Arnold Franks and Others v State of Western Australiaand Others
[2006] FCA 1811
•21 December 2006
FEDERAL COURT OF AUSTRALIA
Arnold Franks and Others v State of Western Australia and Others
[2006] FCA 1811NATIVE TITLE – mediation – court supervision of mediation process – mediation protocols and programs – delays – resource and staffing limitations of representative body – specific orders proposed by National Native Title Tribunal – power of Court to make specific orders – orders made accordingly
Native Title Act 1993 (Cth) s 86A and 86B
Federal Court of Australia Act 1976 (Cth) s 23Frazer v Western Australia (2003) 128 FCR 458 cited
ARNOLD FRANKS AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS
WAD6273 OF 1998, WAD6193 OF 1998, WAD6236 OF 1998, WAD6212 OF 1998, WAD6194 OF 1998, WAD6161 OF 1998, WAD6136 OF 1998, WAD6132 OF 1998, WAD6123 OF 1998, WAD6119 OF 1998, WAD6033 OF 1998, WAD6006 OF 2001, WAD6002 OF 2004, WAD6001 OF 2000, WAD286 OF 2004, WAD131 OF 2004FRANK FRENCH AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS
WAD82 OF 1998, WAD8 OF 2005, WAD6173 OF 1998, WAD6051 OF 1998, WAD6090 OF 1998, WAD6280 OF 1998, WAD6096 OF 1998, WAD6285 OF 1998, WAD6278 OF 1998, WAD6287 OF 1998, WAD6007 OF 2000, WAD6007 OF 2001, WAD126 OF 2005, WAD6005 OF 2003, WAD78 OF 2005, WAD293 OF 2005, WAD127 OF 1997, WAD6256 OF 1998FRENCH J
21 DECEMBER 2006
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD6273OF 1998, WAD 6193 OF 1998
WAD6236 OF 1998
WAD6212 OF 1998
WAD6194 OF 1998
WAD6161 OF 1998
WAD6136 OF 1998
WAD6132 OF 1998
WAD6123 OF 1998
WAD6119 OF 1998
wad6033 OF 1998
WAD6006 OF 2001
WAD6002 OF 2004
WAD6001 OF 2000
WAD286 OF 2004
WAD131 OF 2004
BETWEEN:
ARNOLD FRANKS AND OTHERS
ApplicantsAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents
JUDGE:
FRENCH J
DATE OF ORDER:
21 DECEMBER 2006
WHERE MADE:
PERTH
IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT:
1.The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minutes of proposed orders to give effect to these reasons to the extent that they are applicable to the application.
2.The directions hearing is adjourned to 29 June 2007 at 9am.
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
WAD82 OF 1998
WAD8 OF 2005
WAD6173 OF 1998
WAD6051 OF 1998
WAD6090 OF 1998
WAD6280 OF 1998
WAD6096 OF 1998
WAD6285 OF 1998
WAD6278 OF 1998
WAD6287 OF 1998
WAD6007 OF 2000
WAD6007 OF 2001
WAD126 OF 2005
WAD6005 OF 2003
WAD78 OF 2005
WAD293 OF 2005
WAD127 OF 1997
WAD6256 OF 1998
BETWEEN:
FRANK FRENCH AND OTHERS
ApplicantsAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents
JUDGE:
FRENCH J
DATE OF ORDER:
21 DECEMBER 2006
WHERE MADE:
PERTH
IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT:
1.The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minute of proposed orders to give effect to these reasons to the extent that they are applicable to that application.
2.The directions hearing is adjourned to 29 June 2007 at 9am.
