No orders were made on any of these applications by Gyles J. The applications have been referred back to the provisional docket list since the directions hearing on 12 September. However they were not before the Court at that time. Those applicants are represented by the SWALSC.
D. Wom-Ber - WAG6130/98. This application covers about 127,358 square kilometres in the Central Great Southern and Lower Great Southern area of Western Australia. The applicants are not legally represented. One of them, Patricia Morich, speaks on behalf of the others. The application has been consolidated with some overlapping applications to the extent of the overlap. It has been bedevilled by the absence of legal representation.
E. Ballardong People - WAG6181/98. This application covers about 114,593 square kilometres in the wheat belt areas of Western Australia. Named applicants include Cedric Anderson and Robin Yarran and a number of others. The applicants are represented by the SWALSC although Mr Yarran is at odds with the representative body. An amendment to the Ballardong application has been proposed and the motion for that amendment is to be heard on 30 October 2003.
F. Yued - WAG6192/98. This application covers about 29,251 square kilometres extending from Two Rocks to the northern boundary of the Shire of Coorow. It covers the ocean out to the 12 nautical mile limit. The named applicants include Martha Borinelli and Michael Egan. The legal representative for the applicants is the SWALSC.
G. Gnaala Karla Booja - WAG6274/98. This application covers about 30,424 square kilometres comprising land to the low water mark in the area south of Perth encompassing Mandurah and Bunbury and in land as far as Corrigin. The named applicants include Lorraine Bellotti and Joseph Northover. The applicants are represented by the SWALSC.
3 Recently there has been lodged a single Noongar claim, W6006/03, comprising an area of 194,000 square kilometres. This is intended to cover the bulk of the South West region. This application was filed on 10 September 2003. Named applicants include Anthony Bennell, Alan Blurton and Alan Bolton. The South West Aboriginal Land and Sea Council is the legal representative for the applicants.
4 It is the lodgment of this single Noongar claim which has been the impetus for proposals to reconsider programming orders made in respect of some of the other applications.
Overview of the Present Position
5 The Court was assisted by a Regional Mediation Progress Report prepared by Mr Chaney, a Deputy Presidential Member of the NNTT. Mr Chaney began his report by observing that the South West Aboriginal Land and Sea Council is now the recognised representative body for the South West area. At the date of his report on 5 September 2003, the filing of the single Noongar application was still in prospect. He described it as 'essentially … a combination of most of the active applications in the South West representative body area'.
6 In his report Mr Chaney made a number of observations with respect to particular applications.
7 The Collard polygon applications were the subject of a mediation conference in Kondinin on 19 August 2003 between Donald and Sylvia Collard and representatives of the SWALSC. The Collards' principal objective is to ensure that heritage issues within what they called the Mallee Area be referred to them. On 29 August Mr Collard informed the NNTT that he had decided to join the single Noongar claim and accept nomination as a named applicant in that claim. He also anticipated that the five polygon applications would be combined with the single Noongar claim. On 1 September 2003 he evidently completed the necessary paperwork to formalise his nomination as a named applicant for the single Noongar claim.
8 Mr Chaney's report observed, as is the case, that the South West Area 1 claim had been referred back to the provisional docket by Finn J. Directions had been made in relation to the South West Area 1 for the parties to provide information on how the single Noongar application was to be progressed and managed. Mr Chaney made no reference to South West Area 2.
9 In relation to the Wom-Ber claim, Mr Chaney advised that on 20 August 2003 a mediation conference was convened between representatives of the SWALSC and Mr and Mrs Morich. It appears that the proposed governance structure for the single Noongar claim advanced by the SWALSC purports to protect the right of particular groups in relation to heritage issues in specific areas. This is done by providing that, in making decisions about land, the named applicants would be required to act on the instructions of the working groups relevant to specific areas within the claim. The proposed working groups would be made up of representatives from each of the families relevant to those areas. The working groups would devise the rules under which they would operate and the responsibilities of various families to speak for their particular areas. According to the mediation report, Mr and Mrs Morich agreed that this approach could provide a mechanism whereby Wom-Ber claimants would be afforded the right to participate in decision-making and to speak for country. On this basis they are prepared to participate in proposed meetings of the working parties with a view to determining whether in practice they and their group would be afforded appropriate recognition of their claimed rights. If the single Noongar claim structure proves capable of delivering in practice what is said to be proposed and removes past concerns, this may lead to a rationalisation of their application with it.
10 In relation to the Ballardong application, Mr Chaney observed that the combined application has not been completely notified under s 66A of the Native Title Act. He referred to his understanding that the SWALSC had filed an amended Ballardong application.
