Leedham Papertalk on behalf of the Mullewa Wadjari people v State of Western Australia

Leedham Papertalk on behalf of the Mullewa Wadjari people v State of Western Australia - [2015] FCA 1342 - FCA 2015 case summary — Zoe

[12]

The following case management orders apply to the claimant applications WAD6119/1998 (Mullewa Wadjari), WAD6193/1998 (Widi Mob), WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu). In these orders the claimant in each case is referred to as the claimant and the claimants together are referred to as the claimants. The five proceedings are referred to as the claimant applications. The first respondent is referred to as the State. The separate proceeding area is that area depicted and described as such in Attachment A to these orders.
These orders are designed to achieve the following purposes: (1) in the short-term, to: (a) enable greater specificity to be provided by the parties as to the tenure underlying the claimant applications so that the land and waters available for claim under the Native Title Act 1993 (Cth) (NTA) in each proceeding are capable of being identified with reasonable particularity, if not absolute perfection; (b) enable the claimants to resolve their differences, if possible, where the claim areas of the claimant applications overlap, so that the overlaps no longer exist; (c) enable the claimants to formulate any proposals that they might together or in other combinations or individually wish to put to the State, and/or any other respondent with a relevant interest, to resolve the claimant applications which may include seeking orders under s 87 of the NTA; (d) provide an opportunity, should it be considered appropriate by the relevant parties, for the relevant parties to consider and negotiate a consent order or an agreement to resolve the claimant applications which may include seeking orders under s 87 of the NTA; and (2) in the event any or all of the claimant applications are not resolved and must proceed to a contested hearing, to program the claimant applications to a final hearing in respect of the separate proceeding area.
The Registrar, in order to achieve the purposes set out in order 2(1), above, is: (a) to convene a further case management hearing between the claimants, the State and other respondents with a relevant interest to explore the means available, if any, by which the National Native Title Tribunal may be able to assist the parties to identify those portions of land and waters within the claim areas which are available to be claimed under the NTA by the claimants; (b) to that end, and as appropriate, to invite the relevant member or officers of the National Native Title Tribunal to attend or assist in the process of identifying what land or waters are available to be claimed under the NTA by the claimants; (c) in the light of such conferral and assistance, to complete case management hearings with those parties with a view to identifying those portions of land and waters that are available to be claimed under the NTA by the claimants; and (d) to report back to the Court by 1 July 2016 as to what portions of land and waters are available to be claimed under the NTA by the claimants.
The questions of: (a) the overlaps between the claimant applications, if any; and (b) what proposal or proposals the claimants may wish to put to the State and/or other relevant respondents with a view to resolution of the claimant applications, which may include seeking orders under s 87 of the NTA, be forthwith referred to mediation.
The mediation referred to in order 4 be conducted by a Registrar and a mediator identified by the Court, acting as co-mediators as they shall arrange between them.
The co-mediators shall report back to the Court on the two questions in order 4 at such time as they may consider convenient and in any event by 30 September 2016.
Subject to the content of and any recommendations made in the co-mediators' report or reports, the Court may consider and make further orders to facilitate negotiations between the parties with a view to the resolution of the claimant applications which may include seeking orders under s 87 of the NTA.
For the purpose of achieving the goal set out in order 2(2) above, if by 31 March 2017 any claimant application has not been determined or otherwise resolved without the need for a final hearing, and subject to any other order of the Court, it will be listed for a final hearing to be conducted in August 2018 and the following programming orders shall apply.
Pursuant to s 67(2) of the NTA: (a) application WAD6119/1998 (Mullewa Wadjari application) be divided into two parts, to be called "Mullewa Wadjari Part A", consisting of that portion of the Mullewa Wadjari application which is not overlapped by WAD6136/1998 (Nanda) or WAD6033/1998 (Wajarri Yamatji) and "Mullewa Wadjari Part B" consisting of the remainder of the Mullewa Wadjari application; (b) application WAD6193/1998 (Widi Mob application) be divided into two parts, to be called "Widi Mob Part A", consisting of that portion of the Widi Mob application which is not overlapped by WAD6033/1998 (Wajarri Yamatji), WAD6192/1998 (Yued) or WAD6006/2003 (Single Noongar Claim #1), and "Widi Mob Part B" consisting of the remainder of the Widi Mob application; (c) Mullewa Wadjari Part B be considered separately to Mullewa Wadjari Part A; and (d) Widi Mob Part B be considered separately to Widi Mob Part A.
Pursuant to s 67(1) of the NTA, Mullewa Wadjari Part A, Widi Mob Part A, WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu) be heard together in a separate proceeding (see separate proceeding area in Attachment A).
Any document filed in accordance with these programming orders for the separate proceeding shall bear the heading in WAD6002/2004 (Amangu), and need only be filed on the court file in relation to WAD6002/2004 (Amangu).
Evidence given in one of the proceedings comprising the separate proceeding shall be evidence in each of the other proceedings comprising the separate proceeding.

