Native title costs decisions: trends and recent developments
09 September 2025
Native title year in review 2024-2025
What you need to know
- The Federal Court continues to exercise its discretion to award costs in native title proceedings where a party has acted unreasonably or without reasonable cause, or where it is just to do so.
- Unreasonable conduct may include pursuing a joinder application that is highly prejudicial, late, and unsupported by evidence, or appealing a National Native Title Tribunal (NNTT) decision that has no prospects of success.
- Section 85A of the Native Title Act - which provides that unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs - does not apply to proceedings that do not relate to native title, such as proceedings concerning payments under ILUAs.
What you need to do
- Be mindful of the potential cost consequences of pursuing or defending native title proceedings that are not based on sound legal grounds or evidence, or that are likely to cause significant prejudice or delay to other parties.
- Seek legal advice before making or opposing any interlocutory applications, appeals, or joinder requests in native title proceedings, and consider the prospects of success and the risks involved.
The trends in costs orders in native title proceedings
We follow native title costs decisions in our annual Native Title Year in Review to identify new principles and trends. We reported on a number of costs decisions with adverse outcomes for parties pursuing unreasonable positions in mediation and litigation in our Native Title Year in Review 2023-2024 article, "High price of poor conduct - unreasonable conduct risks costs order".
This trend continues in 2024-2025. The following decisions provide guidance on the application of section 85A of the Native Title Act and what courts consider unreasonable conduct.
Reminder of the provisions governing costs in native title proceedings
The Federal Court has discretionary power to award costs: section 43 Federal Court of Australia Act 1976 (Cth).
In addition, section 85A of the Native Title Act 1993 (Cth) provides:
- Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
- Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.
Costs sought by native title parties
In Malone on behalf of the Western Kangoulu People v State of Queensland (No 4) [2025] FCA 36, the Court dismissed a joinder application made after the completion of a hearing of separate questions concerning the existence of native title. The Court found that the joinder application was objectively unreasonable, as it was highly prejudicial, late, and unsupported by evidence.
In Malone on behalf of the Western Kangoulu People v State of Queensland (No 5) [2025] FCA 353, the Court dealt with the question of costs. The applicant sought an order for costs on an indemnity basis against the joinder applicant and his solicitor, which if awarded, would warrant a higher level of compensation due to the behaviour of the parties involved. The joinder applicant submitted that the circumstances did not warrant a departure from the general rule in section 85A(1) of the Native Title Act, that each party bear their own costs.
The Court accepted that the joinder application was objectively unreasonable and caused the applicant to incur costs, such that it would have been unjust to require that the applicant bear its own legal costs of the joinder application. However, the Court declined to make an order for indemnity costs, as it was not satisfied that the joinder applicant had an ulterior purpose in bringing the joinder application. In addition, the Court found that while the joinder application was misconceived and doomed to fail, the interests of justice would not be served by an order for indemnity costs.
Accordingly, the Court ordered the joinder applicant to pay the applicant's costs of opposing the application, capped at $5,000. The Court considered that this amount reasonably reflected the quantum of costs that would be recoverable by the applicant on a party and party basis. The Court also declined to order costs against the joinder applicant's solicitor, as there was no evidence of abuse of process or improper conduct on her part.
In contrast, in Bates v Attorney General of New South Wales [2024] FCA 1439 the Court ordered the removal of two Indigenous respondents from a native title claim on the grounds that they were asserting representative, not personal, native title rights and interests. The claim group sought costs against the Indigenous respondents notwithstanding the provisions of section 85A of the Native Title Act. The Court rejected the submission that their conduct amounted to an abuse of process and said there was no basis upon which it could be conferred that they acted unreasonably so as to cause the claim group to incur costs. It was ordered that each party bear their own costs.
In Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53, the Bigambul #5 claim was struck out on the application of the Gamilaraay claim group on the basis that it was not properly authorised and was brought on behalf of only a subset of the Bigambul People. The Gamilaraay applicant sought costs notwithstanding the provisions of section 85A. The Court asked the parties for timetabling orders for the provision of submissions in respect of costs. Until determination of the issue of costs, it was ordered that costs be reserved. We will monitor the outcome of this application and report on it in next year's Native Title Year in Review.
No costs order in judicial review of decision to include an expedited procedure statement in a section 29 notice
In Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490, the Federal Court held that judicial review is not available in relation to a government party's decision to include the expedited procedure statement in a section 29 notice. The correct way to challenge is by way of an objection to the NNTT.
