Sturt on behalf of the Jaru People v State of Western Australia

Federal Court of Australia|2021-03-12|Before: Mortimer J

Solicitor for the Applicants in WAD42/2019: Ms Justine Toohey of the Kimberley Land Council

Solicitor for the State of Western Australia in WAD42/2019: Ms Sheila Begg of the State Solicitor's Office

Counsel for the WAD65/2019 Applicants: Ms Marina Georgiou

Solicitor for the State of Western Australia in WAD401/2018, WAD536/2018, WAD65/2019: Ms Sheila Begg of the State Solicitor's Office

Solicitor for the Applicants in WAD41/2019, WAD569/2019: Ms Justine Toohey of the Kimberley Land Council

Solicitor for the State of Western Australia in WAD41/2019, WAD569/2019: Ms Sheila Begg of the State Solicitor's Office

Counsel for the Indigenous Land and Sea Corporation in WAD41/2019, WAD569/2019: Mr David Yarrow

Solicitor for the Applicants in WAD11/2021: Mr Charles Wantrup of Wantrup & Associates

Solicitor for the State of Western Australia in WAD11/2021: Ms Sheila Begg of the State Solicitor's Office

Solicitor for the Applicants in WAD45/2019: Ms Justine Toohey of the Kimberley Land Council Mr Paul Sheiner of Roe Legal Services

Solicitor for the State of Western Australia in WAD45/2019: Ms Sheila Begg of the State Solicitor's Office

WAD 42 of 2019 BETWEEN: BARBARA STURT, BONNIE EDWARDS, KIMBERLEY BAIRD, MAY BUTCHER, DEBORAH SKEEN KEDDIE, PETER WEIN, DESMOND JOHNSON, LESLIE WHIPPY, TIMMY CRANBELL, BARBARA COX, DEBORAH GORDON, ROSS JAMES, GEORGIA YEEDA, NEENYA TESLING, ROGER STURT AND EDWARD SMITH Applicant AND: STATE OF WESTERN AUSTRALIA, YOUGAWALLA PTY LTD, S. KIDMAN & CO PTY LTD, YEEDA PASTORAL COMPANY PTY LTD, THE NICHOLSON GRAZING COMPANY PTY LTD, KEVIN STEPHEN BROCKHURST, SHIRE OF HALLS CREEK, SOPHIE DOWNS STATION PTY LTD, VICDON HOLDINGS PTY LTD, HEYTESBURY PASTORAL PTY LTD Respondents WAD 401 of 2018 BETWEEN: SHIRLEY DRILL, BERNARD STRETCH, CHERYLENE NOCKETTA, JEREMY MCGINTY, PAMELA ALBERTS, ROBERTA DAYLIGHT, LORRAINE DAYLIGHT, CHRISTINE FARRER, QUEENIE MALGIL Applicant

AND: STATE OF WESTERN AUSTRALIA Respondent

WAD 536 of 2018 BETWEEN: SHIRLEY DRILL, BERNARD STRETCH, QUEENIE MALGIL, PAMELA ALBERTS, TIMOTHY MOSQUITO, JUDITH BUTTERS, SOPHIA MUNG, BENJAMIN CROSS, ROBERTA DAYLIGHT, LORRAINE DAYLIGHT, CHRISTINE FARRER, CHERYLENE NOCKETTA, DARREN GORE, CORAL GORE-BIRCH, JEREMY MCGINTY Applicant

AND: STATE OF WESTERN AUSTRALIA, N E DAHL, YEEDA PASTORAL COMPANY PTY LTD, MONA PHILLIPS, BONNIE EDWARDS, LILY BANKS, TANBA BANKS, SHIRE OF HALLS CREEK, TELSTRA CORPORATION LIMITED Respondents

WAD 65 of 2019 BETWEEN: BONNIE EDWARDS, TANBA BANKS, LILY BANKS, DOUGLAS LANNIGAN Applicant AND: STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK Respondents WAD 41 of 2019 BETWEEN: JOSEPHINE FARRER, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS, MARK BIN BAKAR AND GREGORY DONALD TAIT Applicant

AND: STATE OF WESTERN AUSTRALIA First Respondent

TELSTRA CORPORATION LIMITED Second Respondent

SHIRE OF HALLS CREEK Third Respondent WAD 569 of 2019 BETWEEN: JOSEPHINE FARRER, GREGORY DONALD TAIT, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS AND MARK BIN BAKAR Applicant

AND: STATE OF WESTERN AUSTRALIA Respondent WAD 11 of 2021 BETWEEN: MARK BIN BAKAR, MATT DAWSON, JOSEPHINE FARRER, MARTIN STEVENS, GREGORY DONALD TAIT AND PHYLLIS WALLABY Applicant

AND: STATE OF WESTERN AUSTRALIA Respondent

WAD 45 of 2019 BETWEEN: SCOTTY BIRRELL, KIMMY BOOMER, PACKER BROCKMAN, MAY BUTCHER, JACK JUGARI, NANCY LEE, PAULINE MANNING, FRANK SAMPI AND EDNA SKEEN Applicant

AND: STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK AND TELSTRA CORPORATION LIMITED Respondent

order made by: MORTIMER J DATE OF ORDER: 12 march 2021

IN BOTH WAD45/2019 AND WAD11/2021 THE COURT ORDERS THAT:

Proceeding WAD45/2019 Scotty Birrell & Ors on behalf of the Koongie-Elvire Native Title Claim Group and State of Western Australia & Ors (Koongie-Elvire) be case managed together with proceeding WAD11/2021 Gregory Donald Tait & Ors on behalf of the Ngarrawanji #3 Yarlil Native Title Claim Group and State of Western Australia (Ngarrawanji #3).
The Kimberley Land Council is to provide copies of all relevant anthropological materials held by the Kimberley Land Council relating to the area of: (a) the Koongie-Elvire claim, including the Anthropological Report for the Jaru WAD45/2012 and Koongie-Elvire WAD6157/1998 Native Title Claims by Dr Anthony Redmond dated 25/04/2017, Volumes 1 - 3; and (b) material relating to the area of the Ngarrawanji #3 claim, to the new legal representative for the Koongie-Elvire applicant and the legal representative for Ngarrawanji #3 applicant.
The Kimberley Land Council is to provide the material referred to in order 2 (a) and (b) above to any expert appointed by the Court.
Both Koongie-Elvire and Ngarrawanji #3 be placed in joint mediation and case management before Judicial Registrar McGregor.
Any parties joined to Ngarrawanji #3 pursuant to s 84(3) of the Native Title Act 1993 (Cth) have leave to apply to the Court by interlocutory application supported by affidavit material for the variation or discharge of any or all of orders 1-4 above. IN WAD45/2019 THE COURT ORDERS THAT:
On or before 16 April 2021, the applicant in WAD45/2019 Koongie-Elvire advise the Court of any new legal representative it has retained.
By 16 April 2021 the present and proposed replacement legal representatives take all necessary steps to regularise their appearances on the Court record. IN WAD45/2019 THE COURT DIRECTS THAT:
Judicial Registrar McGregor provide to the legal representative for the applicant in WAD11/2021 Ngarrawanji #3, copies of: (a) Mediation Report to the Court dated 24 June 2019; (b) Conference of Experts Report dated 12 December 2019; and (c) Mediation Report to the Court dated 5 February 2021.

IN WAD536/2018, WAD401/2018 AND WAD65/2019 THE COURT ORDERS THAT:

The parties will undertake steps in accordance with the Workplan at Attachment A to these orders (Workplan), as modified from time to time by the Court or Judicial Registrar McGregor.
Judicial Registrar McGregor is to supervise the progress of the parties in relation to the steps required under the Workplan as the Registrar sees fit from time to time, including by holding a monthly case management hearing with the Applicant and the State (and, if the Registrar considers it appropriate, any other parties) commencing on a date to be fixed in April 2021.
The proceeding be listed for a further case management hearing in early May 2021, at a location and on a date to be advised to the parties.
At least three working days prior to the case management hearing referred to in order 3, the Applicant file and serve a report identifying progress under the Workplan.

IN WAD569/2019 AND WAD41/2019 THE COURT NOTES THAT:

The purpose of the mediation is to consider: (a) the procedural steps to be taken to establish a prescribed body corporate and identify any issues which will affect the procedural steps from being effectively taken; and (b) procedural steps for valid and effective native title decision making of common law holders for the Ngarrawanji determination area.
The mediation may not occur until late June 2021 because of competing commitments in the East Kimberley region which mean that Kimberley Land Council staff are not available to organise and facilitate participation of members of the claim group in the mediation until after 11 June 2021.

IN WAD569/2019 AND WAD41/2019 THE COURT ORDERS THAT:

The matter be referred to Judicial Registrar McGregor for mediation on a date prior to 25 June 2021.
Judicial Registrar McGregor report to the Court on the outcome of the mediation within 10 working days of its conclusion.
The matter be listed for further case management hearing on a date to be fixed following the mediation.
The Applicant and the Kimberley Land Council to take steps to convene a meeting of Ngarrawanji native title holders on a date prior to 27 August 2021.
The date for compliance with order 3 of the orders of Justice Mortimer made 8 July 2020 be varied to 17 September 2021.
The Legal Representatives for the Applicant and the Kimberley Land Council to provide a copy of these orders to all members of the Ngarrawanji native title holding group the Kimberley Land Council holds contact details for.

IN WAD569/2019 AND WAD41/2019 THE COURT DIRECTS THAT:

The participants in the mediation shall include any individual member of the Ngarrawanji native title holding group who attended the case management hearing on 3 March 2021, as well as the legal representatives and instructors if required for the Applicant, the First Respondent, the Indigenous Land and Sea Council and the Kimberley Land Council.
Any other individual member of the Ngarrawanji native title holding group who did not attend the case management hearing on 3 March 2021 but who wishes to participate in the mediation may seek leave of the Court to participate.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 In the week commencing 1 March 2021, the Court held a series of case management hearings for native title proceedings in the East Kimberley. One of the purposes of these hearings was to enable the Court to listen directly to the concerns of claim group members and native title holders in several proceedings. The Court had intended to travel to Halls Creek and hold the hearings in person, but the COVID-19 restrictions imposed by the Western Australian government on Victorians meant this was not possible. 2 The Court had to hold the hearings over Microsoft Teams, with the assistance of the Kimberley Land Council in relation to setting up rooms for claim group members and native title holders in Halls Creek and Kununurra. The court expresses its gratitude to the Kimberley Land Council for this assistance. In addition, many people joined by telephone or video from other locations. 3 The Court thanks all claim group members and native title holders for their participation; it was valuable for the Court to have a chance to engage directly with claim group members and native title holders. 4 Many people are involved on more than one claim or proceeding. The purpose of these reasons is to explain the orders made in each proceeding, so that everyone involved can understand the plans from this point onwards, and only has to look at one document for all of the proceedings.