[29]

The following case management orders apply to the claimant applications WAD6119/1998 (Mullewa Wadjari), WAD6193/1998 (Widi Mob), WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu). In these orders the claimant in each case is referred to as the claimant and the claimants together are referred to as the claimants. The five proceedings are referred to as the claimant applications. The first respondent is referred to as the State. The separate proceeding area is that area depicted and described as such in Attachment A to these orders.
These orders are designed to achieve the following purposes: (1) in the short-term, to: (a) enable greater specificity to be provided by the parties as to the tenure underlying the claimant applications so that the land and waters available for claim under the Native Title Act 1993 (Cth) (NTA) in each proceeding are capable of being identified with reasonable particularity, if not absolute perfection; (b) enable the claimants to resolve their differences, if possible, where the claim areas of the claimant applications overlap, so that the overlaps no longer exist; (c) enable the claimants to formulate any proposals that they might together or in other combinations or individually wish to put to the State, and/or any other respondent with a relevant interest, to resolve the claimant applications which may include seeking orders under s 87 of the NTA; (d) provide an opportunity, should it be considered appropriate by the relevant parties, for the relevant parties to consider and negotiate a consent order or an agreement to resolve the claimant applications which may include seeking orders under s 87 of the NTA; and (2) in the event any or all of the claimant applications are not resolved and must proceed to a contested hearing, to program the claimant applications to a final hearing in respect of the separate proceeding area.
The Registrar, in order to achieve the purposes set out in order 2(1), above, is: (a) to convene a further case management hearing between the claimants, the State and other respondents with a relevant interest to explore the means available, if any, by which the National Native Title Tribunal may be able to assist the parties to identify those portions of land and waters within the claim areas which are available to be claimed under the NTA by the claimants; (b) to that end, and as appropriate, to invite the relevant member or officers of the National Native Title Tribunal to attend or assist in the process of identifying what land or waters are available to be claimed under the NTA by the claimants; (c) in the light of such conferral and assistance, to complete case management hearings with those parties with a view to identifying those portions of land and waters that are available to be claimed under the NTA by the claimants; and (d) to report back to the Court by 1 July 2016 as to what portions of land and waters are available to be claimed under the NTA by the claimants.
The questions of: (a) the overlaps between the claimant applications, if any; and (b) what proposal or proposals the claimants may wish to put to the State and/or other relevant respondents with a view to resolution of the claimant applications, which may include seeking orders under s 87 of the NTA, be forthwith referred to mediation.
The mediation referred to in order 4 be conducted by a Registrar and a mediator identified by the Court, acting as co-mediators as they shall arrange between them.
The co-mediators shall report back to the Court on the two questions in order 4 at such time as they may consider convenient and in any event by 30 September 2016.
Subject to the content of and any recommendations made in the co-mediators' report or reports, the Court may consider and make further orders to facilitate negotiations between the parties with a view to the resolution of the claimant applications which may include seeking orders under s 87 of the NTA.
For the purpose of achieving the goal set out in order 2(2) above, if by 31 March 2017 any claimant application has not been determined or otherwise resolved without the need for a final hearing, and subject to any other order of the Court, it will be listed for a final hearing to be conducted in August 2018 and the following programming orders shall apply.
Pursuant to s 67(2) of the NTA: (a) application WAD6119/1998 (Mullewa Wadjari application) be divided into two parts, to be called "Mullewa Wadjari Part A", consisting of that portion of the Mullewa Wadjari application which is not overlapped by WAD6136/1998 (Nanda) or WAD6033/1998 (Wajarri Yamatji) and "Mullewa Wadjari Part B" consisting of the remainder of the Mullewa Wadjari application; (b) application WAD6193/1998 (Widi Mob application) be divided into two parts, to be called "Widi Mob Part A", consisting of that portion of the Widi Mob application which is not overlapped by WAD6033/1998 (Wajarri Yamatji), WAD6192/1998 (Yued) or WAD6006/2003 (Single Noongar Claim #1), and "Widi Mob Part B" consisting of the remainder of the Widi Mob application; (c) Mullewa Wadjari Part B be considered separately to Mullewa Wadjari Part A; and (d) Widi Mob Part B be considered separately to Widi Mob Part A.
Pursuant to s 67(1) of the NTA, Mullewa Wadjari Part A, Widi Mob Part A, WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu) be heard together in a separate proceeding (see separate proceeding area in Attachment A).
Any document filed in accordance with these programming orders for the separate proceeding shall bear the heading in WAD6002/2004 (Amangu), and need only be filed on the court file in relation to WAD6002/2004 (Amangu).
Evidence given in one of the proceedings comprising the separate proceeding shall be evidence in each of the other proceedings comprising the separate proceeding.