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
WAD 6273 OF 1998
WAD6193 OF 1998
WAD6236 OF 1998
WAD6212 OF 1998
WAD6194 OF 1998
WAD6161 OF 1998
WAD6136 OF 1998
WAD6132 OF 1998
WAD6123 OF 1998
WAD6119 OF 1998
WAD6033 OF 1998
WAD6006 OF 2001
WAD6002 OF 2004
WAD6001 OF 2000
WAD286 OF 2004
WAD131 OF 2004
BETWEEN:
ARNOLD FRANKS AND OTHERS
ApplicantAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD82 OF 1998
WAD8 OF 2005
WAD6173 OF 1998
WAD6051 OF 1998
WAD6090 OF 1998
WAD6280 OF 1998
WAD6096 OF 1998
WAD6285 OF 1998
WAD6278 OF 1998
WAD6287 OF 1998
WAD6007 OF 2000
WAD6007 OF 2001
WAD126 OF 2005
WAD6005 OF 2003
WAD78 OF 2005
WAD293 OF 2005
WAD127 OF 1997
WAD6256 OF 1998
BETWEEN:
FRANK FRENCH AND OTHERS
ApplicantsAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents
JUDGE:
FRENCH J
DATE:
21 DECEMBER 2006
PLACE:
PERTH
REASONS FOR DIRECTIONS ON GERALDTON AND PILBARA REGIONAL DIRECTIONS HEARINGS
Introduction
On 18 and 15 December 2006 the Court convened directions hearings in respect of native title determination applications in the Geraldton and Pilbara regions of Western Australia respectively. These hearings related to cases which are the subject of mediation referrals by the Court to the National Native Title Tribunal (the Tribunal). The cases are in the Court’s “Provisional Docket” which is the class of native title determination proceedings under mediation and not requiring imminent programming to trial. When it is thought appropriate to submit an application to closer judicial case management with a view to its progress to trial or other disposition, it is generally allocated out of the provisional docket to the “Substantive” docket of a judge designated for that purpose.
A chronic problem of delay has arisen in the mediation of native title determination applications in the various regions of Western Australia. The delays are largely due to limitations on both the human and financial resources available to carry out the necessary work. Those limitations affect representative bodies, the applicants they represent, unrepresented applicants, the State Government and other respondents. The greatest difficulties have been associated with the resolution of overlaps between native title determination applications and the preparation, by or on behalf of applicants, of materials sufficient to satisfy the State Government of the relationship with the area of land or waters under claim necessary to support a native title determination. The provision of so-called “connection material” typically involves the services of an anthropologist to research the particular claim group, its traditional laws and customs and the nature of the connection of the group to the land and waters in question under those traditional laws and customs. That work may involve the collation of research literature and extensive field investigations. The amount of time required is substantial and may extend for many months and sometimes in excess of a year. There is a limited number of suitably qualified anthropologists available to carry out such work. Preparation of connection material may also involve the collation of historical, archaeological and linguistic evidence. Under the current practice of the State Government of Western Australia, connection material, when submitted to it, is assessed by an expert engaged by the State. The process of assessment is outlined in a document published, in October 2004, by the Office of Native Title of the State of Western Australia entitled “Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title”.
The mediation of native title determination applications is primarily a matter for the Tribunal. That priority is reflected in ss 86A and 86B of the Native Title Act 1993 (Cth) (the Act). The role of the Tribunal in mediation was heightened by the amendments made to the Act in 1998. They introduced a far more detailed regime for the mediation of native title determination applications than had previously been the case. Every such application must be referred to the Tribunal for mediation unless the Court orders otherwise (ss 86B(1) and (2)). The role of the Tribunal is reinforced by the Federal Court’s facility to request it to provide reports on the progress of any mediation (s 86E). That role covers the process of information exchange of which the provision of connection material to the State is an important element.
In Frazer v Western Australia (2003) 128 FCR 458 at 466 I observed that:
‘The referral under s 86B is a referral to the NNTT and, in my opinion, it has the responsibility, pursuant to that referral, to undertake mediation of all aspects of the application relevant to the purposes defined in s 86A. This includes the development of detailed negotiation protocol, the exchange of information between the parties, the identification of issues to be resolved and times and venues of conferences under the Act in furtherance of the mediation process. In so doing it is quite legitimate that the NNTT and the parties have regard to the resource limitations and other practical constraints under which each of them must operate. It is appropriate that within a particular region timetables may be staggered to reflect priorities within that region. It is legitimate for the protocols and timetables developed to provide for bilateral negotiations between parties with a report back to the NNTT. However, timetables for such bilateral discussions are an element of the mediation process undertaken by the NNTT in the exercise of its statutory function and in respect of which it may be required to report to the Court.’
