Wilkes v State of Western Australia

BETWEEN: ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

REASONS FOR JUDGMENT WILCOX J: 1 Amongst the native title applications that were transferred to the Court on 30 September 1998, pursuant to amendments to the Native Title Act 1993 (Cth) ('the Act') that took effect that day, were seven claimant applications relating to land, or land and waters, within or near the Perth metropolitan area. They were managed together and generally referred to as the 'Perth Metro claims'. 2 In due course, mediation having failed, Beaumont J took evidence from numerous witnesses in relation to those applications. Unfortunately, before the evidence was completed, his Honour was compelled to retire from the cases on account of ill health. They were assigned to me on the basis that the evidence already given would not be repeated; I would read and apply the evidence already given, along with such further evidence as any party might wish to adduce. 3 Before I had taken any additional evidence, I became aware that, on 21 May 2003, motions had been filed seeking orders striking out five of the applications, being those made by Christopher Robert Bodney (matters WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998). Section 84C(2) of the Act requires that a strike-out application be considered before any further proceedings take place. Accordingly, on 19 August 2003, I heard argument on the motions. On 25 August 2003, I made an order striking out all five applications: see Bodney v State of Western Australia [2003] FCA 890. 4 Shortly before the hearing of those motions, on 7 August 2003, Mr Bodney filed motions seeking orders striking out the other two Perth Metro claims (WAG 141 of 1998 and WAG 142 of 1998). These are native title applications brought, respectively, by Robert Charles Bropho on behalf of the Swan Valley Nyungah Community and by Richard Wilkes and others. I fixed these two strike-out motions for hearing yesterday, 8 October 2003. 5 However, before that date, a relevant new native title claim was filed. This was matter WAG 6006 of 2003, being a claim by Anthony Bennell and others on behalf of the Noongar people. The named applicants included all but one of the applicants in WAG 141 of 1998 and WAG 142 of 1998. This new application has been referred to as 'the single Noongar claim'. 6 The single Noongar claim covers a significant portion of Western Australia. Its northern boundary is a line running east from a position on the coast north of Jurien. The claimed area then runs south-east to a point on the Great Australian Bight near Esperance. Subject to internal exceptions, the claimed area takes in the whole of the south-west of the State and much, if not all, of the Western Australian wheatbelt. Importantly for present purposes, it includes the whole of the area covered by the Perth Metro claims, except that the single Noongar claim extends only three nautical miles off-shore, whereas WAG 142 of 1998 claims waters to the twelve nautical mile limit. 7 At a directions hearing on 1 October 2003, I was informed of a proposal to amend WAG 141 of 1998 and WAG 142 of 1998 in such a way as to combine them with the single Noongar claim. I directed that any application to that effect be filed and served not later than 6 October 2003 and be made returnable before me on 8 October 2003. Such an application was made. However, it sought to amend only WAG 142 of 1998, a decision having been taken by Mr Bropho to seek leave to discontinue matter WAG 141 of 1998. 8 When the motions came before me yesterday, it immediately became apparent that there was no opposition to the application for leave to discontinue WAG 141 of 1998, except by Mr Bodney. However, Mr Bodney was not able to show the discontinuance would prejudice him in any way. I granted leave. This left only WAG 142 of 1988, of the seven applications transferred to the Court on 30 September 1998. That matter was subject to a strike-out application by Mr Bodney which I then heard and dismissed. 9 I turn to the applicants' motion to amend WAG 142 of 1998. A companion motion was filed in the single Noongar claim, by solicitors acting for the South West Aboriginal Land and Sea Council ('SWALSC'). At the hearing of the motions, it became apparent there was no real opposition to the proposed amendments. The real issue was what should happen next. 10 Although the single Noongar claim has only recently been filed, it has been foreshadowed for some time. It seems there once were numerous claims over portions of the area now embraced by the single Noongar claim. There has been a gradual consolidation of claims, a process that is not yet complete. As recently as 2 October 2003, last week, French J made orders, in a number of matters, that were designed to further the process of consolidation. It is reasonable to expect that, within a month or so, there will be no overlap between the single Noongar claim and any other claim. 11 French J gave reasons for the orders made by him on 2 October 2003: see Anderson v State of Western Australia [2003] FCA 1058. In those reasons, he said (at paras 24 and 25): 'The South West region of Western Australia has been bedevilled for many years with intra-indigenous conflict which has effectively prevented meaningful progress in the mediation of native title determination applications in that area. It is too early to venture any opinion on whether the first single Noongar claim, which has now been filed, represents a break through in this regard. It does emerge from what appears to have been a serious attempt to provide a mechanism for the management of differing views and interests of the Aboriginal people of the South West. It would be expecting too much to suppose that it will satisfy all of them. It also presents an opportunity to give impetus to the development of a comprehensive resolution of native title issues in the South West of Western Australia. This does not involve any comment upon its merits as a native title determination application. In my opinion mediation and negotiation covering a range of options which might lead to resolution of native title determination applications in the area, including non-native title outcomes, could proceed but on a specific timetable with provision for: (a) an early application to the Court for combination of Wagyl Kaip and Southern Noongar with the first single Noongar claim: (b) the hearing of connexion evidence where such connexion evidence may have significance to the recognition of traditional associations with land or waters and/or may have a bearing upon the resolution of outstanding overlaps; (c) the referral by the [National Native Title Tribunal ('the Tribunal')] to the Court of matters of law or fact for determination; (d) consideration of the combination of existing claims into the single Noongar claim. I propose that the matters be brought back for review early in March 2004.'

