FEDERAL COURT OF AUSTRALIA

Jones v State of South Australia [2003] FCA 538

NATIVE TITLE – application for determination of native title – motion that the Court should not make any order for mediation except in limited respects under s 86B Native Title Act 1993 whilst ‘Statewide ILUA Strategy’ pursued – effect of motion is to seek deferral of progress of application until Strategy resolved – some parties oppose order and seek progression of application – whether Court should accede to motion

Native Title Act 1993 (Cth)

Wadi People v State of Victoria [2001] FCA 1780 noted

Frazer and Others on Behalf of the Warburton Mantamaru People v The State of Western Australia [2003] FCA 351 applied

Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 cited

PADDY JONES & OTHERS v STATE OF SOUTH AUSTRALIA & OTHERS

SG 6022 of 1998

MANSFIELD J

30 MAY 2003

ADELAIDE

REASONS FOR JUDGMENT

1                     The application in this matter is by Paddy Jones and others on behalf of the Yankunytjatjara and Antakiranja People for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in respect of an area of land in the northern part of South Australia largely to the east of the Stuart Highway at Marla and encompassing the Oodnadatta Track and areas to its north and south.  It is unnecessary to describe the claim area in any further detail.  The claim area is over land on which there are a number of existing pastoral leases including a pastoral lease in respect of Todmorden Station.

2                     The application was duly referred to the Native Title Registrar in accordance with s 63 of the NT Act on 15 December 1998.  The notification period prescribed under s 66 has expired, and the party lists have been determined.  In the normal course, therefore, in accordance with s 86B of the NT Act, the Court would refer the application to the National Native Title Tribunal (the NNTT) for mediation.  Section 86B(1) obliges the Court to take that step unless an order is made under s 86B(2).  It provides:

‘The Court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding.’

3                     By motion, the Aboriginal Legal Rights Movement (the ALRM), the relevant native title representative body under Pt 11 of the NT Act, and a party to the proceeding, has sought orders in the following terms:

‘1.        That the following parts of the proceeding be referred to mediation pursuant to section 86B of the Native Title Act 1993;

a.                  the resolution of overlapping claims;

b.                  issues relating to residential licences;

c.                  issues relating to water licences, irrigation and reticulation;

d.                  the identification of areas within the external boundaries of claim areas in respect of which extinguishment has been confirmed by sections 36F and 36G of the Native Title (South Australia) Act 1994 (as amended);

e.                  the identification of the non-native title rights and interests being asserted to exist by Respondents to claims and the areas within claim areas in respect of which those rights and interests are asserted.

2.                  All other parts of the proceeding be adjourned to a date not before January 2003 or such other date as the Court may order, on which date the Applicants, ALRM and the State shall provide a report to the Court concerning the Statewide ILUA Strategy.

3.         In the alternative to 1 and 2 that the whole of the proceeding be adjourned to a date not before January 2003 or such other date as the Court may order, on which date the Applicants, ALRM and the State shall provide a report to the Court concerning the Statewide ILUA Strategy.’

4                     It emerged in the course of argument that, in substance, the ALRM wanted an order that the application not be referred to mediation under s 86B, more or less indefinitely, except in respect of the issues identified in par 1 of the motion.  Counsel for the ALRM acknowledged that the Court should review the order from time to time, perhaps on a three monthly basis, but it is plain from the submissions and the material presented in support of the motion that (apart from periodic reporting) the application by motion will in effect involve an order that there be no mediation for many months from the date of this judgment and perhaps considerably longer.  It is also implicit that ultimately the parties may seek an order under s 86B(2) that there be no mediation (except in respect of the specified issues) because alternative informal mediation processes will have been exhausted so there will be little point in further mediation by the NNTT.

5                     The motion initially sought that there be no mediation referral until January 2003.  In the course of argument the nominated date became March 2003.  Submissions indicated that it was not expected that either then, or at any immediate time in the future, the request that the matter not be referred to mediation except in the limited respects identified in the matter would not be reiterated from time to time.

6                     The application by the ALRM was supported by the applicants, by the State of South Australia (the State), and by one of the pastoral lessees, the operator of Todmorden Station.  A further party Telstra Ltd did not oppose the application but did not support it.  Opposition to the motion was presented on behalf of the seven remaining pastoralists within the claim area.

