Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 1122 | Case summary

REASONS FOR JUDGMENT 1 These reasons for judgment explain why I made orders on 15 October 2014 requiring the parties to confer and agree directions to progress the proceeding to a hearing on all issues other than extinguishment rather than directing that a contemplated mediation take place or that certain issues be referred to the National Native Title Tribunal (the Tribunal) for an inquiry under s 138B of the Native Title Act 1993 (Cth) (the Act). 2 Seven (7) parties took an active role at the directions hearing. 3 The applicant sought mediation as proposed by Queensland South Native Title Services (QSNTS) or an inquiry by the Tribunal. 4 QSNTS supported the applicant's position. QSNTS also indicated that it would make funds available for the conduct of a mediation. It had made inquiries of the Hon Kevin Lindgren to conduct the mediation. It was anticipating a report by Peter Blackwood, anthropologist, to be completed by the end of August 2015. This report would form the groundwork for the conduct of the mediation. It would arrange for Professor David Trigger, anthropologist, to assist the mediator. It would be willing to conduct the mediation with or without directions from the Court to that effect. 5 The indigenous respondents known as the Booth and Fisher respondents supported the mediation. 6 The indigenous respondents known as the Hill respondents supported an inquiry by the Tribunal in preference to mediation 7 The State of New South Wales (NSW) supported an inquiry by the Tribunal provided all parties agreed to be bound by the outcomes of the inquiry. 8 The State of Queensland (QLD) sought a hearing on a separate question, the separate question covering all issues other than extinguishment. 9 The respondents known as the pastoral respondents supported the position of QLD. 10 The basic facts are these. The current application was filed in March 2008. It relates to an area in south-west Queensland extending to the South Australian border and into New South Wales. It was registered by the Tribunal in April 2008. There are currently 52 respondents. The claim, however, has existed and remained unresolved in one form or another since 1996. There have been eight claims filed on behalf of the Wongkumara people since 1996 not including the current claim. In one of the earlier claims, preservation evidence was taken in 2003. None of the earlier claims has resulted in any substantive outcome. 11 Between 2008 and 2012 the current claim, apparently, was progressing towards a consent determination. Progress stalled due to intra-indigenous issues. The Booth and Fisher respondents were both claimants for land within the Wongkumara claim area and another claim area of the Boonthamurra people. In Wallace on behalf of Boonthamurra People v State of Queensland [2014] FCA 901 Mansfield J determined separate questions relating to whether, amongst other things, the ancestors of the Booth and Fisher respondents were Boonthamurra people. He found they were not and ordered that they cease to be parties to the application of the Boonthamurra people. Five other people claiming to be Wongkumara but excluded from the claim group, the Hill respondents, were also joined as respondents in March 2014, following a process of mediation between them and the applicants which did not succeed. 12 The applicants, QSNTS and the other indigenous respondents strongly favoured the making of directions that would give them the opportunity to work out for themselves the issue they contended had caused the consent determination process to stall, the constitution of the claim group. This, they said, could be appropriately done either through the mediation or through the referral of the issue to the Tribunal for an inquiry, but not through a Court hearing. In support of this submission they made the following key points: (1) The scheme of the Act and authority strongly supports the resolution of intra-indigenous issues between the indigenous people involved, as do the provisions in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). (a) In Budby on behalf of the Barada Barna People v Queensland [2013] FCAFC 149 at [42] the Full Court of this Court said: One of the procedural premises in the Act is that it is desirable for applications to be resolved by negotiation if possible… That is also consistent with the obligations of all litigants under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). (b) In Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 Dowsett J said: [256] Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt. … [267] …the case really addresses the entitlement of Minnie's descendants to Waanyi identity. That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person. As the applicant asserts, the claim group must determine that question. To date they have refused so to recognize her. I cannot take that decision for them. Nor can I find that during her lifetime, the Waanyi people, as a whole, accepted her as being Waanyi. My findings as to such acceptance are limited to the position as it was at Lawn Hill and at Burketown. It is for the claim group to determine whether that is a sufficient basis for accepting that she was a Waanyi woman, descent from whom is a basis for Waanyi identity. (c) In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 