11 In relation to the Yued claim and the Gnaala Karla Booja claim, Mr Chaney observed that these applications have not been actively mediated recently.
The Future Direction of the South West Applications
12 Counsel for the SWALSC appeared on behalf of the applicants in the recently filed single Noongar claim, the Yued claim and the applicants in South West Boojarah and Gnaala Karla Booja claims as well as the Ballardong claim. Mr Robin Yarran appeared as a named applicant in the Ballardong matter indicating that he did not see his interests as being represented by the SWALSC. Mr Clarrie Isaacs appeared to speak on behalf of the Harris Family and Mrs Morich on behalf of the Wom-Ber applicants. A Mr Kevin Miller, who described himself as a South West Boojarah man, indicated that he was unhappy with the single Noongar claim that had just been filed and the degree of communication from the SWALSC. The State and the Commonwealth were represented by Mr Ranson and Mr Beech respectively. Other interests represented included the WA Fishing Industry Council, Telstra and various mining, pastoral and local government interests.
13 Mr Rynne, on behalf of the SWALSC and the applicants which it represented, informed the Court that the single Noongar claim wholly includes the geographical area of the following claims:
. Yued
. Combined Metropolitan which is a claim in the docket of Wilcox J and which is not before me for directions as it is part heard before his Honour
. Gnaala Karla Booja
. Wagyl Kaip
. Southern Noongar
It also partly includes the geographical area of:
. Ballardong
. South West Boojarah
It was pointed out that the area of the Ballardong application not included in the single Noongar claim is the subject of an amendment application which would reduce its external boundary. The area excluded would be covered by the single Noongar claim. The area retained is not subject to a claim with the same underlying factual basis as the single Noongar claim. The amendment motion is to be heard on 30 October. Mr Rynne also pointed out that the area of the South West Boojarah application not included in the single Noongar claim is the area that overlaps the Harris claim, WAG6085/98. This area is said to be the subject of a claim asserting the same underlying factual basis for a second single Noongar claim to be filed. It was submitted that the underlying factual basis that will be asserted in relation to native title in the South West of Western Australia will apply over an area of two claims, namely:
(i) the first single Noongar claim with possibly one competing claim being the Wom-Ber matter; and
(ii) the second single Noongar claim overlapping the area of the Harris claim.
The thrust of the submissions thereafter was that various Noongar claims had been in mediation. To the extent that there had been allocations to docket judges this was at the instigation of the previous State Government. The State of Western Australia has committed to negotiating a comprehensive regional agreement with the SWALSC and the Noongar people. The parties have begun preliminary discussions on the comprehensive regional agreement process. The SWALSC contemplates that a final comprehensive regional agreement, in combination with mediation pursuant to s 86B of the Native Title Act, would be likely to lead to the settlement of native title matters in the South West of Western Australia.
14 It was submitted on behalf of the SWALSC that it wishes to engage in a structured mediation program in relation to the South West region of Western Australia that allows it to allocate its scarce resources to negotiations to resolve native title issues under s 86B and to seek non-native title outcomes under s 86F. The SWALSC wants negotiations to progress as a priority and on a regional basis. The mediation process is presently said to be missing a clear direction agreed upon by all parties that integrates the various mediation and/or negotiation processes already underway. So the SWALSC requested, in respect of the South West Boojarah claimants:
(a) that their rights and interests be pursued through mediation and negotiation as part of the single Noongar claim (Area 1) and (Area 2);
(b) orders in this matter should be consistent with the parties' commitment to negotiations;
(c) the parties should be directed to reach agreement on a timetable for negotiation including a timetable for mediation and negotiation of both s 86B and s 86F negotiations.
A proposed minute of orders was attached. The minute of orders was in the following terms:
'1. The applicants and the State, in conjunction with the National Native Title Tribunal, are to prepare a program for the negotiation and mediation of the application over the period of twelve months commencing 19 January 2004. The program to set out:
(i) specific issues to be negotiated;
(ii) a detailed timetable including proposed meeting dates and venues set in a regional context;
(iii) an outline of a negotiating protocol to be adopted by the State and the applicants.
2. A copy of the program is to be lodged with the Court by 16 January 2004.
3. A copy of the program is to be made available to any party on request to the applicants.
4. There be liberty to apply.
5. The next directions is listed for 6 January 2004 at 10.00am.
6. The National Native Title Tribunal be requested to provide a mediation report not less than seven days prior to the relisted directions hearing.'
15 In oral submissions, Mr Rynne proposed that the orders sought in the minute would apply to the other matters before the Court specifically. Alternatively, the other matters could be adjourned to be relisted for mention.