7                     In a separate application in action SG 6012 of 1998 for the determination of native title by James Alexander Bramfield and others behalf of the Nukunu native title claim group (the Nukunu claim) a similar motion was brought.

8                     The Nukunu claim relates to an area of land in the mid to upper north of South Australia including the southern part of the Flinders Ranges, in a section at the top of Spencer’s Gulf surrounding areas including Port Augusta and Port Pirie.  Portion of that claim area is the subject of a claim for a native title determination in matter SG 6004 of 1998 by Mark McKenzie and others on behalf of the Kuyani People (the Kuyani claim).

9                     In the Nukunu claim, the motion of the ALRM is supported by the applicants and by the State.  It was also supported by the group of parties called the Cooper Basin Oil and Gas Producers on the condition (which was satisfied) that the matters to be referred to mediation as expressed in par 1 of the motion included the ‘resolution of issues relating to Pipeline Licence No.2 and related issues including access’.  The motion in that matter was duly amended to that effect.  It is also supported by the South Australian Chamber of Mines and Energy (SACOME).

10                  In that instance the pastoralists who were parties to the application and certain local government authorities also parties to the application, and Mr McKenzie on behalf of the native title claimants in the Kuyani claim (whose native title determination application overlapped the area of the Nukunu People’s application) opposed the motion.  The motion was also opposed by the SA Farmers’ Federation (SAFF), although it did not oppose ongoing private mediation of all native title claims in South Australia to the extent to which they were proceeding.  A neutral position was taken by Telstra Ltd, the fishing interests and the apiarists’ interests.  That application is referred to in this matter because the motions were heard together.

11                  It is also clear from the material and submissions that it is not simply the two native title determination applications now before the Court in respect of which it is sought that there be no general referral to mediation under s 86B of the NT Act.  The intent underlying the two motions now before the Court is that all native title determination applications in South Australia not be referred for mediation in accordance with s 86B(1) of the NT Act whilst the ‘Statement ILUA Strategy’ is being pursued.

12                  Sections 86B(3), (4) and (5) provide:

‘(3)      The Court, upon application under subsection (2) or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

(a)                    any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or

(b)                    there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1)( or (2) in relation to the whole or that part; or

(c)                    the applicant in relation to the application under section 61 has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part.

(4)       In deciding whether to make an order that there be no mediation in relating to the whole of the proceeding or a part of the proceeding, the Court is to take the following factors into account:

(a)                    the number of parties;

(b)                    the number of those parties who have appointed the same agent under section 84B or same representative;

(c)                    how long it is likely to take to reach agreement on the matters set out in subsection 86A(1)( or (2) in relation to the whole or the part of the proceeding;

(d)                    the size of the area involved;

(e)                    the nature and extent of any non-native title rights and interests in relation to the land and waters in the area;

(f)                     any other factor that the Court considers relevant.

(5)       In addition to referring a proceeding to mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).’

13                  I have little doubt that the Court may, if it considers it appropriate to do so in a particular matter, make an order generally in terms or to the effect of par 1 of the notice of motion.  The effect of such an order would be that the parts of the proceeding not the subject of the mediation referral under s 86B would not be referred for mediation at least for the time being.  It is not uncommon to refer parts of a proceeding or proceedings to mediation at a point in time, generally to explore the prospect of a mediated resolution of overlapping claims.  The benefits are self-evident.  If overlapping claims can be resolved by mediation so that the claim areas of one or other of the overlapping claims are altered in some way, then each of the overlapping native determination applications may then be separately listed for hearing.  It is otherwise necessary that overlapping claims, at least to the extent of the overlap of the claim areas, are dealt with in the same proceeding:  s 67.  No argument was adduced that, if it were appropriate to do so, the Court did not have the power to make the orders sought in par 1 of each of the motion, with the effect that the balance of the proceedings (and other native title determination proceedings) would not be referred for mediation for the time being except in limited respects.

