REASONS FOR JUDGMENT
1 On 11 October 2013 these various matters came on before me for directions: WAD124/2010; WAD2/2011; WAD357/2013; WAD359/2013 and WAD374/2013.
2 WAD359/2013 was listed for its first directions hearing, having recently been filed in the Court and not yet registered under the Native Title Act 1993 (Cth) (NT Act). However, as explained below senior counsel for the claimants explained the relevance of the new claimant application to the other matters in the directions list.
3 The Jabirr Jabirr claims included WAD124/2010, in respect of which leave was sought to discontinue and WAD357/2013, a new claim in respect of a similar area to the old claim.
4 Then there were the Goolarabooloo claims WAD2/2011, which also included an application for leave to discontinue, and a new claim in respect of a similar area, WAD374/2013.
5 Neither of the applications for leave to discontinue were opposed.
6 In the result, I made orders granting leave to discontinue in WAD124/2010 and WAD2/2011.
7 The result of orders in those terms means that the Jabirr Jabirr People now seek to maintain only one claim, the new claim WAD357/2013, filed 23 September 2013.
8 Similarly, the Goolarabooloo People seek only to maintain the one claim, the new claim WAD374/2013, filed 4 October 2013.
9 These two new claims overlap.
10 The Court has previously indicated to the claimants in each of the Jabirr Jabirr claims and the Goolarabooloo claims that, given the history of the proceedings and the contest between the parties as to which group holds native title over the areas claimed, the native title issue should go to a relatively early trial.
11 In that regard, the Kimberley Land Council, a representative body under the NT Act, generally acts for the Jabirr Jabirr People. In recent times the Goolarabooloo People's claim has been conducted on their behalf by private solicitors, Chalk & Fitzgerald. This firm has indicated on behalf of these claimants that funding has been an issue.
12 The contest between the Jabirr Jabirr People and the Goolarabooloo People has been well publicised in recent years in relation to proposals by the State of Western Australia to compulsorily acquire land in the vicinity of the claims for what was known as the James Price Point Gas Hub.
13 As a result of relatively recent decisions made in relation to proposed resource development, for which the gas hub was apparently required, it appears the urgency of the State's acquisition of such land is somewhat reduced, although it is not clear to the Court what the future holds in that regard.
14 Nonetheless, the Court has consistently indicated to the Jabirr Jabirr claimants and the Goolarabooloo claimants that the issues between them need to be resolved sooner rather than later. In that regard, the Court has indicated for some months and certainly since early 2013 that the competing claims to native title should go to a hearing in the dry season, about July 2014.
15 At the directions hearing on 11 October 2013, however, senior counsel, Mr Blowes SC, for the claimants in WAD359/2013 or Bindunbur (Area A) indicated to the Court that the Bindunbur (Area A) claim is expected to be expanded into area B and area C claims as well, if relevant approvals are subsequently given by affected claimants, creating in prospect a regional Bindunbur claim area. Broadly speaking these areas are adjacent to, to the east and north of, the Jabirr Jabirr and Goolarabooloo claim areas.
16 To that end, the Court also learned that an existing claim in the proposed area B, currently maintained by the Djabera-Djabera People (WAD6124/1998), has just been made the subject of a strike out application at the suit of the Kimberley Land Council.
17 The Court was further advised in relation to existing claims WAD68/2010 and WAD250/2012 on behalf of the Nyul-Nyul People, that meetings in October and November 2013 are planned to discuss the involvement of those claimant groups in the area C Bindunbur claim, which would otherwise overlap those existing claims.
18 Mr Blowes SC also indicated that in the view of the Bindunbur claimants, there were aspects of the existing Jabirr Jabirr claim and possibly the Goolarabooloo claim that were consonant with the proposed regional Bindunbur areas A, B and C claims. The Court was advised, for example, that at least 10 of the apical ancestors mentioned in the Jabirr Jabirr People claim are apical ancestors in the Bindunbur (Area A) claim.
19 It was also mentioned that anthropological work was about to be undertaken in relation to the ceremonial rites or interests enjoyed or shared in the broader of the Bindunbur claim areas as well as the area claimed by the Jabirr Jabirr People and the Goolarabooloo People.
20 Mr Blowes SC held out what can be described, at this point, as a prospect of there perhaps being a single regional claim covering the whole of the areas A, B and C of the Bindunbur claim as well as the areas currently claimed by the Jabirr Jabirr People and Goolarabooloo People.
21 Counsel for the Jabirr Jabirr People, Ms Lane, indicated to the Court that she was recently briefed in the matter and was unable to comment on the prospect of the Jabirr Jabirr People being involved in a single regional claim. She stressed, however, on behalf of these claimants that the time for preparation for a hearing on native title issues in July or, as suggested by the Court recently, in September 2014 presented real challenges.
22 Similarly, Mr Walkley, appearing for the Goolarabooloo People, expressed the view that the timing for a hearing on native title issues in 2014 presented a challenge, although he was pleased to report to the Court that steps were being advanced to provide for the funding of the Goolarabooloo People's claim.
