2 April 2021
What you need to know
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The decision in Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 provides guidance on the role of the State in native title claim proceedings and how the model litigant principles apply in this context.
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The Model Litigant Principles issued by the Queensland Government require the State to act fairly and firmly in the conduct of litigation. They reflect an understanding that the power of the State is to be used for the public good, with due regard to the proper use of taxpayers money, and not as a means of oppression. The Model Litigant Principles are an internal policy, and do not create rights or causes of action for third parties. In determining whether to agree to a consent determination of native title, the State must be satisfied that there is a credible or cogent basis to conclude that the claim was valid.
What you need to do
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Note that in native title claim proceedings, the experts are not agents of the parties and cannot make admissions on their behalf. Just because the State's expert agrees with the claim group's expert does not automatically satisfy the State's threshold for a "credible basis" for a native title claim.
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Remember that the State represents the interests of all of the community. In acting firmly and fairly (according to the Model Litigant Principles), the State must appropriately test all claims, particularly given that native title determinations affect proprietary rights.
In Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188, the Federal Court considered the role of the State in native title claims and how the model litigant principles affect proceedings.
The matter arose in the context of a disagreement about whether the claim was suitable for consent determination
This matter considered an interlocutory application made in the native title claim proceeding by the native title claim group seeking to strike out a Response filed by the State to the group's Statement of Facts and Matters. The Federal Court said that the question before it was whether the approach of the State was such that it should be disentitled from participating in the substantive case in opposition to the native title claim.
Two joint reports produced by the parties' experts provide the context for the disagreement In the reports, the experts effectively agreed that native title existed over the claim area. However, the experts did not explain the reasons for their agreement.
The native title claim group wrote to the State, seeking a consent determination of native title, on the basis of the experts' reports. The State replied that, as the experts had not explained their reasoning, it was not satisfied there was a credible basis for a consent determination.
Following orders from the Court, the claim group produced a Statement of Facts and Matters which it sought the State to admit. This document included statements from the experts' reports. The State responded by observing that the experts' opinions were not binding and would still need to be tested at trial.
The claim group applied to strike out this Response.
The role of the State in native title proceedings
It is a well-established principle that, before entering an agreement for a consent determination of native title, the State need only be satisfied that there is a "credible basis" for the determination.
In Malone, the claim group submitted that, because the experts had substantially agreed that native title existed, there was a credible basis for a consent determination. They submitted that the State's refusal to enter an agreement was:
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inconsistent with the overarching purpose of civil litigation stated in Part VB of the Federal Court of Australia Act 1976 (Cth);
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an abuse of process;
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a failure to act in good faith or consistently with the legislative intention of the Native Title Act 1993 (Cth) for the recognition of native title through negotiation and for contested litigation to be a last resort; and
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a breach of the Model Litigant Principles issued by the Queensland Government (discussed separately below).
In considering these arguments, the Court provided very useful guidance about the role of the State in the resolution of native title claims.
The Court referred to its earlier decision in Western Bundjalung People v New South Wales [2017] FCA 992, where it said in relation to the operation of Part VB of the Federal Court Act in the native title context (at [17]):
It is the State party which is subject not only to the duties imposed by the NTA [Native Title Act] and the [Federal] Court Act but also by the obligations of a model litigant. Unless the State party is both vigilant about discharging all of its duties in good faith, recognising the objects of the NTA and its unique role, and committed to taking responsibility for driving sensible and fair outcomes in a timely manner, there is no real prospect of other parties or the Court being able to effectively discharge their and its duties. There is also no prospect of matters being resolved in a manner which is consistent with the objects of the NTA.
The Court held that:
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As a respondent to a native title claim, the State represents the interests of all of the community: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109;
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In determining whether to agree to a consent determination of native title, the State need only be satisfied that there is a credible or cogent basis to conclude that the statutory requirements of a determination of native title under the Native Title Act are satisfied: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474;
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It would be inconsistent with its obligations under the Native Title Act and Part VB of the Federal Court Act for the State to require an applicant to go further: Western Bundjalong People at [21]–[22]; Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34 at [51].
In relation to "good faith", the Court referred to the Full Federal Court decision in Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34. The Full Court held that there is a clear and unambiguous duty on all parties to act in good faith in the conduct of mediation under the Native Title Act. For more information about that case, see our 2019 Year in Review article Think twice before using the carrot of consent to determination as leverage – Full Court reminder about duty of good faith in native title mediation.
The Federal Court held that the State's conduct in not accepting the conclusion of the joint expert report, did not offend these principles, did not establish an absence of good faith and was not an abuse of process. The State's conduct was not unjustifiably oppressive and did not bring the administration of justice into disrepute. Importantly, experts are not agents for their retaining parties, meaning they cannot make admissions on behalf of a party. Therefore, the agreement of experts does not necessarily establish a credible basis for a native title claim.
In this case, the State was concerned that:
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the applicant group and its composition were unclear;
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there was insufficient evidence to support the continuing acknowledgement of the group's laws, customs, and connection with the claim area; and
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there were insufficient facts to support the experts' opinions.
Because of these factors, the Court held that the State had a legitimate basis for refusing to enter into a consent determination and instead testing the experts' opinions at trial.
How do the State's model litigant principles affect native title claims?
The native title claim group submitted that the State's conduct was in breach of the model litigant principles.
The Model Litigant Principles issued by the Queensland Government (revised 4 October 2010), require the State to act fairly and firmly in the conduct of litigation, and to consider methods of alternative dispute resolution prior to commencing court proceedings. Across Australian jurisdictions, governments, including the Commonwealth, are expected to comply with similar model litigant obligations. The model litigant principles reflect an understanding that the power of the State is to be used for the public good, with due regard to the proper use of taxpayers money, and not as a means of oppression.
The native title claim group submitted that the Model Litigant Principles required to State to deal with claims promptly, not cause unnecessary delay, minimise the scope and cost of litigation, and engage in alternative dispute resolution.
In response, the State submitted that it was acting in accordance with its Model Litigant Principles, which require it to litigate according to the principles of fairness and firmness, as follows:
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Fairness requires the State to not force native title applicants to prove facts which the State knows to be true. In this case, the State was not satisfied that there was a credible basis for the claim (as explained above), meaning its conduct was not unfair.
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Firmness requires the State to appropriately test all claims. The State's position was that, because native title litigation involves proprietary rights, it was especially important to properly test their accuracy.
The Court held that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. The claim group's application for a strike out of the State's response could not be founded on a breach of the Model Litigant Principles.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
