26 Details of the pilot group negotiations are as follows.
27 In relation to the present claim, there are discussions between the applicants on behalf of the claim group, the State and the proprietors of the Todmorden pastoral lease extending over a period of time. Three meetings have taken place in Adelaide between advisors. Further meetings took place in November 2002 and February 2003. Approximately 100 issues have been identified as requiring consideration by the parties and their advisors. They are currently preparing a draft agreement in relation to those issues which are agreed to in principle, and providing further information for discussion in relation to those issues which have not yet been agreed in principle or discussed. It is the view of some of the participants that the meetings have been successful, thoughtful, fruitful, constructive and positive. The negotiations have led to a relationship of respect and co-operation between the participating parties and their advisers.
28 The negotiations involving Todmorden are seen by the ALRM and the State as a pilot project, although the Todmorden interests do not so regard it.
29 As part of that pilot project, a 'pastoral side table' comprising representatives of SAFF, SACOME, the ALRM and the State was established in early 2002 to operate parallel to the Todmorden negotiation to consider and develop agreed pastoral policies for development into a template ILUA to be offered to other pastoralists and native title claim groups in the State.
30 The second pilot project relates to a claim by the Narrungga People who assert native title rights and interests over sections of Yorke Peninsula and its surrounding waters. There have been negotiations with ALRM, the claimants, the State, the Yorke Peninsula District Council, the Copper Coast District Council, the Barunga West District Council, and the Wakefield Regional Council in relation to issues including alternative State and local government future act processes, and management agreements for Crown reserve lands and waters. Those discussions took place first in July and August 2002, resulting in the identification and prioritisation of the issues to be discussed between the parties. It is asserted that the negotiations were positive and constructive. Further negotiations were intended. The submission asserts that a protocol for conducting the negotiations was largely settled and subjects for negotiation agreed. Steps have been commenced to include the industry bodies representing the fishing and seafood industries (the SA Fishing Industry Council and the Seafood Council of SA) in the discussions relating to fishing and sea rights.
31 The third pilot project is in relation to the Antikirinja native title claim. The first meeting took place in August 2000 between representatives of the claimants, the State, SACOME and the ALRM in relation to the draft minerals exploration template ILUA and related mineral exploration issues. It is said that the discussions were constructive, and that further negotiations are to be scheduled.
32 Whilst it is clear that the Statewide ILUA Strategy has made significant achievements, it is fair to describe those achievements to date as being made at the 'macro' level. In relation to the present application, there is only the one relevant 'pilot' project, or from the point of view of the Todmorden interests one relevant negotiation. To date the other pastoral leaseholders who are parties to the application have not participated in any real way in the pilot negotiations. They have not been asked to do so. They do not know with any precision what has been discussed and agreed between the applicants and the Todmorden interests, or what is proving to be a stumbling block to the finalisation of an agreement between the applicants and the Todmorden interests. What the apparently numerous items for discussion are they do not know. The two other pilot projects referred to do not seem to have progressed as far as the pastoral pilot project.
33 I do not have any basis for concluding that the pilot projects will progress in a speedy fashion. There are of course difficulties with resources, time and expertise. The resolution of native title determination claims involves complex and extensive issues. But, even so, the Statewide ILUA Strategy has now been in place for some time and there is no clear light at the end of the tunnel. Realistically, it could take many more months for any of the pilot projects to progress to resolution. At present, the other pastoral leaseholders in this matter have no way of knowing whether the resolution of negotiations between the applicants and the Todmorden interests will provide a useful template for the addressing of their position (as it is intended to be). The present application, if granted, carries the assumption that it is appropriate for those who are parties to the application, but who are not directly involved in the pilot program, to simply abide the course of development of the Statewide ILUA Strategy, even if they are anxious for the claim to be heard so that their position in respect of the native title determination application is resolved.
34 The proponent parties on the present motion acknowledge that the NNTT has the resources and expertise to deal with matters such as overlapping claims, internal disputes, and the matters listed in par 1 of the motion. Furthermore, they acknowledge that, until competing or overlapping claims have been resolved in respect of particular native title determination applications, there will be little chance of reaching agreed outcomes whether by mediation or private negotiation under the Statewide ILUA Strategy. They further agree that the matters listed in par 1 of the motion, in particular issues such as extinguishment and the identification of the extent of claimed rights and interests, are matters 'which need to be clarified … before agreements can be formalised'.
