FEDERAL COURT OF AUSTRALIA Hicks v State of Western Australia [2002] FCA 1490 NATIVE TITLE – future acts – right to negotiate – arbitral hearing – whether State negotiated in good faith – preliminary issue – condition on power to conduct arbitral hearing – Tribunal finding that State negotiated in good faith – appeal against Tribunal decision by native title party – motion for stay of arbitral hearing – relevant considerations – prejudice – fragmentation of proceedings – order refused. Native Title Act 1993 (Cth)s 36, s 169, s 170 WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO GROUP v THE STATE OF WESTERN AUSTRALIA W6005 OF 2002 FRENCH J 22 NOVEMBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W6005 OF 2002 BETWEEN: WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO GROUP APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 22 NOVEMBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The time limited for hearing the motion be abridged to enable it to be heard today. 2. The motion is adjourned to 3 February 2003 at 9.30am. 3. The appeal is set down for directions on 3 February 2003 at 9.30am. 4. The appeal is provisionally set down for hearing on 4 March 2003 at 10.15am. 5. There is liberty to apply at short notice. 6. Costs today reserved. 7. The other native title parties before the Tribunal be named as respondents to the appeal and copies of the notice of appeal, these orders and these reasons for decision be served upon them. 8. The additional respondents joined as second and third respondents respectively pursuant to the preceding order are: (i) David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks on behalf of the Ngarluma People and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert on behalf of the Yindjibarndi people which was accepted for registration on 14 July 1999 ('the Ngarluma/Yingjibarndi native title party'); (ii) Valerie Holborow, Kevin Kelvin Cosmos and Robert Boona on behalf of the Yaburara and Mardudhunera Native Title claim group which was accepted for registration on 1 August 1996 ('the Yaburara/Mardudhunera native title party'). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W6005 OF 2002 BETWEEN: WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO GROUP APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA RESPONDENT JUDGE: FRENCH J DATE: 22 NOVEMBER 2002 PLACE: PERTH REASONS FOR JUDGMENT ON MOTION TO STAY ARBITRAL PROCEEDINGS OF NATIONAL NATIVE TITLE TRIBUNAL 1 On 9 February 2000, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth), of its intention to compulsorily acquire native title rights and interests in land in the Shire of Roebourne. The land is in the vicinity of Dampier and Karratha. It includes land in the Burrup Peninsular, Intercourse Island, West Mid Intercourse Island and part of West Intercourse Island. 2 As at 9 February 2000, there were three registered native title claims covering the land the subject of the proposed acquisition: . WC99/14 the Ngarluma/Yingjibarndi native title determination application which was accepted for registration on 14 July 1999; . WC96/89 the Yaburara/Mardudhunera native title determination application which was accepted for registration on 1 August 1996; and . WC98/40 the Wong-Goo-TT-OO native title determination application which was accepted for registration on 10 July 1998. Three months after the giving of the notices, no other persons had made native title determination applications. There were therefore no other persons who had become native title parties by 9 June 2000, which ended a period of four months from the notification day. 3 Upon giving its notice the State of Western Australia was required, by s 31 of the Act, to give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the proposed acquisition. The parties, that is the State and the native title parties, were obliged by s 31(1)(b) of the Native Title Act to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the acquisition subject to conditions (if any) to be complied with by any of the parties. Absent agreement after the expiry of six months any of the parties could apply to the arbitral body, in this case the National Native Title Tribunal ("the Tribunal"), for a determination in relation to the proposed act (s 35). 4 Negotiations with the native title parties having failed to yield a concluded s 31 agreement by the expiry of the time limited under the Native Title Act, the State made two future act determination applications to the Tribunal on 23 July 2002. One was for the Burrup Industrial Estate and the other for the Maitland Industrial Estate which covered the acquisitions proposed on the Intercourse Islands. 5 The duties of the arbitral body, relevant for present purposes, are specified in s 36 which provides, inter alia: "36(1) Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable. (2) If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application." 6 One of the native title parties, the applicants in the Wong-Goo-TT-OO claim, argued that the State had not negotiated in good faith. They were the only applicants so to contend. On 14 August 2002, the Tribunal gave directions for the filing of contentions and documents by the Wong-Goo-TT-OO native title party and by the State. A hearing on the good faith issue was set down for 8 October 2002. The timeframe for compliance with the directions was extended on 8 October and the good faith hearing postponed to 6 November 2002. A hearing of the substantive applications was scheduled to commence on 2 December 2002 unless dismissed for failure by the State to negotiate in good faith. The Tribunal anticipated that on that basis it could make a determination by 23 January 2003. On 12 November, the Tribunal determined that the State had negotiated in good faith. 7 A notice of appeal against the decision of the Tribunal was filed in this Court on 21 November 2002. 8 The issues raised on the appeal are: 1. Whether there was a breach of procedural fairness by the Tribunal in failing to permit cross-examination of the deponents to affidavits relied upon by the State (ground 1). 2. Whether the State was entitled to take the basic negotiating position that native title did not exist over the subject area (grounds 2 and 3). 3. Whether the State had failed to negotiate separately with the Wong-Goo-TT-OO people and thereby failed to negotiate in good faith (grounds 4 and 5). 