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The Nyamal Palyku Proceeding (No 7)

The Nyamal Palyku Proceeding (No 7)

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FEDERAL COURT OF AUSTRALIA
The Nyamal Palyku Proceeding (No 7) [2023] FCA 528

File numbers: WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 483 of 2018

Judgment of: COLVIN J

Date of judgment: 29 May 2023

Catchwords: NATIVE TITLE - where competing claims to native title by native title applicants in respect of the same area - where trial of separate question had been conducted - where parties referred to mediation before closing submissions on separate question - where agreement reached between native title claim groups to consent orders vacating the separate question and referring the proceedings to a registrar with reference to a proposed consent determination - where agreement also reached as to other non-native title matters - where consent orders made by the Court - where further steps taken towards consent determination - where one native title applicant subsequently brought an interlocutory application seeking to have the consent orders vacated and the separate question determined by the Court - where the other native title applicants brought an interlocutory application to summarily dismiss the claim of the other native title applicant to an area which had been agreed to be the subject of a proposed consent determination in favour of those other native title applicants - consideration of enforceability of mediation agreements under the Native Title Act 1993 (Cth) - agreement held to be enforceable - application to reinstate trial of separate question not upheld

Legislation:
Federal Court of Australia Act 1976 (Cth) s 37N

Native Title Act 1993 (Cth) ss 3, 10, 61, 62A, 81, 82, 86A, 86B, 86F, 86G, 87, 87A, 94E, 94G, 94J, 94N, 94P, 94Q, 251B

Federal Court Rules 2011 (Cth) rr 39.05, 39.11

Cases cited:
Attorney-General v Tomline (1877) 7 Ch D 388

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540

Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971

Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497

Brown v The State of South Australia [2010] FCA 875; (2010) 189 FCR 540

Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502

Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16

Hafertepen v Network Ten Pty Limited [2020] FCA 1456

Harvey v Phillip (1956) 95 CLR 235

Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; (2009) 279 CLR 75

Jigalong Pty Limited v Todd [2015] NSWCA 7

Lander v State of South Australia [2012] FCA 427

Masters v Cameron (1954) 91 CLR 353

McDermott v Black (1940) 63 CLR 161

Meehan v Jones (1982) 149 CLR 571

Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233

Otto Energy (Tanzania) Pty Ltd v Swala Energy Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 528
Decision Date: 29 May 2023

CaseChat Overview and Summary

In the Federal Court, the Nyamal Palyku Proceeding (No 7) involved competing native title claims by the Nyamal and Palyku native title applicants over the same area. Following a trial of a separate question and referral to mediation, the parties reached an agreement to vacate the separate question and refer the proceedings to a registrar for a proposed consent determination. Consent orders were subsequently made by the Court. One native title applicant sought to vacate the consent orders and have the separate question determined by the Court, while the other applicants sought to summarily dismiss the other applicant's claim to an area agreed upon in the proposed consent determination.

The legal issues before the Court included the enforceability of the mediation agreement under the Native Title Act 1993 (Cth) and whether the Court should reinstate the trial of the separate question. The Court found that the mediation agreement was enforceable and dismissed the application to reinstate the trial of the separate question. The Court held that the mediation agreement was made in good faith and the parties had a clear understanding of its purpose and effect. The Court also found that there was no evidence to suggest that the agreement was contrary to traditional Nyamal law and culture. The Court emphasised the importance of resolving native title disputes through agreement and the need for parties to act in good faith in the mediation process.

The Court's reasoning was based on the evidence presented by the parties and the applicable law. The Court found that the mediation agreement was a valid and enforceable agreement under the Native Title Act. The Court held that the agreement was made in good faith and the parties had a clear understanding of its purpose and effect. The Court also found that there was no evidence to suggest that the agreement was contrary to traditional Nyamal law and culture. The Court emphasised the importance of resolving native title disputes through agreement and the need for parties to act in good faith in the mediation process.

The Court made orders directing the parties to each propose a minute of orders to give effect to the Court's reasons, including any order as to the costs of the interlocutory applications. The Court noted that if there was disagreement among the parties, it would convene a short hearing to receive oral submissions as to the orders to be made. The Court's decision highlights the importance of mediation in resolving native title disputes and the enforceability of mediation agreements under the Native Title Act.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

It follows that I would not uphold the alternative claim to an order for costs thrown away.Conclusion 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File numbers:	WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 483 of 2018
Judgment of:	COLVIN J
Date of judgment:	29 May 2023
Catchwords:	NATIVE TITLE - where competing claims to native title by native title applicants in respect of the same area - where trial of separate question had been conducted - where parties referred to mediation before closing submissions on separate question - where agreement reached between native title claim groups to consent orders vacating the separate question and referring the proceedings to a registrar with reference to a proposed consent determination - where agreement also reached as to other non-native title matters - where consent orders made by the Court - where further steps taken towards consent determination - where one native title applicant subsequently brought an interlocutory application seeking to have the consent orders vacated and the separate question determined by the Court - where the other native title applicants brought an interlocutory application to summarily dismiss the claim of the other native title applicant to an area which had been agreed to be the subject of a proposed consent determination in favour of those other native title applicants - consideration of enforceability of mediation agreements under the Native Title Act 1993 (Cth) - agreement held to be enforceable - application to reinstate trial of separate question not upheld
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37N Native Title Act 1993 (Cth) ss 3, 10, 61, 62A, 81, 82, 86A, 86B, 86F, 86G, 87, 87A, 94E, 94G, 94J, 94N, 94P, 94Q, 251B Federal Court Rules 2011 (Cth) rr 39.05, 39.11
Cases cited:	Attorney-General v Tomline (1877) 7 Ch D 388 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971 Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 Brown v The State of South Australia [2010] FCA 875; (2010) 189 FCR 540 Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502 Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16 Hafertepen v Network Ten Pty Limited [2020] FCA 1456 Harvey v Phillip (1956) 95 CLR 235 Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; (2009) 279 CLR 75 Jigalong Pty Limited v Todd [2015] NSWCA 7 Lander v State of South Australia [2012] FCA 427 Masters v Cameron (1954) 91 CLR 353 McDermott v Black (1940) 63 CLR 161 Meehan v Jones (1982) 149 CLR 571 Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 Otto Energy (Tanzania) Pty Ltd v Swala Energy Ltd…