My conclusions on abuse of process
214 The centrality of mediation to the statutory scheme in the NTA is apparent from the text of the Act itself, in particular the mandatory terms of s 86B(1). The extrinsic material to the 2009 amendments also emphasised its importance. Relevant extracts of that material are reproduced in Widjabul at [32]. In Widjabul at [36]-[37], the Full Court explained how the duty to act in good faith in the conduct of a mediation was "beyond argument":
Given the terms of s 94E(5) of the NT Act, the existence of a duty on the part of each party and its representatives to act in good faith in relation to the conduct of a mediation should be beyond argument. Mansfield J had no hesitation in inferring such a duty from the provisions of the NT Act without apparent regard to the express terms of s 94E(5): Brown v South Australia (2010) 189 FCR 540 at [38] (Brown). His Honour also identified one circumstance in which there would be a breach of the duty to act in good faith in the conduct of a mediation (or, as Mansfield J framed it without regard to the terms of s 94E(5), to negotiate in good faith). At [38] he said:
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.
We agree with this observation. In Charles v Sheffıeld Resources Ltd (2017) 257 FCR 29 at [94], in the context of the right to negotiate procedures in Pt 2 of the NT Act, White J said:
[94] 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: Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152 at [20], [23]-[24]; Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565 at [7]. Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith: Brownley at [25]. Negotiation in good faith is not confined to the making of a reasonable offer: Walley at [15].
[95] The conduct of the negotiating parties is to be assessed objectively.
215 On this show cause hearing, the Court is not determining, in isolation, whether the Mullewa Wadjari applicant, or those individuals who represented the Mullewa Wadjari claim group at the mediations (or both), failed to act in good faith. Nevertheless, the relationships between first, the prominence given by the NTA to mediation and to negotiated outcomes, second, the statutory obligation to act in good faith and third, the concept of abuse of process must be recognised. That was, in my respectful opinion, one of the points being made by the Full Court in Widjabul at [39]-[42], including by explaining what kinds of orders the Court could make to remedy conduct of this nature:
To the extent the Attorney General also denied the existence of any remedy against a party for breach of the duty to act in good faith in the conduct of a mediation, we also disagree. It is a fundamental principle that a court has control of its own processes. The doctrine of abuse of process is founded on the same fundamental principle. That doctrine, and the remedies available to a court to prevent the abuse of process, provide a useful analogue for the considerations that might inform an evaluation of whether a party to a mediation is not conducting itself in good faith and the remedies that might be available to redress the breach of the duty imposed by s 94E(5).
The touchstones of an abuse of process are use of the court's procedures in a way which would be unjustifiably oppressive or bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25]. As the High Court explained in UBS AG v Tyne (2018) 265 CLR 77 at [1]:
The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.
As with the doctrine of abuse of process, it is not possible to attempt to identify the circumstances which might give rise to a breach of the duty to act in good faith in the conduct of a mediation of a native title determination application. Nor is it possible to identify the orders which a court may make to remedy the breach. The appropriate remedy will be dictated by the particular circumstances constituting the breach of the duty. What is apparent, in our view, is that nothing in the NT Act suggests that because the mediator may make a report that a party is not acting in good faith in the conduct of a mediation, the power of the Court to control its own processes by whichever remedy is best tailored to suit the circumstances is excluded or in any way curtailed.
Accordingly, we reject the Attorney General's submissions to the extent they suggested that there is no duty on the part of a party (and its legal representatives) to act in good faith in the conduct of a mediation. We also reject the Attorney General's submissions to the extent they suggested that there was no duty, breach of which could give rise to any consequence other than the making of a report under ss 94P or 94Q. A party in breach of the duty to act in good faith in the conduct of a mediation is exposed to any order that has the effect of redressing or ameliorating the effect of the breach. Powers available to the Court include:
(1) an order that a person cease to be a party: s 84(8) of the NT Act;
(2) an order for costs tailored to the circumstances of the case, including an order for security for costs: s 85A(1) of the NT Act;
(3) an order requiring oppressive material to be removed from the Court's file or struck out of a document: r 6.01 of the Federal Court Rules 2011 (Cth) (the FCR);
(4) an order striking out a pleading: r 16.21 of the FCR;
(5) an order for summary judgment: r 26.01 of the FCR; and
(6) in an appropriate case an order for an injunction, be it mandatory or prohibitory: s 23 of the Federal Court of Australia Act 1976 (Cth) (the Court Act).