12 French J made orders, in each of the matters then before him, that required the applicants in that matter and the State, in conjunction with the Tribunal, to prepare a detailed program for the negotiation and mediation of the combined applications. A program was to be lodged with the Court by 31 January 2004. The parties were directed to comply with the timetable set out in the program, subject to any variation by the Court. Plainly, French J intended to maintain tight control over the mediation process. 13 Counsel for the applicants in matter WAG 142 of 1998, Mr G McIntyre SC, and counsel for SWALSC, Mr M Rynne, submit it is unnecessary for me to do more than make the orders necessary for the combination of WAG 142 of 1998 with the single Noongar claim. They say it is sufficient to allow further pre-trial steps to be governed by the orders made by French J on 2 October 2003. 14 This view is disputed by counsel for some of the respondents: Mr G Ranson for the State of Western Australia, Mr A R Beech for the Commonwealth of Australia, Ms K White for the Western Australian Fishing Industry Council ('WAFIC') and Mr P Wittkuhn for various local government interests. These counsel express concern at the prospect of further prolonged delay in the Court determining whether native title exists over land and waters in and around Perth. They point out that the first application in respect of the Perth metropolitan area, the claim that became matter WAG 141 of 1998, was lodged as long ago as November 1994. They rightly say that prosecution of the claims has been attended with considerable delay and they contend that there is a substantial public interest in their early resolution. The respondents say that, if WAG 142 of 1998 becomes part of the vast single Noongar claim, without being subject to any special measures to ensure its early determination, then resolution may be postponed for years. 15 There is considerable force in the matters put by the respondents. It had been my intention to take evidence in relation to the Perth Metro claims during the next two weeks; that is, the weeks commencing 13 and 20 October 2003. The evidence would not necessarily have concluded within that period; but it would have been substantially complete. It should have then been possible to complete the hearing with little further delay. The filing of the single Noongar claim has made it impractical to take that course. Section 67(1) of the Act requires that, if two or more proceedings relate to the same area (in whole or in part), the Court must ensure they are dealt with in one proceeding. Given that the single Noongar claim has yet to be notified under s 66 of the Act, it cannot properly proceed to hearing during the next two weeks. 16 Although none of the respondents mentioned any particular problem that might be caused by delay in finalising the Perth Metro claims, they understandably feel frustrated and concerned about the delay occasioned by cancelling the projected hearing. I think they are right to suggest it is important that every effort be made to minimise further delay. However, this must be done in such a way as to be consistent with the scheme and policy of the Act, and to be fair to the single Noongar claimants. 17 Mediation is an integral element of the scheme embodied in the Act. It is generally true of any civil litigation that an outcome negotiated between, and accepted by, the parties, is preferable to one determined by a court. I believe this is particularly true of native title litigation, where the parties may have an ongoing relationship and there may be a need for day-to-day cooperation in implementing the litigation outcome. 18 The respondents submit there has already been ample opportunity for the parties to achieve a consensual outcome of the Perth Metro claims. They point to the extensive mediation already undertaken by the Tribunal in relation to those claims. The respondents, particularly the State, say there is no real prospect of an agreement regarding those claims. 19 I accept there has already been extensive mediation of the Perth Metro claims and that this has not resulted in agreement. I do not think it follows that there is no prospect of an agreement in relation to relevant aspects of the Perth section of the single Noongar claim. On 12 September 2003, Mr Ranson told French J that, despite the failure of previous mediations: 'The State's position is that it is prepared to once again consider, in the light of the single Noongar application, a further attempt at working towards a mediated resolution.' 20 Although Mr Ranson told me this did not apply to the Perth section claim, it is possible that the State will reconsider its position in that regard. The State might decide that re-consideration is warranted by at least two new factors. First, carriage of the claim will be transferred from people without resources and expert advice, and largely without legal assistance, to a funded representative body having access to continuing legal advice and assistance. Second, it seems probable there will be a radical change in the case the State has to meet. 21 No doubt because of their lack of resources and limited legal expertise, all the Perth Metro claimants concentrated their efforts on adducing a mass of personal and anecdotal evidence. Although no doubt relevant, this evidence arguably fails to address important issues presented by s 223 of the Act. Mr Rynne has said enough to demonstrate that SWALSC realises the need to do more than this. 22 As I understand SWALSC's position, it would seek to demonstrate that: (1) at the time of European settlement there was a community of Aboriginal people occupying a vast area in south-western Australia and known as Noongar; (2) the Noongar people acknowledged and observed a body of traditional law and custom under which people had rights and interests over particular land, or land and waters; (3) the traditional laws and customs continue to be acknowledged and observed by the single Noongar claimants, or at least some of them; and (4) pursuant to those laws and customs, at least some of the single Noongar claimants maintain a connection with particular land or land and waters in the claim area. 23 I have no idea whether it will possible for SWALSC to establish a case along those lines. However, it seems apparent that such a case would be very different to the case so far put against the State. 