Native title year in review 2025-2026

What you need to know

• The default position under section 85A(1) of the Native Title Act 1993 (Cth) that each party bears its own costs continues to be robustly applied, and the threshold for adverse costs orders remains high.
• The Federal Court has confirmed that conduct amounting to an abuse of process, particularly the repeated filing of fatally flawed or late claims, will attract adverse costs orders under section 85A(2).
• A significant new question has emerged about whether the Court has the power to award costs where both parties are funded by a native title representative body and neither has a personal liability for costs. In Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria (No 2) [2026] FCA 11 the Court held that it did not.
• The general costs discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) remains relevant in native title matters resolved outside the Native Title Act framework, where the ordinary principle that costs follow the event may apply.
• The High Court's refusal of special leave in State of Queensland & Anor v Blucher & Ors on behalf of the Gaangalu Nation People & Ors [2026] HCADisp 168 leaves standing a Full Court costs order that departed from the section 85A(1) default on appeal, potentially encouraging costs applications by successful appellants.

What you need to do

• Ensure that any native title claim is filed in a timely manner, with proper authorisation and a reasonable evidentiary basis, to minimise the risk of an adverse costs order for unreasonable conduct or abuse of process.
• Understand the funding arrangements of all parties before pursuing or defending a costs application. Where representative body funding removes personal liability, a threshold objection to the Court's power to award costs may now be available.
• Consider the statutory basis on which proceedings are resolved, as it may determine whether the Native Title Act costs regime or the general section 43 discretion applies.
• Treat Calderbank offers with caution in native title proceedings. While relevant, they may carry less weight given the section 85A(1) starting point and the Court's reluctance to equate rejection of an offer with unreasonable conduct.

Introduction

Courts continue to grapple with costs in native title proceedings. The starting point under section 85A(1) of the Native Title Act 1993 (Cth) (that each party bears its own costs unless the Court orders otherwise) is well established, yet the boundaries of that default position remain actively contested. Parties continue to litigate the circumstances that warrant departing from it. In our Native Title Year in Review 2024–2025 article, "Native title costs decisions: trends and recent developments", we identified a growing body of authority on unreasonable conduct under section 85A(2) and the limits of section 85A more broadly. The 2025 to 2026 period has only reinforced and extended those themes.

This year's review draws on four Federal Court costs decisions and a High Court special leave refusal. Read together, they illuminate the current judicial approach to section 85A, including the threshold for "unreasonable conduct" under section 85A(2), the relevance of representative body funding to the power to award costs, and the interaction between the Native Title Act costs regime and the general discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

Section 85A default upheld despite discontinuance

Kimberley Land Council Aboriginal Corporation v Ngarrawanji Aboriginal Corporation RNTBC [2026] FCA 2 concerned a dispute between the Kimberley Land Council Aboriginal Corporation (KLC) and Ngarrawanji Aboriginal Corporation RNTBC regarding the engagement of lawyers for native title and heritage matters. The KLC had commenced proceedings seeking declarations that the respondent's termination of its retainer was ineffective and that its engagement of alternative lawyers exceeded its authority under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

Before the listed two-day trial, a meeting of 44 Ngarrawanji common law holders at Halls Creek on 22 November 2025 passed a resolution unanimously (with one abstention) authorising the PBC to engage lawyers of its choosing. Events overtook the proceedings, and the KLC sought to discontinue with no order as to costs. The respondent opposed this, seeking its costs.

Perry J held that the default position under section 85A(1) of the Native Title Act applied. Her Honour noted that the "spirit" of section 85A(1) extended even to proceedings not strictly instituted under the Native Title Act, relying on Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163 and Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490. The respondent's arguments were rejected for three reasons (at [10]-[14]):

• the applicant's discontinuance was a reasonable response to events;
• the respondent had refused six offers to hold a meeting of common law holders between March 2024 and March 2025; and
• the respondent's submissions impermissibly sought to re-litigate the merits through the costs question.

Each party was ordered to bear its own costs.

Representative body funding and costs

Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria (No 2) [2026] FCA 11 (Fagan (No 2)) raised a novel question about the power of the Court to make costs orders under section 85A where both parties are funded by the same native title representative body. The substantive proceeding involved a separate question about the biological descent of certain ancestors within the Wadawurrung native title claim. The respondents to the separate question (Mr Clarke and Dr Couzens) were successful and sought their costs on a party and party basis, and on an indemnity basis after the date of two rejected Calderbank offers.

Critically, both sides were funded by First Nations Legal & Research Services, and Mr Clarke and Dr Couzens conceded that they were "not personally liable for costs" (at [8]). The applicant argued that any costs order would be futile, as the same representative body would ultimately bear the costs on both sides.

Justice Longbottom undertook a detailed analysis of the relevant authorities, including Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 (Far West Coast) and the Full Court's decision in Oil Basins Limited v Watson [2017] FCAFC 103 (at [19]-[26]). Her Honour concluded that the finding in Far West Coast – that section 85A contemplates that a lawyer funded by a representative body may seek costs – was premised on the existence of a liability (or at least an expectation of liability) on the part of the represented party to pay for their legal costs. Where, as here, the parties conceded they were not personally liable, Far West Coast did not provide a basis for the costs order sought (at [25]).