Jaru 5 The Court made a determination of native title in the Jaru claim in December 2018. The native title holders were given a year after that date to nominate a prescribed body corporate (PBC) to hold the native title for all the common law holders. No PBC was nominated, and a new timetable had to be made. That timetable says there has to be a claim group meeting by 2 April 2021, and all the PBC documents have to be filed with the Court by 30 April 2021. 6 On Tuesday 2 March 2021, the Kimberley Land Council lawyer for the Jaru applicant told the Court everything was on track to meet those deadlines. 7 If no PBC is nominated, the Jaru native title holders might end up in the same difficult situation that the Ngarrawanji #1 and #2 native title holders are in. The Court might also have to consider appointing the ILSC if the Jaru group cannot agree on the structure of a PBC.

Purnululu and Gajangana Jaru 8 On 22 October 2020 the Court handed down its decision on the dispute between the Purnululu and Gajangana Jaru claim groups over Purnululu National Park. That decision settled the arguments about who are the correct apical ancestors for the National Park (possibly aside from any additional Malgnin ancestors who might be identified), and also settled a dispute about which descendants from Fred Jalwarta held rights and interest in that area. 9 However, there remain a number of matters to be decided before a determination of native title can be made. The following issues need to be sorted out: (a) Is there anyone who has rights and interest as a Malgnin-identifying person in the north east area of the park? (b) Should there be one determination over both the National Park and the area to the north and west which is claimed only by the Purnululu applicant? Or should there be two separate determinations? (c) Should there only be one PBC covering both areas, or a PBC for each area? (d) Whichever choice is made, how should the PBC be structured for ordinary PBC decisions and how should native title decisions be made? (e) What is the correct and complete list of apical ancestors for both the National Park and the rest of the Purnululu claim area? There are also some "technical issues" about whether the determination can or should be by consent or by a decision of the Court, and the State needs to update its tenure searches before any determination can be drafted. There is also the wording of the determination, which needs to be agreed, or decided by the Court if there is no agreement. 10 At the case management hearing, the Court asked the lawyers for the parties to come up with a Workplan. They had discussions over several days and came up with a detailed Workplan which is attached to the orders the Court has made. The Workplan is in two forms - by topic, and chronological. There are a lot of steps to go through, with Judicial Registrar McGregor mediating along the way where the parties cannot agree. If necessary, the Court will step in and decide issues, but it is to be hoped that will not be necessary. 11 The end point is a determination of native title in approximately May 2022. That is still quite a long way off, but the Court intends to ensure the parties can stick to the Workplan and the timetable so there are no delays beyond this. 12 The Court will continue to have case management hearings to make sure the parties are sticking to the plan and the timetable. Some of these may involve claim group members if there is a wish for that to occur, and the Court agrees it is appropriate.

Ngarrawanji #1 and #2 13 The Court made orders recognising native title in Ngarrawanji #1 on 21 May 2019. Ngarrawanji #2 was determined on 8 July 2020. 14 Like in the Jaru determination, the Ngarrawanji applicant was given 12 months from May 2019 to nominate a PBC. 15 That date was not met. There was an authorisation meeting in Halls Creek in September 2020 but that was abandoned before it could start. Different people have different explanations for why this happened. What is clear is that there was, and there remains, a dispute about which people can rightfully be within the native title holding group, and which people cannot. 16 There was no sign that a PBC was likely to be nominated because of the conflicts in the group. So the Court asked Judicial Registrar McGregor to contact the Indigenous Land and Sea Corporation (ILSC) to give the Court an affidavit about whether the ILSC could be nominated under the Native Title Act 1993 (Cth), as the PBC. Everyone accepts, including the ISLC, that the law gives the ILSC this job - to be a PBC where native title holders do not nominate one themselves. But in the 10 years since it has had this job, the ILSC has never been appointed as a PBC. 17 The Court held a case management hearing on 16 February 2021. Some of the members of the Ngarrawanji #1 and #2 applicant spoke at that hearing. The ILSC briefed a barrister to appear and he spoke on behalf of the ILSC. He told the Court the ILSC felt it needed more time to prepare to perform its role as a PBC, but it was willing to do so if the Court decided that was what should happen. 18 At the case management hearing last week, the Court outlined some options: (1) The members of the applicant can nominate a PBC in accordance with the Native Title Act and the regulations, as a PBC approved at an authorisation meeting to which all Ngarrawanji native title holders are invited, and can do this within a reasonable time - in the Court's view not more than 6 months from now. (2) If that cannot happen, then the Court will then be obliged to act if the applicant cannot. The Court cannot stand by while the native title is "in limbo", and cannot be exercised by the native title holders. There are two options available to the Court: (a) First, the Court could appoint the ILSC. The ILSC has told the Court it sees its role as a short term one, to act as a PBC while helping the native title holders to form their own PBC. (b) Second, the Court could do what s 57(2)(c) of the Native Title Act says should happen where no PBC has been nominated, and make a decision that because there is no PBC all the native title holders hold the native title communally. That would be unworkable in terms of how the whole group could ever exercise native title rights, make ILUAs or benefit at all from their native title. But the Native Title Act provides for that to be the fall-back position. The Native Title Act does not say people can go on and on after a determination without a PBC and without the Court making some alternative arrangement. 19 At the case management hearing, the Court heard from a number of native title holders about whether the ILSC should be appointed, and how it was best to solve the dispute about which people are inside and outside the native title holding group. 20 There was a suggestion that it would be helpful for the native title holders to have a meeting with Dr Redmond. The Kimberley Land Council told the Court Dr Redmond is not available to come to the East Kimberley until June 2021. 21 It is important to understand that the Ngarrawanji native title is held communally - that is, by all descendants of the apical ancestors in the Ngarrawanji determination, as a single group. The apical ancestors have already been identified in the two determinations made by the Court. 22 Therefore, the only issues which can be sorted with Dr Redmond's help are which people are descended from these apical ancestors. If the group itself cannot agree on who those people are, then it may be that the Court has to sort that out by a binding decision, so that a workable PBC can be established. That would be a sad day if the group could not agree on some ground rules for PBC membership, and the Court had to step in at this late stage. 23 To help avoid that situation, the orders which have been made will give the parties, and especially the native title holders who want to be actively involved, a chance for further mediation with Judicial Registrar McGregor. That is because it is clear the real problem in getting a PBC established is because of disputes amongst the group. The Court has specifically directed that any individual member of the Ngarrawanji native title holding group who attended the case management hearing on 3 March 2021 can attend the mediation. Those are the people who showed interest in the matter, and who took the time to attend and participate in the hearing. If other individuals want to attend any mediation, they will have to seek permission of the Court separately. 24 The mediation may not happen until June 2021 because of limits on the funding available to the Kimberley Land Council to support native title holders participating in the mediation (and also using the services of Dr Redmond). 25 The Court has set a deadline for a meeting of native title holders to decide on a PBC. That deadline is 27 August 2021. 26 The Court has also set a deadline for the nomination of a PBC. That deadline is 17 September 2021. If the native title holders have not nominated a PBC by that date, it is likely the Court will appoint the ILSC. 27 Further, if it is clear from Judicial Registrar McGregor's reports back to the Court prior to 17 September 2021 that the dispute continues and no agreed outcome is likely, the Court may decide to appoint the ILSC at an earlier date. 28 This process is the last chance for the Ngarrawanji #1 and #2 native title holders to come up with a solution themselves which includes, and which will be on behalf of, all people descended from the apical ancestors in the two consent determinations.