14                  In the case of an application for the determination of native title, s 86A(1) sets out a range of matters which may be the subject of mediation under Div 1B of Part 4 for the purpose of assisting the parties to reach agreement.  The broad scope of those matters also tends to confirm that the Court may, if appropriate, refer a particular part of a proceeding for mediation from time to time.  I do not think the expression “a part of the proceeding” in s 86B is intended to be limited by some technical meaning.  I think it means simply an issue or any issue which arises in the proceeding.  That is reflected in the normal English meaning of the words, and in the scope of s 86A(1), and in respect of an application for compensation under the NT Act by the scope of the matters referred to in s 86A(2) of the NT Act.  I think S86B also confirms the power of the Court to defer mediation under the NT Act in respect of some parts or all of the proceedings.  I observe that North J in Wadi People v State of Victoria [2001] FCA 1780 said at [7]-[8] that the expression in s 86B(1) that the referral to mediation must be made, in an absence of an order under s 86B(2) “as soon as practicable” does not impose an obligation to refer to mediation in any narrow sense.  The issue of practicability is a matter for the Court, and may encompass (as his Honour there considered) a deferral of mediation whilst ongoing inquiries were made by one or other of the parties concerning the nature of the evidence required to assess the issue of connection, and in that case because the applicants did not for the time being have sufficient funds to commence mediation prior to a particular date (some three months hence).

15                  It was also argued that the Court might make the order sought in par 2 of the application in each instance under the powers contained within s 86F of the NT Act.  It provides:

‘Parties may negotiate for agreement

(1)       Some or all of the parties to a proceeding in relation to an application may negotiate with a view to agreeing to action that will result in any one or more of the following:

(a)               the application being withdrawn or amended;

(b)               the parties to the proceeding being varied;

(c)               any other things being done in relation to the application.

The agreement may involve matters other than native title.

Assistance by NNTT

(2)        The parties may request assistance from the NNTT in negotiating the agreement.

Court may order adjournment to help negotiations

(3)        The Federal Court may order an adjournment of the proceedings to allow time for the negotiations.  It may do so on its own motion or on application by a party.

Court may end adjournment

(4)        The Federal Court may order that the adjournment end.  It may do so:

(a)                on its own motion; or

(b)                on application by a party; or

(c)                if the NNTT reports that the negotiations are unlikely to succeed.

Court’s powers not limited

(5)       Subsection (3) does not limit the Federal Court’s powers to order an adjournment.’

As I am satisfied that I have the power to make the orders sought on the motion, I do not need to consider in detail that power.  No argument was presented to suggest the discretion under s 86F would be exercised differently, or for different reasons, from that under s 86B.

16                  I am satisfied the applicants in this matter, the State, the ALRM, and peak bodies representing mining and pastoral interests (SACOME and SAFF) have developed and have been implementing a strategy for the resolution of the major native title issues in South Australia through the negotiation of indigenous land use agreements (the Statewide ILUA Strategy) separate from, and outside the framework for, mediation by the NNTT.  That course of action is said to have been pursued in accordance with both general and specific provisions of the NT Act.

17                  First, reference is made to the preamble to the NT Act.  It provides, inter alia, that:

‘A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Government should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a)               claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b)               proposals for the use of such land for economic purposes.’

18                  The parties in support of the motion also rely upon Pt 2 Div 3 Sub-div C, D and E of the NT Act.  Sub-division C relates to indigenous land use (area agreements); Sub-div D relates to indigenous land use (alternative procedure agreements); and Sub-div E deals with the effect of registration of indigenous land use agreements.  Sub-division C provides for indigenous land use agreements which may relate inter alia to the relationship between native title rights and interests and other rights and interests in relation to a claim area, and the manner of exercise of such rights and interests, their extinguishment, compensation and the like:  s 24CB.  All of those provisions are in that Division of the Act dealing with future acts.  Future acts are defined in s 233 of the Act, and s 227 explains how a future act may affect native title, namely if it may extinguish the native title rights and interests claimed or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.  Part 2 Div 3 Sub-div A describes the ways in which validation of future acts may be effected, including if the parties to indigenous land use agreements consent to the act being done, or if it has already been done invalidly by its validation as a result of such an indigenous land use agreement:  see s 24AA(3).  It can be seen that under Pt 2 Div 3 of the NT Act, an indigenous land use agreement, whilst proceeding on the basis of an assumption as to the existence of the claimed native title rights and interests, is not intended to recognise such rights and interests but to ensure that an act done in respect of an area of land over which there is a claim for determination of native title may be validated if it is a future act as defined in s 233.