35 However, they contend that the Statewide ILUA Strategy should be given every opportunity to continue in lieu of reference of individual native title determination applications to mediation by the NNTT, except in respect of the limited issues.
36 I think the contention does not pay sufficient regard to the role of the NNTT in the mediation process established under the Act. Its role is considered at length by French J in Frazer and Others on Behalf of the Warburton Mantamaru People v The State of Western Australia [2003] FCA 351, especially at [24]-[32]. I respectfully agree with and adopt what his Honour there said. I shall not repeat it. As his Honour said at [26], the NNTT has a 'central role' in the mediation process provided for under the NT Act. And there is evidenced by s 86C an intention that the mediation takes place in a timely fashion.
37 In particular, I note his Honour's remarks at [28]-[29]:
'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.
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.'
38 In addition, as it is acknowledged that issues such as overlapping claims will require to be resolved before the successful implementation of the Statewide ILUA Strategy could be effective, I do not consider the NNTT mediation process would cut across the Statewide ILUA Strategy. There may be circumstances in which the NNTT, in the course of its mediation, sees the opportunity to resolve a particular claim or part of a claim beyond the particular issues being addressed (for example overlapping claims). It is unclear why its mediation power should be inhibited because the Statewide ILUA Strategy is being pursued, or because in respect of another native title determination application there is a pilot program on a particular issue as part of the Statewide ILUA Strategy which may take some considerable time in the future to be progressed. Nor do I accept the assumption that the NNTT would conduct mediation in such a way as to inhibit the parties, if they wished to do so, from continuing to conduct a pilot program as part of the Statewide ILUA Strategy. I note that, on the evidence, a member of the NNTT has in fact been acting as a facilitator in relation to one of the pilot projects.
39 Moreover, as I have noted, it is implicit in the present motion that the Court should simply stand back and allow the Statewide ILUA Strategy to continue over such time as it may take before progressing any of the current native title determinations towards a hearing. It is in a real sense a proposal put forward that no native title determination application (at least not one where there are not issues of the type referred to in par 1 of the motion) should be progressed for the time being, irrespective of the responsibilities of the Court and of the public interest to bring litigation to finality, and irrespective of the wishes of those parties to a native title determination application who wish a particular claim or claims to be progressed rather than to wait for the outcome of the Statewide ILUA Strategy or of a pilot program which may take further considerable time to reach finality, and which might then prove inappropriate for use as a template in the particular circumstances.
40 There is also the assumption underlying the present application that it is inconsistent with allowing the Statewide ILUA Strategy to be given every opportunity to continue throughout the State that a particular claim or claims should be referred to the NNTT mediation pursuant to s 86B of the NT Act. I do not think it is shown that those processes are mutually exclusive. It is certainly true that parties should be encouraged to endeavour to agree their disputes privately. Private resolution of proceedings is efficient and effective, and leaves the opportunity for alternative resolutions beyond those which the Court may determine. There is a considerable public interest in allowing such processes to be given every opportunity to occur. However, where such processes are not consensual on the part of all parties to particular proceedings, the Court will not generally adjourn proceedings at the expense of one party for the benefit of giving other parties an ongoing and indefinite opportunity to conduct further negotiations. Moreover, the adjournment proposed in this case is not so that the parties to the particular application may further negotiate privately, but so that the Statewide ILUA Strategy may progress including one pilot program involving one of the pastoral parties to this application. More importantly, there is no reason to think that the NNTT would act as mediator in a way which would impede the progress of the Statewide ILUA Strategy in any real way. The purpose of mediation is the same as the objective of the Statewide ILUA Strategy. The NNTT is not likely to impair or impede the progress of the Statewide ILUA Strategy. Its focus is likely to be first upon resolution of overlapping claims in any event, as generally speaking that is a sensible starting point for mediation. If it perceives that, within a reasonable time, certain issues are likely to be resolved by private mediation through the Statewide ILUA Strategy or even independently of it, it is likely to focus its attention on other issues. I do not therefore think that referral to mediation of this application generally, or of other native title determination applications generally, will be inimical to the progress of the Statewide ILUA Strategy, and certainly not inimical to the progress of the Statewide ILUA Strategy to the extent to which it should be recognised by the Court having regard to interests of the parties to this (or other) native title determination applications who are not directly involved in the Statewide ILUA Strategy and who wish the claim to proceed in the normal manner.
