Frazer and Others v State of Western Australia [2003] FCA 351 | Case summary

REASONS FOR DIRECTIONS IN CENTRAL DESERT APPLICATIONS Introduction 1 These reasons relate to proposed directions for a group of native title determination applications in the Central Desert region of Western Australia. The applications are the following: WAG6041 of 1998 - Birriliburru People WAG6030 of 1998 - Irrunytju-Papulankutuja WAG6101 of 1998 - Ngatjarra and Ngaanyatjarra (Tingarri Tjina) People WAG6103 of 1998 - Tjirrkarli Kampa WAG6109 of 1998 - Gibson Desert People WAG6111 of 1998 - Ngaanyatjarra People (Baker Lake) WAG6284 of 1998 - Birriliburru People WAG6164 of 1998 - Wiluna People They also relate to the Martu Peoples' application, WAG6110/98. In that application a detailed negotiation protocol has been provided which will come up for review by the Court at the next directions hearing. Background to Present Directions 2 When these matters were before the Court for review on 11 March 2003, I referred to a Central Desert regional mediation report prepared by the National Native Title Tribunal (NNTT) and dated 4 March 2003. In that report the NNTT informed the Court that over the last three years, and with the exception of the Martu application, the Central Desert applications had been the subject of negotiations between applicants and the State without the active involvement of the NNTT. The NNTT reported that its WA Registry seeks to facilitate regional planning meetings involving the State of Western Australia and the relevant native title representative bodies. The aim of these meetings is to maximise native title outcomes in a given region in the face of the limited resources of key parties by agreeing on regional priorities and targeting workloads. The last such regional planning meeting which addressed the Central Desert region took place on 28 January 2003 in Perth without the attendance of the State. There was reference to delays in the provision of responses to connection reports prepared in relation to Warburton Mantamaru and Irrunytju-Papulankutuja. Other delays flowed from the involvement of the Ngaanyatjarra Land Council in the Wongatha native title determination application hearing in the Goldfields region as representative of the Cosmo Newberry and Pilki applicants. In addition to the regional report, individual mediation reports were prepared in respect of each of the Central Desert matters. These attached a document entitled "Current Status and Ngaanyatjarra Council Estimates February 2003". This document, I was informed by counsel for the Ngaanyatjarra Land Council, formed the basis of its suggested timeframes for further mediation. At that hearing counsel sought an indication of the State's attitude to these proposed timeframes. Counsel for the State advised that the State agreed to the new proposed timetable. She informed the Court that the State was intending to write to the Ngaanyatjarra Land Council addressing its concerns by the end of March with a view to resolving any issues in relation to the connection reports and pursuing a mediated response. 3 It appeared from the mediation reports, as it did from the regional mediation report, that the NNTT had not been involved in the discussions between the State and the Ngaanyatjarra Land Council in relation to claims in the Central Desert area. The Court was informed that the State's position was that the provision of connection information was an issue in which the State has a key role and that it could be handled more expeditiously by direct dealing between the State and the Land Council. 4 Having heard from counsel for the Ngaanyatjarra Land Council and for the State, I made orders in each of the above matters in the following terms: 1. The directions hearing will be adjourned to 2 April 2003 at 2.30pm. 2. The applicants and the State and the Tribunal and any other respondent which wishes to do so are to provide written submissions by 31 March as to the proper role of the Tribunal in all phases of the establishment and management of the negotiation timetable in the claim. 3. There will be liberty to apply. 5 The directions hearing resumed on 2 April 2003. At that time a number of submissions had been received. The Court also had the benefit of a proposed negotiation program in respect of the Martu Peoples' application (WAG6110/98). This was provided pursuant to orders made by the Court on 13 February 2003. The Submissions of the Parties 6 In an affidavit filed in the Martu matter by Ms De Soyza, the Executive Director of the Office of Native Title in the Department of Premier and Cabinet, the point was made that there are currently in Western Australia approximately 136 native title determination applications. Ms De Soyza said it is not possible for the State of Western Australia to actively progress, whether through negotiation or litigation, all of those claims together. There is therefore a need to assign priorities to the various matters. She made the point that, although the resolution of the remainder of the Martu native title determination application had been identified as a priority by the Land Council and by the Court, it was a matter that the State would have preferred not to treat as a priority at this time. The Director expressed her opinion that the workload associated with the Martu matter and the timetable set out in the draft negotiation program were achievable assuming there were no change to current staffing levels at the Office of Native Title and that no other matters were placed in priority ahead of Martu by this Court. She said that the Office of Native Title had sought to accommodate negotiation of the Martu claim by diverting staff resources from other matters to that task. 7 An affidavit was also filed by Wendy Attenborough, the Principal Policy Manager within the Office of Native Title in the Department of Premier and Cabinet setting out the