the Full Court of this court said at [116]: … the community of native title holders is a living society. It is not consistent with the purposes of the NT Act, nor productive of any practical benefit to require that the laws and customs of indigenous society and the rights and interests arising under them be presented as some kind of organism in amber whose microanatomy is available for convenient inspection by non-indigenous authorities. (2) The consideration of cost strongly supports the same outcome. If the issue of the composition of the claim group can be resolved then the matter can proceed to a consent determination. The costs involved in hearing all issues except for extinguishment will be potentially enormous. There will be substantial duplication of costs. The costs burden will be borne by the applicants and other indigenous parties, not the State parties. (3) The consideration of flexibility also supports the same outcome. The processes of mediation or an inquiry by the Tribunal are far more flexible than a determination by the Court. (4) The consideration of timing may favour the same outcome, depending on the circumstances. 13 The Hill respondents preferred an inquiry by the Tribunal rather than mediation. They also noted that they had been joined recently. No delay was to their account. By s 86 of the Act, the Court determines for itself whether to adopt any recommendation of the Tribunal. Accordingly, the concern of QLD that the result of the Tribunal's inquiry would not bind the participants is not valid. Further, the State parties are not necessary participants in the inquiry. For this reason, and as the applicants submitted, the burden of costs and potential duplication of costs will fall on the indigenous parties, who all press for something other than a court hearing, rather than the State parties. All that is being asked of the State parties is to allow the indigenous parties to negotiate as they wish. 14 One reason that I am not persuaded by the position of the applicants (and those parties who support their position in this regard) is that it is based on a premise which I am not persuaded is correct. The premise is that the only remaining issue in dispute is the constitution of the claim group. Ultimately, QLD and NSW are necessary parties to any resolution of the proceeding by consent. QLD, the primary State respondent, does not accept that the constitution of the claim group is the only issue standing in the way of a consent determination. According to QLD, issues of connection to the whole or part of the claim area are inextricably linked to the proper constitution of the claim group. QLD's views about the issues which remain in dispute cannot be simply disregarded. Accordingly, QLD submitted that any process focussed only on the constitution of the claim group is misconceived. I accept this submission. 15 The position of QLD in this regard is supported by the submissions for the pastoral respondents. They submitted, and I accept: So far as the pastoral respondents are aware no respondent has made any admissions in the matter. In the absence of such admissions, the issues in dispute would appear to be wide ranging - the claim group description is but one issue in dispute. 16 This conclusion also answers the submission that permitting a negotiated outcome to be reached about the constitution of the claim group without making directions requiring the matter to progress to a hearing is consistent with the scheme of the Act, authority, and ss 37M and 37N of the FCA Act. The Act does encourage negotiated outcomes. In the present case, substantial time has already been devoted to the process of negotiation. Nothing in the directions requiring the matter to progress to a hearing will prevent the parties from continuing to negotiate. The authorities to which the applicants referred make the relevant point that constitution of the claim group is determined by traditional native title laws and customs. Section 37M of the FCA Act encourages, amongst other things, the "disposal of all proceedings in a timely manner" (s 37M(2)(d)). The QSNTS proposal, as explained below, does not engender confidence that if the only directions made concern mediation this important objective of timely disposition will be able to be achieved. 17 As QLD said, despite without prejudice negotiations having continued since May 2012, the disputes between the parties had not been resolved. While I accept that none of this is the responsibility of the recently joined Hill respondents, it is the fact that the issues have not thus far been resolved by negotiations between the parties. 18 Two other points should be stressed about the QSNTS proposal. 19 First, as QSNTS said, no direction of the Court is necessary for the parties to pursue the QSNTS proposal. QSNTS proposes to fulfil its statutory function to facilitate resolution of the intra-indigenous dispute irrespective of the processes of the Court. If any issues are resolved effectively through the process which QSNTS proposes then, presumably, the agreement will be effective for the purpose of any hearing. As a result, subject to but one condition, whatever is achieved through mediation will not be wasted. Nor, subject to the same condition, will there necessarily be duplication of costs. The condition is timely conduct of the mediation. If the mediation is timely, then any agreement reached will enable the parties to treat that issue as agreed, and not necessary to be proved in the hearing (whether that is by agreed facts, admissions or otherwise). It is only if the process of mediation is not timely, that there will be a risk of waste and duplication of costs. That risk, however, should not be overstated. The reason for this is that it is doubtful that work done in order to get the matter ready for hearing will not perform some useful function in the mediation. 