Koongie-Elvire and Ngarrawanji #3 29 The Koongie-Elvire claim is over 20 years old. There is a written proposed consent determination prepared by the State, and that has existed for some time. Again, it seems that what is stopping people getting their native title recognised and being able to exercise it are differences within the group itself. 30 Until the case management hearing, it seemed there were two sides - a Wawarl Jaru identifying group, and a Kija/Lunga identifying group who had the support of a Nyinin Jaru identifying group. As people spoke at the case management hearing, it became apparent that the Nyinin Jaru identifying people might really see themselves as separate from the Kija/Lunga identifying group. 31 At the request of group members, the Court had organised for Dr Rumsey to assist the Court by participating in a conference of experts, and to engage with the details of Dr Redmond's expert opinions. In the process of preparation for this, Dr Rumsey did meet with some claim group members in the East Kimberley. The State contributed to the costs of this process. However, there is still no agreed outcome. 32 It became clear through the mediation report to the Court, and from what people said at the case management hearing, that not only is the group divided, but the fact there is now a new claim over Halls Creek - called Ngarrawanji #3 - has not helped agreement being reached on the Koongie-Elvire claim. That is because the Jaru identifying people feel they have been left out of the Ngarrawanji #3 claim, even though they say that claim area includes their country, at least in part. 33 Ms Toohey, the Principal Legal Officer at the Kimberley Land Council remains on the record as the solicitor for the Koongie-Elvire applicant. However, she fairly and candidly acknowledged that she was not being given any current instructions by the people who make up the applicant. The general views expressed at the case management hearing were that many people were not happy with the Kimberley Land Council. The Court takes no sides on that issue, but is just recording the views it heard. 34 A major suggestion from almost everyone the Court heard from was that somehow the different groups needed to get advice from different lawyers, ones they felt confident with. 35 There was also a general view expressed that a new anthropologist might help people reach agreement, as people felt the anthropologists who had been more recently assisting had fixed ideas and views. 36 However, it is clear there are real problems in getting funding for any more anthropological work. The Court suggested more use could be made of Kimberley Land Council employed anthropologists, and Ms Toohey agreed. A further suggestion by the State was that Dr Levitus may be able to assist, in a supervisory role over the Kimberley Land Council anthropologists, as he has a long history in this region. Ms Toohey agreed this might be possible, if funding was agreed, perhaps also with some input from Dr Redmond. She agreed that using Kimberley Land Council anthropologists would be much more cost effective. The Court considers this is an important point to consider for the future steps in this claim. 37 The present Ngarrawanji #3 applicant is represented by Mr Charles Wantrup. Mr Wantrup attended some of the case management hearings by video, and sought to assist the Court, for which the Court is grateful. Presently, the claim group description on Ngarrawanji #3 appears to be dominated by Lunga/Kija identifying people. 38 Mr Paul Sheiner appeared with the leave of the Court, to assist those in the Koongie-Elvire group who were Wawarl Jaru identifying. 39 The Koongie-Elvire claim area and the Ngarrawanji #3 claim area are next to each other. The Court's view is that while there might be differences between the claims, and while it is true that Ngarrawanji #3 is a new claim not yet out of the notification period, it is efficient for the Court to manage them together. Many of the same people are involved, or will be involved, because from what people said at the case management hearing, Wawarl Jaru people are also likely to claim interests in at least some of the Ngarrawanji #3 claim area, and they will end up as respondents if there is no change to the claim group description. In other words, one way or another, their interests in the Ngarrawanji #3 claim area will have to be considered. 40 Therefore, the Court has decided to manage these two claims together. The Court heard and understood the strong view expressed by people that Koongie-Elvire is an old claim and needs to be determined. The Court agrees, but the problem is the disputes in the group. So, it is hoped that if the two claims are managed together and different sides of the group feel they have different lawyers they can speak to, this might help. 41 Quite properly, Mr Sheiner asked for some time to see if he received instructions from the Koongie-Elvire applicant as a whole, and also to consider whether, if he ends up acting for any Wawarl Jaru respondents in the Ngarrawanji #3 claim, this poses any kind of conflict of interest for him and his firm. That is a proper matter for him to have some time to consider. There will also need to be funding applications to the Kimberley Land Council for legal representation. However this new case management structure may assist the Kimberley Land Council in considering funding applications, especially when the obligations in s 203BC(3) of the Native Title Act are taken into account - the need for streamlining of processes to make them cost-effective. 42 The Court gave the lawyers some time to discuss what programming orders should be made. Orders have been made which: (a) make sure all the new lawyers (and therefore also claim group members) have access to any anthropological work for the Koongie-Elvire claim; (b) give a month or so for any changes to legal representation in the Koongie-Elvire claim; and (c) allow Judicial Registrar McGregor to continue discussing in a confidential mediation process what is the best way to move both claims towards consent determinations, whether they should be moved together or separately, whether the claims should be divided into parts or kept as a whole, and what is the best way to ensure that a workable PBC can be nominated at the same time as the consent determination is to be made.

