7 May 2020
Introduction
What you need to know
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The Full Court in Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34 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 1993 (Cth).
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The remedies available to the Court for breach of that duty are analogous to the remedies available to redress an abuse of process.
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This case makes it harder for States to try to wrap up a range of native title and tenure issues as part of a consent determination negotiation, for fear of allegations by the native title party of conduct inconsistent with good faith obligations.
What you need to do
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Parties who participate in the mediation of native title claims need to be mindful of their duty to act in good faith.
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When participating in the negotiation of a consent determination of native title, parties should not use the carrot of consent to the determination as leverage to secure agreement on other matters if there is no bona fide dispute about issues concerning a proposed consent determination.
Widjabul Wia-Bal v Attorney General of New South Wales
This decision arose in the context of negotiations for a consent determination of native title in the Widjabul Wia-Bal native title claim in New South Wales.
The claim group challenged the conduct of the NSW Attorney General and alleged a breach of the obligation of good faith in relation to the negotiation of an agreement for a consent determination of native title. The substance of the allegation related to the Attorney General requiring that the claim group agree to an indigenous land use agreement (ILUA) as a condition of the Attorney General being willing to agree to the making of a consent determination.
The Full Court did not ultimately accept the allegations against the NSW Attorney General, finding the claim group's case failed for lack of proof, but made some important observations about the duty to act in good faith and the consequences of not doing so.
Duty to act in good faith in the mediation of a native title claim
Section 94E(5) of the Native Title Act 1993 (Cth) provides that each party to the mediation of native title claim proceedings must act in good faith in relation to the conduct of the mediation.
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. An example of a breach of that duty would be (at [38]):
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for a party to a mediation who does not have any bona fide dispute as to the existence of the native title rights which are sought to be the subject of a determination of native title by consent to withhold consent in an attempt to secure agreement on matters outside of the scope of the determination.
The Full Court noted that in the context of a consent determination, it is sufficient for the State to satisfy itself that there is a credible basis for the claim. The State is not required to obtain proof of native title to a civil standard of proof. To require more from the claim group would not be an act in good faith in the conduct of a mediation (at [51]).
The Full Court did not elaborate further on the content of the duty, but did refer to the following passage from the Full Court decision in Charles v Sheffield Resources Limited [2017] FCAFC 218 at [94], in the context of the duty to negotiate in good faith during right to negotiate procedures (at [37]):
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Negotiating in good faith has been said to involve acting honestly, without ulterior motive or purpose, with an open mind, willingness to listen, willingness to compromise, an active and open participation of the other parties, and the making of every reasonable effort to reach an agreement … Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith … Negotiation in good faith is not confined to the making of a reasonable offer …
Remedies for breach of that duty
The Full Court said that remedies available to the Court for breach of that duty are analogous to the remedies available to redress an abuse of process. These might include:
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an order that a person cease to be a party to the claim (s 84(8) Native Title Act);
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an order for costs tailored to the circumstances of the case, including an order for security for costs (s 85A(1) Native Title Act);
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an order requiring oppressive material to be removed from the Court’s file or struck out of a document (r 6.01 Federal Court Rules 2011 (Cth) (the FCR));
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an order striking out a pleading (r 16.21 FCR);
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an order for summary judgment (r 26.01 FCR); and
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in an appropriate case, an order for an injunction, be it mandatory or prohibitory (s 23 Federal Court of Australia Act 1976 (Cth)).
The Full Court emphasised the fundamental principle that the Court has the power to control its own processes, including by framing such a remedy as is appropriate in all of the circumstances constituting the breach of the duty.
Some "horse trading" is acceptable
The Full Court said there was a difference between negotiating tactics and failing to act in good faith in the conduct of a mediation.
It is not necessarily impermissible for a State to adopt a position in a mediation that a consent determination is conditional upon the registration of an ILUA. Something more would need to be proved to support a contention of a lack of good faith.
The Full Court held that conduct which is able to be characterised as irrational, unreasonable, unfair or oppressive in all the circumstances may well be conduct other than in good faith.
In the present case however, the Full Court ultimately found that the lack of evidence before the Court about the connection material provided to the Attorney General and the terms of the draft ILUA effectively precluded any evaluation by the Court that the Attorney General's position involved an act not in good faith in the conduct of the mediation.
For further information, please contact:
Leonie Flynn, Ashurst
leonie.flynn@ashurst.com