19                  Division 1C of Pt 4 of the NT Act provides for agreements and unopposed applications.  Section 86F, set out above, is included in that division.  If the parties to a native title determination application reach agreement as to the terms on which the Court might make an order in relation to the proceedings, or a part of the proceedings, or a matter arising out of the proceedings, and the Court is satisfied that the making of the orders in accordance with the agreement would be within the power of the Court, the Court may act in accordance with the agreement:  s 87(1).  It may do so without a full hearing.  It may do so during the course of the proceedings and in relation to any part or parts of the proceedings.  In endeavouring to reach an agreement, the agreement may involve matters other than ‘native title’ and the parties may be assisted by the NNTT in its negotiations.

20                  I am satisfied that there is ample scope under the Act for those participating in the Statewide ILUA Strategy to do so, and if the Statewide ILUA Strategy bears fruit in this matter (or any other native title determination application) for the Court to give effect to the agreement which is then reached by making appropriate consent orders.

21                  However, the contested issue on the motion is whether in this matter it is appropriate for the Court to make the order sought, particularly in the face of opposition from certain of the parties to the proceeding.  To address that issue, it is necessary to consider in more detail the Statewide ILUA Strategy and how it is progressing.

22                  It is contended that the Court should be satisfied itself that fulfilment of the Statewide ILUA Strategy is more likely to result in a resolution of disputed native title and related issues in this matter (and in other matters) than mediation through the NNTT, and that the Court should support and facilitate the Statewide ILUA Strategy.  Alternatively, it is contended that the Court should accept as a sufficient basis for supporting and facilitating the Statewide ILUA Strategy the belief of the ALRM, the applicants to this application and the State on that matter.

23                  The evidence indicates that Statewide ILUA Strategy developed in discussions, initiated in 1999 by the State, to resolve native title issues throughout South Australia by the negotiation of indigenous land use agreements.  These discussions initially took place with ALRM, SAFF and SACOME.  As a consequence, in the case of ALRM, a Congress of native title claimant management committees was established in December 2000 which gave the ALRM  the authority and direction to pursue the Statewide ILUA Strategy.  It has acted in accordance with that Congress.  The opportunity to develop the Statewide ILUA Strategy was no doubt facilitated by the ALRM being the only native title representative body in South Australia, and by the relatively low numbers of native title claims in South Australia compared to the other States and the Northern Territory.

24                  I accept that the Statewide ILUA Strategy has already produced a number of significant initiatives, including the development of negotiation protocols, statements of SAFF and SACOME as to the relationship of those they represent to land and waters, a discussion paper for new Aboriginal heritage legislation in South Australia, a comprehensive advanced draft template for mineral exploration ILUAs, and a document listing the main issues of general relevance in native title determination applications in relation to pastoral land.  Those steps may provide a very useful vehicle for further progressing resolution by agreement of the present application and other native title determination applications.

25                  Apart from those broader issues, the Statewide ILUA Strategy has resulted in negotiations presently involving three pilot groups intended to cover the following five broad areas:

—                        pastoral land

—                        minerals exploration

—                        national parks and other protected areas

—                        local government and “future” acts

—                        fishing and sea rights.

26                  Details of the pilot group negotiations are as follows.

27                  In relation to the present claim, there are discussions between the applicants on behalf of the claim group, the State and the proprietors of the Todmorden pastoral lease extending over a period of time.  Three meetings have taken place in Adelaide between advisors.  Further meetings took place in November 2002 and February 2003.  Approximately 100 issues have been identified as requiring consideration by the parties and their advisors.  They are currently preparing a draft agreement in relation to those issues which are agreed to in principle, and providing further information for discussion in relation to those issues which have not yet been agreed in principle or discussed.  It is the view of some of the participants that the meetings have been successful, thoughtful, fruitful, constructive and positive.  The negotiations have led to a relationship of respect and co-operation between the participating parties and their advisers.

28                  The negotiations involving Todmorden are seen by the ALRM and the State as a pilot project, although the Todmorden interests do not so regard it.

29                  As part of that pilot project, a ‘pastoral side table’ comprising representatives of SAFF, SACOME, the ALRM and the State was established in early 2002 to operate parallel to the Todmorden negotiation to consider and develop agreed pastoral policies for development into a template ILUA to be offered to other pastoralists and native title claim groups in the State.