Conclusion 43 In all three sets of proceedings, the main sticking points are disputes between members of the claim groups, or native title holding groups. The State of Western Australia has been proactive and cooperative in trying to assist groups to secure determinations. There are no real obstacles from the State, but quite properly the State wants to be sure the right people are being identified as native title holders and that everyone who should be included is included. 44 The Kimberley Land Council has attempted to assist in a number of ways, but it is clear that many people in the East Kimberley are frustrated with the Kimberley Land Council's role in native title applications. Again, the Court accepts those frustrations exist, but reminds people it is not its job to take sides about that issue. The challenges the Kimberley Land Council faces with its native title funding are real obstacles, and the annual funding cycles from the Commonwealth are responsible at least in part for the delays and restrictions on funding. To change that requires political action, not legal action. 45 The tragedy of elders passing away before determinations are made was brought home to everyone last week during the case management hearings as communities lost yet another elder whose evidence had been very important in past court hearings. 46 Getting final outcomes in these claims is largely in the hands of the First Nations peoples involved. Lawyers can advise, but it is the people themselves who will need to negotiate and compromise. No-one is likely to get exactly what they want. The Court will not hesitate to step in and decide issues in these old and delayed cases if the groups cannot do so after a reasonable time. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate: Dated: 12 March 2021 Federal Court of Australia District Registry: Western Australia Division: General No: WAD536/2018 WAD401/2018 WAD65/2019

SHIRLEY DRILL & ORS ON BEHALF OF THE PURNULULU NATIVE TITLE CLAIM GROUP Applicant SHIRLEY DRILL & ORS ON BEHALF OF THE PURNULULU #2 NATIVE TITLE CLAIM GROUP Applicant BONNIE EDWARDS & ORS ON BEHALF OF THE GAJANGANA JARU NATIVE TITLE CLAIM GROUP Applicant STATE OF WESTERN AUSTRALIA & ORS Respondents ATTACHMENT A Federal Court of Australia District Registry: Western Australia Division: Division: General No: WAD536/2018 WAD401/2018 WAD65/2019

