This case involves an interlocutory application filed by the Widjabul Wia-Bal native title claimants, regarding the conduct of the Attorney General of New South Wales (Attorney General). The applicant contended that the Attorney General cannot lawfully require that the applicant agree to an Indigneous Land Use Agreement (ILUA) as a condition of the Attorney General being willing to make a native title determination by consent.
The essence of the applicant’s submission was that the Attorney General could not require the applicant to agree to an ILUA as a pre-condition to the preparedness of the Attorney General to negotiate an agreement under ss 87 or 87A. The applicant claimed that an ILUA is a matter extraneous to the permissible scope of a mediation under s 86A of the Native Title Act 1993 (Cth). The Attorney General submitted that there was nothing improper about a State party deciding that it will accede to the recognition of some native title rights only as part of an overall outcome acceptable to the State.
The court found that s 86A must be read with ss 87 and 87A and, in particular, ss 87(4) and (5) and 87A(5). Those subsections expressly permit an agreement to involve matters other than native title. Thus, even if an ILUA is characterised as including a matter other than native title – something that is not immediately apparent given the terms of ss 24BB and 24CA – it cannot be said that it is inherently impermissible and not an act in good faith. A contention of a lack of good faith on the part of a State party would require evidence. The court also noted an evaluation about whether the Attorney General’s position was irrational, unreasonable, unfair or oppressive in the circumstances or involved any other conduct which may fall below the standard of good faith required.
It was noted that given the Attorney General accepted a credible basis for the existence of some native title rights, there was no bona fide dispute about those rights for the purpose of making an agreement under ss 87 or 87A. Consistent with the Attorney General’s obligations under s 94E(5) of the NTA, his duties under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and as a model litigant, it would be expected that a person in the position of the Attorney General would be willing to negotiate an agreement recognising at least those rights that have been accepted irrespective of the existence of an ILUA. Because the court didn’t have evidence of the material the applicant relied upon to assert native title rights, nor the terms of the draft ILUA they were unable to conclude whether there had been a lack of good faith on these grounds.
The court also noted, a State party whose conduct in the mediation of requiring an ILUA as a pre-condition to entry into an agreement under ss 87 or 87A may be characterised as being ‘in other than good faith’ for the purpose of s 94E(5) of the NTA. A State body exhibiting this conduct would not be permitted to hold an applicant to ransom, and the court would craft an appropriate remedy for breach of duty of care to act in good faith. This is not applicable in the present case because there are a number of native title rights the applicant is claiming which the Attorney General does not accept there is a credible basis for their existence. The final consideration was a letter from the Attorney General of 15 March 2019. This letter asserts that the Attorney General’s willingness to enter into any form of agreement under ss 87 or 87A, even one confined to the native title rights for which the Attorney General has accepted there is a credible basis, is predicated on the applicant being willing to enter into an ILUA. The court suggested that if it could be established that the Attorney General’s conduct was irrational, unreasonable, unfair or oppressive in all the circumstances, it may have been that the applicant would be being held to ransom. The court found, however, that the applicant had not adduced sufficient evidence to enable this argument to be considered, let alone upheld.
The applicant was unable to prove circumstances from which it could be found that it was not lawful for the Attorney General to require or insist upon the making of an ILUA as a precondition of entering into an agreement under ss 87 or 87A. The interlocutory application was dismissed.