30                  The second pilot project relates to a claim by the Narrungga People who assert native title rights and interests over sections of Yorke Peninsula and its surrounding waters.  There have been negotiations with ALRM, the claimants, the State, the Yorke Peninsula District Council, the Copper Coast District Council, the Barunga West District Council, and the Wakefield Regional Council in relation to issues including alternative State and local government future act processes, and management agreements for Crown reserve lands and waters.  Those discussions took place first in July and August 2002, resulting in the identification and prioritisation of the issues to be discussed between the parties.  It is asserted that the negotiations were positive and constructive.  Further negotiations were intended.  The submission asserts that a protocol for conducting the negotiations was largely settled and subjects for negotiation agreed.  Steps have been commenced to include the industry bodies representing the fishing and seafood industries (the SA Fishing Industry Council and the Seafood Council of SA) in the discussions relating to fishing and sea rights.

31                  The third pilot project is in relation to the Antikirinja native title claim.  The first meeting took place in August 2000 between representatives of the claimants, the State, SACOME and the ALRM in relation to the draft minerals exploration template ILUA and related mineral exploration issues.  It is said that the discussions were constructive, and that further negotiations are to be scheduled.

32                  Whilst it is clear that the Statewide ILUA Strategy has made significant achievements, it is fair to describe those achievements to date as being made at the ‘macro’ level.  In relation to the present application, there is only the one relevant ‘pilot’ project, or from the point of view of the Todmorden interests one relevant negotiation.  To date the other pastoral leaseholders who are parties to the application have not participated in any real way in the pilot negotiations.  They have not been asked to do so.  They do not know with any precision what has been discussed and agreed between the applicants and the Todmorden interests, or what is proving to be a stumbling block to the finalisation of an agreement between the applicants and the Todmorden interests.  What the apparently numerous items for discussion are they do not know.  The two other pilot projects referred to do not seem to have progressed as far as the pastoral pilot project.

33                  I do not have any basis for concluding that the pilot projects will progress in a speedy fashion.  There are of course difficulties with resources, time and expertise.  The resolution of native title determination claims involves complex and extensive issues.  But, even so, the Statewide ILUA Strategy has now been in place for some time and there is no clear light at the end of the tunnel.  Realistically, it could take many more months for any of the pilot projects to progress to resolution.  At present, the other pastoral leaseholders in this matter have no way of knowing whether the resolution of negotiations between the applicants and the Todmorden interests will provide a useful template for the addressing of their position (as it is intended to be).  The present application, if granted, carries the assumption that it is appropriate for those who are parties to the application, but who are not directly involved in the pilot program, to simply abide the course of development of the Statewide ILUA Strategy, even if they are anxious for the claim to be heard so that their position in respect of the native title determination application is resolved.

34                  The proponent parties on the present motion acknowledge that the NNTT has the resources and expertise to deal with matters such as overlapping claims, internal disputes, and the matters listed in par 1 of the motion.  Furthermore, they acknowledge that, until competing or overlapping claims have been resolved in respect of particular native title determination applications, there will be little chance of reaching agreed outcomes whether by mediation or private negotiation under the Statewide ILUA Strategy.  They further agree that the matters listed in par 1 of the motion, in particular issues such as extinguishment and the identification of the extent of claimed rights and interests, are matters ‘which need to be clarified … before agreements can be formalised’.

35                  However, they contend that the Statewide ILUA Strategy should be given every opportunity to continue in lieu of reference of individual native title determination applications to mediation by the NNTT, except in respect of the limited issues.

36                  I think the contention does not pay sufficient regard to the role of the NNTT in the mediation process established under the Act.  Its role is considered at length by French J in Frazer and Others on Behalf of the Warburton Mantamaru People v The State of Western Australia [2003] FCA 351, especially at [24]-[32].  I respectfully agree with and adopt what his Honour there said.  I shall not repeat it.  As his Honour said at [26], the NNTT has a ‘central role’ in the mediation process provided for under the NT Act.  And there is evidenced by s 86C an intention that the mediation takes place in a timely fashion.