TIMETABLE FOR PROGRESSING TOWARDS DETERMINATION - CHRONOLOGICAL ORDER Dated 8 March 2021

Key • GJA is a reference to Gajangana Jaru Applicant • PA is a reference to Purnululu Applicant • SWA is a reference to the State of Western Australia, First Respondent Issues A. Apical Ancestors B. Technical issues regarding the nature of the claims and the determination to be made C. Malngin D. Prescribed Body Corporate (PBC) E. Determination No. Issue Event Party Due date Status/comment 1 A Gajangana Jaru (GJA) to provide a response to the Purnululu Applicant's (PA) draft list of apical ancestors to the First Respondent (SWA) and PA (with the proviso that the ultimate list of apical ancestors will be determined by the form of the determination). GJA 24 March 2021 2 A Mediation to be scheduled if parties cannot reach an agreed position on the draft list of apical ancestors, subject to the proviso regarding the form of the determination. All parties Mediation by 31 March 2021 Note: GJA unavailable for mediation on 29, 30 and 31 March 2021. 3 B The parties to exchange positions on whether the matter can progress to be determined by consent determination or by determination. All parties 31 March 2021 4 E The State to amend the draft minute of consent determination previously prepared in the Purnululu proceedings and send to the parties. State 31 March 2021 5 C PA to provide evidence document regarding Malngin interests in the PDA and position as to whether further research is required. PA 1 April 2021 6 B The PA and the GJA exchange, with each other and the SWA, their positions on whether their respective Form 1s need to be amended (see paragraph [8] of the SWA's issues to be resolved prior to determination dated 26 February 2021) in order for a determination to be made in any of the proceedings before the Court. All parties 9 April 2021 7 B The parties report to Judicial Registrar McGregor if they are in agreement regarding their positions on the technical issues. All parties Report to Court by 16 April 2021 8 B OR if the parties are not in agreement, the matter to be listed for mediation. All parties Mediation by 22 April 2021 Note: GJA unavailable for mediation on 23 April 2021. 9 B Mediator report to the court on the mediation regarding technical issues. Judicial Registrar By 29 April 2021 10 B Judicial Case Management Hearing to be scheduled if parties are not in agreement regarding technical issues. All parties After 29 April 2021 Note: GJA unavailable for Case Management Hearing on 7, 4 and 11 May 2021. 11 D The PA and the GJA confer to map out how to proceed with options for a PBC. PA By 30 April 2021 GJA 12 C SWA and GJA to respond to the PA's document on Malngin evidence and put forward their position as to whether further research is required. SWA and GJA 3 May 2021 13 D Depending on the outcomes of the conferral regarding the PBC by 30 April 2021, the PA and the GJA exchange options or considerations regarding the PBC. PA 10 May 2021 GJA 14 C The parties to report to Judicial Registrar McGregor if they are in agreement regarding their position on Malngin rights and interests and/or necessity to brief an expert. All parties Report to Court by 12 May 2021 15 D PA and GJA to provide a position paper to Judicial Registrar McGregor and SWA identifying each party's position regarding: PA By 13 May 2021 Note: Position paper to be provided prior to PBC issue mediation to be scheduled. • The structure of the PBC; GJA • Decision-making for operational decisions of the PBC; and Native title decision making processes for the holders of native title represented by the PBC. 16 D The parties attend mediation regarding options for a PBC (acknowledging that this may depend on the form of the determination). All parties By 17 May 2021 Note: GJA unavailable for mediation on 7, 11 and 14 May 2021. 17 C OR mediation to be scheduled if parties cannot reach an agreed position on Malngin rights and interests to be recognised in the PDA and/or necessity to brief a single expert. All parties Mediation by 21 May 2021 18 C Mediator report to the court on the mediation regarding Malngin issue. Judicial Registrar By 28 May 2021 19 C Judicial Case Management Hearing to be scheduled if parties are not in agreement regarding how to address Malngin issue. Court After 28 May 2021 Note: GJA unavailable for mediation on 2 - 4, 7 - 30 June 2020. 20 C If an expert is possibly required to be briefed, the parties are to agree the content of a brief for an identified expert to consider outstanding questions regarding Malngin rights and interest in the PDA and prepare an expert report for the purposes of mediation. All parties 31 May 2021 21 C The parties to report to the court if: All parties By 31 May 2021 • there are no outstanding Malngin interests to be addressed; OR • if an expert is required to be briefed; OR • parties agree on description of rights holders to address Malngin interests. 22 E The parties exchange positions on the form of a determination to be made, including any draft determination document/s. All parties 1 June 2021 Note: timing to allow for GJA to obtain instructions on the form of the determination 23 D The PA to provide to the other parties a draft PBC Rule Book and any other draft ancillary document for a PBC. PA Week of 4 June 2021 Note: This will have to accommodate Malngin interests provisionally. 