uncertain because it might be derailed by unexpected events such as another party seeking to be heard on the outcome of the applications, the submission misunderstands the relevant principle. The fact that there may be future events or actions by third parties which might delay or otherwise affect the ability of the Nyamal applicant and the Palyku applicants to carry their agreement into effect does not mean that there is any uncertainty as to what they have agreed and what they must do to perform the agreement. On the evidence, it is unlikely that any events might arise that would frustrate the performance of the agreement reached as to the proposed consent determinations. No evidence was advanced to suggest that a position had been reached where there was some form of roadblock or barrier to the making of a consent determination. At its highest, the case for the Nyamal applicant was that there was the possibility that some circumstances may arise in the future that would have that consequence.
158 It is conceivable that some other party may seek to become a party to the applications even at this late stage. The prospect of such an application is remote, but not outside the experience of the Court in native title matters. However, in circumstances where there has been a trial of a separate question and agreement reached as to the outcome of that issue after all of the evidence has been received, it is not realistic to contemplate the possibility that the Court would allow such a party to now be joined on the basis that the party seeks to advance a position as to the decision to be made on the matters the subject of the separate question.
159 If the performance of the agreement is frustrated by some form of unforeseen supervening event then that circumstance may be accommodated by ordinary contractual principles. Unless and until that point is reached the parties have reached clear agreement as to the terms of the consent and the contractual obligations they have assumed are not incomplete.
160 As to the submission concerning the boundary, it is not the case that the boundary is indicative. It is depicted with considerable precision on a map prepared by the National Native Title Tribunal. On the evidence, the parties entrusted the task of preparing the necessary coordinates to the Tribunal. The Nyamal applicant was unable to demonstrate any respect in which there was material uncertainty as to what had been agreed concerning the boundary.
161 As to the agreement that there be application for formal registration of sites as indicated by the Blue Areas, again the agreement is sufficiently particular to enable performance. It identifies the places to be the subject of applications for formal registration. There can only be an application in accordance with the heritage process. There is nothing more that need be agreed. Implied terms requiring the parties to act reasonably and cooperate in performance will provide sufficient certainty as to the making of the necessary applications.
162 As to the agreement to split the royalties, the essential aspects of that term concern the identification of the royalty concerned and the amount of the split. Both matters have been agreed. The fact that the parties have taken steps to document more fully the arrangements in relation to the receipt of the royalty and the arrangements for payment does not mean that there is uncertainty of a kind that makes the agreement reached unenforceable.
163 Therefore, I conclude that the parties did conclude a binding and enforceable agreement concerning their rights to seek determinations of native title in respect of the Overlap Area. By that agreement they have each committed to seeking a consent determination in the terms agreed and on the basis of the non-native title matters concerning the royalties and the applications to be made for heritage protection. Those matters having been agreed, the Nyamal applicant and the Palyku applicants are bound to carry them into effect.
164 If necessary, the Court is in a position to require steps to be taken to give effect to the agreement, including by requiring a registrar to execute a consent determination for the Nyamal applicant.
Issue (2): Can the Palyku applicants rely upon any such agreement to prevent the Nyamal applicant from continuing to apply for a determination of native title in respect of Area P?
165 For reasons that have been given, the agreement is a sufficient reason of itself for the Court to make orders to give effect to the agreement.
166 However, as has been noted, it would also be appropriate for any such orders to be made on the basis that the Palyku applicant would not dispute the claim by the Nyamal applicant to Area N.
167 Whether it is necessary or appropriate for such orders to be made in circumstances where the Court has found that the agreement requires the parties to participate in a consent determination in the terms agreed is a matter that I prefer to address after receiving further submissions as to the orders that should be made to give effect to these reasons. However, the order sought by the Nyamal applicant to reinstate the trial of the separate question should not be made.
Issue (3): What is the effect of the consent by the Nyamal applicant to the order vacating the order for the trial of a separate question?