In that case it was made clear that the provision of connection evidence between applicants and State is neither outside nor antecedent to the mediation process but an aspect of it (at [27]).
Shortly prior to publishing the decision in Frazer I made orders in relation to the Pilbara and Geraldton regions providing for the development of mediation timetables. The form of orders was along the lines of those made in Frazer (at [33[). They required the preparation by the applicants, overlapping applicants and the State of a program setting out a timetable for the exchange of information and specific issues to be negotiated. It was also directed that there be a detailed timetable including proposed meeting dates and venues set in a regional context and an outline of a negotiating protocol to be adopted by the State and the applicant. The parties were told that they had to lodge a copy of the relevant programs at the Court. Absent any agreement on such a program in a particular application, the applicant and any other interested parties were required to show cause why the application should not be referred to a substantive docket judge. In both the Geraldton and Pilbara regional areas mediation protocols and timetables were established pursuant to the Court’s orders and have not been adhered to. Maps are attached to these reasons showing the claims in the two regions and charts provided by the Tribunal of the progress and anticipated progress of existing mediation protocols.
Directions were given on 1 August 2006 that the representative body for the Geraldton and Pilbara regions, the Yamatji Land and Sea Council (Yamatji), provide a report at the adjourned directions hearing on the feasibility of a single connection report covering a number of applications in the area as a means of progressing their resolution. Those applications are Budina (WAD131/2004), Malgana (WAD6236/1998), Nanda (WAD6136/1998), Thudgari (WAD6212/1998) and Gnulli (WAD6161/1998).
Tribunal proposals with respect to delays in mediation process
In its regional reports to the Court dated 18 and 15 December 2006, relating to the Geraldton and Pilbara regions respectively, the Tribunal has informed the Court of significant non-compliance with the mediation protocols agreed between the State and the representative body in each case. Of 16 applications in the Geraldton region, nine have current mediation protocols and six have not been complied with. Of the 24 applications in the Pilbara region, 17 have current mediation protocols. Ten of those have not been complied with. In each case the Tribunal has expressed the view that parties must adopt a more rigorous adherence to the protocols if applications in the region are to be resolved within reasonable timeframes. It submitted to the Court that if by the time of the next directions hearing parties are unable to comply with the timeframes agreed in the mediation protocols, the Court should consider replacing them with programming orders. The Tribunal has proposed draft orders for applications grouped according to subregions which it has defined within each of the regions. It submitted that the draft orders were intended to expedite the resolution of applications with a particular focus on overlaps. I am prepared to make orders in the terms proposed by the Tribunal on the basis that closer support and engagement by the Tribunal with the parties offers more promise for progress than reliance upon the existing mediation protocol. It is important, however, to note that those protocols should not be regarded as displaced by the orders which I propose to make.
Tribunal proposals for directions in the Geraldton Region
The Tribunal’s draft orders are intended to expedite the resolution of applications in the region with a particular focus on the resolution of overlaps. What it seeks to achieve through the draft orders are:
1. Greater utilisation of the Tribunal in the resolution of overlaps.
2. More intensive mediation of key strategic applications.
3. Increased commitment to adherence to mediation protocols.
The Tribunal referred to what it considered to be the very slow rate of progress for the resolution of applications which do not overlap and are to be found in the central and northern portions of the Geraldton region. While it acknowledged the resource limitations affecting Yamatji, it suggested that more timely and efficient progress could be achieved through greater utilisation of the Tribunal’s significant research assistance capabilities. These include:
(i)Background collections of anthropological and historical writings and relevant ethnographic maps relating to claim areas and claim groups (public domain materials).