4. Whether the Tribunal asked itself the wrong question by asking whether the conduct of the State showed bad faith, when the proper question was whether the State had negotiated in good faith (grounds 6 and 7). 5. Whether the Tribunal wrongly had regard to confidential and without prejudice communications made in the course of mediation and private meetings between the Wong-Goo-TT-OO and the State (ground 8). 6. Whether by reason of various aspects of the State's conduct, the Tribunal ought to have found that it had not negotiated in good faith (ground 9). 7. Whether a statement in Parliament by the Deputy Premier was admissible as evidence of lack of good faith by the State in its negotiations with the Wong-Goo-TT-OO people (ground 10). 8. Whether the Tribunal's directions requiring the State to file its contentions and documents in the substantive proceedings prior to the hearing of the good faith issue and the Wong-Goo-TT-OO people to file their contentions and documents after the good faith hearing, was contrary to procedural fairness and contrary to the character of the good faith hearing as a threshold jurisdictional question (ground 11). 9 By a motion filed on 21 November, the Wong-Goo-TT-OO people seek a stay of the arbitral hearing in the Tribunal. The orders sought are for a stay of the s 35 application in the two matters before the Tribunal until such time as the appeal is heard. There is also an order sought for abridgement of the time limited for bringing the motion on for hearing. I am prepared to grant the abridgment order. Statutory Framework relevant to Appeal and Stay Application 10 Section 75 of the Act identifies the classes of applications that may be made to the Tribunal under Div 2 of Part 3 relating to the right to negotiate. One of the classes is a future act determination application, being an application of the kind mentioned in s 35, for a determination in relation to a future act. These provisions can be read together with s 139 which requires that the Tribunal must hold an inquiry into an application covered by s 75. This identifies the Tribunal process, leading up to the making of a determination under s 37, as an inquiry for the purposes of s 169 of the Native Title Act. Relevantly, that section provides: "169(1) A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. . . . (4) An appeal is to be instituted: (a) within the period of 28 days starting on the day on which the decision or determination of the Tribunal is given to the person or within such further time as the Court (whether before or after the end of that period) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. (5) The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court. (6) The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (7) Without limiting subsection (6), the orders that may be made by the Court on an appeal include: (a) an order affirming or setting aside the decision or determination of the Tribunal; or (b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court." 11 Section 170 which is relevant to the present application provides: "170(1) Subject to this section, the institution of an appeal to the Federal Court from a decision or determination of the Tribunal does not affect the operation of the decision or determination or prevent the taking of action to implement the decision or determination. (2) If an appeal is instituted in the Court from a decision or determination of the Tribunal, the Court or a Judge of the Court may make such order staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision or determination of the Tribunal or a part of that decision or determination; and (b) the decision or determination to which the proceeding before the Tribunal related or a part of that decision or determination; as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (3) The Court or a Judge of the Court may vary or revoke an order at any time. (4) An order: (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) if a period for the operation of the order is specified in the order – the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision or determination; or (ii) if no period is so specified – the giving of a decision on the appeal." Contentions and Conclusions 12 The applicants' submissions invoked O 52 r 17 in aid of the stay orders sought. But that rule relates to appeals proper in the exercise of the appellate jurisdiction of the Court. The jurisdiction conferred upon the Federal Court by s 169(5) of the Native Title Act is original jurisdiction even when exercised by a Full Court. For it is an appeal against a decision or determination of an administrative body. Appeals from decisions or determinations of the Tribunal are dealt with in O 78 rr 22 to 30. There is no provision in that rule for a stay order in relation to the decision appealed against. The primary source of power to make such an order is s 170 of the Native Title Act although no doubt s 23 of the Federal Court of Australia Act 1976 (Cth) would also be a source of power. 13 In s 170 the power in subs (2) to order a stay or to make an order otherwise affecting the operation of a decision or determination appealed against is conditioned upon the requirement that the Court considers the order "appropriate for securing the effectiveness of the hearing and determination of the appeal". That condition mandates consideration by the Court of what is appropriate for securing the effectiveness of the hearing and determination of the appeal. So if, absent a stay, the subject matter of the appeal would be lost or the relief sought rendered nugatory, then it might be said that a stay would be appropriate in the requisite sense. 14 The applicants' appeal puts in contention the authority of the Tribunal to conduct a substantive inquiry into whether the proposed acquisition should be done. The applicants contend, in effect, that absent a stay, the substantive hearing will proceed on its existing timetable and the benefit they seek from the appeal which, if successful, would require a return to negotiation, would be lost. For that reason a stay would not only be appropriate but necessary to secure the effectiveness of the hearing and determination of the appeal. I so characterise the applicants' submissions more favourably than they deserve for they were directed to O 52 r 17 which does not contain the conditions set out in s 170(2). 