Has the Attorney General acted in good faith?
65 The essence of the Attorney General's submission was that there was nothing improper about a State party, having considered the material presented to it, deciding that it will accede to the recognition of some native title rights only as part of an overall outcome acceptable to the State. In the present case it was submitted that the Attorney General has assessed the strength of the applicant's material supporting the claimed native title rights and has decided that he was prepared to enter into an agreement under ss 87 or 87A only if an ILUA had been registered. It was apparent from the submissions for the Attorney General that this position applied to both the native title rights for which the Attorney General accepted, that the applicant had provided material establishing a credible basis for the existence of such rights, and the native title rights which the Attorney General did not accept, that the applicant had provided material establishing a credible basis for the existence of such rights.
66 The essence of the applicant's submission was that the proper scope of any negotiation as part of a mediation under the NT Act was confined by s 86A to the matters specified in that section which reflect the necessary terms of a determination under s 225. These matters do not extend to the negotiation of an ILUA which, as ss 24BB and 24CA disclose, involve matters extraneous to the making of a determination under s 225 and thus to the conduct of a mediation in accordance with s 86A. As the applicant would have it, the Attorney General could not require the applicant to agree to an ILUA as a pre-condition to the preparedness of the Attorney General to negotiate an agreement under ss 87 or 87A as an ILUA is a matter extraneous to the permissible scope of a mediation under the NT Act as prescribed by s 86A.
67 The problem with the applicant's submission is that s 86A must be read with ss 87 and 87A and, in particular, ss 87(4) and (5) and 87A(5). Those subsections expressly permit an agreement to involve matters other than native title. Even if an ILUA is characterised as a matter other than native title (a characterisation which is not immediately apparent given the terms of ss 24BB and 24CA) it must be permissible for the parties to negotiate about an ILUA as part of a mediation under Pt 4 of the NT Act given the terms of ss 87(4) and (5) and 87A(5). Accordingly, it cannot be said that it is inherently impermissible, and thus not an act in good faith, for a State party to adopt a position in a mediation under Pt 4 of the NT Act that its entry into an agreement under ss 87 and 87A is conditional upon the registration of an ILUA. Something more would need to be proved to support a contention of a lack of good faith on the part of a State party.
68 In the present case, however, the material presented to the Attorney General to support the claimed native title rights is unknown. The terms of the draft ILUA are unknown. As a result, there is no prospect of the applicant proving, for example, that no reasonable person in the position of the Attorney General could assert a bona fide dispute about the existence of the native title rights the applicant has claimed. Further, in the present case, while the Attorney General has accepted a credible basis for the existence of some of the claimed native title rights, the Attorney General has also denied the existence of a credible basis for other claimed native title rights. On the evidence, accordingly, there is a bona fide dispute about the existence of at least some of the claimed native title rights. And as to the other rights, as the Attorney General submitted, while he has accepted the existence of a credible basis for those rights, the strength of the case the applicant has made in support of those rights is unknown.
69 It follows that in the present case the lack of evidence before the Court about the content of the material the applicant has provided to the Attorney General and the terms of the draft ILUA effectively preclude any evaluation by the Court about the Attorney General's position and, in particular, whether it 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. In these circumstances it cannot be said, on the facts of this case, that the Attorney General's position involves an act not in good faith in the conduct of the mediation.
70 Is there any significance, however, in the fact that the letter dated 15 March 2019 involves a blanket refusal to negotiate any form of agreement under ss 87 or 87A unless an ILUA between the applicant and the State has been registered, despite the Attorney General's acceptance of a credible basis for the existence of at least some of the claimed native title rights?
71 There is the risk of a vice in the Attorney General's position, although it cannot be said on the evidence in the present case that the vice has manifested itself. The risk is of inappropriate conflation of different aspects of the scheme established by the NT Act - on the one hand, the mediation scheme directed towards the making of agreements under ss 87 and 87A and, on the other hand, the contested litigation which the scheme of the NT Act implicitly contemplates will be a last resort if the process of mediation mandated by the NT Act is unsuccessful. For example, given that the Attorney General accepted a credible basis for the existence of some native title rights what can be said at the least in the present case is that there is no bona fide dispute about those rights for the purpose of the making of an agreement under ss 87 or 87A. Consistent with his obligations under s94E(5) of the NT Act, his duties under ss 37M and 37N of the Court Act and as a model litigant, in the ordinary course it would be expected that a person in the position of the Attorney General would be willing to negotiate an agreement recognising at least those native title rights and interests irrespective of the existence of an ILUA. To insist on an ILUA as a pre-condition to an agreement confined to those rights for which the Attorney General has accepted there is a credible basis would run the risk of the Attorney General acting in other than good faith in the conduct of the mediation. For example, it may be that the material the applicant has presented means that it would be irrational or unreasonable to assert a bona fide dispute about the existence of those confined native title rights. It may be that the terms of the proposed ILUA are not such as might be reasonably proposed in the circumstances. In either case there may be a sufficient evidentiary foundation to conclude that there has been an act not in good faith in the conduct of a mediation. But that is not the present case where we have evidence neither of the material on which the applicant relied to found the asserted native title rights nor the terms of the draft ILUA as proposed by the Attorney General.