23 Ms Taggart, counsel for the State of Western Australia, responded to the issues raised by reminding the Court that the Court had made it clear that it proposed there should be a trial of the competing claims of the Jabirr Jabirr People and the Goolarabooloo People for some time, especially having regard to the history of those proceedings. Ms Taggart made the point that if a 2014 trial was to occur then it was important that the Court made firm programming orders for a trial now.
24 Ms Taggart also noted that there would appear to be difficulties adopting some broader view along the lines of that proposed by Mr Blowes SC in relation to the Bindunbur claim area and proposed claim areas and the relationship of that recently lodged claim to the Jabirr Jabirr People's claim and the Goolarabooloo People's claim. She noted that proposed areas B and C have not yet been made the subject of claim and there is also the question of what, if anything, will happen on the strike out application in respect of the existing Djabera-Djabera claim, and whether the Nyul-Nyul Peoples' claims will, in effect, be incorporated into the proposed Bindunbur (Area B) claim. In that regard, Ms Taggart reasonably made the point that at this stage it is not clear to respondents exactly in what areas and in respect of what issues a future proceeding in respect of the proposed broader regional claim area might relate.
25 In all of those circumstances, the Court reserved its decision as to what programming orders ought to be put in place at this stage.
26 Having reflected on the various issues raised about programming at the directions hearing, the Court is presently of the view that the prospects of there being a broader regional Bindunbur claim that involves areas A, B and C should not lightly be dismissed. As to whether or not a regional claim involving those three areas, unaffected by the existing Djabera-Djabera claim and the existing Nyul-Nyul claims, is to be advanced will become clearer once the strike out application in respect of the Djabera-Djabera claim is resolved and planned meetings of the Nyul-Nyul occur in October and November 2013.
27 It is clear, therefore, that a Bindunbur regional claim will have its own life, one way or another. I should add, at this point, that Mr Blowes SC for the claimants in Bindunbur (Area A) provided an outline, supported by the affidavit of his instructor, that indicated anthropological work is now to be undertaken that would, in the result, enable, if necessary, a hearing on a broader regional claim or just the area A claim in the dry season of 2015.
28 The Court considers that a timetable that might, if necessary, result in a hearing in the dry season of 2015 in respect of the Bindunbur claim or claims is encouraging and would seek to case manage the existing, and future proceedings, if they come to pass, to that end.
29 The Court also considers it appropriate to delay the currently proposed hearing of the competing Jabirr Jabirr People claim and the Goolarabooloo People's claim from the dry season of 2014 to the dry season of 2015. The Court had lately been proposing that the hearing be in September 2014, but would now expect that the hearing would occur in about July 2015.
30 The Court is prepared to delay, in that sense, the conduct of a hearing in respect of these competing claims so that the prospect held out by Mr Blowes SC, that both the Jabirr Jabirr People and the Goolarabooloo People might consider the relationship of their claim to the Bindunbur claim or claims, can be further explored.
31 It is by no means clear, at this stage, whether the Jabirr Jabirr People or the Goolarabooloo People might, in effect, become claimants to a broader regional claim. The Court expresses no views in that regard but notes the observations made by Mr Blowes SC about those possibilities at the directions hearing.
32 But the Court does consider that the prospects or issues raised by Mr Blowes SC should be the subject of appropriate consideration, discussion and decision by the relevant claimants in the Jabirr Jabirr People's claim and the Goolarabooloo People's claim.
33 For those reasons, the Court will set the competing claims in WAD357/2013 and WAD374/2013 for hearing on native title issues (but not extinguishment) in the dry season, July 2015.
34 The Court will also set the hearing for WAD359/2013, the Bindunbur (Area A) claim, together with the area B or area C claims of the Bindunbur should they be filed, or together with the Djabera-Djabera and the Nyul-Nyul claims if they should be continued, for hearing in the dry season, July 2015, at a date to be set by the Court following further case management.
35 Should, by some process, the Jabirr Jabirr People's claim and the Goolarabooloo People's claim and the Bindunbur People's claim or claims be the subject of proposals that would see them run together at the one hearing, then appropriate further programming orders can be made at the appropriate time.
36 The point ultimately is this. If there is to be a single, regional claim made that includes the Bindunbur, the Jabirr Jabirr and the Goolarabooloo Peoples' claims, then it is expected that it will go to hearing, if not otherwise resolved, in the dry season, July 2015.
37 If, however, the Jabirr Jabirr and the Goolarabooloo Peoples' claims are not to be effectively incorporated in a single regional claim, but are separately maintained and remain in contest between those two claimant groups, then the competing Jabirr Jabirr and Goolarabooloo Peoples' claims will go to trial in any event in July 2015.
38 I now will refer these matters to case management before a Registrar so that a final program can be settled leading up to a dry season, July 2015, hearing.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.