State's general approach to the resolution of native title matters. She also referred to the number of applications in Western Australia and the fact that the State is a respondent in each and every case. She said: "Complex issues arise in the course of progressing native title applications. In this context the State must make an assessment as to what it is possible to achieve within any given time period." She went on to say: "5. In addition, the State must make decisions about what it considers to be the most efficient and responsible use of public funds. So it is legitimate in my view for the State to elect not to directly participate in every mediation event or meeting in relation to a particular native title claim. The State need not, for example, attend each meeting between the NNTT and indigenous parties to discuss the resolution of overlapping claims or between claimants and another respondent about the discrete interests of that respondent. To elect not to participate directly in such a meeting does not mean that the State is opposed to the NNTT's mediation role or is not prepared to participate in mediation." She then stated: "6. The State has therefore set priorities for the progressing of native title applications across Western Australia. Those priorities are set out in the following paragraphs." 8 There followed a statement of activity priorities in relation to the Kimberley region, the Central Desert region, the Geraldton/Pilbara region, the South West region and the Goldfields region. 9 In relation to the Central Desert region priorities, Ms Attenborough said: "7. On a general level, and as the Ngaanyatjarra Council has previously informed the Court, the timetable for the provision of connection material to the Court for applications within the Central Desert region has been revised. This matter was raised in a meeting between the State and the Ngaanyatjarra Council on 28 January 2003, where the State verbally indicated that the proposed timetable revision was acceptable. The State has now confirmed in writing its acceptance of the revised timetable." The agreed priorities for the region were said to be Martu No 2 (WAG6110/98), Mantamaru Warburton (WAG6041/98) and Irruntyju Papulankutja (WAG6030/98). 10 A written submission was filed by the Principal Legal Officer of the Ngaanyatjarra Land Council stating that its timetable for the region reflected the desire of the applicants, the State and other parties to resolve native title applications on a regional basis. She said pursuant to that timetable: (a) The applicants are required to deliver connection reports within a particular timeframe. "Connection Report" has become a term of art to describe a document that outlines the applicant group's traditional connections with a claim area; (b) A period is provided for the State's acceptance or otherwise of the applicant group's connection material; and (c) A period of negotiation follows acceptance of the connection report with a view to reaching agreement between the parties. 11 The negotiations contemplated by the timetable were said by the Ngaanyatjarra Land Council to be directed to matters outlined in s 225 of the Native Title Act 1993 (Cth): (i) the identity of the persons or group of persons holding the common law group rights comprising native title; (ii) the nature and extent of the native title rights and interests in relation to the determination area; and (iii) the nature and extent of any other interests in relation to the determination area; and (iv) the relationship between the respective rights and interests in (ii) and (iii) taking into account the effects of the Native Title Act 1993; and (v) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of others. 12 Areas of dispute which could arise under the negotiation timetable were said to include its scheduling and any amendments to that scheduling, the sufficiency of the material in the connection report and the matters outlined in s 225. The Land Council contends, surprisingly, that the Native Title Act does not confer any statutory role on the NNTT with respect to the timetable. It was submitted that the parties were acting pursuant to the provisions of s 86F of the Native Title Act. That section, enabling the parties to request assistance from the NNTT in negotiating agreements, confers upon the NNTT, the role that the parties define for it. The submission then went on to say that in the event that the parties require mediation relevant to s 225 issues, the Native Title Act clearly contemplates that the NNTT will be the relevant neutral person to undertake that mediation. It was asserted that none of those provisions mandate an exclusive role for the NNTT as against other neutral persons. It was also submitted that while the NNTT has no exclusive statutory right to mediate, it is established as a statutory entity to develop corporate expertise in the topic of native title. As a matter of practicality there is a presumption that it is possessed of sufficient breadth and depth of understanding of native title issues to readily assist the resolution of disputes in a timely and efficient manner. The absence of the NNTT from any process of negotiation was said not to be crucial to the process of reaching consensual agreements. If the parties were able to demonstrate to the Court's satisfaction that negotiations were both meaningful and productive the absence of the NNTT would be of no effect. 13 In my respectful opinion, this submission cannot be sustained having regard to the provisions of the Act to which I will refer below. 