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Editors --- "The Ngalakan People v Northern Territory of Australia - Case Summary" [2003] AUIndigLawRpr 8; (2003) 8(1) Australian Indigenous Law Reporter 73

Court and Tribunal Decisions – Australia

The Ngalakan People v Northern Territory of Australia

Federal Court of Australia (O’Loughlin J)

28 January 2003

[2003] FCA 23

Editors note: Throughout the Austlii transcript of the judgement s 85(1) of the Native Title Act (1993) (Cth) is referred to in reference to costs orders. This is a typographical error as s 85A(1) is the relevant section for this case. The editor has replaced s 85(1) references with references to s 85A(1). Clarification of this matter should be pursued with the Federal Court.

Native title — costs — extent to which successful applicant should enjoy an order for costs — Native Title Act (1993) (Cth) s 85A(1)

Facts:

The Ngalakan People applied for and obtained a determination of native title over an area of land on the Roper River in the Northern Territory. This area had been excluded from an earlier claim and grant under the Aboriginal Land Rights (Northern Territory) Act (1976) (NT) by reason of its having been designated in 1887 as the township of Urapanga.

In the native title proceedings in the Federal Court, the Northern Territory had advanced no real argument against the existence of native title over the greater part of the claim area. The applicants had excluded from their native title claim allotments over which fee simple title had been granted, and three ungazetted roads. However a hearing was necessary to determine the width of the areas to be excluded in respect of these roads, and whether native title was exclusive. The Court upheld the respondent’s submission that native title in respect of the gazetted streets of the ‘township’ had been extinguished by the dedication of those streets. The Court also concluded in favour of the applicants that their native title rights were exclusive.

In an application to have their costs of the proceedings paid, the applicants attempted to establish that the respondent had acted unreasonably in refusing to accept a settlement propounded by the applicants involving the grant of a freehold estate.

Held, ordering each party to pay its own costs:

1. Having regard to the respondent’s arguments and the conclusions reached at trial, it was obvious that the proposed settlement was rejected because it did not offer to exclude the gazetted roads from any determination of native title: [14].

2. While the question of costs remains within the unfettered discretion of the trial judge, s 85A(1) of the Native Title Act (1993) (Cth) turns one away from immediately adopting the common place idiom that costs will follow the event. Further, native title is something new and the law is still grappling with it. The respondent, not unreasonably, required the applicants to prove their entitlement to native title and resisted, unsuccessfully, their claim for exclusivity. On the other hand the applicants (substantially successful in making out their case for a determination) pursued their claim over the streets with reasonable vigour but were unsuccessful on that point. The practical solution was to follow the spirit of s 85A(1) and order that each party was to pay its own costs: [16].