37                  In particular, I note his Honour’s remarks at [28]-[29]:

‘The referral under s 86B is a referral to the NNTT and, in my opinion, it has the responsibility, pursuant to that referral, to undertake mediation of all aspects of the application relevant to the purposes defined in s 86A.  This includes the development of detailed negotiation protocol, the exchange of information between the parties, the identification of issues to be resolved and times and venues of conferences under the Act in furtherance of the mediation process.  In so doing it is quite legitimate that the NNTT and the parties have regard to the resource limitations and other practical constraints under which each of them must operate.  It is appropriate that within a particular region timetables may be staggered to reflect priorities within that region.  It is legitimate for the protocols and timetables developed to provide for bilateral negotiations between parties with reports back to the NNTT.  However, timetables for such bilateral discussions are an element of the mediation process undertaken by the NNTT in the exercise of its statutory function and in respect of which it may be required to report to the Court.

It is not open to any party, be it the State or a native title representative body or any other respondent, unilaterally to announce priorities for a particular region.  This is an aspect of the mediation process.  Any unilateral action by any party to an application which is not acceptable to others may result in a breakdown of the mediation process and its cessation by order of the Court.  I emphasise that in so saying, I do not overlook the very substantial resource burdens that the native title process places on all parties.  At the same time the Court has a responsibility to ensure that the mediation processes for which the Act provides are applied and applied in a timely fashion.’

38                  In addition, as it is acknowledged that issues such as overlapping claims will require to be resolved before the successful implementation of the Statewide ILUA Strategy could be effective, I do not consider the NNTT mediation process would cut across the Statewide ILUA Strategy.  There may be circumstances in which the NNTT, in the course of its mediation, sees the opportunity to resolve a particular claim or part of a claim beyond the particular issues being addressed (for example overlapping claims).  It is unclear why its mediation power should be inhibited because the Statewide ILUA Strategy is being pursued, or because in respect of another native title determination application there is a pilot program on a particular issue as part of the Statewide ILUA Strategy which may take some considerable time in the future to be progressed.  Nor do I accept the assumption that the NNTT would conduct mediation in such a way as to inhibit the parties, if they wished to do so, from continuing to conduct a pilot program as part of the Statewide ILUA Strategy.  I note that, on the evidence, a member of the NNTT has in fact been acting as a facilitator in relation to one of the pilot projects.

39                  Moreover, as I have noted, it is implicit in the present motion that the Court should simply stand back and allow the Statewide ILUA Strategy to continue over such time as it may take before progressing any of the current native title determinations towards a hearing.  It is in a real sense a proposal put forward that no native title determination application (at least not one where there are not issues of the type referred to in par 1 of the motion) should be progressed for the time being, irrespective of the responsibilities of the Court and of the public interest to bring litigation to finality, and irrespective of the wishes of those parties to a native title determination application who wish a particular claim or claims to be progressed rather than to wait for the outcome of the Statewide ILUA Strategy or of a pilot program which may take further considerable time to reach finality, and which might then prove inappropriate for use as a template in the particular circumstances.

40                  There is also the assumption underlying the present application that it is inconsistent with allowing the Statewide ILUA Strategy to be given every opportunity to continue throughout the State that a particular claim or claims should be referred to the NNTT mediation pursuant to s 86B of the NT Act.  I do not think it is shown that those processes are mutually exclusive.  It is certainly true that parties should be encouraged to endeavour to agree their disputes privately.  Private resolution of proceedings is efficient and effective, and leaves the opportunity for alternative resolutions beyond those which the Court may determine.  There is a considerable public interest in allowing such processes to be given every opportunity to occur.  However, where such processes are not consensual on the part of all parties to particular proceedings, the Court will not generally adjourn proceedings at the expense of one party for the benefit of giving other parties an ongoing and indefinite opportunity to conduct further negotiations.  Moreover, the adjournment proposed in this case is not so that the parties to the particular application may further negotiate privately, but so that the Statewide ILUA Strategy may progress including one pilot program involving one of the pastoral parties to this application.  More importantly, there is no reason to think that the NNTT would act as mediator in a way which would impede the progress of the Statewide ILUA Strategy in any real way.  The purpose of mediation is the same as the objective of the Statewide ILUA Strategy.  The NNTT is not likely to impair or impede the progress of the Statewide ILUA Strategy.  Its focus is likely to be first upon resolution of overlapping claims in any event, as generally speaking that is a sensible starting point for mediation.  If it perceives that, within a reasonable time, certain issues are likely to be resolved by private mediation through the Statewide ILUA Strategy or even independently of it, it is likely to focus its attention on other issues.  I do not therefore think that referral to mediation of this application generally, or of other native title determination applications generally, will be inimical to the progress of the Statewide ILUA Strategy, and certainly not inimical to the progress of the Statewide ILUA Strategy to the extent to which it should be recognised by the Court having regard to interests of the parties to this (or other) native title determination applications who are not directly involved in the Statewide ILUA Strategy and who wish the claim to proceed in the normal manner.