41 The submissions indicated that the negotiations on the present pilot programs are likely to be completed during 2003. If those negotiations are successful, they may well assist in the resolution of other claims. However, subject to the issue of resources, I do not see reference of this or other matters to mediation should adversely affect the progress of such negotiations. If they are successful, and parties in this proceeding or in other proceedings are prepared to use the outcome as a template and to adopt it subject to variations as the basis of an agreement, so much the better. I have every confidence that the NNTT would permit an adjournment of mediation under its aegis while private agreement was explored or indeed would encourage the parties to consider adopting such an agreement if it were appropriate to do so and unless there was good reason not to do so. As I have said, apart from the issue of resources, I do not perceive a necessary conflict between the two processes.
42 I accept that the State is committed to pursuing the Statewide ILUA Strategy as a matter of first preference for resolving native title disputes. I accept that State funding has been, and continues to be, provided to ensure its continued progress. The funding is substantial. I accept that ALRM has limited funding, and considers that it is an efficient application of its funds to pursue the Statewide ILUA Strategy. I do not accept however that it is up to ALRM to determine, to the exclusion of the Court and of the interests of other litigants, whether all or any native title determination applications should be progressed in the normal manner, including mediation through the NNTT under s 86B of the NT Act.
43 There is some suggestion in the evidence and submissions that funding of the Statewide ILUA Strategy and mediation (or litigation) of all native title claims in the State is simply not feasible. It is idle to suggest that the Court will, or will be asked to, refer all existing native title determination applications to mediation at the same time, or even in the event of there being several referrals at once that the NNTT would insist on each proceeding with the same level of commitment of resources and manpower. But it is not unrealistic to accept that parties to an application for determination of native title may be concerned for the application to be resolved as quickly as possible. There may be particular reasons why one application should be progressed at a faster rate than another. In that event, there is no reason why preference should not be given to those matters. In addition, it is implicit on the present motion that resources will be available for mediation by the NNTT in respect of the issues that are referred to in par 1 of the motion.
44 It is contended that the Statewide ILUA Strategy was devised because, as an alternative to litigation, it would:
- be less time consuming and costly
- be more orderly
- deliver more consistent outcomes to all participants
- be more satisfactory in terms of meeting a party's needs
- be able to provide practical solutions that were workable on the ground
- provide a means by which the stakeholders could work together in a non-adversarial atmosphere to determine their future relationships with each other.
It is trite to say that resolution of disputes by agreement is generally quicker and cheaper than litigation. It is generally a more satisfactory method of dispute resolution. It does enable practical solutions to be adopted which may be different from, and perhaps more extensive than, the orders which may be made following a hearing. See generally the remarks of Black CJ in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 at [10]. Those benefits are also available by the mediation processes which the NT Act contemplates. It does not follow that such benefits should be sought to be achieved by a form of mediation outside that contemplated by the NT Act and at the exclusion of certain parties from the process even if there is a real prospect that ultimately forms of template agreements may be able to be achieved which would be available to the other parties in the litigation and in other applications. As I have said, to accept that proposition is to remove from the parties to the litigation the entitlement to progress the claims or the disputes to finality. It removes from the Court the function of controlling the timing of the progress of the proceedings. It removes from individual parties participation in the process of mediation, as it gives that responsibility, in the first instance, to 'peak bodies' rather than to the individual litigants. It assumes that the individual litigants will then accede to agreements proposed on their behalf to which they have had no direct input. For instance, in the Todmorden pilot program, the other pastoral lessees in the particular claim until now have not been invited to participate in the negotiations. The other pastoral lessees do not know what those issues are. They do not know what terms might be resolved. There may be legal or economic or other considerations relevant to the Todmorden lessees' circumstances which are different from those relevant to the other pastoral lessees. They expressed the concern that as a result of the 'peak bodies' agreement there will be some pressure, either moral or emotional, to fall in line with what has previously been agreed. Indeed, one point of the pilot schemes is to produce template agreements.