[46]

The following case management orders apply to the claimant applications WAD6119/1998 (Mullewa Wadjari), WAD6193/1998 (Widi Mob), WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu). In these orders the claimant in each case is referred to as the claimant and the claimants together are referred to as the claimants. The five proceedings are referred to as the claimant applications. The first respondent is referred to as the State. The separate proceeding area is that area depicted and described as such in Attachment A to these orders.
These orders are designed to achieve the following purposes: (1) in the short-term, to: (a) enable greater specificity to be provided by the parties as to the tenure underlying the claimant applications so that the land and waters available for claim under the Native Title Act 1993 (Cth) (NTA) in each proceeding are capable of being identified with reasonable particularity, if not absolute perfection; (b) enable the claimants to resolve their differences, if possible, where the claim areas of the claimant applications overlap, so that the overlaps no longer exist; (c) enable the claimants to formulate any proposals that they might together or in other combinations or individually wish to put to the State, and/or any other respondent with a relevant interest, to resolve the claimant applications which may include seeking orders under s 87 of the NTA; (d) provide an opportunity, should it be considered appropriate by the relevant parties, for the relevant parties to consider and negotiate a consent order or an agreement to resolve the claimant applications which may include seeking orders under s 87 of the NTA; and (2) in the event any or all of the claimant applications are not resolved and must proceed to a contested hearing, to program the claimant applications to a final hearing in respect of the separate proceeding area.
The Registrar, in order to achieve the purposes set out in order 2(1), above, is: (a) to convene a further case management hearing between the claimants, the State and other respondents with a relevant interest to explore the means available, if any, by which the National Native Title Tribunal may be able to assist the parties to identify those portions of land and waters within the claim areas which are available to be claimed under the NTA by the claimants; (b) to that end, and as appropriate, to invite the relevant member or officers of the National Native Title Tribunal to attend or assist in the process of identifying what land or waters are available to be claimed under the NTA by the claimants; (c) in the light of such conferral and assistance, to complete case management hearings with those parties with a view to identifying those portions of land and waters that are available to be claimed under the NTA by the claimants; and (d) to report back to the Court by 1 July 2016 as to what portions of land and waters are available to be claimed under the NTA by the claimants.
The questions of: (a) the overlaps between the claimant applications, if any; and (b) what proposal or proposals the claimants may wish to put to the State and/or other relevant respondents with a view to resolution of the claimant applications, which may include seeking orders under s 87 of the NTA, be forthwith referred to mediation.
The mediation referred to in order 4 be conducted by a Registrar and a mediator identified by the Court, acting as co-mediators as they shall arrange between them.
The co-mediators shall report back to the Court on the two questions in order 4 at such time as they may consider convenient and in any event by 30 September 2016.
Subject to the content of and any recommendations made in the co-mediators' report or reports, the Court may consider and make further orders to facilitate negotiations between the parties with a view to the resolution of the claimant applications which may include seeking orders under s 87 of the NTA.
For the purpose of achieving the goal set out in order 2(2) above, if by 31 March 2017 any claimant application has not been determined or otherwise resolved without the need for a final hearing, and subject to any other order of the Court, it will be listed for a final hearing to be conducted in August 2018 and the following programming orders shall apply.
Pursuant to s 67(2) of the NTA: (a) application WAD6119/1998 (Mullewa Wadjari application) be divided into two parts, to be called "Mullewa Wadjari Part A", consisting of that portion of the Mullewa Wadjari application which is not overlapped by WAD6136/1998 (Nanda) or WAD6033/1998 (Wajarri Yamatji) and "Mullewa Wadjari Part B" consisting of the remainder of the Mullewa Wadjari application; (b) application WAD6193/1998 (Widi Mob application) be divided into two parts, to be called "Widi Mob Part A", consisting of that portion of the Widi Mob application which is not overlapped by WAD6033/1998 (Wajarri Yamatji), WAD6192/1998 (Yued) or WAD6006/2003 (Single Noongar Claim #1), and "Widi Mob Part B" consisting of the remainder of the Widi Mob application; (c) Mullewa Wadjari Part B be considered separately to Mullewa Wadjari Part A; and (d) Widi Mob Part B be considered separately to Widi Mob Part A.
Pursuant to s 67(1) of the NTA, Mullewa Wadjari Part A, Widi Mob Part A, WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu) be heard together in a separate proceeding (see separate proceeding area in Attachment A).
Any document filed in accordance with these programming orders for the separate proceeding shall bear the heading in WAD6002/2004 (Amangu), and need only be filed on the court file in relation to WAD6002/2004 (Amangu).
Evidence given in one of the proceedings comprising the separate proceeding shall be evidence in each of the other proceedings comprising the separate proceeding.