16 Broadly speaking therefore, the position of the SWALSC would appear to favour an integrated mediation-based approach to all South West claims having regard to the filing of the comprehensive single Noongar claim and the possibility of a comprehensive regional agreement.
17 The State differed somewhat from the position of the SWALSC. It referred to the lengthy period over which mediation and negotiation has been going on in the South West area without any useful outcomes. In the context of the claims in South West Area 1 it observed that since February 2002 the SWALSC had been seeking to have those and other proceedings in the South West of the State adjourned on the basis of the proposal to lodge a single Noongar claim. During that time, it was said, the applicants had failed to comply with any of the Court's programming orders. The State's view, as put in the written submissions, is that the proceedings (specifically South West Area 1) must now be resolved in a timely manner. Although the State remains prepared to again explore the prospects for a mediated outcome, its view is to have any chance of success any further mediation must:
1. be conducted according to a firm and prescribed timetable;
2. be closely supervised by the Court;
3. include a mechanism for the receipt of direct evidence from Aboriginal people; and
4. include as a priority a Court determination (either by consent of the parties or otherwise) of issues of 'connexion' ie whether native title rights and interests exist and, if so, their nature and extent and who holds them.
18 According to the State, the SWALSC has not adequately explained how and when it is proposed to resolve the Noongar peoples' native title claims under the single Noongar claim approach. It remains unclear how the amalgamation of the various existing claims would assist in their resolution. If the Council were to provide such an explanation and a binding timetable with sanctions for non-compliance for the timely resolution of the single Noongar claim, the State would be more readily able to agree a mediation program or protocol. The State had no objection in principle to the lodging of the single Noongar claim. Nor did it object to adjourning the affected part of the South West Area 1 proceedings for a short period in order to reach agreement with the first and fourth applicants in that matter in a process by which native title claims over the relevant land and waters could be determined by agreement through mediation. In the State's view it would only take a relatively short time, perhaps two months, for such an agreement to be reached. The State sought an order that the proposed combination of existing claims with the single Noongar claim proceed immediately. If it is not intended to proceed with the existing claims they could simply be withdrawn. The second single Noongar claim has not been lodged and it was said to be apparent that the South West Boojarah and Harris families had been unable to resolve their differences. On that account, the State saw no basis for any substantial departure from existing programming orders in relation to that part of the proceedings. Its minute of proposed orders include a series of amended programming orders in respect of that part of the proceedings. The State also took the view that hearing evidence in relation to a small part of the region affected by the Harris family claim could assist the Court and the parties in moving towards an understanding of the nature of traditional ownership of land in the region and perhaps resolution of the other native title claims.
19 The State's position was broadly supported by the Commonwealth and by the WA Fishing Industry Council and other non-indigenous respondents. In oral submission counsel put it that the State's minute, while conceptually consistent with the proposal put by the SWALSC, sought to make the process tighter in terms of coming to a quick decision and flagging the kind of mediation program and protocol that the State would be prepared to agree to which would include quite tight Court scrutiny and a mechanism to ensure that progress is made.
20 All parties agreed with the proposition that possible outcomes of the mediation and negotiation process include a native title determination in areas or parts of the areas covered by the native title determination applications. It would also include the possibility of a set of agreements made between the applicants and other parties including the State dealing with heritage issues, consultation mechanisms, joint management mechanisms and vestings of title in particular areas none of which would involve a native title determination. The range of possible outcomes includes combinations of those extremes. The purpose of mandatory mediation under s 86B of the Act is limited to the achievement of native title outcomes (one way or the other), defined in s 86A. Non-native title outcomes however may be pursued by the parties under s 86F and they may request the assistance of the NNTT for that purpose. It is quite possible in an area such as the South West region to integrate mediation under s 86B with assisted negotiations under s 86F. The ultimate goal however must be the resolution of the native title determination application.
21 Other indigenous parties to speak included Mr Robin Yarran who is a named applicant in the Ballardong native title determination application and who is unhappy about the motion to amend the application which is to be heard on 30 October. He will appear on that occasion.
22 Mr Isaacs, on behalf of the Harris family, complained about lack of progress in the mediation process and difficulties at meetings called to resolve differences between the Harris family and other applicants. He complained that without funding the Harris family would not be able to participate at an equal level in meetings or in getting advice to prepare and participate in the mediation process. He did see some continuing utility in mediation, but considered there needed to be an improvement in the running of the meetings. He also did not think there was any requirement for only one claim and that there was room for more than one claim to exist in harmony.