14 The State filed a written submission in which it referred to the various statutory provisions, including s 86B of the Act and the role of the NNTT in respect of mediation process conducted pursuant to that section. The submission also referred to the various powers of the NNTT in the conduct of mediation conferences which are mentioned in ss 136B, 136C and 136F of the Act. 15 It was submitted by the State that the legislative provisions governing the conduct of mediation in the Native Title Act, and those providing for mediation under the Federal Court Act 1976 (Cth) and the Federal Court Rules do not prevent parties to a mediation communicating directly with one another rather than through the NNTT. It was nevertheless accepted that the NNTT should be kept informed of the nature of such communication for the purposes of fulfilling any reporting requirements to the Court in relation to mediation. The State, it was said, may communicate directly with other parties setting out its position on certain matters. It may also write directly to respondent parties informing them of a timetable for the production of connection material agreed with the native title representative body and the State's proposals in relation to the assessment of that material. 16 The State's view of the preliminary nature of the provision of connection information was set out at par 11 of its submissions: "The purpose of the mediation is to attempt to reach an agreement on some or all issues relating to the determination of the native title claim. Determining whether there is a sufficient evidentiary basis upon which to found a negotiated outcome is an important step preliminary to any negotiations over the form of a determination of native title." 17 At this stage of the mediation process, according to the State's submission, the role of the NNTT is to provide management and facilitation by monitoring the provision of information from the applicants to the State and responses from the State to the applicants while keeping other parties appraised in general terms of the progress of the matter as reported by the States and the relevant applicants to the NNTT. It was accepted that it may also assist mediation in some cases if the NNTT were to chair mediation meetings with respect to overlapping claimant groups and the resolution of issues arising from overlaps. Once the State is satisfied from its own assessment of the material provided, that connection can be made out either in whole or in part, then mediation as to other matters contemplated in s 86A(1) could proceed, convened and facilitated by the NNTT. 18 The State submitted that, while it was not opposed to entering into discussions with the NNTT and all parties, in order to set out a framework for mediation, it considered that setting too rigid a framework for mediation prior to establishment of connection could create additional workloads for applicants and their representatives and the State when that time could more efficiently be spent preparing, assessing and discussing connection evidence outside a formal mediation framework. 19 A submission was also received on behalf of the pastoral interests involved in the Central Desert. In substance that submission identified the primary role of the NNTT in mediation as being "… to assist parties in resolving issues arising as a result of native title and in making agreements about land and water". It remained open however to parties to negotiate their own agreements without the assistance of the NNTT. There was reference to the necessity for regular status reports to be provided by the applicants and the State to other respondents on the provision and assessment of connection material. Absent such reports, respondent parties would be uninformed as to the progress being made towards active mediation by the applicants and the State. Such lack of information, it was said, causes difficulties for respondent parties in planning and allocating priorities in matters for mediation. 20 The Court received a submission from WMC Resources Ltd (WMC) which did not regard negotiations between the applicants and respondent groups in relation to the provision of expert reports and connection and evidentiary material to be part of the mediation process. Rather it was said to be a preliminary stage leading towards mediation and/or negotiation. Generally, it was said, issues surrounding evidence could be dealt with in a timely fashion between legal representatives of all parties and the involvement of the NNTT was not necessary except where it was requested by the parties to mediate. WMC did not believe it was appropriate for the NNTT to become involved in any proceedings until such time as all parties had assessed available evidentiary material providing the basis for any negotiation or mediation. WMC also expressed concern that the NNTT did not involve all parties at all stages in attempting to achieve a mediated outcome. Reference was made to the lack of information to respondent groups of mediation between inter-Aboriginal groups and between the State and applicants. WMC did not consider it an appropriate use of the NNTT for the Court to order the NNTT to become involved in the collection of evidence at any stage. 21 When the directions hearing resumed on 2 April 2003, there was further discussion about the matters set out in the affidavits and submissions that had been filed. I then foreshadowed that I was contemplating the making of global or regional directions applicable to each of the matters in the Central Desert and requiring the production of detailed negotiation protocols along the lines of the Martu program but set in a regional context so that the parties would have an opportunity to work out priorities within the region that were realistic. Orders of that kind had been made on the same day in relation to the Pilbara and Geraldton regional areas. However, before making orders in connection with the Central Desert I indicated my desire to consider the submissions which had been put, a number of which had been received only recently and to bring the matter back for further directions on 17 April. Counsel for the Ngaanyatjarra Land Council indicated that he had only received the State's submissions and those filed on behalf of the pastoral interests on that day. I allowed for supplementary submissions to be filed within 48 hours. 