41                  The submissions indicated that the negotiations on the present pilot programs are likely to be completed during 2003.  If those negotiations are successful, they may well assist in the resolution of other claims.  However, subject to the issue of resources, I do not see reference of this or other matters to mediation should adversely affect the progress of such negotiations.  If they are successful, and parties in this proceeding or in other proceedings are prepared to use the outcome as a template and to adopt it subject to variations as the basis of an agreement, so much the better.  I have every confidence that the NNTT would permit an adjournment of mediation under its aegis while private agreement was explored or indeed would encourage the parties to consider adopting such an agreement if it were appropriate to do so and unless there was good reason not to do so.  As I have said, apart from the issue of resources, I do not perceive a necessary conflict between the two processes.

42                  I accept that the State is committed to pursuing the Statewide ILUA Strategy as a matter of first preference for resolving native title disputes.  I accept that State funding has been, and continues to be, provided to ensure its continued progress.  The funding is substantial.  I accept that ALRM has limited funding, and considers that it is an efficient application of its funds to pursue the Statewide ILUA Strategy.  I do not accept however that it is up to ALRM to determine, to the exclusion of the Court and of the interests of other litigants, whether all or any native title determination applications should be progressed in the normal manner, including mediation through the NNTT under s 86B of the NT Act.

43                  There is some suggestion in the evidence and submissions that funding of the Statewide ILUA Strategy and mediation (or litigation) of all native title claims in the State is simply not feasible.  It is idle to suggest that the Court will, or will be asked to, refer all existing native title determination applications to mediation at the same time, or even in the event of there being several referrals at once that the NNTT would insist on each proceeding with the same level of commitment of resources and manpower.  But it is not unrealistic to accept that parties to an application for determination of native title may be concerned for the application to be resolved as quickly as possible.  There may be particular reasons why one application should be progressed at a faster rate than another.  In that event, there is no reason why preference should not be given to those matters.  In addition, it is implicit on the present motion that resources will be available for mediation by the NNTT in respect of the issues that are referred to in par 1 of the motion.

44                  It is contended that the Statewide ILUA Strategy was devised because, as an alternative to litigation, it would:

—                   be less time consuming and costly

—                   be more orderly

—                   deliver more consistent outcomes to all participants

—                   be more satisfactory in terms of meeting a party’s needs

—                   be able to provide practical solutions that were workable on the ground

—                   provide a means by which the stakeholders could work together in a non-adversarial atmosphere to determine their future relationships with each other.

It is trite to say that resolution of disputes by agreement is generally quicker and cheaper than litigation.  It is generally a more satisfactory method of dispute resolution.  It does enable practical solutions to be adopted which may be different from, and perhaps more extensive than, the orders which may be made following a hearing.  See generally the remarks of Black CJ in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 at [10].  Those benefits are also available by the mediation processes which the NT Act contemplates.  It does not follow that such benefits should be sought to be achieved by a form of mediation outside that contemplated by the NT Act and at the exclusion of certain parties from the process even if there is a real prospect that ultimately forms of template agreements may be able to be achieved which would be available to the other parties in the litigation and in other applications.  As I have said, to accept that proposition is to remove from the parties to the litigation the entitlement to progress the claims or the disputes to finality.  It removes from the Court the function of controlling the timing of the progress of the proceedings.  It removes from individual parties participation in the process of mediation, as it gives that responsibility, in the first instance, to ‘peak bodies’ rather than to the individual litigants.  It assumes that the individual litigants will then accede to agreements proposed on their behalf to which they have had no direct input.  For instance, in the Todmorden pilot program, the other pastoral lessees in the particular claim until now have not been invited to participate in the negotiations.  The other pastoral lessees do not know what those issues are.  They do not know what terms might be resolved.  There may be legal or economic or other considerations relevant to the Todmorden lessees’ circumstances which are different from those relevant to the other pastoral lessees.  They expressed the concern that as a result of the ‘peak bodies’ agreement there will be some pressure, either moral or emotional, to fall in line with what has previously been agreed.  Indeed, one point of the pilot schemes is to produce template agreements.

