Native Title Year in Review 2023-2024

What you need to know

• Although the general position remains that parties bear their own costs in the native title jurisdiction, the Federal Court will make costs orders in the face of unreasonable conduct.
• A costs order can be awarded to a native title party represented by a native title representative body.
• The hearing of separate questions in a native title compensation "test case" was not a sufficient reason to depart from the general rule that each party bears their own costs in native title claim proceedings.

What you need to do

• Be aware that all parties can be liable for costs if they behave unreasonably in native title proceedings, even native title parties seeking to protect their native title interests.
• Ensure that you are compliant with all procedural obligations to minimise the risk of an adverse costs order.

The trends in costs orders in native title proceedings

We follow native title costs decisions in our annual Native Title Year in Review to identify new principles and trends.

We reported on a number of costs decisions with adverse outcomes for parties pursuing unreasonable positions in litigation and mediation in our Native Title Year in Review 2022-2023 article "When conduct becomes costly - the risk of unreasonable behaviour in native title proceedings".

This trend continues in 2023-2024. The below decisions provide guidance on the application of section 85A of the Native Title Act 1993 (Cth) (see below) and what the court considers unreasonable conduct.

Native title parties represented by native title representative bodies are entitled to a costs order

In two recent costs applications, the Federal Court rejected arguments that native title parties represented by native title representative bodies are unable to recover costs and confirmed a 2014 decision that costs could be recovered in these circumstances.

In Alvoen on behalf of the Wakaman People #5 v State Minister for the State of Queensland (No 5) [2023] FCA 1593, the Wakaman Applicant and the State sought costs against the Uwoykand Corporation in respect of a successful interlocutory application to remove the Uwoykand Corporation as a party to the proceedings. The court held that the Uwoykand's conduct was "unjustifiably oppressive" and had constituted an abuse of process.

We wrote about this case in our Native Title Year in Review 2022-2023 article "When conduct becomes costly - the risk of unreasonable behaviour in native title proceedings".

Uwoykand contended that any adverse costs order would be "punishment of an unsuccessful party". However, the court held that punishment is not relevant to section 85A of the Native Title Act, which is solely focussed on whether the conduct of a party constituted "any unreasonable act or omission".

Uwoykand also submitted that Wakaman could not seek costs because it was represented by a representative body (the North Queensland Land Council). The court rejected this submission and adopted the approach taken in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635.

The court ordered Uwoykand to pay the Wakaman Applicant and State's costs of and incidental to the interlocutory application, on a party-party basis, such costs to be taxed if not otherwise agreed.

The Federal Court took the same approach in Mann on behalf of the Bigambul People #2 v State of Queensland (No 2) [2023] FCA 1598. It held that representation by a representative body is no impediment to an award of costs.

We discuss this costs decision further below.

Court finds unreasonable conduct sufficient to depart from usual rule that each party bears own costs

In Mann on behalf of the Bigambul People #2 v State of Queensland (No 2) [2023] FCA 1598, the Gamilaraay Applicant sought costs of and incidental to:

• a successful interlocutory application seeking to join and then strike out the Bigambul #2 native title claim; and
• an unsuccessful interlocutory application by the Bigambul #2 Applicant seeking to extend the time for filing an application for leave to appeal.

The Federal Court struck out the Bigambul People #2 native title claim because it was not properly authorised and was an abuse of process. We wrote about this case in our Native Title Year in Review 2022-2023 article "When conduct becomes costly - the risk of unreasonable behaviour in native title proceedings".

In the costs case, the Court found that conduct constituting an abuse of process could be viewed as unreasonable within the meaning of section 85A(2) of the Native Title Act.

The Court found the unreasonable conduct included:

• extreme delay in commencing the claim and absence of an explanation;
• substantial defects in the authorisation of the claim;
• the inference that the claim was commenced in order to require the Gamilaraay Applicant to include additional descent lines in its own claim, rather than being a genuine claim to the overlapping area; and
• the serious prejudice caused to the Gamilaraay Applicant and the progression of the Gamilaraay consent determination by the conduct of the Bigambul Applicant.

The court held that it was appropriate that the Bigambul #2 Applicant pay the costs of the Gamilaraay Applicant of and incidental to Interlocutory Application 1, on a party-party basis, such costs to be taxed if not otherwise agreed.

Costs were not awarded in relation to the second interlocutory application because:

• no arguments of substance were put by any party; and
• although there was a procedural error from the Bigambul #2 Applicant, this did not constitute an unreasonable act or omission causing another party to the proceedings to incur costs within the meaning of section 85A of the Native Title Act.