24 E If agreement is reached between the parties on the form of a draft determination, a draft form of determination be provided to the Court. All parties 28 June 2021 25 E OR Mediation to be scheduled if parties cannot reach an agreed position regarding the form of determination. All parties By 2 July 2021 Mediation Note: GJA unavailable for mediation between 1-2 July 2021. 26 D The GJA to provide to the other parties its response to the PA's draft PBC Rule Book and any other draft ancillary document for a PBC. GJA Week of 19 July 2021 27 C Expert report, in summary form, on Malngin interests in the PDA be provided to the Parties and/or Party briefing the expert if expert is not jointly briefed. Expert 27 July 2021 28 C If expert is not jointly briefed, expert report to be provided to active parties. Briefing party (if necessary) 3 August 2021 29 C The parties confer regarding the expert opinion on Malngin rights and interests in the PDA. All parties 11 10 August 2021 30 D The SWA to provide to the parties its response to the drafts. SWA Week of 16 August 2021 31 C The parties to report to the court if there are no outstanding Malngin interests to be addressed All parties Report to court by 17 August 2021 32 E If the parties agree on the form of the determination, the parties provide a joint position to the court regarding the form of the determination, including: All parties 27 September 2021 • joint submissions; • the evidence; any other relevant material. 33 E OR if the parties do not have a joint position regarding the form of the determination, the matter be listed for a case management hearing before Justice Mortimer to consider how the issue can be resolved and whether the issue needs to be programmed for hearing or can be heard on the papers. PA After 27 September 2021 - on a date to be fixed by the Court Note: GJA unavailable for mediation between 20-30 September 2021 and 1-22 October 2021. GJA 34 C OR If parties cannot reach an agreed position on Malngin rights and interests, a case management hearing be scheduled before Justice Mortimer to consider how the parties submit the Malngin issue should be resolved. All parties CMH - on a date to be fixed by the Court between 17 September 2021 and 29 October 2021 Note: GJA unavailable for mediation between 20-30 September 2021 and 1-22 October 2021. 35 D Subject to the parties' responses and consultation with the relevant Applicant parties the parties to confer regarding the draft PBC Rule Book to attempt to narrow any outstanding issues regarding the PBC Rule Book. All parties By 4 October 2021 36 C If no agreement at time of CMH listing regarding the Malngin issue, the matter be listed for a separate question to be determined regarding the Malngin issue. All parties By 15 November 2021 37 D Consultation with GJA and PA claimant groups, including on-country meetings regarding draft PBC Rule Book. GJA and PA October-December 2021 38 D GJA and PA to exchange responses to the draft PBC Rule Book. GJA and PA By 6 December 2021 39 E SWA to circulate final draft of the determination and mapping to the parties. SWA 6 December 2021 Note: Timing of this step and proceeding steps will be dependent on outcome of any prior agreement, hearing and decision regarding this issue E. 40 D The parties to report to the Court if they have reached an agreed position regarding the PBC Rule book. All parties Report to Court by 13 December 2021 41 E Respondent parties to respond to final draft of the determination. All non-State respondent parties 20 December 2021 42 E In-principle draft of determination settled at legal representative level. All parties 31 January 2022 43 D Mediation to be scheduled if parties cannot reach an agreed position regarding the PBC Rule Book. All parties Mediation - on a date to be fixed by Judicial Registrar McGregor between 31 January and 18 February 2022 44 D Subject to resolution of the Determination issue (at E below), the parties to inform the Court of either their agreed position, or the individual positions regarding the structure of the PBC. All parties February 2022 [depending on timing for E below] 45 D If the parties are not agreed regarding the structure of the PBC, the matter be listed for a case management hearing before Justice Mortimer. All parties On a date to be fixed by the Court. 46 E All parties to consider approving or authorising the draft determination (dependent on consideration of form of determination question and whether the determination is to be made pursuant to s 87 or s 87A). All parties By 31 March 2022 Note: This will be dependent on the weather conditions for the Applicant parties Note: These dates are also dependent on ultimate outcome as to whether the determination to be made is by consent or otherwise. 47 E SWA to circulate, and all parties to confer in relation to, the final draft of the determination or consent determination. SWA By 31 March 2022 Respondent parties 48 E Applicants to advise as to whether the determination is intended to take place on-country and if it is, the location of the determination. PA By 31 March 2022 GJA 49 E Final determination circulated for execution (if a consent determination). All parties - circulated by SWA By 11 April 2022 50 E Filing of minute of determination and supporting documents filed. SWA By 18 April 2022 51 E Consent Determination or Determination Hearing. Court and relevant parties By 30 May 2022