45                  I also accept that the Statewide ILUA Strategy provides a unique opportunity for all the major ‘stakeholders’ to deal together with all the issues raised by native title in a consistent and constructive way.  Many native title issues arise in more than one particular claim area across the State.  The Statewide ILUA Strategy will enable those fundamental issues to be analysed, discussed, and hopefully resolved successfully in an ordered environment.  Some of the benefits in using pilot negotiations for all involved are:

—                    repetition or duplication of discussions is avoided

—                    they are more cost effective in reacting to the several different demands of mediation and litigation

—                    any agreed solutions can be trialled in a controlled environment and, if successful, offered to others as options to resolve their own issues.

However, I do not accept that the NNTT, in proceedings in which native title claimants are represented as well as the State and other parties whose interests are or may be affected cannot identify the fundamental issues, to discuss and mediate them and if appropriate to resolve them.  I do not see that the outcome of the pilot schemes will involve any less need for discussion in relation to individual claimants and other parties affected than would be the case by mediation by the NNTT.

46                  The claim that agreed solutions can be trialled ‘in a controlled environment’ is an ambiguous proposition.  If an agreement is come to, for instance, between the present applicants and the Todmorden pastoral holders, the other pastoral lessees in the claim area, and pastoral lessees in other claimed areas, can readily learn of the terms of the agreement (unless it is confidential) and as to how it is operating.  With the wisdom of the experience, they may choose to adopt the same solutions in mediation before the NNTT. 

47                  I turn to factors to which the Court is directed under s 86B(4).  It is contended that agreement would be much more difficult if pastoral lessees and local government authorities and commercial fishers are entitled to be present at any mediation.  The NNTT can conduct mediations in stages.  The pastoralists in the present matter are represented by one firm of solicitors.  I do not see why they should not be able to participate in negotiations at this stage in relation to the claim in so far as it may affect their interests.  I do not think the other matters identified are of particular moment to the present motion.

48                  For these reasons I have given, I do not propose to accede to the present motion upon the basis upon which it is presented.  That is, I do not accept that the Court should order that there be only limited mediation in this matter (and in all other matters in which there are claims for the determination of native title) as a matter of principle because of the Statewide ILUA Strategy.  I think it is necessary to consider in each case, including the present, whether the Court should follow s 86B(1) either generally or by referring part only of the matter:  see s 86B(4) to mediation by the NNTT.  The consideration should be given to the individual circumstances of the case.  The status or progress of the Statewide ILUA Strategy, the nature of the issues, the extent of any private negotiations between the parties and the prospects of resolution of those negotiations, the existence of overlapping claims, the resources of the parties, and a range of other matters may be relevant to such consideration.  Ultimately, it must be borne in mind that the purpose of mediation is to assist the parties to reach agreement on some or all of the issues which arise in the proceeding.

49                  I therefore propose to adjourn the motion so that further particular consideration may be given to the circumstances of this matter.  I intend to list for directions each of the native title determination applications presently before the Court on 5 and 6 August 2003.  Those which are at the point at which the Court would address s 86B(1) of the NT Act will then attract consideration of whether such an order should be made, and if so whether it should be a limited order.  The Statewide ILUA Strategy, including the pilot program involving the Todmorden lessees (I use that description although the Todmorden lessees do not regard their negotiations as a pilot program), will by then have had some seven to eight months more to progress than that which was first sought in the motion.

50                  I propose to require the party in each application to file and serve memoranda as to the orders and directions then to be sought, and to the extent necessary to file and serve affidavits in support of the orders or directions then sought.  I will not require notices of motion to be filed to seek any such orders or directions.  Obviously, there will be at that time a need to determine as between the native title determination applications some order in which they may progress, as they cannot all proceed at the same time in the same manner.  The material to be filed and served may need to address that topic, although I anticipate that there will be informed consideration given to the issue before the directions hearing.

51                  I adjourn the notice of motion to 10 am 5 August 2003 for further hearing, and I fix 10 am 5 August 2003 for a further directions hearing in this application generally.

Associate:

Dated:              30 May 2003