15 These imputed contentions may be seen as subsumed in the submission that the objection to jurisdiction, being one of substance and a threshold question of law, continuation of the arbitral inquiry should not proceed until the question of jurisdiction is finally determined. I emphasise at this point that although the term "jurisdiction" is used in describing the authority of the Tribunal to proceed it would be equally accurate and perhaps clearer to characterise the question as one about the power of the Tribunal which is not a court but a statutory body carrying out an administrative function. The question raised by the appeal is whether a condition of the Tribunal's power has been satisfied. 16 The applicants' submissions also point to the emphasis which the Native Title Act places upon negotiation in relation to both future act matters and the process for recognition of native title initiated by native title determination applications. It might be said, although the applicants did not say it, that the Court should not risk rewarding a breach of the obligation to negotiate in good faith by allowing a hearing to proceed in spite of a challenge to the finding that such negotiation has not occurred. That is a risk which may be assessed in part by reference to the strength of the applicants' case on appeal. While the reasons for decision of the Tribunal on the good faith question prima facie raise some serious and important questions of law, they are comprehensively and on the face of it, attractively reasoned. I can say no more than that, at this time, having regard to the fact that the Court has not heard or considered argument going to the strength of the appeal. Indeed, judgments about the strength of appeals for the purpose of a stay application must be essayed cautiously. Suffice it to say that I am not satisfied at present that to refuse a stay would run a high risk of rewarding a failure by the State to negotiate in good faith having regard to the facts found by the Tribunal and bearing in mind that the appeal is limited to questions of law only. 17 The primary consideration remains the condition imposed by subs 170(2). There is no doubt that absent a stay the applicants will lose the benefit which would be gained, in the event that the appeal were successful, of a mandated return to negotiation and the avoidance, at least for the time being, of a substantive inquiry. On the other hand, apart from the practical requirement to participate in the substantive inquiry, if a stay is refused, the applicants' rights to challenge the validity of the Tribunal's exercise of its power in conducting that inquiry and making a determination arising out of it, remains intact. The appeal against the Tribunal's good faith determination, if successful, albeit after the ultimate determination by the Tribunal, would undoubtedly lead to an order setting aside the decision or determination of the Tribunal and possibly the remitter of the good faith question for rehearing. 18 Even in that event, were negotiations to be reinstated and fail again the Tribunal would, on any subsequent inquiry be entitled, pursuant to s 146, to receive into evidence the transcript of evidence in the prior proceedings and to draw any conclusions of fact from that transcript as it thinks proper. Moreover it would seem the Tribunal would also have the power to adopt any findings or arguably even a decision or determination made in the previous proceedings pursuant to s 146(b). I am not satisfied therefore that to refuse a stay would ultimately affect the effectiveness of the hearing and determination of the appeal. 19 It is submitted that the outcome of the arbitral inquiry could have the most serious consequences for the applicants, namely the extinguishment of all of their registered native title rights and interests. It is, of course, open to the applicants to seek a stay of the ultimate determination of the Tribunal, as an incident of this appeal or as an incident of an appeal against the ultimate determination of the Tribunal. The refusal of the stay at this time would not result in any extinguishment of native title rights and interest. 20 It is also said that to allow the inquiry to proceed subject to the appeal would place an intolerable burden upon the applicants in respect of the application of their limited resources to a continuing inquiry which may prove to have been a waste in the event that the appeal is upheld. The characterisation of the burden upon the applicants as "intolerable" was not informed by evidence. Undoubtedly there is a substantial burden involved in the participation in such proceedings. On the other hand, the proceedings are taking place within a statutory framework that reflects a legislative purpose of reasonable expedition albeit the time limits for such determinations are subject to extension. The hearing has been the subject of timetabling and the balance of the hearing is imminent. There is a risk that to impose a stay at this stage will protract proceedings which have already been somewhat delayed. Nor would the hearing and determination of the appeal necessarily be the end of the matter as an appeal would lie to the Full Court from a decision of a single judge. 21 In my opinion, the interposition of a stay at this stage premised on the proposition that an appeal would be heard and determined prior to the resumption of the substantive arbitral hearing introduces a degree of fragmentation into the arbitral process that is unwarranted having regard to the legitimate interests of the parties. 22 Having regard to all the circumstances, I propose to refuse the stay but will adjourn the motion with liberty to apply to renew it after the Tribunal's determination on the substantive inquiry. I will also provisionally fix dates for hearing of the appeal with a sufficient lapse of time after the projected date of determination to allow for the filing of any appeal against that determination. There will of course be liberty to apply in respect of those dates in the event that the Tribunal's timetable is exceeded. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Acting Associate: Dated: 18 December 2002 Counsel for the Applicants: Mr RI Viner QC Solicitor for the Applicants: Kitto & Kitto Counsel for the Respondent: Mr GTW Tannin SC and Mr SJ Wright Solicitor for the Respondent: State Crown Solicitor Date of Hearing: 22 November 2002 Date of Judgment: 22 November 2002