168 The Nyamal applicant seeks an order vacating the consent orders made on 5 August 2022 and the reinstatement of the trial of the separate question. Framed in those terms, the Nyamal applicant seeks an order vacating an order that was made with its consent in circumstances where the Palyku applicants do not consent to such a course. Therefore, it seeks to withdraw its consent to orders that brought the trial of the separate question to an end.
169 Perhaps, it might be said that it is possible for the Court, consistently with the terms of the order, to now make a fresh order for the trial of a separate question and to provide for the evidence that was received on the previous trial to stand as evidence in the new trial without altering the consent orders that have been made. If the interlocutory application brought by the Nyamal applicant was viewed in that way, it might be argued that the Nyamal applicant does not seek to withdraw its consent. However, in either case, the Court must be persuaded that it is appropriate to make orders reinstating the trial of the separate question in circumstances where the Nyamal applicant consented to the order bringing the trial of the separate question to an end.
170 As has been explained, the order vacating the order for the trial of a separate question was made with the consent of the Nyamal applicant, the Palyku applicants and the State. As it was an interlocutory order, it may be varied or set aside unless it was made in order to give effect to an agreed compromise of the proceedings or part of them. For reasons that have been given, the orders that were made by consent were made to give effect to the agreement that had been reached between the Nyamal and the Palyku. They were made with the express consent of the Nyamal applicant and the Palyku applicants (as well as the State) in circumstances where the basis upon the orders were sought was the existence of the agreement.
171 For reasons that have been given, the Nyamal applicant has not pointed to any reason why the agreement which was the basis upon which the consent order was made could not be enforced. Further, there is no basis to conclude that the agreement that was reached could not be carried into effect. In those circumstances, irrespective of whether leave is required, the Nyamal applicant has not demonstrated a basis upon which the effect of the order to which it consented should now be reversed.
172 In reaching these conclusions it has not been necessary to consider an alternative contention advanced for the Palyku applicants to the effect that the consent by the Nyamal applicant to the making of the consent orders operated as some form of admission in respect of which the Nyamal applicant requires leave to withdraw if the trial of the separate question is to be reinstated. I am not persuaded that the consent to those orders involved any form of admission. This is not in the least because, as has been explained, an agreement to the making of a consent determination does not involve any implicit recognition that the evidence if considered by a Court would lead to such a finding.
Issue (4): Having regard to the answers to (1) to (3), should the application by the Nyamal applicant to native title in respect of Area P be summarily dismissed?
173 As I have indicated, I will hear from the parties as to the appropriate terms of any order to be made to give effect to these reasons.
Issue (5): If no to (4), would the course proposed by the Nyamal applicant be (a) an abuse of the process of the Court; (b) a breach of the duties imposed by s 37N(1) of the Federal Court Act; or (c) a breach of the duty to act in good faith in the conduct of the mediation under s 94E(5) of the Native Title Act?
174 Issue (5) only arises if the agreement reached between the parties and communicated to the Court in the 5 August Email was an insufficient basis for the Palyku applicants to insist upon proceeding with the steps to obtain a consent determination in the terms agreed between the parties. For reasons I have given, the Nyamal applicants must give effect to that binding agreement.
175 Had I been persuaded that the agreement was not binding then it would have been necessary to consider the alternative basis for the interlocutory application by the Palyku applicant.
176 The duty of parties to act in good faith must extend to what occurs at meetings of native title parties convened for the purposes of matters agreed at mediation. For a party to breach that duty and yet seek to invoke the Court's jurisdiction to adjudicate the controversy would be an abuse of the Court's process and the Court has powers which it will exercise to prevent that abuse: Widjabul Wia-Bal v Attorney General of New South Wales at [39]-[42].
177 As a native title applicant bears the responsibility for the conduct of a native title application it bears the responsibility of ensuring that the obligation to act in good faith is observed and the Court's process is not abused by the consequences for other parties of that obligation not being observed: Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [217] (Mortimer J).
