Edwards on behalf of the Wamba Wamba, Barapa Barapa, Wadi Wadi People v State of Victoria

[2010] FCA 744

FEDERAL COURT OF AUSTRALIA

Edwards on behalf of the Wamba Wamba, Barapa Barapa, Wadi Wadi People v State of Victoria [2010] FCA 744

Citation:		Edwards on behalf of the Wamba Wamba, Barapa Barapa, Wadi Wadi People v State of Victoria [2010] FCA 744
Parties:		EDWARDS ON BEHALF OF THE WAMBA WAMBA, BARAPA BARAPA, WADI WADI PEOPLE v STATE OF VICTORIA AND ORS
File number:		VID 6005 of 2000
Judge:		NORTH J
Date of judgment:		16 August 2010
Catchwords:	NATIVE TITLE – change of government policy – Victorian Native Title Settlement Framework – concerns about delay
Date of hearing:	16 August 2010
Date of last submissions:	16 August 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Mr A. McLean
Counsel for the First Respondent:	Mr P. Willis
Counsel for the Second Respondent:	Mr J. Waters
Solicitor for the Applicant:	Native Title Services Victoria
Solicitor for the First Respondent:	Victorian Government Solicitor
Solicitor for the Second Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 6005 of 2000

BETWEEN:	EDWARDS ON BEHALF OF THE WAMBA WAMBA, BARAPA BARAPA, WADI WADI PEOPLE Applicant
AND:	STATE OF VICTORIA AND ORS Respondent

JUDGE:	NORTH J
DATE OF ORDER:	16 AUGUST 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The directions hearing is adjourned to 10.15am on 29 November 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 6005 of 2000

BETWEEN:	EDWARDS ON BEHALF OF THE WAMBA WAMBA, BARAPA BARAPA, WADI WADI PEOPLE Applicant
AND:	STATE OF VICTORIA AND ORS Respondent

JUDGE:	NORTH J
DATE:	16 AUGUST 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is a directions hearing in this application for a determination of native title. As is usual practice in native title applications in Victoria, the National Native Title Tribunal has filed with the Court a mediation report prior to the directions hearing in order to update the Court on the progress of mediation in the matter. The report sets out a table of milestones to resolution which has the final disposition of the application occurring in April 2012. 

2. This timeline appeared to conflict with submissions made to the Court at previous directions hearings which indicated that the application would be finalised by the middle of 2011.  As a result of these apparent contradictions, and despite the agreement of the parties and the recommendation of the Tribunal, the matter was called on for further explanation. 

3. The concern held by the Court relates to the apparent extension of time for the resolution of the matter by approximately nine months.  The context in which that concern arises is as follows.  Over the past few years, the State of Victoria, in an attempt to secure and provide land justice for Indigenous communities, has engaged in a process of examination of an alternative framework within which land justice might be delivered outside the system established by the Native Title Act 1993 (Cth). This process was then followed by widespread consultation on models for a new framework, and ultimately an acceptance by the State of Victoria of the recommendations of the Steering Committee for the Development of a Victorian Native Title Settlement Framework formed to advise it. The State of Victoria then engaged in a process of implementation of the new Victorian Native Title Settlement Framework.

4. During the period of investigation, acceptance, and implementation, native title applications filed in Victoria have been managed by the Court. At the request of the State of Victoria and the parties, the Court has taken a patient approach to their progress.  This was the preferred course adopted in the hope that the Framework would be a quicker and more efficient way of addressing land justice issues in Victoria. 

5. The process undertaken by the State of Victoria has been lengthy.  It has resulted in a considerable slowing of the progress of native title applications in Victoria.  The Court has been in a position to hear these applications, but at the request of the parties, possible hearing times have been foregone in order to await the completion of the new strategy.

6. Against that background, it came as a concern to the Court to learn that, utilising the new Framework, the time for conclusion of this application has been almost doubled.  This was not understood by the Court to be the intended result of operation of the new Framework. 

7. The concern has been raised today with legal representatives of the applicants, the State of Victoria, the Commonwealth and a representative of the Tribunal.  Mr Willis, who appeared on behalf of the State of Victoria, contended that the timetable has not actually changed because it had always been anticipated that the agreement of the parties would be concluded by the middle of next year. All that the new timetable provided to the Court today adds is nine months of administrative matters that had not been the subject of previous timetables.  The additional issues involved the necessary processes under the Native Title Act1993 (Cth) for the authorisation and notification of Indigenous Land Use Agreements.

8. The applicants also made submissions to the effect that the new milestone document represented a reasonable way forward. Dr Sculthorpe, the lead Member from the National Native Title Tribunal, who appeared to assist the Court, indicated that the timetable which has been worked out with her is both more comprehensive than those previously shown to the Court, and also quite tight, given that the application involves three distinct groups.

9. Notwithstanding the explanations given to the Court, there is a continuing concern that the outcomes which were promised from the Framework might not be being delivered in the way which the Court was led to expect.  The applications presently before the Court go back 10 years. The contemplation that their resolution will take yet another two years, under what was said to be a new and more efficient system, is disappointing. 

10. Against that background, I intend to refer the issue of the timetable in this matter back to the Tribunal for re‑examination, with a view to providing a timetable which more satisfactorily reflects the expectations of the history which I have outlined. 

11. I will re‑list the matter for directions at 10.15am on 29 November to hear a report as to progress between now and then, and also for a report on attempts to expedite an outcome in a timelier manner than is proposed in the present document. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       16 August 2010