(ii)Based on the background collections reports relating to:
.European contact history for the claim area;
.Customary Practices setting out indigenous cultural and ceremonial practices in the claim area;
.an area identity report which describes the naming of groups within the area and language/tribal boundaries.
(iii)comprehensive geo-enhanced databases electronically linking historical facts to maps.
(iv)specific research projects related to a claim or claims;
(v)independent assessment of connection materials.
The Tribunal also pointed to research reports which it has prepared and provided to Yamatji and the State and copies of which have been sent to the Court. These reports relate to:
‘.the Gnulli (WAD6161/98), Malgana (WAD6236/98) and Nanda (WAD6136/98) applications; and
. the overlapping applications in the Southern Geraldton cluster ie Amangu (WAD6002/04); Hutt River (WAD6001/00); Naaguja Peoples (WAD 6194/98); Arnold Franks (WAD 6273/98); Taylor Group (WAD6006/01); Widi Binyardi (WAD286/04); Mullewa Wadjari (WAD6119/98); Widi Mob (WAD6193/98); Badimia (WAD6123/98) (to the extent of the overlap); Wadjari Yamatji (WAD6033/98) (to the extent of the overlap).’
The Tribunal has scheduled further research into the overlap between the Badimia and the Widi Mob applicants. That work is to commence in January 2007 and will require about two months to complete.
For the Northwest Geraldton subregion comprising Malgana, Gnulli, Budina, Thudgari and Nanda, the Tribunal proposes the following orders:
‘1.By 31 March, applicants (and/or their representatives) of the Gnulli (WAD6161/98), Malgana (WAD6236/98) and Nanda (WAD6136/98) attend meetings convened by the Tribunal to discuss the content and status of existing research materials covering their respective claim areas.
2.By 30 April 2007, the Tribunal, in consultation with [Yamatji], develop a program for the conduct of further necessary research in each of these matters and submit a copy to the Court.’
The Southwest Geraldton subregion, as defined in the Tribunal’s report, comprises the applications known as Hutt River, Naaguja, Amangu, Arnold Franks, Taylor Group, Widi Binyardi and Widi Mob. There are a number of overlaps between those applications and applications in the Central Geraldton subregion which comprises the Wadjari Yamatji, Mullewa Wadjari, Badimia, Yugunga-Nya, Widi Binyardi and Widi Mob. As appears, the Tribunal treats the Widi Binyardi and Widi Mob applications as falling into both sub-regions.
In relation to the Southwest Geraldton subregion and the Central Geraldton subregion there are some ten overlapping applications identified in a “South Geraldton Cluster Overlap Chart” which was Annexure A to the Tribunal’s original report. These applications are Hutt River, Naaguja, Arnold Franks, Taylor Group, Widi Binyardi, Mullewa Wadjari, Widi Mob, Badimia, Wadjari Yamatji and Amangu. In respect of these applications the Tribunal proposed the following orders:
‘1.The representatives of the 10 applications listed in the Southwest Geraldton Cluster Chart … attend meetings called by the [Tribunal] between January 1 and June 30 2007 for the purpose of resolving overlaps.
2.By January 30 2007, the Tribunal provide the Court with a timetable of meetings with all parties.
3.By March 31 2007, the Tribunal provide the Court with a progress report detailing the steps taken to resolve the overlaps.
4.By 31 March 2007, [Yamatji] and the State provide the Court with a program for the preparation and assessment of connection material for all claims in the southwest Geraldton area.
5.By March 31 2007, the Tribunal provide the Court with a progress report on the Tribunal research project examining the overlap area between Badimia (WAD6123/98) and Widi Mob (WAD6193/98).’
Yamatji Land and Sea Council response to Tribunal concerns and proposals for Geraldton region
By a letter to the Court dated 15 December 2006 Yamatji responded to the Tribunal’s report in relation to Geraldton. The letter was signed by its Acting Principal Legal Officer.