In the alternative, Longbottom J held that even if the Court had power to award costs, the applicant's conduct was not sufficiently unreasonable to warrant such an order. Her Honour emphasised the importance of oral history evidence in native title cases, observing that the applicant's resistance to the separate question was informed by oral history which, while ultimately unsuccessful, was not advanced for an ulterior purpose. The relatively short period between the lay evidence hearing and closing submissions also weighed against a finding of unreasonableness (at [27]-[33]). The Court made no order as to costs.

Unreasonable conduct and overlapping claims can trigger costs

In our Native Title Year in Review 2024–2025 article, "Native title costs decisions: trends and recent developments", we flagged the reserved costs question in Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53. The costs question was determined in Sandow on behalf of the Bigambul People #5 v State of Queensland (No 2) [2026] FCA 727 (Sandow (No 2)).

The Bigambul People had previously had their Bigambul #2 claim struck out in Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450 (Mann), with costs ordered against them. Notwithstanding that earlier outcome, they subsequently filed the Bigambul #5 claim (QUD 344 of 2024), which overlapped with the Gamilaraay People's claim. The timing was critical, as the Bigambul #5 claim was filed just three days after the Gamilaraay claim was listed for consent determination. The Gamilaraay applicant was forced to bring an interlocutory application to strike out the Bigambul #5 claim, which was successful at first instance and upheld on appeal by the Full Court.

Collier J found that the conduct of the Bigambul #5 applicant in filing the claim was "unquestionably" unreasonable within the meaning of section 85A(2) (at [15]). Key factors included:

• the claim replicated flaws found fatal in the earlier Mann proceeding;
• it was filed at a critically late stage in the Gamilaraay consent determination process;
• no satisfactory explanation was given for the delay; and
• the claim constituted an abuse of process.

The Court ordered the Bigambul #5 applicant to pay the Gamilaraay applicant's costs of the interlocutory application.

The decision also addressed and rejected several arguments commonly raised by applicants resisting costs orders: that the applicants were of limited financial means, that the party seeking costs had no intention of enforcing orders, and that the Gamilaraay applicant's public funding meant it would not be financially disadvantaged (at [16]). Collier J held that none of these matters provided a basis for declining to exercise the discretion under section 85A(2).

General costs principles apply outside section 85A

Wanambi for himself and on behalf of the Marraŋu People of East Arnhem Land v Wanambi (No 2) [2026] FCA 926 concerned the more conventional application of costs principles under section 43 of the FCA Act, rather than the Native Title Act costs regime. The applicant's proceeding had been dismissed under section 31A of the FCA Act. The first respondent, Mary Wanambi, sought her costs. Although her initial submission referenced indemnity costs, the form of order sought and the substance of her submissions were directed to party/party costs, and the Court treated the application accordingly. The applicant did not file any submissions in opposition. Justice O'Bryan applied the established principles governing costs discretion under section 43, including that costs ordinarily follow the event but that a successful party may be deprived of costs if they succeeded only on a portion of their claim or pursued issues unreasonably (at [6]-[7]). Although Mrs Wanambi was unsuccessful on her principal argument (that the proceeding was an abuse of process or was subject to estoppel), she was successful overall in her defence. O'Bryan J held that the arguments on which she failed did not add significantly to the length or complexity of the proceedings, and awarded her costs on a party/party basis.

High Court special leave refused in the Gaangalu Nation proceedings

In State of Queensland v Blucher & Ors on behalf of the Gaangalu Nation People & Ors [2026] HCADisp 168 (Blucher), the State of Queensland and the State Minister for the State of Queensland sought special leave to appeal from Full Court judgments that had set aside a negative determination of native title by Rangiah J and ordered the first State to pay the appellant's costs of the appeal. The applicants also sought to raise a ground of appeal concerning the application of section 85A of the Native Title Act to the award of costs on appeal.

The High Court (Gageler CJ, Gordon, Edelman, Steward, Jagot and Beech-Jones JJ) refused special leave, finding that the proposed grounds concerning the Full Court's substantive orders did not have sufficient prospects of success to warrant a grant of special leave. The Court observed that, in those circumstances, an appeal from the Full Court's costs orders "would not be a suitable vehicle" to consider the proposed section 85A ground. Special leave was refused with costs.

Although the High Court did not engage substantively with the section 85A issue, the refusal of special leave is significant. It means the Full Court's costs order, which apparently departed from the usual section 85A(1) starting point to award costs on appeal, stands. This may encourage parties who succeed on appeal in native title proceedings to seek costs orders, at least where the appeal concerns the reversal of a negative determination at first instance.

Conclusion

The 2025-2026 costs decisions advance the law on costs in native title proceedings. Section 85A(1) of the Native Title Act continues to provide significant protection from adverse costs orders, but the protection is not absolute. The Court has shown it will award costs under section 85A(2) in cases of clear abuse of process. It has also scrutinised more closely whether costs can be awarded where representative body funding removes any personal liability.

The High Court's refusal of special leave in Blucher leaves standing a costs order that departed from the section 85A(1) default on appeal, potentially opening the door for successful appellants to seek their costs in future proceedings. Practitioners and parties should be alert to both the opportunities and constraints these decisions present when managing costs risk in native title proceedings.

Want to know more?

• Native title costs decisions: trends and recent developments (9 September 2025)
• Native Title Year in Review 2024-2025 (9 September 2025)

Authors: Andrew Gay, Partner; Roxane Read, Senior Associate and Eliza Lusis, Lawyer.