216 It is clear from the evidence that the Mullewa Wadjari applicant now seeks to contend the Mullewa Wadjari People have native title in both the area overlapping with the Nanda claim and the area overlapping with the Wajarri Yamatji claim. At the hearing, senior counsel for the Mullewa Wadjari appeared at first to suggest the question of the overlaps could go back into mediation. As I responded to senior counsel, it is inherently unlikely that either the Nanda applicant or the Wajarri Yamatji applicant, or for that matter the State, would have enough trust in the Mullewa Wadjari applicant or in Mullewa Wadjari claim group members to re-commence any mediation process. Further, I do not see how Judicial Registrar Daniel could be asked to do so either, given that three years of her efforts have come to naught because of the position of the Mullewa Wadjari applicant conveyed after 14 June 2021. Nor, unless and until there is some kind of acceptance or rejection of the s 94P report, could any other Registrar of the Court reasonably be asked to engage with the Mullewa Wadjari applicant in a mediation setting.
217 Responsibility for this conduct falls on the Mullewa Wadjari applicant. A native title applicant bears responsibility for the conduct of a native title application, both expressly by s 62A of the NTA, and implicitly in the structure and content of the legislative scheme more generally. I consider the conduct of the Mullewa Wadjari applicant has been unjustifiably oppressive towards the Nanda and Wajarri Yamatji claim groups and their respective applicants. The unjustifiable oppression includes:
(a) attendance in good faith at multiple mediations over more than three years, on the represented basis that the Mullewa Wadjari individuals who attended had authority to, and were prepared to, compromise the overlap claims;
(b) all the preparation, consultation, meetings and discussion with claim group members and with lawyers which goes with these mediations;
(c) the holding up of the resolution of the Wajarri Yamatji claim, and of the Nanda claim, to the overlap areas for more than three years;
(d) the considerable efforts (by claim group members, YMAC, anthropologists and lawyers) which were deployed to the process of adding Angelina as an apical ancestor as a way of ensuring that those who identified as Mullewa Wadjari People but also had her as an apical ancestor could be recognised as native title holders, but in a Wajarri Yamatji determination;
(e) the considerable efforts (by claim group members, YMAC, and lawyers) to reach an inter-Indigenous agreement between the Nanda and Mullewa Wadjari applicants, which involved considerable compromise by the Nanda applicant about how at least some of their native title rights might be exercised; and
(f) the prospect that - if no further or other orders are made - Nanda and Wajarri Yamatji claim group members must face going to trial on the overlap claims, with elders having either passed away or become more infirm, with the struggles to find and be given funding for such trials, and having to endure what is a stressful and anxious process, drawn out probably over several more years.
218 I have rejected the Mullewa Wadjari applicant's contention, and evidence from its three witnesses, that those individuals attended the mediations because they were the "only ones who could be contacted and were available" to attend. The fact that the same four people attended mediations three months apart is evidence of a conscious choice about who was to attend. As I have found elsewhere, no Mullewa Wadjari attendee, nor their lawyer, suggested to the other parties or the mediator that, contrary to the Court's clear instructions and basic mediation principles, those individuals were a haphazard and somewhat accidentally selected group, with no authority to reach a resolution (or even propose terms of any resolution). This is relevant to my findings about abuse of process because I find there was a deliberate representation to the Nanda and Wajarri Yamatji, to Judicial Registrar Daniel and to the Court, as well as indirectly to the State who had placed reliance on the proper conduct of the mediation process, that these individuals had authority reach in-principle agreements on behalf of their claim group, which were capable of being implemented and which those individuals would support and encourage the Mullewa Wadjari claim group to honour. The evidence and submissions now presented on behalf of the Mullewa Wadjari applicant is that this was not the case. The very proffering of that evidence and that submission, more than three years later, is capable of constituting an abuse of the mediation processes of the Court.
219 There are tangible wider effects, which can also be described as oppressive. The waste of the Court's finite mediation resources for over three years. The considerable public resources which might now need to be expended on a trial about the overlaps, which will include on-country aspects that are highly cost and resource intensive for the Court and for the parties. The extraordinary amount of additional public funds to be expended for three claim groups in resourcing such a trial, in terms of legal, logistical and expert assistance. The prospect that public funding may not be available in the foreseeable future or that any trial may have to be put off into future financial years, because this funding is limited and must be carefully allocated. The delays and continued uncertainties for all third parties with proprietary interests in the overlap areas, including the State. The expenditure of considerable additional public resources by the State in a trial.
220 These are very significant consequences. Mullewa Wadjari claim group members may not feel them directly because this is a jurisdiction where neither members of a native title applicant, nor claim group members, pay for their own legal and trial costs, and do not face the prospect of costs being awarded against them. Those beneficial circumstances should not obscure the magnitude of the costs consequences for the administration of justice, and for the expenditure of public resources.