According to Yamatji a number of significant matters have progressed during the reporting period despite significant difficulties experienced by it. Its Geraldton office has suffered from significant staff shortages directly affecting its capacity to go forward with the mediation programs. Two new legal officers were engaged in September 2006, although the employment of one was terminated in November 2006. Between July 2006 and September 2006 the Acting Principal Legal officer was the only legal officer in Yamatji’s Geraldton office. In the period July to December 2006 Yamatji had a significantly reduced capacity to progress claims.
Submission of connection materials on priority claims was said to be progressing largely according to plan. The submission of final supplementary material to the State for the Thudgari connection report occurred in October 2006, and was within two weeks of the nominated timeframe. It is expected that the State’s assessment will be completed in March 2007 and that negotiations will commence immediately thereafter. Yamatji also said that final connection material for the Badimia claim would be submitted by March 2007. This was an extension of one month over the date previously agreed. It had instructions to organise a mediation meeting between the Badimia and Widi Mob applicants. A meeting was set for 19 October 2006. However, that meeting was postponed to allow the Tribunal to meet with the Widi Mob applicant, Mrs Martin, and to conduct research in relation to her asserted connection. The meeting was rescheduled to occur early in 2007 once the research had been completed. According to the Yamatji report regular group meetings for all claim groups in the region occurred throughout the reporting period as well as three significant community meetings which were held in the same period. As a result of those meetings s 66B applications to remove deceased and/or incompetent applicants were foreshadowed for 2007.
Specific reference was made to the Mullewa Wadjari claim which overlaps six other applications in the Geraldton region. Yamatji has been advised that although the application has no viable applicant remaining members of the native title claim group intend to amend it. The promised amendments have not yet been filed with the Court. The Mullewa Wadjari situation affects other mediation programs because of its overlaps with the Nanda, Amangu, Wadjari Yamatji and Naaguja claims. These programs are subject to resolution of the status of the Mullewa Wadjari claim. Yamatji remains willing to meet with the Mullewa Wadjari in early 2007 if the claim remains on foot. Mr George Irving, counsel experienced in native title matters, has been engaged by Yamatji and is endeavouring to organise a meeting with representatives of the Mullewa Wadjari claim group before the end of 2006 to consider resolution of overlaps in the Geraldton region.
The Yugunga-Nya claim is subject to programming orders as part of the North-West cluster under the control of Sackville J. Under his Honour’s directions programming for mediation of overlaps will follow the handing down of the Wongatha decision in the Goldfields region, now to occur in February 2007.
The non-priority claims in the Geraldton region are the Malgana Shark Bay People and the Wadjari Yamatji People. As to the former it is said its overlap with Wadjari Yamatji has been resolved in principle and that Malgana claim amendments givng effect to the resolution are well advanced. The principal difficulty is the extremely high number of named applicants on the claim and the need to collect affidavits from each of them to give effect to the authorised amendments. There are in excess of 40 claimant affidavits in total. The whereabouts of some of the applicants has been unknown and others have been difficult to contact so this has been a very time consuming and difficult process.
Yamatji has taken instructions from Wadjari Yamatji to convene a mediation meeting with members of the Widi Binyardi claim group. The Wadjari Yamatji claim is subject to intense future act pressures with numerous small future act applications and several major future act agreements being negotiated during the relevant period.
Under separate cover, Yamatji also sent a letter, evidently in response to the directions of 1 August 2006 relating to a single connection report. It had received advice that it would be feasible and time could be saved if there could be a base report written which could be supplemented by individual connection reports for each application in the relevant area. The base report might contain a regional history report written by an historian and a regional anthropology report by an anthropologist. It could utilise research already done in relation to reports prepared but would probably need more research to be carried out over the whole region to be covered. This, it was said, would reduce the work necessary to be repeated for subsequent connection reports.