Compensation "test case" not sufficient to depart from starting point that each party bears their own costs

This Full Court decision considered the application of section 85A to the hearing of separate questions in a native title compensation "test case".

In Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia (No 2) [2023] FCAFC 113, the Full Court dealt with the issue of costs in relation to the hearing of separate questions determined by the Full Court in May 2023. We wrote about the May Full Court decision in our Native Title Year in Review 2022-2023 article "Landmark Gumatj Clan compensation decision opens up a new class of compensation claims against the Commonwealth".

The Gumatj and the Rirratjingu parties accepted the starting point was that each party bears their own costs. However, they submitted that a number of factors supported the making of a costs order in their favour in relation to the hearing of the separate questions.

The Full Court was not satisfied that there was a sufficient basis to depart from the starting position provided under section 85A(1) of the Native Title Act. Accordingly, the Full Court ordered that each party bear its own costs of, and in relation to, the hearing of the separate questions.

More details about the arguments and findings are below.

The Gumatj Clan submitted that:

• the nature of the separate question hearing was significantly different from that of a typical native title determination or compensation application, and raised complex constitutional issues of broader significance;
• the complex constitutional issues extended beyond issues relating to native title, to include much broader principles of constitutional power and structure;
• the Gumatj Clan was wholly successful on each of the separate questions and each of the underlying legal issues in dispute;
• the separate question hearing involved considerable costs, including lengthy submissions and a five day hearing; and
• the Gumatj Clan did not received any litigation funding from a native title representative body or other public funding.

The Rirratjingu parties also relied on those submissions, subject to the following additions and qualifications:

• the Commonwealth could have raised and resolved the constitutional issues in various types of proceedings, and had it done so, the ordinary position would be that the successful party would be awarded costs;
• the Commonwealth expressly acknowledged the constitutional issue was a "High Court question", but elected not to exercise its rights to remove those issues to the High Court. Had it done so, section 85A — being a provision directed only to the power of the Federal Court — would not have applied. Therefore, a likely consequence of that decision exposed the parties to paying legal fees in two proceedings (one in the Federal Court and one in the High Court);Rirratjingu's costs are not considerable;
• where the Rirratjingu parties made submissions, several were accepted by the Court; and
• the Rirratjingu parties did not receive any litigation funding, or any other public funding.

The Full Court found that four factors weighed against making a costs order:

• While the hearing involved constitutional issues that could have been raised in a non-Native Title Act case, they were raised in a proceeding to which section 85A applies;
• Given the substantial nature of the claims for compensation, it was reasonable to expect that the claims would be fully tested, and that a process involving separate questions was likely to occur;
• While the hearing occupied five days, this must be viewed in the context of the costs of the proceedings as a whole, which is likely to be considerable;
• The fact that neither the Gumatj Clan nor the Rirratjingu people received public funding was not a basis to depart from the starting principle that each party bears its own costs.

Potential award for costs against applicants, non-party and solicitor following dismissal of native title claim as an abuse of process

In Brownley on behalf of the Gulgoordi-Garlgurla Wongi People v State of Western Australia [2024] FCA 208, the Court dismissed the Gulgoordi-Garlgurla Wongi People native title claim as an abuse of process.

The claim wholly overlapped the Marlinyu Ghoorlie claim which was 12 months into a trial and was close to determination.

Both the State and the applicant in the overlapping claim filed interlocutory applications seeking orders that the Gulgoordi-Garlgurla Wongi People native title claim be dismissed as an abuse of process.
The Court dismissed the claim. It considered section 85A of the Native Title Act but said (at paragraph [79]):

Having regard to the findings I have made on this application, including the involvement of non-parties in the bringing of the GGW application, I will make an order permitting any application by a respondent to the GGW application for an award of costs against any person to be filed and served within 14 days.

The non-parties that the Court referred to were Ms Colbung (who had been an Indigenous respondent to the Marlinyu Ghoorlie claim but consented to being removed as a party) and her solicitor Mr Linde. The Court held that they were both actively involved in the preparation and filing of the Gulgoordi-Garlgurla Wongi People native title claim.

An application for costs against the individual applicants in the Gulgoordi-Garlgurla Wongi People claim, Ms Colbung and solicitor Mr Linde was filed by the Marlinyu Ghoorlie claim group in March 2024. It will be heard in 2024. We will report on the outcome in our next edition of Native Title Year in Review.

Want to know more? 

• When conduct becomes costly - the risk of unreasonable behaviour in native title proceedings (3 August 2023) - Costs decisions during 2022-2023
• Costs Update it doesn't matter who you are unreasonable conduct risks a costs order (11 July 2022) - Costs decision during 2021-2022

Authors: Roxane Read, Senior Associate and Claudia Shelley, Lawyer.