[63]

The following case management orders apply to the claimant applications WAD6119/1998 (Mullewa Wadjari), WAD6193/1998 (Widi Mob), WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu). In these orders the claimant in each case is referred to as the claimant and the claimants together are referred to as the claimants. The five proceedings are referred to as the claimant applications. The first respondent is referred to as the State. The separate proceeding area is that area depicted and described as such in Attachment A to these orders.
These orders are designed to achieve the following purposes: (1) in the short-term, to: (a) enable greater specificity to be provided by the parties as to the tenure underlying the claimant applications so that the land and waters available for claim under the Native Title Act 1993 (Cth) (NTA) in each proceeding are capable of being identified with reasonable particularity, if not absolute perfection; (b) enable the claimants to resolve their differences, if possible, where the claim areas of the claimant applications overlap, so that the overlaps no longer exist; (c) enable the claimants to formulate any proposals that they might together or in other combinations or individually wish to put to the State, and/or any other respondent with a relevant interest, to resolve the claimant applications which may include seeking orders under s 87 of the NTA; (d) provide an opportunity, should it be considered appropriate by the relevant parties, for the relevant parties to consider and negotiate a consent order or an agreement to resolve the claimant applications which may include seeking orders under s 87 of the NTA; and (2) in the event any or all of the claimant applications are not resolved and must proceed to a contested hearing, to program the claimant applications to a final hearing in respect of the separate proceeding area.
The Registrar, in order to achieve the purposes set out in order 2(1), above, is: (a) to convene a further case management hearing between the claimants, the State and other respondents with a relevant interest to explore the means available, if any, by which the National Native Title Tribunal may be able to assist the parties to identify those portions of land and waters within the claim areas which are available to be claimed under the NTA by the claimants; (b) to that end, and as appropriate, to invite the relevant member or officers of the National Native Title Tribunal to attend or assist in the process of identifying what land or waters are available to be claimed under the NTA by the claimants; (c) in the light of such conferral and assistance, to complete case management hearings with those parties with a view to identifying those portions of land and waters that are available to be claimed under the NTA by the claimants; and (d) to report back to the Court by 1 July 2016 as to what portions of land and waters are available to be claimed under the NTA by the claimants.
The questions of: (a) the overlaps between the claimant applications, if any; and (b) what proposal or proposals the claimants may wish to put to the State and/or other relevant respondents with a view to resolution of the claimant applications, which may include seeking orders under s 87 of the NTA, be forthwith referred to mediation.
The mediation referred to in order 4 be conducted by a Registrar and a mediator identified by the Court, acting as co-mediators as they shall arrange between them.
The co-mediators shall report back to the Court on the two questions in order 4 at such time as they may consider convenient and in any event by 30 September 2016.
Subject to the content of and any recommendations made in the co-mediators' report or reports, the Court may consider and make further orders to facilitate negotiations between the parties with a view to the resolution of the claimant applications which may include seeking orders under s 87 of the NTA.
For the purpose of achieving the goal set out in order 2(2) above, if by 31 March 2017 any claimant application has not been determined or otherwise resolved without the need for a final hearing, and subject to any other order of the Court, it will be listed for a final hearing to be conducted in August 2018 and the following programming orders shall apply.
Pursuant to s 67(2) of the NTA: (a) application WAD6119/1998 (Mullewa Wadjari application) be divided into two parts, to be called "Mullewa Wadjari Part A", consisting of that portion of the Mullewa Wadjari application which is not overlapped by WAD6136/1998 (Nanda) or WAD6033/1998 (Wajarri Yamatji) and "Mullewa Wadjari Part B" consisting of the remainder of the Mullewa Wadjari application; (b) application WAD6193/1998 (Widi Mob application) be divided into two parts, to be called "Widi Mob Part A", consisting of that portion of the Widi Mob application which is not overlapped by WAD6033/1998 (Wajarri Yamatji), WAD6192/1998 (Yued) or WAD6006/2003 (Single Noongar Claim #1), and "Widi Mob Part B" consisting of the remainder of the Widi Mob application; (c) Mullewa Wadjari Part B be considered separately to Mullewa Wadjari Part A; and (d) Widi Mob Part B be considered separately to Widi Mob Part A.
Pursuant to s 67(1) of the NTA, Mullewa Wadjari Part A, Widi Mob Part A, WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu) be heard together in a separate proceeding (see separate proceeding area in Attachment A).
Any document filed in accordance with these programming orders for the separate proceeding shall bear the heading in WAD6002/2004 (Amangu), and need only be filed on the court file in relation to WAD6002/2004 (Amangu).
Evidence given in one of the proceedings comprising the separate proceeding shall be evidence in each of the other proceedings comprising the separate proceeding.