The Court ordered that each party bear their own costs, notwithstanding that section 85A did not apply to these proceedings. It said that while the State has been successful in seeking judgment against the applicants, there had been no unreasonable conduct by the applicants and there was a public interest in clarifying the meaning and application of the relevant provisions in Subdivision P of the Native Title Act and the question of whether and to what extent decisions by the Government party to include an expedited procedure statement in a s 29 notice are amenable to judicial review.
Fixed costs awarded for proceedings instituted without reasonable cause
In Little v Wajarri Yamaji Aboriginal Corporation RNTBC (No 2) [2024] FCA 841, the Court determined the costs of an appeal from a National Native Title Tribunal decision that was dismissed on a summary basis. The Court found that the appeal was misconceived, instituted without reasonable cause, had no prospects of success and the appellant had put the respondents to costs that they should not have incurred. The Court ordered the appellant to pay the first respondent's costs of the proceeding, fixed at $5,278. The Court fixed the reasonable costs at this sum based on the analogy of a migration appeal that is dismissed before hearing.
Indemnity costs awarded to native title party to be paid from funds held by the Court
In Malone v B&M Aboriginal Corporation (In Administration) [2025] FCAFC 24, the Full Federal Court allowed an appeal of a judgment concerning payments required to be made under an ILUA. In Malone v B&M Aboriginal Corporation (In Administration) (No 2) [2025] FCAFC 51, the Full Court considered the question of the costs of the appeal.
The Full Court rejected the respondent's submission that section 85A of the Native Title Act applied to the proceeding. The Full Court found that the proceeding was not subject to section 85A, as it was not a proceeding relating to native title, but a proceeding concerning the proper construction of an ILUA.
The Full Court also rejected the respondent's submission that, even if section 85A did not apply, the appropriate order was that the parties bear their own costs having regard to the parties' success on the issues raised on the appeal. The Full Court held that the appellants' success on the appeal was not contestable and that there was no significant issue on which the respondent was successful. Accordingly, the Full Court held that an order for costs should be made in favour of the appellants.
It noted that the respondent was insolvent and unable to satisfy an order for costs, and the appellants had applied for an order that their costs be paid by certain non-parties to the proceeding, namely three directors who resolved to place the respondent into administration, the lawyer who represented the respondent in the proceeding up until the appointment of the administrator, and the administrator.
The Full Court declined to order costs against these non-parties, as there was no evidence to show that they had funded, controlled, or benefitted from the litigation, or acted improperly or unreasonably in bringing the application.
The Full Court concluded that the appropriate order was for the appellants' costs to be paid out of the funds in Court held for the benefit of the Daylight family (as defined in the ILUA). The Full Court also found that the appellants had an interest in the funds held by the Court, and that it would be unfair for them to bear the burden of the costs that they incurred to protect those funds for the benefit of all members of the Daylight Family. The Full Court held that the circumstances of the present case were analogous to those concerning beneficiaries of a trust who properly and reasonably incur legal costs in connection with the administration of the trust. The usual order in these circumstances was for the costs to be quantified on an indemnity basis, being an indemnity for all costs properly and reasonably incurred.
Accordingly, the Full Court ordered that the appellants' costs of the appeal, quantified on an indemnity basis, be paid out of the funds held by the Court for the benefit of the Daylight Family in priority to any other distribution of those funds.
Native title solicitor personally ordered to pay indemnity costs due to AI use
In Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731, the Federal Court addressed the consequences of a law firm’s reliance on AI-generated content to prepare court documents. The solicitors acted for the applicant in a native title determination application and had used AI to generate or supplement citations in an amended Form 1 application and a supporting summary document. Many of the references were subsequently found to be non-existent or incorrect, causing the other parties to incur unnecessary costs and delaying the efficient conduct of the proceedings.
The Court considered the firm’s conduct particularly serious given the solicitors’ professional obligations, remarking that AI is a useful but limited tool that must be subject to appropriate human oversight and verification. By failing to review the AI-generated output, the firm acted unreasonably and contributed to a “fabrication” of references, thus undermining the administration of justice.
As a result, the Court ordered that the solicitors personally pay the respondents’ costs, on an indemnity basis, that were incurred through the firm's use of AI in the preparation of the documents served on the respondents.