In relation to the Amangu, Hutt River, Naaguja, Widi Binyardi, Taylor and Mullewa Wadjari applications, the last three of which are not represented by Yamatji, Mr Irving was briefed on 14 April 2004 to assist in their resolution through an Alternative Settlement Agreement with the State. According to Mr Irving, the claims, in which Yamatji acts, are at the stage where some connection material could shortly be provided to the State. Yamatji is also providing funds to facilitate independent research for connection material for other claims. Given that one of the State’s preconditions for an Alternative Settlement Agreement is that there must be only one agreement inclusive of all interests in the area covered by the overlapping claims, it is Mr Irving’s view that the connection materials for all eight overlapping claims should, if possible, be submitted in the one report.
The historian’s component of the base report has reached penultimate draft form. Meetings were held with working groups for each of the first three mentioned claims between 6 and 8 December 2006 to allow them to read it and to identify errors. Work has commenced on the analysis of historical references in relation to the Widi Mob, Widi Binyardi and the Mullewa Wadjari claimants. However further work on the last mentioned claim was postponed for cultural reasons.
At meetings held in Geraldton on 5 to 7 December 2006 each of the Amangu, Hutt River and Naaguja working groups agreed in principle to the establishment of a joint working group to advance negotiations with the State. Mr Irving’s attempts to organise a meeting with representatives of Mullewa Wadjari group for 8 December 2006 were unsuccessful. He spoke with Mr Leedham Papertalk who agreed to give him a call and to meet with him when he gets to Perth in the next couple of weeks. He also met with representatives of the Widi Binyardi group on 18 August 2006. They agreed to the establishment of a joint working group and a proposed combination with Widi Binyardi, Taylor and Amangu claims into a single claim. Mr Irving had attended two meetings with the representatives of the Taylor group, the first in April 2004 and the second in July 2005.
According to Mr Irving the named applicant in the Widi Mob claim has stated, as a pre-condition to any joint meeting, that the overlapping claim groups must establish their connection to the area through their ancestors. While the historian’s report maintains the confidentiality of individual families it will contain an opinion which addresses the issue in respect of each of the overlapping claims. Mr Irving is of the view that the work currently being done by the historian in respect of the Widi Mob applicant will assist in moving the claim forward. Until then, it is his view that nothing would be gained by a Court-directed meeting with the overlapping groups. The work undertaken over the past twelve months has been predicated on the possibility that the connection materials might be finalised before the State had finalised its policy on Alternative Settlement Agreements and the connection criteria to be met by claim groups. Each of the groups, it was said, have agreed that there is value in submitting connection material as soon as possible in the hope of influencing the State’s policy. The remaining part of the connection materials will include affidavit evidence from members of each group and written submissions.
In addition to Mr Irving’s comments the letter of 14 December 2006 from Yamatji raised the desirability of preservation evidence in relation to three claims. It appears that Yamatji proposes to commence proofing witnesses for such examinations in the new year.
Tribunal proposals for directions in the Pilbara region
The Tribunal has divided the Pilbara region into three sub-regions designated Northeast Pilbara, Northwest Pilbara and Central Pilbara.
The Northeast Pilbara subregion comprises the Ngarla, Ngarla # 2, Njamal # 10, Njamal, Warrarn # 1, Birrimaya, Palyku, Nyangumarta and Kulyakartu applications. The Northwest Pilbara subregion comprises Kuruma Marthudunera, Yaburara and Mardudhunera, Wonga-Tt-Oo, Yindjibarndi No 1, Kariyarra People and Bindurrna applications. The Central Pilbara subregion comprises Thalanyji (in the substantive docket of North J), PKKP, PKKP # 2, Jurruru, Innawonga, Innawonga Bunjima, Eastern Guruma (in the docket of Bennett J), Martu Idja Banyjima, Gobawarrah Minduarra Yinhawanga, Ngalawangga and Nyiyaparli.
In respect of the Northeast Pilbara subregion the Tribunal proposes orders to the following effect:
‘1.Before 31 March, the Warrarn and Njamal applicants shall, and Ngarla and Ngarla 2 applicants may, attend a meeting convened by the Tribunal to discuss the resolution of overlaps.