[80]

The following case management orders apply to the claimant applications WAD6119/1998 (Mullewa Wadjari), WAD6193/1998 (Widi Mob), WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu). In these orders the claimant in each case is referred to as the claimant and the claimants together are referred to as the claimants. The five proceedings are referred to as the claimant applications. The first respondent is referred to as the State. The separate proceeding area is that area depicted and described as such in Attachment A to these orders.
These orders are designed to achieve the following purposes: (1) in the short-term, to: (a) enable greater specificity to be provided by the parties as to the tenure underlying the claimant applications so that the land and waters available for claim under the Native Title Act 1993 (Cth) (NTA) in each proceeding are capable of being identified with reasonable particularity, if not absolute perfection; (b) enable the claimants to resolve their differences, if possible, where the claim areas of the claimant applications overlap, so that the overlaps no longer exist; (c) enable the claimants to formulate any proposals that they might together or in other combinations or individually wish to put to the State, and/or any other respondent with a relevant interest, to resolve the claimant applications which may include seeking orders under s 87 of the NTA; (d) provide an opportunity, should it be considered appropriate by the relevant parties, for the relevant parties to consider and negotiate a consent order or an agreement to resolve the claimant applications which may include seeking orders under s 87 of the NTA; and (2) in the event any or all of the claimant applications are not resolved and must proceed to a contested hearing, to program the claimant applications to a final hearing in respect of the separate proceeding area.
The Registrar, in order to achieve the purposes set out in order 2(1), above, is: (a) to convene a further case management hearing between the claimants, the State and other respondents with a relevant interest to explore the means available, if any, by which the National Native Title Tribunal may be able to assist the parties to identify those portions of land and waters within the claim areas which are available to be claimed under the NTA by the claimants; (b) to that end, and as appropriate, to invite the relevant member or officers of the National Native Title Tribunal to attend or assist in the process of identifying what land or waters are available to be claimed under the NTA by the claimants; (c) in the light of such conferral and assistance, to complete case management hearings with those parties with a view to identifying those portions of land and waters that are available to be claimed under the NTA by the claimants; and (d) to report back to the Court by 1 July 2016 as to what portions of land and waters are available to be claimed under the NTA by the claimants.
The questions of: (a) the overlaps between the claimant applications, if any; and (b) what proposal or proposals the claimants may wish to put to the State and/or other relevant respondents with a view to resolution of the claimant applications, which may include seeking orders under s 87 of the NTA, be forthwith referred to mediation.
The mediation referred to in order 4 be conducted by a Registrar and a mediator identified by the Court, acting as co-mediators as they shall arrange between them.
The co-mediators shall report back to the Court on the two questions in order 4 at such time as they may consider convenient and in any event by 30 September 2016.
Subject to the content of and any recommendations made in the co-mediators' report or reports, the Court may consider and make further orders to facilitate negotiations between the parties with a view to the resolution of the claimant applications which may include seeking orders under s 87 of the NTA.
For the purpose of achieving the goal set out in order 2(2) above, if by 31 March 2017 any claimant application has not been determined or otherwise resolved without the need for a final hearing, and subject to any other order of the Court, it will be listed for a final hearing to be conducted in August 2018 and the following programming orders shall apply.
Pursuant to s 67(2) of the NTA: (a) application WAD6119/1998 (Mullewa Wadjari application) be divided into two parts, to be called "Mullewa Wadjari Part A", consisting of that portion of the Mullewa Wadjari application which is not overlapped by WAD6136/1998 (Nanda) or WAD6033/1998 (Wajarri Yamatji) and "Mullewa Wadjari Part B" consisting of the remainder of the Mullewa Wadjari application; (b) application WAD6193/1998 (Widi Mob application) be divided into two parts, to be called "Widi Mob Part A", consisting of that portion of the Widi Mob application which is not overlapped by WAD6033/1998 (Wajarri Yamatji), WAD6192/1998 (Yued) or WAD6006/2003 (Single Noongar Claim #1), and "Widi Mob Part B" consisting of the remainder of the Widi Mob application; (c) Mullewa Wadjari Part B be considered separately to Mullewa Wadjari Part A; and (d) Widi Mob Part B be considered separately to Widi Mob Part A.
Pursuant to s 67(1) of the NTA, Mullewa Wadjari Part A, Widi Mob Part A, WAD6194/1998 (Naaguja), WAD6001/2000 (Hutt River) and WAD6002/2004 (Amangu) be heard together in a separate proceeding (see separate proceeding area in Attachment A).
Any document filed in accordance with these programming orders for the separate proceeding shall bear the heading in WAD6002/2004 (Amangu), and need only be filed on the court file in relation to WAD6002/2004 (Amangu).
Evidence given in one of the proceedings comprising the separate proceeding shall be evidence in each of the other proceedings comprising the separate proceeding.

[109]