20 Second, and regrettably, I hold significant concerns about the timeliness of the proposed mediation. The evidence discloses that the substance of the mediation depends on the report of Mr Blackwood. Mr Blackwood's report, however, is not expected to be finalised until the end of August 2015. The reason for this, apparently, is that he is involved in another hearing. However, as QLD pointed out, as recently as July 2014 it was anticipated that his report would be finalised by late in 2014. There is no evidence explaining the change of circumstances which have caused the completion of Mr Blackwood's report to be delayed by some eight months. The mediator will not be able to alter this position. In addition, the efforts at a negotiated resolution over the past two or more years have not borne fruit. 21 Accordingly, in the circumstances of this case, there is a real risk that mediation will not yield any substantive outcome whilst substantially delaying any resolution by a court hearing. However, if the matter is required to progress to a court hearing, the parties are not thereby deprived of any capacity they might have to engage in mediation provided they are able to do so in a timely manner. As noted, no results of mediation, if it has been effective, would be wasted in terms of a final hearing. This also disposes of the benefit of flexibility to which the applicants referred. Provided a mediation can be conducted in a timely manner, the parties will enjoy whatever benefits flexibility might afford. 22 It will be apparent from these conclusions that I also accept the submission which the pastoral respondents put, adopting what Logan J said in Busch on behalf of the Tagalaka People #2 v State of Queensland [2012] FCA 1489 at [6], namely that: Experience suggests that alternative dispute resolution is most efficacious when the attention of the parties is focused upon the existence of the ordained alternative, which is an exercise of judicial power at a certain time to resolve a given controversy. 23 Insofar as referring issues to the Tribunal for inquiry is concerned, s 138B of the Act is relevant. By s 138B(1) the Court may "direct the Tribunal to hold an inquiry in relation to a matter or an issue relevant to the determination of native title under s 225". Section 138B(2) provides that: The Court may only direct that such an inquiry be held if: (a) the Court is satisfied that resolution of the matter or issue concerned would be likely to: (i) lead to agreement on findings of fact; or (ii) lead to action that would resolve or amend the application to which the proceeding relates; or (iii) lead to something being done in relation to the application to which the proceeding relates; and (b) the applicant in relation to any application that is affected by the proposed inquiry agrees to participate in the inquiry. 24 As noted above, I am not satisfied, given the circumstances and history of this matter, that mediation would be likely to lead to resolution of the issue concerned or any agreement, action or thing being done. Further, the scope of the proposed inquiry is potentially fraught. If the referred issue includes the traditional laws and customs of the Wongkumara people, which is necessary given that these traditional laws and customs determine group membership, then the State respondents have a proper interest in the Tribunal's resolution of the issue. If, as the Hill respondents suggested was possible, the State parties avoided all costs by not involving themselves in the inquiry, then that fact would be relevant to the Court deciding whether or not to adopt the inquiry outcomes. The practical result may well be that the inquiry by the Tribunal will have to be duplicated in the Court hearing, which is undesirable. Further, the content of traditional laws and customs relating to group membership do not stand outside of the content of traditional laws and customs generally, which content is inseparable from the question of the connection of claimants to the claimed area. To avoid the risk of fragmentation of intertwined and overlapping issues the referral would need to be expanded, in effect, to cover all issues other than extinguishment. Yet this is the very matter that QLD proposes should be heard and determined by the Court. The Court is in direct control of its own processes and, in particular, is in direct control of the timely disposition of the proceeding. 25 For these reasons I directed the parties to confer and submit agreed or competing orders for the progress of the matter towards a hearing, including indicative hearing dates. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Edwards on behalf of the Wongkumara People v State of Queensland

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)