2.The Tribunal, in consultation with the parties, is to prepare a plan for resolution of overlaps and submit it to the Court prior to the next directions hearing.’
As to the Northwest Pilbara subregion the Tribunal proposes:
‘. For Kuruma Marthudunera (WAD6090/98), Yaburara & Mardudhunera (WAD127/97), and Wong-Goo-To-Oo (sic) (WAD6256/98):
1.Before 31 March the Kuruma Marthudunera, Yaburara & Mardudhunera, and Wong-Goo-To-Too (sic) are to attend a meeting convened by the Tribunal to discuss the resolution of overlaps.
2.The Tribunal, in consultation with parties is to prepare a plan for resolving the overlaps between Kuruma Marthudunera, Yaburara & Mardudhunera, and Wong-Goo-To-Oo (sic) and present the plan to the Court before the next Directions Hearing.
.For Kariyarra (WAD6169/98)
1.Before 31 March, the State and [Yamatji] are to attend a meeting convened by the [Tribunal] to develop a plan for the resolution of connection issues.
2.The Tribunal shall provide a copy of the plan to the Court before the next Directions Hearing.’
In respect of the Central Pilbara subregion the Tribunal proposes the following:
‘For Single Innawonga application – Innawonga (WAD6285/98), Innawonga Bunjima (WAD6096/98), Gobawarrah Minduarra Yinhawanga (WAD6173/98) and Jurruru (WAD6007/00) (4 applications)
1.Before the 31st March [Yamatji] will provide the [Tribunal] with an outline of steps already taken to effect lodgement of a ‘Single Innawonga’ application and a plan and timetable for completion of the process.
2.Before the next Directions Hearing the [Tribunal] shall convene a meeting between the Innawonga, GMY and Jurruru claimant groups to determine a process for implementation of the plan.
3.The Tribunal will provide the Court with a copy of the timetable before the next directions hearing.
For Single Bunjima application – Innawonga Bunjima (WAD6096/98 and Martu Idja Bunjima (WAD6278/98) (2 applications)
1.Before the 31st March [Yamatji] will provide the [Tribunal] with an outline of steps already taken to effect lodgment of a ‘Single Bunjima’ application and a plan and timetable for completion of the process.
2.Before the next Directions Hearing the [Tribunal] shall convene a meeting between the Innawonga Bunjima and Martu Idja Bunjima claimant groups to determine a process for implementation of the plan.
3.The Tribunal will provide the Court with a copy of the timetable before the next directions hearing.’
Yamatji’s response to Tribunal proposals for directions in the Pilbara region
By a letter to the Court filed on 13 December 2006 Yamatji referred again to its short staffing in the Pilbara and Perth regions. It pointed out that since the last directions hearing it had lost several senior staff including its Principal Legal Officer, the Manager of the Land Access Unit which deals with future acts and a Senior Legal Officer handling future acts. In addition, the Deputy Principal Legal Officer had taken a year’s leave of absence. Although some existing staff have been promoted to or are acting in these positions, additional staff have not been able to be recruited to make up for this. As a result there have been additional workloads and pressure on existing staff.
Yamatji says that there has been extensive urgent future act work in the Pilbara particularly with major negotiations involving Pilbara Iron. The lack of available legal officers in its major projects area has meant that lawyers handling native title determination applications in the Pilbara region have had to take on the future act matters as well. It referred to ongoing negotiations with Pilbara Iron and its hope that an arrangement may be finalised soon whereby funding will be provided for up to five connection reports to be prepared in the next two years. Some of these reports, it is said, will be able to deal with two or more claims together. Thus research could be conducted for both the Bunjima claims and the Kuruma claims (PKKP 1 and 2 and Kuruma Marthudunera). The proposal would involve funding a project manager, senior lawyer and co-ordinating anthropologist.
