Wadi Wadi v State of Victoria

REASONS FOR JUDGMENT 1 The applicants have applied by motion for an order that, in effect, the mediation of their application not commence until at least 4 December 2001. 2 Section 86B(1) of the Native Title Act 1993 (Cth) (the Act) provides so far as is relevant: "… the Federal Court must refer every application under section 61 to the NNTT [National Native Title Tribunal] for mediation … as soon as practicable after the end of the period specified in the notice under section 66." 3 Notification in accordance with s 66 has been completed in this application. The parties have devoted considerable time, attention and preparation to this application and have sought to argue the matter by reference to the principles which they say govern such an application. 4 In the end, it seems to me important to keep in perspective that this is a small step in a much larger application. It is for that reason that I do not intend to traverse in detail the quite lengthy arguments and evidence that has been led. Of course, I do not in any way intend to imply criticism of the parties in approaching the matter as conscientiously and comprehensively as they have done. Nevertheless, as I see it, the matter can be resolved quite simply. 5 In essence, the applicants rely on two considerations for the relief they seek. 6 First, they say that it is inappropriate for the matter to be referred to mediation in the absence of any specified policy on the part of the State respondent concerning the nature of the evidence required to assess the issue of connection. 7 The second major consideration which the applicants raise is that the internal administrative arrangements of Mirimbiak Nations Aboriginal Corporation (Mirimbiak), acting on behalf of the applicants, means that the funding provided to Mirimbiak will not be sufficient to fund the commencement of a mediation prior to 4 December 2001. 8 In a partial response to these factors, the State respondent, in an argument adopted by the other respondents, contended that s 86B(1) of the Act does not give the Court any scope for refraining from referring the matter to mediation once the notification period provided for in s 66 of the Act is finished. 9 I do not accept such a limited view of the operation of s 86B(1). I see no reason to read the expression 'as soon as practicable' in any narrow sense. The ordinary meaning of those words can apply without a gloss such as suggested by the State respondent. The assessment of what is practicable is potentially a very wide investigation and it may, in appropriate circumstances, encompass consideration of matters such as the two major grounds upon which the applicants rely. Consequently, I propose to refer briefly to each of those grounds. 10 So far as the connection issue is concerned, one can easily understand the convenience for the applicants and, indeed, the other parties, in having some guidelines from the State respondent as to the connection evidence required by the State. 11 In the course of the hearing today this issue has been overtaken by a change in circumstances which was announced by Mr Hiley QC who appeared on behalf of the State of Victoria. Mr Hiley QC, indicated that although the State of Victoria does not accept any obligation to provide such a policy, nor does it accept that it is a practice adopted in all or some other states as a matter of obligation, nonetheless, a connection policy will be available on a confidential basis to the applicants in this case within four weeks. That change in circumstance seems to me to deal with the issue raised by that ground. 12 The second issue is more difficult. I have considerable sympathy for the difficulties of the representative body in so arranging its resources to advance all the work that falls to be considered by it. However, there is a limit to the degree to which the Court should become involved in an assessment of the ability of the representative body to manage its workload. 13 This view is held for several reasons. Firstly, the prioritising of work within the representative body is something entirely for that body's administrative processes. While an apparent difficulty might be put to the Court concerning the advancement of the particular case before the Court, there are likely to be administrative arrangements within the representative body - some degree of flexibility in other words - which would allow the rearrangement of its workload to accommodate the consequences of an order of the Court. 14 The second consideration is that the Court need not assume that the resourcing of representative bodies is necessarily fixed forever in the state presented to the Court. The Court is entitled to expect that the public funding of representative bodies will be undertaken to match the requirements of the orders of the Court. 15 Having said that, it would be open for me to conclude that, while the Court has a discretion to delay the reference to mediation, nonetheless, in the circumstances of this case the grounds upon which that deferral is sought might be seen not to make out a strong case. 16 However, there is another consideration which is important. As I mentioned to the parties in argument, it is a matter of history that native title litigation in Victoria have been conducted on a cooperative basis. This has been at the encouragement of the Court. The reason for this is that native title litigation is different from ordinary inter partes litigation. The strong adversarial tradition of inter partes litigation in the courts is not necessarily appropriate to every stage of native title litigation. In recognition of this factor, the parties have attempted this morning to narrow the differences between them on this issue. They have not been successful. It is appropriate, in my view, to reflect in an order of the Court the need for that cooperative approach to continue in the further conduct of this particular application. 17 Consequently, I propose to order that the application be referred to mediation under s 86B. However, I also propose to provide that this order shall not come into operation until 5 November 2001. This delay should not prejudice the State, and at the same time, should provide Mirimbiak with some breathing space in which to accommodate the pressures of work. The final protection for the applicants, in the event that they find their worst fears come to fruition, and the mediation is hampered - that is to say, the interests of the applicants are not adequately protected due to the pressure on the resources of the representative body - is that the applicants always have the opportunity to make representations to the mediator in the course of the mediation for a timetable which will address their requirements. If those submissions fall on deaf ears, they have ultimately the right to return to the Court to make application for the suspension of the mediation. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.