Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 4)
[2022] FCA 1377
•11 November 2022
FEDERAL COURT OF AUSTRALIA
Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 4) [2022] FCA 1377
File numbers: WAD 29 of 2019
WAD 230 of 2020
WAD 110 of 2022Judgment of: BANKS-SMITH J Date of judgment: 11 November 2022 Date of publication of reasons: 18 November 2022 Catchwords: NATIVE TITLE - practice and procedure - mediation deferred for sorry business - where mediation otherwise re‑scheduled to occur after closing submissions - adjournment of hearing of closing submissions pending mediation opposed - matters taken into account - orders made vacating balance of hearing dates pending outcome of mediation Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Native Title Act 1993 (Cth) ss 47A, 47B, 82, 86B
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 20 Date of hearing: Determined on the papers For WAD 29 of 2019: Solicitor for the Applicant: Mr S Hegney of Sam Hegney Solicitors Solicitor for the State of Western Australia: Mr PJW Ramsay of the State Solicitor's Office Solicitor for Sandfire Resources Limited: Ms KJ Perincek of DLA Piper Australia For WAD 230 of 2020: Solicitor for the Applicant: Mr M O'Dell of Central Desert Native Title Services Ltd Solicitor for the State of Western Australia: Mr PJW Ramsay of the State Solicitor's Office Solicitor for Sandfire Resources Limited: Ms KJ Perincek of DLA Piper Australia Solicitor for Southern Cross Pipelines Australia Pty Ltd, Southern Cross Pipelines (NPL) Australia Pty Ltd and Alinta Energy GGT Pty Limited: Mr AP Gay of Ashurst Australia For WAD 110 of 2022: Solicitor for the Applicant: Mr S Hegney of Sam Hegney Solicitors Solicitor for the State of Western Australia: Mr PJW Ramsay of the State Solicitor's Office ORDERS
WAD 29 of 2019
BETWEEN: EVELYN GILLA & ORS ON BEHALF OF THE YUGUNGA‑NYA PEOPLE PART B
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondent
WAD 230 of 2020 BETWEEN: SLIM WILLIAMS & ORS ON BEHALF OF THE GINGIRANA #4 NATIVE TITLE CLAIM GROUP
Applicant
AND STATE OF WESTERN AUSTRALIA & ORS
Respondent
WAD 110 of 2022 BETWEEN: EVELYN GILLA & ORS ON BEHALF OF THE YUGUNGA‑NYA PEOPLE #2 PART B
Applicant
AND STATE OF WESTERN AUSTRALIA
Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The orders made on 29 November 2021 (as varied on 3 November 2022) be varied as follows:
(a)order 2(c) be varied so that it reads 'for closing submissions on a date to be fixed but not before 23 February 2023';
(b)the date for compliance with order 37 (applicants file closing written submissions) be extended to 18 November 2022;
(c)the date for compliance with order 38 (respondents file closing written submissions) be extended to 2 December 2022; and
(d)the date for compliance with order 39 (applicants file responsive written submissions) be extended to 16 December 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
On 11 November 2022 I made orders vacating a three-day listing in December 2022 that had been reserved for closing submissions in these proceedings. Days will now be reserved in 2023 pending the outcome of a mediation that will be convened in February 2023.
As the vacation of those dates was opposed by one party, and in light of the number of claim group members and persons interested in the proceedings, I indicated at the time of making the orders that I would publish short reasons explaining why I vacated those dates.
These proceedings involve native title claims over areas of land and waters in the west of the Central Desert region of Western Australia.
The Yugunga-Nya proceeding (WAD 29 of 2019) was filed in the late 1990s. The Gingirana #4 proceeding (WAD 230 of 2020) was filed in October 2020. It seeks a determination of native title over an area of land wholly within the Yugunga-Nya claim area referred to in the proceedings as the overlap area. For convenience I will refer to the applicants as the Yugunga-Nya Applicant and Gingirana Applicant respectively.
The trial is currently part-heard. On 8 and 9 August 2022 I heard opening submissions and lay evidence in Perth. Between 13 and 18 August 2022 the Court convened on country to hear Aboriginal and other lay evidence in relation to connection issues and s 47A(1)(c) and s 47B(1)(c) of the Native Title Act 1993 (Cth). On 12 and 13 October 2022 I held a further hearing in Perth dealing with expert evidence and extinguishment issues. Oral closing submissions were listed to be heard over three days from 14 to 16 December 2022.
The timeline for the proceedings was set out in programming orders made on 29 November 2021. Relevantly, those orders provided that:
31.Immediately following the Aboriginal and lay witness evidence, a mediation be conducted by a Registrar on country at a location or locations to be agreed between the Applicants and the First Respondent and at the discretion of the Registrar.