45 I also accept that the Statewide ILUA Strategy provides a unique opportunity for all the major 'stakeholders' to deal together with all the issues raised by native title in a consistent and constructive way. Many native title issues arise in more than one particular claim area across the State. The Statewide ILUA Strategy will enable those fundamental issues to be analysed, discussed, and hopefully resolved successfully in an ordered environment. Some of the benefits in using pilot negotiations for all involved are:
- repetition or duplication of discussions is avoided
- they are more cost effective in reacting to the several different demands of mediation and litigation
- any agreed solutions can be trialled in a controlled environment and, if successful, offered to others as options to resolve their own issues.
However, I do not accept that the NNTT, in proceedings in which native title claimants are represented as well as the State and other parties whose interests are or may be affected cannot identify the fundamental issues, to discuss and mediate them and if appropriate to resolve them. I do not see that the outcome of the pilot schemes will involve any less need for discussion in relation to individual claimants and other parties affected than would be the case by mediation by the NNTT.
46 The claim that agreed solutions can be trialled 'in a controlled environment' is an ambiguous proposition. If an agreement is come to, for instance, between the present applicants and the Todmorden pastoral holders, the other pastoral lessees in the claim area, and pastoral lessees in other claimed areas, can readily learn of the terms of the agreement (unless it is confidential) and as to how it is operating. With the wisdom of the experience, they may choose to adopt the same solutions in mediation before the NNTT.
47 I turn to factors to which the Court is directed under s 86B(4). It is contended that agreement would be much more difficult if pastoral lessees and local government authorities and commercial fishers are entitled to be present at any mediation. The NNTT can conduct mediations in stages. The pastoralists in the present matter are represented by one firm of solicitors. I do not see why they should not be able to participate in negotiations at this stage in relation to the claim in so far as it may affect their interests. I do not think the other matters identified are of particular moment to the present motion.
48 For these reasons I have given, I do not propose to accede to the present motion upon the basis upon which it is presented. That is, I do not accept that the Court should order that there be only limited mediation in this matter (and in all other matters in which there are claims for the determination of native title) as a matter of principle because of the Statewide ILUA Strategy. I think it is necessary to consider in each case, including the present, whether the Court should follow s 86B(1) either generally or by referring part only of the matter: see s 86B(4) to mediation by the NNTT. The consideration should be given to the individual circumstances of the case. The status or progress of the Statewide ILUA Strategy, the nature of the issues, the extent of any private negotiations between the parties and the prospects of resolution of those negotiations, the existence of overlapping claims, the resources of the parties, and a range of other matters may be relevant to such consideration. Ultimately, it must be borne in mind that the purpose of mediation is to assist the parties to reach agreement on some or all of the issues which arise in the proceeding.
49 I therefore propose to adjourn the motion so that further particular consideration may be given to the circumstances of this matter. I intend to list for directions each of the native title determination applications presently before the Court on 5 and 6 August 2003. Those which are at the point at which the Court would address s 86B(1) of the NT Act will then attract consideration of whether such an order should be made, and if so whether it should be a limited order. The Statewide ILUA Strategy, including the pilot program involving the Todmorden lessees (I use that description although the Todmorden lessees do not regard their negotiations as a pilot program), will by then have had some seven to eight months more to progress than that which was first sought in the motion.
50 I propose to require the party in each application to file and serve memoranda as to the orders and directions then to be sought, and to the extent necessary to file and serve affidavits in support of the orders or directions then sought. I will not require notices of motion to be filed to seek any such orders or directions. Obviously, there will be at that time a need to determine as between the native title determination applications some order in which they may progress, as they cannot all proceed at the same time in the same manner. The material to be filed and served may need to address that topic, although I anticipate that there will be informed consideration given to the issue before the directions hearing.