22 Following the directions hearing on 2 April a supplementary report dated 3 April was provided by the NNTT responding to the submissions of the State, the Ngaanyatjarra Land Council and WMC. The NNTT noted that each of the native title determination applications under consideration in these proceedings had been referred to the NNTT for mediation under s 86B(1) of the Act. The NNTT asserted that its role goes further than the chairing or facilitation of meetings and that its role under the Act is the management of the mediation process. In so doing it will meet with parties to establish: . whether the parties wish to agree and achieve outcomes . if they do, the interests of the parties . what issues need to be resolved, including connection issues . options for satisfying those issues . a timetable and process for dealing with issues within the resources of the parties set within a regional and, if necessary, a State-wide context. 23 The Tribunal asserted that an appropriate mediation program could include a staged approach to the production and assessment of connection material by the State and other parties each of which would then have a clear understanding of the steps to be followed and the stages at which they would or would not be directly involved in mediation. If parties chose not to participate in NNTT conducted mediation until after substantive issues surrounding connection were settled between the applicants and the State, the NNTT would continue to try to ascertain from the parties whether a purposeful negotiation process were being conducted and would monitor and report to the Court accordingly. The NNTT member, Mr Chaney, also made the following point in his report: "Finally, mediation under the provisions of Part 6 Div 4A of the NTA may be of advantage to the parties involved in the process of settling connection issues. For example, as pointed out in my report of 31 March 2003, s 136B(1) allows the presiding member to limit the parties to a mediation conference (eg to the State and the native title party) and s 136A mandates that any discussions that takes place at a mediation conference are without prejudice to the parties involved. Further, s 136F empowers the member to make directions about the use and distribution of a connection report if that report is produced at a mediation conference. There is no such statutory protection available to the parties in relation to negotiations that take place outside of a mediation conference." The Role of the National Native Title Tribunal in the Mediation Process 24 Prior to the 1998 amendments to the Native Title Act1993 the role of the NNTT in the mediation of native title claims was set out with economy in s 72 of the Act which, in its substantive provision s 72(1) stated: "If an application is accepted under section 63 and the Tribunal does not make a determination under section 70 or 71, the President must direct the holding of a conference of the parties or their representatives to help in resolving the matter." Other subsections were ancillary to that substantive provision. Section 72(1) was applied by the Tribunal in the development of a process of mediation of claims which contemplated their possible resolution in terms of a native title determination or some other outcome. Other outcomes might range from the discontinuance of the claim to some "non-native title" agreement. The latter category of resolution comprehended statements of formal recognition of traditional ownership of lands in which native title had been or might have been extinguished, consultation or joint management agreements in relation to the use of traditional lands and the grants of interests in those lands under State land rights legislation or otherwise. 25 The 1998 amendments to the Act introduced a far more detailed regime for the mediation of native title claims and equipped the NNTT with coercive powers in relation to that process which previously it had lacked. The Act now mandates the referral of every application for a native title determination to the NNTT for mediation unless the Court were to order otherwise (s 86B(1) and (2)). The purposes of such Court-referred mediation are defined in s 86A of the Act. These purposes in proceedings not involving compensation applications are confined to assisting the parties to reach agreement on some or all of the following matters: (a) whether native title exists or existed in relation to the area of land or waters covered by the application; (b) if native title exists or existed in relation to the area of land or waters covered by the application: (i) who holds or held the native title; (ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area; (iii) the nature and extent of any other interests in relation to the area; (iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act); (v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others. 26 The central role of the NNTT in the mediation process is apparent from the mandated terms of referral under s 86B(1). This is reinforced by the Federal Court's facility to request the NNTT to provide reports on the progress of any mediation under Div 1B. The provisions of Div 4A relating to mediation conferences are ancillary to the referral of applications to the NNTT for mediation. They do not define the limits of the NNTT's role. 27 The provisions of s 86C relating to the cessation of mediation on the application of any party after three months from the start of mediation make clear the parliamentary intention that mediation take place in a timely fashion. There is nothing in the Act which requires the exclusion from the mediation process, of the exchange of information between parties, including connection information, for the purpose of facilitating negotiations. To the extent that the submissions suggest that the provision of connection evidence is outside or antecedent to the mediation process, I do not accept them. 28 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 reports 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. 