REASONS FOR JUDGMENT 1 These reasons are published to explain in a reasonably concise way the case management orders above. 2 These related proceedings involve native title claimant applications, under the Native Title Act 1993 (Cth) (NTA), in respect of land and waters in the general vicinity of Geraldton, a coastal city in the mid-west of Western Australia. 3 A number of the claimant applications overlap, such that there is potential for a degree of disagreement between claimants as to who are, in traditional terms, the right people for country. 4 There is also what might be termed a difficult relationship between the claimants and the State of Western Australia. A number of years ago, the State indicated that it was unwilling to continue negotiations with respect to the claims. 5 Historically, over a number of years, the claimants, or at least some of them - principally those for whom the Yamatji Marlpa Aboriginal Corporation (YMAC) act - have said they were ready, willing and able to enter into constructive negotiations with the State with a view to resolving their claims. 6 Any more detailed account of this difficult relationship is presently unlikely to be productive. 7 Suffice to say, at a recent case management hearing, on 3 November 2015, the State moved for orders to list the proceedings for trial in respect of a separate proceeding area that includes parts of the areas the subject of each of the claimant applications. The claimants, or most of them, resisted the State's approach, indicating among other things that they are not sufficiently advanced in their preparations for a trial or adequately funded to that end. 8 Prior to the State moving in these terms, pursuant to earlier case management orders of the Court, the State and the claimants (led by those claimants for whom YMAC act) were endeavouring to identify current tenure to land the subject of the claims with a view to clarifying what land, if any, within the claim areas was the subject of claim under the NTA. 9 An inquiry of this nature is of particular relevance in these proceedings for a number of reasons. First, following the settlement by the British of the Swan River Colony and the assertion of the sovereignty of the British Crown over Western Australia, these claim areas were the subject of early intensive settlement and grants of a range of interests including freehold title. It is well understood that a historic grant of freehold title extinguished any native title rights that then existed in relation to the grant area. See Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58. As a result, in the various claim areas it is likely that there will be relatively little land available for claim under the NTA. This is recognised by most, if not all, of the claimants, and at least their advisors. 10 For that reason, most, if not all, of the claimants appreciate that it could be to their combined advantage to complete an early identification of just what land is actually available for claim under the NTA and then to consider approaching the State with a view to exploring constructive negotiations with the State as to settlements that might be made alternative to a determination that native title exists or does not exist. The dealings between the State and the claimants in relation to the single Noongar claim provide a significant example of what might possibly be achieved in this regard between relevant negotiating parties. See Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491 at [2]-[5]. 11 Secondly, if, as explained below, the claimant applications are not capable of resolution in this way, and must proceed to trial, then the tenure analysis will be important to the conduct of the trial. 12 Following the making of submissions by the parties about the most desirable way forward, I reserved my decision. I have decided that the various matters should proceed effectively in two stages. 13 The first would involve an early mediation between the contesting claimants in respect of current overlap areas with a view to resolving those disputes without delay. 14 If those disputes can be resolved without delay, then there may be some prospect of the claimants, as a group, considering alternative settlement proposals that they might wish to put to the State, in the hope that the State might review its current unwillingness to engage in such negotiations. 15 With a view to ensuring that the parties are able to consider their final positions with clarity as to what land actually is capable of being the subject of a positive native title determination, and also with a view to making clear just what land is the subject of claim should the various matters proceed to a trial, the tenure analysis which has been commenced should be completed. To that end it is appropriate that the parties explore, with the National Native Title Tribunal, at any early date, ways of providing clarity as to what lands, if any, are subject to claim in the various proceedings. 16 The orders that I will make provide for mediation to assist the parties in relation to what, if any, proposals might be explored with a view to achieving some alternative settlement of these claims. 17 There is no doubt that if, by one mechanism or another, the parties to these various proceedings can reach a sensible accommodation, alternative to a contested trial, much time and considerable expense, not to mention anguish, will be saved. There are many instances, quite apart from the single Noongar negotiations referred to above, where the State and native title parties in Western Australia have achieved important consent determinations and other resolutions relating to native title determination claims under the NTA without resort to a trial. 18 The orders I propose to make therefore provide an initial period in which the claimants will need to deal with whatever difficulties remain between them and then to explore the possibilities of reaching an alternative settlement with the State. 19 If that form of resolution to the proceedings cannot be achieved by early 2017, then the matters will necessarily have to proceed to a trial. In that regard, the orders I propose will also lay out a detailed timetable to trial. 20 The effect of these orders is that claimants will need to crystallise their positions and decide on how they wish to deal with each other, and the State, in a relatively short time period. These various matters have been outstanding for many years without any noticeable advancement of the principal issues, and the time has come for the claimants to take stock of their positions. 21 If, as noted, the various matters must proceed to trial, then the time for the commencement of that trial is sufficiently far off to enable the claimants to properly prepare for trial, including obtaining necessary funding, representation, expert witnesses and the like. 22 Because of the history of these matters, the claimants should not expect that there will be any deviation from the programming orders made, either by way of the first mediation and alternative settlement proposal period, or any subsequent trial program. 23 Because the orders comprehend that there will be a tenure analysis period in the next short while, hopefully with the assistance of the National Native Title Tribunal, the claimants should, if necessary, in accordance with the trial programming orders, be in a position to clarify exactly what areas will actually be claimed at any trial. 24 Similarly, for those reasons, the State should be in a position, at trial, to deal not only with questions of connection, but also, if necessary, soon thereafter, questions of extinguishment. 25 As a result, an initial proposal by the State that any trial should be limited to connection issues, and that the question of extinguishment should be left until later, including after any appeals, has not been fully adopted. 26 With those broad and generalised comments, the orders proposed are now made and will apply in the terms stated at the outset of these reasons. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

At a glance

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Judgment (109 paragraphs)

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Legislation Cited (1)

Cases Cited (3)