178 For reasons that I have given, the general principles in relation to what may be required by the good faith obligation and what may amount to an abuse of process must be brought to bear by the Court recognising that it may take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders. This is because the conduct of a mediation, like all aspects of the proceedings conducted by the Court, is subject to the Court considering whether to take account of those cultural and customary concerns.
179 Therefore, had it been necessary to determine Issue (5) (which would only arise if a binding agreement had not been concluded) close attention would need to have been paid to the reasons that have been expressed for the resolution that was passed at the October Nyamal Meeting. It appears that for Ms Eaton, at least, she was of the view that it was better for the Court to decide because then she would not be burdened with her sincere spiritual concern that she was doing the wrong thing by 'giving away' Nyamal country. Ms Wilson's concern is slightly different. She says that she has already compromised by giving away part of her country (particularly the Saddle Area) and expects support by other Nyamal people for her claim to country around Nullagine. However, what is absent is any evidence explaining as a matter of traditional law and custom as to why it is inappropriate for agreement to be reached to resolve a boundary dispute. In that regard, Mr Jaffrey maintains that it is necessary to stick to any agreement that is made.
180 In those circumstances, if indeed agreement had not been reached and there was concern as to whether it was appropriate as a matter of traditional law and culture to make an agreement about country then the appropriate place for those matters to be considered is within the context of the mediation. The Court could then call for a report as to what has occurred for the purpose of ensuring that the good faith obligation is met having regard to an exchange of views and discussion as to such matters.
181 So, if no agreement had been reached and the reason for that position had been reported in the terms of the affidavits before the Court then I would have been inclined to refer the matter back to mediation with a reminder of the obligations that the Native Title Act imposes. It seems to me that such a course would be appropriate because it is not evident that the Nyamal applicant is committed to a course that is contrary to the good faith obligation. Rather, there are deep concerns on the part of particular individuals that they explain in spiritual terms. It follows that I would not be inclined to make an order of the kind sought by the Palyku applicant in such circumstances. Rather, I would refer the matter back to mediation and require a further report by the registrar after the concerns have been considered. To do so would enable the registrar to assist the parties to consider the foundation for concerns about reaching an agreement and to confront the consequences of making a decision to leave matters to the Court with the risk that the need for evidence may mean that the opportunity for a determination of the existence of native title is lost.
182 However, the course of events in the present case was different. Concerns were only raised after a binding agreement had been entered into and the Court had made orders to vacate the trial of the preliminary question. As has been explained, the Native Title Act contemplates that compromise and agreement about native title matters is to be preferred to judicial adjudication after a contested hearing. That course requires that an agreement, once made, be adhered to unless as a matter of general law there is a basis for concluding that the agreement is not binding.
183 Ms Eaton and Mr Jumbo now both say they would now prefer to see what the Court decides. To the extent that this is advanced as an unqualified position, it is an approach which the Native Title Act does not permit. It requires people to seek to compromise. It requires people to engage in a process of exchange of views. It requires explanation and examination of the basis for a particular position. It does so for the reasons I have explained. It appears that having acted as required in seeking to reach a compromise, Ms Eaton and Mr Jumbo now want to take a different course. They do not want to compromise at all. This is a position the basis for which they would have been required to explain in a mediation if there had not been a binding agreement that had been reached.
Issue (6): Having regard to the answer to (5), should the application by the Nyamal applicant to native title in respect of Area P be summarily dismissed?
184 For reasons I have given, had it been necessary to address Issue (5), I would not have concluded that the application by the Nyamal applicant to native title in respect of Area P should be dismissed.
Alternative claim by the Palyku applicant to an order for costs thrown away
185 It follows that I would not uphold the alternative claim to an order for costs thrown away.
Conclusion
186 For reasons I have given I will direct the parties to each propose a minute of orders to give effect to these reasons, including any order as to the costs of the interlocutory applications. If there is disagreement I will convene a short hearing to receive oral submissions as to the orders to be made.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:
