Consideration of the argument that the State is in breach of its obligation to act in good faith
76 It is convenient to begin by considering the broadest proposition contended for by the applicant: that it is a breach of the obligation of good faith under s 94E(5) of the NT Act for a State party to require an applicant to do more than demonstrate a credible basis for a determination of native title. That submission relies upon the judgments in Western Bundjalung and Widjabul Wia-Bal.
77 In Western Bundjalung, Jagot J made a consent determination of native title. The matter had a long history, and her Honour was critical of prior conduct of the State party. Her Honour's reasons included the following comments:
21 In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities…
22 For a State respondent to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87 would involve an impermissible departure from the standards of fidelity to the provisions of the NTA, the Court Act and the obligations of such bodies to act as a model litigant...
78 In Widjabul Wia-Bal, Reeves, Jagot and Mortimer JJ considered a submission by the applicant that the Attorney-General of New South Wales could not lawfully require that the applicant enter into an Indigenous Land Use Agreement (ILUA) as a condition of the Attorney-General agreeing to a native title determination.
79 The Full Court at [3] began by referring to the Preamble to the NT Act which provides, relevantly, that:
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
80 The Full Court continued at [4]:
The Preamble thus establishes the intention of the Commonwealth Parliament that the ascertainment of native title rights and interests is to be achieved through a conciliatory process of negotiation, facilitated by governments, rather than by the conventional method of resolving disputes about rights through adversarial litigation.
81 The Full Court at [36]-[37] agreed with the opinion of Mansfield J in Brown v South Australia (2010) 189 FCR 540 at [38], that:
If there is no bona fide dispute about issues concerning a proposed consent determination, it would be a breach of any obligation to negotiate in good faith to use the carrot of consent to the determination as leverage to secure agreement on other matters such as a sustainable benefits term.
82 The Full Court at [37] quoted from the judgment of White J in Charles v Sheffield Resources Ltd (2017) 257 FCR 29 at [94] as follows:
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.
(Citations omitted.)
83 The Full Court went on to hold at [38] that s 94E(5) of the NT Act clearly and unambiguously imposes a duty of good faith in relation to the conduct of a mediation. The Full Court at [39] considered that the doctrine of abuse of process provides a "useful analogue" for the considerations that might inform an evaluation of whether a party is not conducting itself in good faith and the remedies available to redress any breach of the duty. The Full Court observed that the Court's powers to redress or ameliorate the effect of a breach include making orders removing a party, striking out a pleading, allowing summary judgment, granting an injunction, or awarding costs.
84 The Full Court in Widjabul Wia-Bal continued at [51]:
51 Before considering the facts of the present case it is necessary to say something about the Court's power to make a determination of native title in accordance with an agreement. The Court must be satisfied that it is appropriate to make the orders specified in the agreement and that there is power to do so: ss 87(1)(c) and 87A(4) of the NT Act. It has been stated that it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application: Lovett v Victoria [2007] FCA 474 at [37] (Lovett) citing Munn v Queensland (2001) 115 FCR 109; see also Watson v Western Australia (No 6) [2014] FCA 545 at [29]. Further, in Lovett it was made clear that "[t]he Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court". To fulfil its function under the NT Act, in the context of a mediation with a view to entering an agreement under ss 87 or 87A, the State is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist. Indeed, for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith in the conduct of the mediation. It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State's perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in ss 87 or 87A of the NT Act. To place such an unwarranted burden on an applicant would be fundamentally inconsistent with the scheme of the NT Act and in particular the provisions identified above which constitute the "special procedure", which the Preamble to the statute recognises is required for the "just and proper ascertainment of native title rights and interests". Such an act would readily be characterised as an act not in good faith in the conduct of a mediation.
(Underlining added.)
85 Having accepted that the Attorney-General had an obligation to negotiate in good faith, the Full Court proceeded to consider whether the applicant had demonstrated a breach of that obligation. The Full Court held at [69] that a lack of evidence about the content of the applicant's material and the terms of the draft ILUA effectively precluded any evaluation of whether the relevant conduct, "may be irrational, unreasonable, unfair or oppressive in the circumstances or involve any other conduct which may fall below the standard of good faith which the NT Act requires".
86 However, the Full Court went on to observe at [71] that as the Attorney-General had accepted a credible basis for the existence of some native title rights, there was no bona fide dispute about those rights for the purpose of making an agreement under s 87 or s 87A of the NT Act. The Full Court stated that the duty of good faith under s 94E(5) of the NT Act and the duties under ss 37M(1) and 37N(1) of the FCA Act require that in the ordinary course, the Attorney-General would negotiate an agreement recognising at least those rights even in the absence of an ILUA.
87 There is, in my respectful opinion, a substantial basis for questioning the statement at [51] of Widjabul Wia-Bal that, "for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith". This statement of principle was evidently derived from Western Bundjalung at [21] where it was said that a State party, "looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied", and at [22], that it is impermissible, "to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87". The expression "credible or cogent" denotes a standard that is lower, perhaps substantially lower, than the balance of probabilities. Widjabul Wia-Bal and Western Bundjalung establish that where there is a credible or cogent basis for concluding that the requirements of s 223 are satisfied, the obligation to act in good faith requires that a State party seek to negotiate an agreement upon the terms of a determination of native title. The effect of these cases is that where an applicant demonstrates a credible or cogent case, a State party must, subject to negotiation of appropriate terms, agree to a determination.
88 There is no express statement in the NT Act of any principle of the kind enunciated in Widjabul Wia-Bal at [51] and Western Bundjalung at [21]-[22]. The principle rests upon implication from the emphasis placed by the NT Act upon consensual resolution of determination applications, from the requirement that all parties must act in good faith in the conduct of a mediation, and from the special position of the State in a native title proceeding.
89 The special position of a State party was described in Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109. In that case, Emmett J observed at [29], that the State party appears, "in the capacity of parens patriae to look after the interests of the community generally".
90 The emphasis upon consensual resolution is made manifest in the Preamble, which forms an important part of the context in which the provisions of the NT Act are construed: see North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 at 637. There is considerable force in the reasoning in Widjabul Wia-Bal and Western Bundjalung that the powers of the Court to approve agreements under ss 87 and 87A reflect an intention to rectify the consequences of past injustices by the special measures contained in the NT Act, and to avoid the necessity for lengthy and onerous litigation. However, it is strongly arguable that these cases fail to construe comments made in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, which in turn relied upon Munn, concerning the role of a State party, in their proper context.
91 In Munn, Emmett J considered the standard of scrutiny the Court is required to apply to a determination proposed to be made by agreement under s 87 of the NT Act and the factors relevant to the exercise of the Court's discretion under that provision. His Honour held:
22 …The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes.
…
28 …The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects.
29 Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.
30 However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally.
…
(Underlining added.)
92 As Emmett J observed in Munn at [22], a determination that native title exists operates against the entire world, not merely between the parties to the determination application. So, for example, s 61A(1) of the NT Act provides that a native title determination application must not be made in relation to an area for which there is already an approved determination of native title, and a determination may affect the interests of persons who acquire non-native title interests in the determination area in the future. Emmett J considered at [29] that the Court needs to be satisfied, at least, that a State party is satisfied as to the cogency of an applicant's evidence before making a consent determination. That is because the State is responsible for protecting the interests of the community generally.
93 In Lovett, North J also considered the level of scrutiny a Court is required to give to a proposed consent determination under s 87 of the NT Act. After referring to the importance placed by the NT Act on mediation as the primary means of resolving native title determination applications, his Honour continued:
37 In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case.
(Underlining added.)
94 In Lovett, North J observed at [37] that the Court must be satisfied that the agreement is "appropriate", and this requires satisfaction that the agreement has been freely entered into by the parties on an informed basis. His Honour considered that, in respect of a State party, this requirement can be met through the Court's satisfaction that the State party has satisfied itself that there is a credible basis for a determination application. His Honour went on to indicate at [38] that the State party can be satisfied that there is a credible basis upon significantly more limited material than would be required for a contested hearing. His Honour cannot be understood as suggesting that the State is under an obligation to agree to a determination if satisfied that there is a credible basis for a determination application.
95 In Widjabul Wia-Bal, the Full Court's reasoning at [51] started with the proposition derived from Lovett and Munn that the Court may be satisfied that an agreement under s 87 of the NT Act is appropriate where the State party has satisfied itself that there is a credible basis for the determination application. The Full Court then observed that in order to agree to a determination, the State party is not required to obtain proof from an applicant which would demonstrate, on the balance of probabilities, that the native title rights and interests claimed in the determination application exist. That is obviously true.
96 The Full Court then reasoned at [51] that:
It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State's perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in ss 87 or 87A of the NT Act.
97 There are several premises involved in this passage. Some are undoubtedly correct. It is true that by agreeing to a determination, the State party represents to the Court that, from the State party's perspective, it is appropriate for the Court to make the determination of native title. It is also true that by agreeing to a determination, the State party represents that it is satisfied that the applicant has demonstrated "at least" (to use the words of Munn at [29]) a cogent or credible case. However, the Full Court's reasoning then proceeds on the basis that it cannot be an act in good faith for the State party to require an applicant to demonstrate more than a cogent or credible case. It is at this point that the reasoning arguably breaks down. The Full Court interprets the obligation to act in good faith as requiring that where the State can agree, it must agree.
98 As the Preamble makes clear, the NT Act strongly promotes the consensual resolution of native title determination applications, "if possible". It is obvious that consensual resolution will not be possible where one or more parties decline to consent. Where consensual resolution is not possible, the NT Act provides for determination of an application by the Federal Court under an adversarial process. The Court has jurisdiction, under s 81 of the NT Act, to hear and determine applications filed in the Court.
99 It is true that litigation under the NT Act is not ordinary private inter partes litigation, at least in the senses that a determination may affect the interests of persons who are not parties and that the matter ordinarily remains in mediation throughout its currency. However, native title litigation does have many of the features of ordinary private inter partes litigation. The applicant bears the onus of proving that, aside from questions of extinguishment, native title exists in relation to the claim area: Western Australia v Ward (2000) 99 FCR 316 at [114], [120]. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the Court must find the case of a party proved if satisfied that the case has been proved on the balance of probabilities. Section 82(1) of the NT Act provides that the Court is bound by the rules of evidence, except to the extent that it otherwise orders.
100 It can readily be accepted that a State party will fail to act in good faith if it does not attempt to reach agreement in circumstances where there is no bona fide dispute about the existence of native title rights and interests in relation to a particular area or areas. It is much less obvious that a State party breaches its duty of good faith where the State party is not satisfied that the applicant can prove the existence of native title on the balance of probabilities upon admissible evidence, and is, for that reason, unwilling to negotiate a consent determination.
101 It is undoubtedly open to a State party to reach agreement with the applicant for the purposes of s 87 or s 87A of the NT Act even where it is not satisfied that the applicant's material demonstrates the existence of native title to the standard of the balance of probabilities. However, that is a quite different proposition to inferring a legislative intention that the State party must negotiate an agreement which recognises the existence of native title even though the applicant has only demonstrated a credible or cogent case.
102 The issue must be considered in the context that, as was held in Munn at [29], the State party, "appears in the capacity of parens patriae to look after the interests of the community generally". While it is true, as was observed in Western Bundjalung at [20], that the State party's duty encompasses the interests of the claim group, the duty also extends more broadly. In Smith v State of Western Australia (2000) 104 FCR 494, Madgwick J observed at [38] that:
State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
103 In its decision-making, a State party is required to balance the benefits of agreeing to a determination of native title, against any effects that may be regarded as adverse to the interests of the general community. So, for example, s 84(9) of the NT Act contemplates that the interests of persons concerned about the effects of a determination of native title upon public rights of access to, or use of, the claim area may properly be represented by a State party. Where there is a bona fide dispute about the existence of native title, a State party may require the applicant to prove its case on the balance of probabilities in contested litigation, but need not necessarily do so. The State party's decision-making may be influenced by a wide array of legitimate considerations relating to the interests of the State itself and the community generally.
104 It is difficult to see that the legislative intention could be to effectively require a State party to agree to a determination of native title upon the applicant demonstrating, on untested evidence, a credible or cogent case. That is particularly so when the only standard of proof clearly contemplated is the balance of probabilities, and no standard of credibility or cogency is stipulated in the NT Act.
105 The reasoning of the Full Court in Widjabul Wia-Bal also results in the incongruity that an applicant who is able to demonstrate a credible case cannot be required by a State party to prove its case to the Court on the balance of probabilities; whereas an applicant who is unable to demonstrate a credible case to the State party will have to prove their case to the Court on the balance of probabilities.
106 Sections 87(1A) and 87A(4)-(5) of the NT Act require the Court to be satisfied that it is "appropriate" to make orders in the terms agreed between the parties. It is arguable that the Full Court's reasoning in Widjabul Wia-Bal conflates that which the Court requires of the State party in order for the Court to be satisfied that a consent determination is appropriate, with the obligation of the State party to act in good faith. When the State party agrees to a determination, the Court need not examine for itself whether the evidence establishes that native title exists, and may be satisfied that the determination is appropriate on the basis of the State party's satisfaction that there is at least a cogent or credible basis for the determination application. Upon the reasoning in Widjabul Wia-Bal, if the State party fails to engage in negotiations for a consent determination when an applicant demonstrates a credible case, the State party must be failing to act in good faith. That reasoning may give the obligation of good faith under s 94E(5) a content that is incompatible with the broader context of the NT Act.