221 All this because of a belated announcement, in June 2021, of a different position from that represented to other parties and to the Court for the three years prior to this, but a position which I have found appears always to have been held by at least the three influential claim group members who gave evidence.
222 The Wajarri Yamatji and Nanda applicants submit:
For the court now to effectively sanction the MW Applicant resiling from commitments generated by a lengthy, court-authorised mediation would be to downgrade a process to which the NTA gives some primacy and to bring the administration of justice into disrepute.
223 I agree with that submission. As well as unjustifiable oppression, I consider allowing the Mullewa Wadjari applicant and the claim group it represents to set the last three years at naught and to contest each of the overlaps with the Nanda and Wajarri Yamatji claims brings the administration of justice into disrepute. It allows the Mullewa Wadjari applicant, as the responsible statutory entity, to thumb its nose at the mediation process. It may encourage a lack of good faith to be applied to that process. It appears to sanction a lack of candour by a party. It appears to sanction a lack of candour by legal representatives, and does not encourage legal representatives to ensure that their actions do not mislead those with whom they are negotiating. It fails to hold those who purport to represent a claim group to any responsibility for their conduct and suggests that a native title applicant, and its claim group, can say what they like, encourage reliance by their neighbours on a certain position and then retreat from it. It threatens the fabric of how this Court conducts its native title mediation processes, and must be viewed as a serious threat to this critical aspect of the conduct of native title claims.
224 The challenging question is: what should be done, in the face of what I am comfortably satisfied should be characterised as an abuse of process? What remedy is fair, and justified, and might ensure the abuse of process does not continue into the future? It must be a remedy which does justice between all the parties, recalling that, collectively and communally, the individual members of each claim group are somewhat removed from what has occurred, yet they are, collectively and communally, the putative native title holders. The remedy must also recognise the State's role, on behalf of the wider community, in ensuring that native title is recognised where it should be recognised, and that there is a credible basis for recognition of a specific group or groups.
225 The Wajarri Yamatji and Nanda applicants contend that the appropriate remedy is dismissal of the Mullewa Wadjari claim over the overlap areas, being the alleged agreed outcome of the negotiations. I have found that is not, and is likely never to have been, an outcome that at least those individuals purporting to represent the Mullewa Wadjari applicant and claim group were prepared to encourage the wider claim group to endorse. Yet the other side of this bargain has been implemented by the two other parties to the negotiations, while the Mullewa Wadjari applicant stood by and allowed that to occur, all the time aware of the unlikelihood that the Mullewa Wadjari applicant would carry through on withdrawing from the overlap areas. As Mr Neal QC recognised in oral argument, the identification of Angelina as an apical ancestor on the Wajarri Yamatji determinations has been accepted by both the Court and the State as having a credible basis, and should not be undone. She is there as a Wajarri Yamatji person, not a Mullewa Wadjari person, and the Mullewa Wadjari applicant and claim group are as bound by that outcome as anyone else. With two parties having honoured their side of the bargain, and the other having purported to discard its side, what is a just remedy?
226 I do not consider dismissal of the Mullewa Wadjari application insofar as it overlaps with the Nanda and Wajarri Yamatji applications would be an order which would do justice between the parties, even given the abuse of process by the Mullewa Wadjari applicant. That is to inflict on a wider group of Mullewa Wadjari claim group, and their descendants throughout generations, a consequence for actions they were neither involved in, nor sanctioned. It would also involve the Court imposing an outcome about who are the native title holders for the area, against the asserted position of at least some prominent members of the Mullewa Wadjari claim group who now allege they hold native title in those overlap areas. The same reasoning means that no remedy such as a stay would be appropriate.
227 Although the evidence on this application could be understood as suggesting the Mullewa Wadjari applicant wishes to go to trial on the overlaps on this allegation of native title, in reality that is only the evidence of three Mullewa Wadjari individuals. Those three, and Mr Papertalk in particular, had personal interests in defending their own conduct to this point, interests which might well be said in some way to conflict with the responsibilities of two of them as purported statutory representatives of the Mullewa Wadjari claim group.
228 I am not prepared to accept what those three individuals have said defensively in the context of this show cause hearing as the final position of the Mullewa Wadjari claim group on the mediated outcomes with the Nanda and Wajarri Yamatji parties.
229 If the mediation outcomes are to be honoured, it is the members of the Mullewa Wadjari claim group as a whole who must decide to honour them, and they must do so on a properly informed basis, in a manner which reflects the communal nature of the rights held. If the mediation outcomes are not to be honoured, the same approach should be applied. My preliminary view is that orders which are designed to ascertain which path the Mullewa Wadjari claim group as a whole wishes to take may be an appropriate remedy for the abuse of process I have found to have been committed by the Mullewa Wadjari applicant.