Yamatji submits that it is not likely that court orders will be of much assistance in overlap strategies. Most of the difficulties involved in complying with mediation protocols have arisen from not being able to get claimants to reach agreement in relation to overlaps. It is submitted that it is not appropriate to make court orders requiring claimants to settle differences.
The letter then dealt with specific applications within the Pilbara region.
The powers of the Court
The Court has previously made orders requiring parties to prepare mediation protocols and programs and requiring also that they adhere to the timetables in those programs. This has been subject to a tolerance of up to two months on any given step before it was necessary to approach the Court to revise the program. These processes were designed to provide a fairly light-handed approach to Court supervision of the mediation process. It is evident that this scheme has met with only limited success and that the credibility of the mediation programs and protocols is in question.
The provisions of the Act mandate referral of native title determination applications to the Tribunal for mediation. The Court, however, has a discretion under s 86(2) to not refer a matter subject to the requirement that it consider factors set out in s 86(4). The Court may order a mediation to cease (s 86(c)(i)). Mediation of native title determination applications by the Tribunal is a central part of the legislative scheme of the Act. Nevertheless, the proceedings the subject of that mediation are proceedings in the Court and the Court ultimately controls the duration of the mediation.
Mediation is necessarily consensual. No party can be directed to reach agreement about a pending application or any part of it. Nevertheless the Court can take such steps as are appropriate to ensure the timely progress of mediation under the Act. That power derives from s 23 of the Federal Court of Australia Act 1976 (Cth). The generality of that provision enables the Court to make such orders as are properly incidental to or supportive of the timely progress of mediations under the Act. For although mediation of native title determination applications is a specific statutory process, it is established for the purpose of resolving pending proceedings in the Court. The link between the purposes of mediation and the resolution of issues in the proceedings in the Court is clear from the terms of s 86A.
In my opinion the Court has the power to make orders of reasonable specificity calculated to assist mediation to proceed expeditiously.
Whether the Court should make the orders sought by the Tribunal
Yamatji expressed scepticism about the utility of the Tribunal proposals for both the Geraldton and Pilbara regions on the basis that in some claims connection reports were under preparation or research was pending, but not yet carried out. The convening of further meetings at this time would not necessarily be a panacea. It was submitted that the parties were not in a position properly to negotiate until requisite research had been done. However, the parties other than Yamatji generally supported the position taken by the Tribunal.
In my opinion the Tribunal’s approach offers a more structured basis upon which to move the mediations forward in the Pilbara region. The difficulties currently experienced by Yamatji underline the utility of closer support for the process generally from the Tribunal. That is necessarily subject to the proper maintenance of its role as a helpful neutral which is essential for the discharge of its mediation function. A closer involvement by the Tribunal in processes between overlapping applications, between applicants and the State and between represented and unrepresented applicants, will also enable a better information flow to other respondents who tend to be left on the sidelines wondering what is going on between the principal actors.
I propose to make orders substantially in terms of the Tribunal’s proposals subject to the extension of the dates which it proposes. I will provide the parties with the opportunity to formulate precise minutes of orders in respect of the applications in each of the subregions to give effect to the Tribunal’s proposals. Minutes of the proposed orders should be submitted by 19 January 2007. Generally speaking the time limited for compliance with the steps proposed by the Tribunal to be done by 31 March 2007 will be extended to 30 April 2007. Where the Tribunal’s proposed draft orders specify 30 April 2007 that time will be extended to 31 May 2007. The next regional directions hearing in each case will be scheduled for 29 June 2007 at 9am.
I will request Deputy District Registrar Eaton to review the proposed minutes before they are submitted to me to make the formal orders to ensure that they adequately cover each of the relevant applications. In any case in which the global orders are inapplicable to a particular application, the directions hearing in respect of that application will be adjourned to 29 June 2007.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 21 December 2006
Counsel and Solicitors for the various Applicants: See attached Schedule Counsel and Solicitors for the various Respondent: See attached Schedule Dates of Hearing: 15 and 18 December 2006 Date of Judgment: 21 December 2006
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