Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34

Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34

The interlocutory application failed because the applicant did not prove a sufficient factual foundation for a declaration or separate question answer that the Attorney General acted otherwise than in good faith. Although s 94E(5) imposes a duty of good faith in native title mediation and the Court may grant remedies for breach, ss 87 and 87A permit agreements involving matters other than native title, so requiring negotiation of an ILUA is not inherently impermissible. The Court did not have the connection material supplied to the Attorney General or the terms of the draft ILUA, and there was evidence of a bona fide dispute about at least some claimed native title rights. The Court...

Jurisdiction
Australia
Judgment Date
10 March 2020
Procedural Posture
Native Title Interlocutory Application / Application for Separate Question And/or Declarations Concerning Whether the First Respondent Could Require an Indigenous Land Use Agreement as a Pre Condition of a Consent Determination
Outcome
Interlocutory application dismissed.
Legal Topics
['indigenous Land Use Agreements' 'consent Determinations' 'mediation' 'good Faith Obligations' 'overarching Purpose' 'court Control of Process' 'separate Questions' 'declaratory Relief']
['native Title' 'practice and Procedure'] ['indigenous Land Use Agreements' 'consent Determinations' 'mediation' 'good Faith Obligations' 'overarching Purpose' 'court Control of Process' 'separate Questions' 'declaratory Relief']

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Procedural Posture

Native Title Interlocutory Application / Application for Separate Question And/or Declarations Concerning Whether the First Respondent Could Require an Indigenous Land Use Agreement as a Pre Condition of a Consent Determination

Legal Issues

  1. 1 ['Whether the Attorney General of New South Wales could lawfully require the applicant to agree to an indigenous land use agreement as a condition of agreeing to a native title determination by consent.' 'Whether the Attorney General owed and breached a duty to act in good faith in relation to the conduct of mediation under the Native Title Act 1993 (Cth).' 'Whether any breach of the duty to act in good faith in mediation could attract remedies beyond reports under ss 94P and 94Q of the Native Title Act 1993 (Cth).' 'Whether the applicant had proved a sufficient factual foundation for the Court to find that the Attorney General had acted otherwise than in good faith.']

Ratio Decidendi

The interlocutory application failed because the applicant did not prove a sufficient factual foundation for a declaration or separate question answer that the Attorney General acted otherwise than in good faith. Although s 94E(5) imposes a duty of good faith in native title mediation and the Court may grant remedies for breach, ss 87 and 87A permit agreements involving matters other than native title, so requiring negotiation of an ILUA is not inherently impermissible. The Court did not have the connection material supplied to the Attorney General or the terms of the draft ILUA, and there was evidence of a bona fide dispute about at least some claimed native title rights. The Court...

Court Disposition

Interlocutory application dismissed.

Orders

  • ['The interlocutory application filed on 25 May 2019 be dismissed.']