107 For these reasons, it is open to doubt the view expressed in Widjabul Wia-Bal at [51] and Western Bundjalung at [21]-[22], that it is inconsistent with the obligation to act in good faith for a State party to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights and interests sought. It is not entirely clear whether that view formed part of the ratio decidendi of Widjabul Wia-Bal, and that question was not argued in the appeal.
108 It is unnecessary to express any final opinion upon these matters. That is because the State's primary submission is that it is not in breach of its obligation of good faith under s 94E(5) of the NT Act because it has reasonable grounds for its lack of satisfaction that there is a credible basis for the Western Kangoulu determination application. The applicant submits, on the other hand, that the only conclusion available is that a credible basis for the claim exists and the State's failure to accept that conclusion demonstrates an absence of good faith.
109 The applicant relies principally upon the fact that the expert anthropologists have effectively agreed that the claim group holds native title in the claim area and have agreed that there is no impediment to progressing to a consent determination. The applicant argues that such agreement must of itself establish that there is a credible basis for the Western Kangoulu determination application. The applicant also relies upon additional factors, including that there are no contradictors other than the State, that there are no overlapping native title determination applications and that the State does not intend to adduce any evidence at the hearing of the Separate Questions.
110 It was accepted in Widjabul Wia-Bal at [37], referring to Charles v Sheffield Resources Ltd at [95], that the question of whether a party has failed to act in good faith must be assessed objectively.
111 It may be seen from s 225 of the NT Act that to obtain a determination of native title, the applicant is required to establish, among other matters, that "native title" exists in relation to the claimed area; that the members of the claim group are the persons holding the common or group rights comprising the native title; and the nature and extent of the native title rights and interests.
112 The existence of "native title" depends upon the existence of a body of traditional laws and customs acknowledged and observed by a group of people, by which laws and customs the group has rights or interests in land or waters that have survived the Crown's acquisition of sovereignty. It also depends upon continued acknowledgement and observance of those traditional laws and customs, in a substantially uninterrupted way, from the acquisition of sovereignty to the present date: see, for example, Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [87].
113 The Western Kangoulu Joint Report consists of a series of conclusory opinions given by the expert anthropologists, including the following:
Since effective sovereignty all laws and customs listed above have adapted, and some have ceased to be observed. Continuing laws and customs vary in the extent of change. However, our opinion is that all of the laws and customs identified as either observed or observed but attenuated at Q7 are rooted in tradition and have been transmitted from previous generations.
…
Today the members of the claim group continue to possess rights and interests in land and water through their adapted system of traditional law and custom. In our opinion all members of the claim group hold rights and interests in all of the claim area.
…
At sovereignty land holding rights were most likely held by clans. Today land holding rights are held by a broader cognatically constituted group of WK people.
…
Members of the relevant society have continued to observe a common system of law and custom since sovereignty.
…
Yes WK people's connection extends throughout the whole of the WK claim area.
114 These expert opinions, if admitted into evidence and accepted by the Court, would be capable of leading to a determination of native title. However, the State does not admit that they are admissible or accurate. The issue of admissibility has not been fully articulated and may be left aside for the moment.
115 The letter of 30 May 2019 from Crown Law advised that the State had taken the view that the applicant's material does not provide a credible basis for demonstrating that the requirements of ss 223 and 225 of the NT Act are met. The letter stated that the areas of concern to the State include: the lack of a sufficient factual foundation for the expert opinions; that the relevant society is not yet clearly articulated or understood; that the composition of the claim group is not settled; and that the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional laws and customs and connection to the claim area.
116 The State's letter went on to assert that there is a paucity of information available to the experts upon which to draw their inferences and provide their opinions. The letter asserted that the experts drew inferences from circumstances elsewhere in Australia based on very little evidence. The letter observed that the experts qualified their opinions because of a truncated timeframe and lack of access to non-claimant Aboriginal people (Dr Martin has since sought to answer this aspect of the criticism in his response of 5 September 2019).
117 As to the claims that the relevant society is not yet clearly articulated or understood and the composition of the claim group is not settled, the State's letter stated, inter alia, that the land-holding society is not clearly described, and that it is unclear whether it is asserted that the various groups that formed part of the regional society are now one, such that all members of the claim group have rights across the whole of the claim area. The letter also pointed out discrepancies between the description of the membership of the claim group and apical ancestors authorised and included in the original Form 1 determination application, and the descriptions given in the pleadings.