29 It is not open to any party, be it the State or a native title representative body or any other respondent, unilaterally to announce priorities for a particular region. This is an aspect of the mediation process. Any unilateral action by any party to an application which is not acceptable to others may result in a breakdown of the mediation process and its cessation by order of the Court. I emphasise that in so saying, I do not overlook the very substantial resource burdens that the native title process places on all parties. At the same time the Court has a responsibility to ensure that the mediation processes for which the Act provides are applied and applied in a timely fashion. 30 It may be desirable at this point to say something about the provision of connection evidence. The gathering and collation of connection evidence, usually in the form of anthropological reports, and its assessment by the State, appear to be major factors in the delays that are occurring in the mediation of native title claims. There is a question whether, given the time taken in this aspect of the mediation process, it may be desirable that the Court hear important elements of connection evidence from applicants themselves, in order to facilitate the preservation of that evidence, to give applicants an opportunity to tell their story to the Court at an early stage and to facilitate subsequent mediation. This may be done in two ways. One may be by reference of a suitably framed question of fact from the NNTT to the Court under s 136D(1) of the Act for determination by the Court under s 86D. The other may be by the Court directing the hearing and determination of such issues. 31 There is no reason in principle why a referral by the NNTT or the hearing of a separate issue by the Court should not extend to the determination of the native title rights and interests of the applicants in all or part of the land and waters covered by the application. Such hearing and determination may proceed without reference to questions of extinguishment and without the need to undertake prior tenure searches and histories. Absent such a referral from the NNTT the Court itself, in my opinion, may direct that such evidence can be taken either for the limited purpose of the preservation of evidence of applicants who are elderly or unwell or otherwise in order to give some added impetus to the mediation process. It may also be noted that the Court will contemplate directing mediation either under the Act or under its own Act and Rules, involving the use of early neutral evaluation as an aid to mediation which may have regard to connection material or evidence taken or a determination made in the way that I have indicated. 32 The Court is concerned that there be a more systematic and focussed approach to the progression of native title claims than has occurred up to this point. The harsh practical realities of resource limitations on all parties, the fact that some parties are unrepresented, the fact that there are outstanding unresolved and quite difficult intra-indigenous issues, and the fact that many respondents do not have the time or resources to engage directly at all stages of the mediation process, are recognised. However, the somewhat non-specific timetable presently proposed for the Central Desert area is insufficient to satisfy me of the likelihood of the parties being able to reach agreement on facts relevant to any of the matters set out in subs 86A(1) or (2) in relation to the claims under consideration. 33 I therefore propose to make the following orders which resemble those made in relation to the Pilbara and Geraldton regions with some alterations to take account of the additional factors discussed in these reasons: 1. The applicants, together with any overlapping 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 October 2003. The program is to set out: (i) a timetable for the exchange of information between the parties where there has not occurred; (ii) specific issues to be negotiated; (iii) a detailed timetable including proposed meeting dates and venues set in a regional context; (iv) 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 15 September 2003. 3. A copy of the program is to be made available to any party on request to the Applicants. 4. In the event that no such program can be agreed, the Applicants and any other interested party are required to show cause at the next directions hearing why the application should not be referred to a substantive docket judge. 5. The Applicants are to identify, prior to the next directions hearing, and to file, a list of persons from whom it is desirable that evidence should be taken in order that their testimony may be preserved and to propose a timetable for the taking of such evidence. 6. The Applicants and the State, and any other respondent who advises the National Native Title Tribunal in writing of its wish to do so, are to discuss with the National Native Title Tribunal the definition of questions of fact which may be referred by the National Native Title Tribunal to the Court for determination in relation to any of the matters set out in s 86A(1) and in particular matters set out in s 86A(1)(a) and (b)(i) and (ii). 7. There be liberty to apply. 8. The next directions hearing is listed for 1 October 2003 at 9am.

Frazer and Others v State of Western Australia

At a glance

Court

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Before

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Judgment (14 paragraphs)

Parties

Legislation Cited (2)

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