23 Mr Kevin Miller, as already mentioned, a South West Boojarah man, expressed his disagreement with the single claim. Mrs Morich spoke in relation to the Wom-Ber claim. It appeared from Mr Chaney's mediation report that her group was prepared to work within the single claim provided it could be satisfied that its interests would be recognised and protected. She did express some scepticism about this at the directions hearing. She did, however, agree that she was prepared to see how the single claim governance mechanism worked in practice. She also expressed a legitimate concern about absence of funding to assist her in participating in the process.
24 The South West region of Western Australia has been bedevilled for many years with intra-indigenous conflict which has effectively prevented meaningful progress in the mediation of native title determination applications in that area. It is too early to venture any opinion on whether the first single Noongar claim, which has now been filed, represents a break through in this regard. It does emerge from what appears to have been a serious attempt to provide a mechanism for the management of differing views and interests of the Aboriginal people of the South West. It would be expecting too much to suppose that it will satisfy all of them. It also presents an opportunity to give new impetus to the development of a comprehensive resolution of native title issues in the South West of Western Australia. This does not involve any comment upon its merits as a native title determination application.
25 In my opinion mediation and negotiation covering a range of options which might lead to resolution of native title determination applications in the area, including non-native title outcomes, could proceed but on a specific timetable with provision for:
(a) an early application to the Court for combination of Wagyl Kaip and Southern Noongar with the first single Noongar claim;
(b) the hearing of connexion evidence where such connexion evidence may have significance to the recognition of traditional associations with land or waters and/or may have a bearing upon the resolution of outstanding overlaps;
(c) the referral by the NNTT to the Court of matters of law or fact for determination;
(d) consideration of the combination of existing claims into the single Noongar claim.
I propose that the matters be brought back for review early in March 2004.
26 In respect of those matters presently allocated to docket judges, South West Area 1 and South West Area 2, I will include them in my orders for the preparation of specific mediation protocols but it will be a matter for their Honours to decide whether to vary those orders, maintain supervision of the progress of those matters themselves including the making of programming orders in the litigious process or to remit them to the provisional list.
27 In respect of the Collard polygon applications, I would expect that if, within a short period of time, they are not either discontinued or combined with the single Noongar claim they should be programmed to trial. This would no doubt have the practical effect that they would be struck out. It seems highly unlikely that any party would be prepared to devote resources to progressing those matters to trial as individual applications.
Conclusion
28 I propose therefore to make directions to the following effect:
A. On the Collard polygon applications I make no specific directions at this time. There is no apparent reason why those should stand as separate claims now that they are subsumed in the first single Noongar claim. I will however bring the applications up for review on 16 December 2003 at 9.30 to determine their future.
B. In relation to claims other than Southern Noongar (WAG6134/98) and Wagyl Kaip (WAG6286/98), I propose to make the following orders:
1. The applicants and the State in conjunction with the National Native Title Tribunal are to prepare a program for the negotiation and mediation of the application over the period of twelve months commencing 1 January 2004. The program is to set out:
(i) specific issues to be negotiated;
(ii) a detailed timetable including proposed meeting dates and venues set in a regional context;
(iii) an outline of a negotiating protocol to be adopted by the State and the applicants;
(iv) provision for the taking of connexion evidence;
(v) identification of questions of law or fact which, if determined by the Court, could advance the resolution of a particular claim or conflict between claims.
2. A copy of the program is to be lodged with the Court by 31 January 2004.
3. A copy of the program is to be made available to any party on request to the applicants.
4. The parties are to comply with the timetable set out in the program provided that, if it appears likely to any party that it will be unable to take a programmed step within two months of the time limited for doing so by the program, it must apply to the Court to vary the program accordingly.
5. Any party may apply to the Court at any time for directions as to the taking of connexion evidence.
6. Any party may apply to the National Native Title Tribunal to refer to the Court, in accordance with the provisions of the Native Title Act 1993 any question of law or fact the determination of which may assist in the resolution of the application.
7. Any party may apply to the Court for the separate determination of any question of fact or law in accordance with the Federal Court Rules.
8. There is liberty to apply.
9. The next directions hearing is listed for 5 March 2004 at 9.30am.
10. The National Native Title Tribunal is requested to provide a mediation report not less than seven days prior to the relisted directions hearing.
C. In relation to Southern Noongar (WAG6134/98) and Wagyl and Kaip (WAG6286/98) ie South West Area 2, the applicants on or before 28 November 2003 are to make applications under s 64 of the Native Title Act 1993 to combine their applications with the single Noongar application (W6006/03) to the extent that they geographically overlap with it. In addition I will direct the preparation of a mediation program for the combined application along the lines of the directions made for the other applications.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.