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 2018Judgment 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
Keep reading for free
Create a free CaseChat account to read The Nyamal Palyku Proceeding (No 7) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] FCA 528
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.