Federal Court of Australia District Registry: Western Australia Division: Division: General No: WAD536/2018 WAD401/2018 WAD65/2019

TIMETABLE FOR PROGRESSING TOWARDS DETERMINATION - ISSUES BASED Dated 8 March 2021

Key • GJA is a reference to Gajangana Jaru Applicant • PA is a reference to Purnululu Applicant • SWA is a reference to the State of Western Australia, First Respondent No Event Party A. Apical Ancestors 1. Gajangana Jaru (GJA) to provide a response to the Purnululu Applicant's (PA) draft list of apical ancestors to the First Respondent (SWA) and PA (with the proviso that the ultimate list of apical ancestors will be determined by the form of the determination). GJA 2. Mediation to be scheduled if parties cannot reach an agreed position on the draft list of apical ancestors, subject to the proviso regarding the form of the determination. All parties B. Technical issues regarding the nature of the claims and the determination to be made 3. The parties to exchange positions on whether the matter can progress to be determined by consent determination or by determination. All parties 4. The PA and the GJA exchange, with each other and the SWA, their positions on whether their respective Form 1s need to be amended (see paragraph [8] of the SWA's issues to be resolved prior to determination dated 26 February 2021) in order for a determination to be made in any of the proceedings before the Court. All parties 5. The parties report to Judicial Registrar McGregor if they are in agreement regarding their positions on the technical issues. All parties 6. OR if the parties are not in agreement, the matter to be listed for mediation. All parties 7. Mediator report to the court on the mediation regarding technical issues. Judicial Registrar 8. Judicial Case Management Hearing to be scheduled if parties are not in agreement regarding technical issues. All parties C. Malngin 9. PA to provide evidence document regarding Malngin interests in the PDA and position as to whether further research is required. PA 1 April 2021 10. SWA and GJA to respond to the PA's document on Malngin evidence and put forward their position as to whether further research is required. SWA and GJA 3 May 2021 11. The parties to report to Judicial Registrar McGregor if they are in agreement regarding their position on Malngin rights and interests and/or necessity to brief an expert. All parties Report to Court by 12 May 2021 12. OR mediation to be scheduled if parties cannot reach an agreed position on Malngin rights and interests to be recognised in the PDA and/or necessity to brief a single expert. All parties Mediation by 21 May 2021 13. Mediator report to the court on the mediation regarding Malngin issue. Judicial Registrar By 28 May 2021 14. Judicial Case Management Hearing to be scheduled if parties are not in agreement regarding how to address Malngin issue. Court After 28 May 2021 15. If an expert is possibly required to be briefed, the parties are to agree the content of a brief for an identified expert to consider outstanding questions regarding Malngin rights and interest in the PDA and prepare an expert report for the purposes of mediation. All parties 31 May 2021 16. The parties to report to the court if: All parties By 31 May 2021 • there are no outstanding Malngin interests to be addressed OR • if an expert is required to be briefed; OR • parties agree on description of rights holders to address Malngin interests. 17. Expert report, in summary form, on Malngin interests in the PDA be provided to the Parties and/or Party briefing the expert if expert is not jointly briefed. Expert 27 July 2021 18. If expert is not jointly briefed, expert report to be provided to active parties. Briefing party (if necessary) 3 August 2021 19. The parties confer regarding the expert opinion on Malngin rights and interests in the PDA. All parties 10 August 2021 20. The parties to report to the court if there are no outstanding Malngin interests to be addressed All parties Report to court by 17 August 2021 21. OR If parties cannot reach an agreed position on Malngin rights and interests, a case management hearing be scheduled before Justice Mortimer to consider how the parties submit the Malngin issue should be resolved. All parties CMH - on a date to be fixed by the Court between 17 September 2021 and 29 October 2021 22. If no agreement at time of CMH listing regarding the Malngin issue, the matter be listed for a separate question to be determined regarding the Malngin issue. All parties By 15 November 2021 D. Prescribed Body Corporate (PBC) 23. The PA and the GJA confer to map out how to proceed with options for a PBC. PA By 30 April 2021 GJA 24. Depending on the outcomes of the conferral at [23], the PA and the GJA exchange options or considerations regarding the PBC. PA 10 May 2021 GJA 25. PA and GJA to provide a position paper to Judicial Registrar McGregor and SWA identifying each party's position regarding: PA By 13 May 2021 • The structure of the PBC; GJA • Decision-making for operational decisions of the PBC; and • Native title decision making processes for the holders of native title represented by the PBC. 26. The parties attend mediation regarding options for a PBC (acknowledging that this may depend on the form of the determination). All parties By 17 May 2021 27. The PA to provide to the other parties a draft PBC Rule Book and any other draft ancillary document for a PBC. PA Week of 4 June 2021 28. The GJA to provide to the other parties its response to the PA's draft PBC Rule Book and any other draft ancillary document for a PBC. GJA Week of 19 July 2021 29. The SWA to provide to the parties its response to the drafts. SWA Week of 16 August 2021 30. Subject to the parties' responses and consultation with the relevant Applicant parties the parties to confer regarding the draft PBC Rule Book to attempt to narrow any outstanding issues regarding the PBC Rule Book. All parties By 4 October 2021 31. Consultation with GJA and PA claimant groups, including on-country meetings regarding draft PBC Rule Book. GJA and PA October-December 2021 32. GJA and PA to exchange responses to the draft PBC Rule Book. GJA and PA By 6 December 2021 33. The parties to report to the Court if they have reached an agreed position regarding the PBC Rule book. All parties Report to Court by 13 December 2021 34. Mediation to be scheduled if parties cannot reach an agreed position regarding the PBC Rule Book. All parties Mediation - on a date to be fixed by Judicial Registrar McGregor between 31 January and 18 February 2022 35. Subject to resolution of the Determination issue (at E below), the parties to inform the Court of either their agreed position, or the individual positions regarding the structure of the PBC. All parties February 2022 [depending on timing for E below] 36. If the parties are not agreed regarding the structure of the PBC, the matter be listed for a case management hearing before Justice Mortimer. All parties On a date to be fixed by the Court. E. Determination 37. The State to amend the draft minute of consent determination previously prepared in the Purnululu proceedings and send to the parties. State 31 March 2021 38. The parties exchange positions on the form of a determination to be made, including any draft determination document/s. All parties 1 June 2021 39. If agreement is reached between the parties on the form of a draft determination, a draft form of determination be provided to the Court. All parties 28 June 2021 40. OR Mediation to be scheduled if parties cannot reach an agreed position regarding the form of determination. All parties By 2 July 2021 Mediation 41. If the parties agree on the form of the determination, the parties provide a joint position to the court regarding the form of the determination, including: All parties 27 September 2021 • joint submissions; • the evidence; • any other relevant material. 42. OR if the parties do not have a joint position regarding the form of the determination, the matter be listed for a case management hearing before Justice Mortimer to consider how the issue can be resolved and whether the issue needs to be programmed for hearing or can be heard on the papers. PA After 27 September 2021 - on a date to be fixed by the Court. GJA 43. SWA to circulate final draft of the determination and mapping to the parties. SWA 6 December 2021 44. Respondent parties to respond to final draft of the determination. All non-State respondent parties 20 December 2021 45. In-principle draft of determination settled at legal representative level. All parties 31 January 2022 46. All parties to consider approving or authorising the draft determination (dependent on consideration of form of determination question and whether the determination is to be made pursuant to s 87 or s 87A). All parties By 31 March 2022 47. SWA to circulate, and all parties to confer in relation to, the final draft of the determination or consent determination. SWA By 31 March 2022 Respondent parties 48. Applicants to advise as to whether the determination is intended to take place on-country and if it is, the location of the determination. PA By 31 March 2022 GJA 49. Final determination circulated for execution (if a consent determination). All parties - circulated by SWA By 11 April 2022 50. Filing of minute of determination and supporting documents filed. SWA By 18 April 2022 51. Consent Determination or Determination Hearing. Court and relevant parties By 30 May 2022

Native Title Act 1993(Cth)ss 57(2)(c), 84(3), 87, 87A

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Legislation Cited (1)

Cited By (1)