118 In support of the assertion that the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional laws and customs and connection to the claim area, the State's letter raised a number of matters. First, it asserted that once the content of the laws and customs at effective sovereignty is called into question, the experts' opinions about continuity and adaptation become less reliable. Second, it asserted that Dr Gorring and Dr Martin state that they placed very little weight upon the lay evidence, appearing to set aside the material that the State was being asked to rely upon. Third, it asserted that the statements lack clarity, detail and specificity. Fourth, it asserted that the weight to be given to lay evidence will depend to some extent upon the inclusion or exclusion of apical ancestors.
119 A matter given prominence in the State's letter was that the experts, despite having been asked in the List of Issues provided to them to address their reasons for any jointly held opinions, failed to provide their reasons for agreement in the Experts' Joint Reports.
120 The State's letter concluded by saying that, "the State is not prepared to enter into negotiations towards a consent determination at this time and considers the matter should continue in trial programming with the remainder of the GNP cluster".
121 In the application for leave to appeal, the applicant has not attempted, whether through evidence or submissions, to address the matters upon which the State has asserted the determination application lacks a credible basis. The applicant has not, for example, sought to place before the Court the statements of lay witnesses in order to demonstrate that the State's view that the statements lack clarity, detail and specificity is misconceived and unreasonable. The applicant relies upon the conclusory opinions of the experts in the Experts' Joint Reports, the lack of opposition to the Western Kangoulu determination application other than by the State, and the fact that the State does not intend to call any evidence. The applicant's case is limited to the assertion that there must be a credible basis for the claim in these circumstances.
122 The applicant's case implies that the State is only entitled to take into account the opinions expressed in the Experts' Joint Reports in assessing whether a credible case has been demonstrated. That is not so. The State may assess the cogency of the material upon which those opinions are based and the quality of the experts' reasoning leading to their opinions. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA observed at [64]:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material.
(Citations omitted).
123 This principle is recognised in the Expert Evidence Practice Note issued by the Court, which states at para 2.4:
An expert witness' opinion evidence may have little or no value unless the assumptions adopted by the expert (ie. the facts or grounds relied upon) and his or her reasoning are expressly stated in any written report or oral evidence given.
124 In Brodie v Singleton Shire Council (2001) 206 CLR 512, Callinan J observed at [355] that a trial judge is not bound to accept the opinion of an expert, even where it is uncontradicted, particularly where it is upon an ultimate issue.
125 Similar factors apply to a State party's consideration of whether an applicant has demonstrated a credible basis for a determination of native title. It is open to a State party to make an assessment of the weight that should be given to the material relied upon by the applicant, including any individual or joint reports of experts. In making that assessment, the State party may consider the probative value and reliability of the factual assertions, inferences and assumptions upon which an expert's opinions are based, and any perceived deficiencies in the expert's method of reasoning. Where an expert's reasoning is not stated, or has an inadequate foundation, the State party may, for genuine and legitimate reasons, be unwilling or unable to accept the expert's opinions, even where uncontradicted.
126 In this case, the criticisms of the applicant's case made by the State include that the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional laws and customs and connection to the claim area.
127 The State also asserts that the expert anthropologists have not adequately set out their reasoning in the Experts' Joint Reports. The fact that the anthropologists agree upon the existence of native title in the area of the Western Kangoulu determination application is not the panacea against the State's criticisms contended for by the applicant.
128 The allegation of breach by the State of its obligation of good faith requires the applicant to demonstrate that the State's unwillingness to act upon the experts' opinions is, as the Full Court put it in Widjabul Wia-Bal at [69], "irrational, unreasonable, unfair or oppressive in the circumstances or involve[s] any other conduct which may fall below the standard of good faith which the NT Act requires". However, the applicant has not attempted to engage with the State's concerns about the quality of the Experts' Joint Reports and the applicant's other material raised in the letter of 30 May 2019 from Crown Law. Those concerns appear, on their face, to have a foundation. The applicant has not demonstrated an objective basis for any inference that the State lacks a bona fide belief that the Experts' Joint Reports fail to provide a credible basis for the Western Kangoulu determination application. Neither has the applicant established that the State is requiring the applicant to go further than establishing a credible or cogent basis for the claim.
129 The applicant's grounds of appeal based upon the allegation that the State is in breach of its obligation to act in good faith must be rejected.