72 Further, as we understood it, the Attorney General's position was that having accepted that a credible basis exists for the existence of certain native title rights, the State party would nevertheless always be able to insist on the applicant agreeing to a matter unrelated to the existence of native title (such as negotiation and registration of an ILUA) because there may still be a bona fide dispute about the existence of those same native title rights if required to be established in contested litigation to the civil standard of on the balance of probabilities. This position (if it be the Attorney General's position) fails to recognise and give due weight to the obligation to mediate according to the standard of proof (a credible basis) which applies to the making of an agreement under ss 87 and 87A. It also does not confine the scope of action of the State party by reference to the essential constraints of rationality, reasonableness and fairness. Conduct which is able to be characterised as irrational, unreasonable, unfair or oppressive in all the circumstances may well be conduct in other than good faith for the purpose of s 94E(5) of the NT Act. In particular, a State party, whose conduct in the mediation of requiring an ILUA as a pre-condition to entry into an agreement under ss 87 or 87A may be characterised as irrational, unreasonable, unfair or oppressive in all the circumstances, would not be permitted to hold an applicant to ransom; the Court could and would craft an appropriate remedy for the breach of the duty to act in good faith.
73 The present case, however, is complicated by the fact that there are a suite of native title rights which the applicant claims and in relation to which the Attorney General does not accept the existence of a credible basis for those rights. It is in the context of those rights, about which there is a manifest bona fide dispute for the purpose of entry into an agreement under ss 87 or 87A, that there is significant scope for what the Attorney General framed as "horse trading". We think this is what Mansfield J must have had in mind when he said this at [39] and [40] of Brown:
Of course, that is not to say that matters consequential upon or related to the recognition of native title rights and interests may not be the subject of negotiation. It is generally in the interests of all concerned if such matters can be addressed and agreed at the same time. If, as here, agreement on a sustained benefits term could not be reached after negotiation, it is appropriate that the consent determination be made (together with any other agreements to be reflected in the orders).
There may also be circumstances in which, after appropriate inquiry, the State (and presumably other respondents) are not satisfied that the claimed native title rights and interests are established in the claim group, or in which there is an issue as to whether such native title rights and interests as existed at settlement had persisted so that they may (subject to extinguishment) be enjoyed by the present claim group. In such circumstances, the parties may entirely appropriate negotiate for a mix of accepted native title rights and interests and other orders, or indeed for other non-native title outcomes. They will be doing so in good faith, having regard to their respective and real perceptions and undertakings about their strengths and weaknesses on the various matters under consideration. If that negotiation leads to proposed orders to be made by the Court under s 87, if satisfied it is appropriate to make them, that is an outcome which the NT Act contemplates and provides for. As is implicit in the submissions, this is clearly not such a case.
74 If it were otherwise, and no distinction were drawn between the standard of proof necessary for a State party to enter into an agreement under ss 87 or 87A (the existence of a credible basis for the claimed native title rights) and the standard of proof necessary for an applicant to establish native title rights in contested litigation (proof on the balance of probabilities that the claimed native title rights exist), the scheme of the NT Act, to encourage and facilitate the just and proper ascertainment of native title, if possible, by conciliation will be undermined.
75 We return now to the potential vice in the letter from the Attorney General of 15 March 2019. The potential vice is that the Attorney General's willingness to enter into any form of agreement under ss 87 or 87A, even one confined to the native title rights for which the Attorney General has accepted there is a credible basis, is predicated on the applicant being willing to enter into an ILUA. If, by reference to the content of the material the applicant has provided to the Attorney General or to the terms of the proposed ILUA, it could be established that the Attorney General's conduct is irrational, unreasonable, unfair or oppressive in all the circumstances, it may have been that the applicant could have established that the Attorney General has not acted in good faith in the conduct of the mediation. If that were so, the applicant would be being held to ransom in a manner inconsistent with the statutory scheme of the NT Act. This, the Court would not permit. The applicant, however, has not adduced sufficient evidence to enable an argument to this effect to be considered, let alone upheld.
76 The interlocutory application, as noted, involved both a proposed separate question and declarations. It is unnecessary to consider the separate question as, consistent with the Attorney General's submissions, the matter is best addressed through the application for the making of declarations. For the reasons given, however, it is not possible to make any declaration in the form sought by the applicant. The applicant has not proved circumstances from which it could be found that it was not lawful for the Attorney General to require or insist upon the making of an ILUA as a pre-condition of entering into an agreement under ss 87 or 87A of the NT Act.
77 It follows that the interlocutory application must be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Jagot and Mortimer.