An on country mediation was initially convened before Registrar Daniel on 21 October 2022, however due to sorry business involving members of the Gingirana Applicant claim group the on country mediation could not proceed on that date. Registrar Daniel has attempted to re‑convene the mediation. Despite her attempts, it has not been possible to convene an on country mediation until February 2023, with preliminary dates of 22 and 23 February 2023 now identified. A question consequently arose as to whether the oral closing submissions should proceed in December 2022 as listed or should be postponed to a date after the mediation.
The State, the Gingirana Applicant and other participating respondents supported an order postponing oral closing submissions until after the mediation, and provided a minute of proposed consent orders to that effect.
The Yugunga-Nya Applicant opposed the postponement of the oral closing submissions on the bases that it did not consider further mediation would be successful, it wished to prevent any further delay in light of the time that had elapsed since the claim had been filed, the health concerns of a number of elders within the Yugunga-Nya Applicant claim group, and the allocation of funding.
I determined that it was appropriate to defer the closing submissions for the following reasons.
First, mediation is a vital step in the processes of this Court, and under the Native Title Act. As its preamble recognises, the reconciliation process that the Native Title Act seeks to advance specifically encompasses the just and proper ascertainment of native title rights and interests if possible by conciliation.
Second, it was anticipated in these proceedings that there would be a mediation prior to the conclusion of the hearing. There can be no prejudice to the parties from a course that allows that anticipated course to proceed, and where judgment would not be delivered prior to a mediation in any event.
Third, the Yugunga-Nya Applicant makes various assertions about a lack of funding, but seeks to press on with a three day hearing, with its concomitant costs (noting the Yugunga-Nya Applicant is represented by senior and junior counsel), rather than engage in a mediation which might be considerably more cost-effective for all parties and resolve the need for any further hearing. And as it was long foreshadowed, the costs of a mediation should have been considered in advance.
Fourth, I put little store in the assertion made by the Yugunga-Nya Applicant that the matter is unlikely to settle at mediation. It is an odd submission to advance. Experience shows that even where a settlement of a dispute has been considered highly unlikely, a compromise is often reached. Registrar Daniel has considerable experience in mediating native title disputes. It would be disappointing if the Yugunga-Nya Applicant were to approach the mediation, to which the Court and other parties have allocated time and resources, closed to the prospect of open and cooperative dialogue. Ultimately, it may be that no settlement can be reached, but that possibility should not deny the opportunity to attempt to do so.
Furthermore, s 37M of the Federal Court of Australia Act 1976 (Cth), sets out that the overarching purpose of the civil practice and procedures of the Court is to facilitate the just resolution of disputes according to law and as efficiently as possible. This includes the objective of the efficient use of judicial resources and the efficient disposal of the Court's overall caseload. Section 37N of the Federal Court of Australia Act provides that parties must conduct a proceeding in a way that is consistent with the overarching purpose referred to in s 37M. The Court's Central Practice Note: National Court Framework and Case Management at [7.2]-[7.4] is also relevant, provisions that express the requirement that the parties and their lawyers cooperate to run their cases conformably with the overarching purpose. Under s 82 of the Native Title Act, the Court in considering how it might operate in any particular matter may also take account of the 'cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders'. In my view, Registrar Daniel is well positioned to have regard to any such relevant matters while also ensuring that the parties properly and fully engage in a mediation process in good faith.
Fifth, and as to health concerns relating to elders within the claim group alluded to by the Yugunga-Nya Applicant, the passage of time is always of great concern in native title proceedings, and this one has been on foot for many years. No doubt all of the parties wish to finalise these proceedings. The evidence has now been completed, and there is no further requirement that the witnesses attend Court. If a mediation leads to a consent determination, the proceedings would be resolved well before a judgment and reasons in the proceedings could otherwise be prepared.
Sixth, I have previously made orders pursuant to s 86B of the Native Title Act which extend to Registrar Daniel the discretion to convene the mediation from time to time and as she considers appropriate. Accordingly Registrar Daniel as mediator may require certain persons to attend, relieve others from attendance, and implement practical steps that might assist, such as permitting participation by Microsoft Teams.
Seventh, a benefit that flows from the unexpected deferral of the planned mediation is that the parties will have filed their written closing submissions before the reconvened mediation. They will all have the benefit of considering those respective submissions.
Eighth, the number of Court sitting days allocated for closing submissions might be reduced after a mediation process, also reducing the costs for the parties.
For those reasons the proceedings are adjourned part-heard until the mediation process is undertaken, with the anticipation that if there is no settlement reached, the closing submissions will now be heard in March 2023 or April 2023, subject to further order.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 18 November 2022
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