24 Having these matters in mind, and although I whole-heartedly agree that mediation should not be allowed to become a reason or excuse for extensive delay, it does seem desirable to allow a reasonable opportunity for a further mediation of the Perth section claim. I am sure that French J will ensure mediation does not become pointlessly protracted. 25 I cannot assume that negotiations about the Perth section claim will succeed. As of what date, therefore, is it reasonable to expect SWALSC to be ready to present its case at trial? Mr Rynne told me his client wishes to present independent expert evidence and has recently retained an anthropologist for this purpose. No doubt because of their lack of resources, none of the Perth Metro claimants had the benefit of an independent anthropologist's report. The anthropologist retained by SWALSC is now finalising a research program, but it must be some months before his report is available. I think he should be put under some pressure to provide his report as soon as possible, but nonetheless be given a reasonable opportunity to carry out his task. 26 I discussed with the parties the possibility of a hearing in about April 2004. I had in mind the desirability of setting aside four weeks for this purpose. However, on reflection, I think it might be a mistake to select April. I must bear in mind the need to allow time for the respondents to consider and, if they wish, reply to the anthropologist's report. In order to do this, it would seem preferable to fix a hearing date a little later, say about August or September. However, I am advised this is the Perth rainy period. Given there will be extensive on-country hearings, October might be a better time. I know October is later than the respondents would have wished, but I think it may be the best choice. A month or two is unlikely to be of critical importance. What is important is that the hearing be held in sufficient time to allow a determination of the Perth section claim before the end of 2004. 27 In matter WAG 142 of 1998, I propose to make the first five orders set out in the notice of motion dated 6 October 2003 and filed by the applicants in that matter. They are as follows: 1. The applicants be granted leave to amend Native Title Determination Application WAG 142 of 1998 pursuant to s 64 of the Native Title Act 1993 (Cth), so that it is combined with and included in Native Title Determination Application WAG 6006 of 2003. 2. The amended application be in the form of WAG 6006 of 2003 as filed on 10 September 2003 in accordance with the Minute of Proposed Amended Native Title Application attached to the affidavit of Albert Corunna dated 6 October 2003. 3. Both of these applications be now conducted as one application. 4. Application WAG 6006 of 2003 be the lead application. 5. Service of the Minute of Proposed Amended Native Title Application be dispensed with. I add the following orders: 6. Subject to any contrary order by a Judge, that part of the combined application as relates to the land and waters covered by application WAG 142 of 1998 ('the Perth section claim') shall be heard in a separate proceeding to commence during the first week of October 2004. In order to facilitate that hearing: (a) the applicants in WAG 6006 of 2003 are to provide to all respondents to that proceeding, by 15 May 2004, copies of reports from all anthropologists or other experts intended to be called as witnesses by them in relation to the Perth section claim; and (b) the respondents are to provide to the applicants and all other respondents, by 31 August 2004, copies of reports from all anthropologists or other experts intended to be called as witnesses by them in relation to the Perth section claim. 7. The evidence already given in respect of matters WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998, WAG 141 of 1998, WAG 142 of 1998 and WAG 149 of 1998 is to be evidence in the hearing to commence in October 2004 subject to relevance and all just objections, including any new objections taken by any person who was not a party to any of those seven matters. 8. Subject to the above, the directions made by French J on 2 October 2003 in relation to matter WAG 6192 of 1998 are to apply to the Perth section claim as if they were set out seriatim herein. 9. All parties have liberty to apply to me, by arrangement with my associate, in relation to any matter connected with the separate hearing of the Perth section claim. 28 In matter WAG 6006 of 2003, I make orders in accordance with orders 1 to 5 set out in the notice of motion filed in that matter and dated 6 October 2003. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Counsel for the Applicants: Mr G McIntyre SC

Solicitor for the Applicants: Dwyer Durack

Counsel for the State of Western Australia: Mr G Ranson

Solicitor for the State of Western Australia: Crown Solicitor for the State of Western Australia

Counsel for the Commonwealth of Australia: Mr A Beech

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Counsel for various local government bodies and some mining interests: Ms C Singh

Solicitor for various local government bodies and some mining interests: Minter Ellison Lawyers

Counsel for Town of Bassendean and others (various local government bodies): Mr P Wittkuhn

Solicitor for Town of Bassendean and others (various local government bodies): McLeods

Counsel for WAFIC: Ms K White

Solicitor for WAFIC: Hunt & Humphry

Counsel for SWALSC: Mr M Rynne

Solicitor for SWALSC: SWALSC

Mr C Bodney: In person

Mr R Yarran: In person

Counsel for the Applicants: Mr M Rynne

Solicitor for the Applicants: SWALSC

Counsel for the State of Western Australia: Mr G Ranson

Solicitor for the State of Western Australia: Crown Solicitor for the State of Western Australia

Date of Hearing: 8 October 2003

Date of Judgment: 9 October 2003