FEDERAL COURT OF AUSTRALIA
BA (deceased) on behalf of the Kariyarra People v State of Western Australia
[2012] FCA 854
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IN THE FEDERAL COURT OF AUSTRALIA |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Mediation by the National Native Title Tribunal cease.
2. The application is referred to mediation by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
WAD 232 OF 2009 |
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BETWEEN: |
CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant |
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AND: |
STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents |
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JUDGE: |
NORTH J |
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DATE OF ORDER: |
14 AUGUST 2012 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. Mediation by the National Native Title Tribunal cease.
2. The application is referred to mediation by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.23 of the Federal Court Rules 2011.
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
WAD 6169 of 1998 |
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BETWEEN: |
BA (deceased), CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant |
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AND: |
STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents |
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
WAD 232 OF 2009 |
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BETWEEN: |
CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant |
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AND: |
STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents |
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JUDGE: |
NORTH J |
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DATE: |
14 August 2012 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 In May 2012, the Australian Government announced institutional reforms to the native title system that would shift the responsibility of mediation in native title claims from the National Native Title Tribunal (the Tribunal) to the Federal Court effective from 1 July 2012.
2 At a directions hearing on 22 May 2012, the applicants sought an order from the Court for the mediation to cease in the Tribunal and for it to be referred to a Registrar of the Court.
3 The Court indicated to the parties that such an order should not be made without first inviting a response from the Tribunal. Orders were therefore made in the following terms:
3. Subject to the filing by 29 May 2012 by the National Native Title Tribunal of any objection, mediation by the National Native Title Tribunal cease on 29 May 2012;
4. The application is referred to mediation by a Registrar of the Court.
4 On 28 May 2012, in response to these orders, the Court received a letter from Member O’Dea of the Tribunal which expressed the view that some matters in these proceedings could be usefully advanced if left in further mediation before the Tribunal. Those matters were stated to include any outstanding intra-indigenous issues including intra-claim group issues and the negotiation of pastoral access matters including a potential pastoral Indigenous Land Use Agreement (ILUA).
5 On 30 May 2012, the Court wrote to the parties inviting submissions in response to Member O’Dea’s letter and on the question of whether the matters should remain with the Tribunal or be transferred for mediation by a Registrar of the Court.
6 On 5 June 2012, the Court received submissions from the applicant in both proceedings which stated that they preferred the mediation to cease in the Tribunal and commence in the Court.
7 On 5 July 2012, the Court received submissions on behalf of Gene Smith, Mary Attwood, George Dann, Shirley Lockyer, Patricia Mason and Robert Dann, the first three of whom are members of the native title claimant group in WAD 6169 of 1998 and all of whom are respondents in WAD 232 of 2009. These submissions supported the applicants’ submissions that mediation in relation to all issues, including the intra-indigenous dispute, be conducted by a Registrar of the Court.
8 The Court did not receive submissions from any of the other respondents.
9 In view of the institutional transfer of mediation from the Tribunal to the Court effective 1 July 2012 and the continued preference of the parties for the mediation to be transferred to the Court, the mediation of both Kariyarra matters by the Tribunal should cease and be referred to a Registrar of the Court.
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I certify that the preceding nine (9) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
SCHEDULE OF RESPONDENTS
WAD 6169 OF 1998
01 Government Interests
State of Western Australia
02 Government Interests
The Commonwealth of Australia
05 Mining Interest
BGC Contracting Pty Ltd
BHP Billiton Minerals Pty Ltd
Dampier Salt Ltd
Itochu Minerals & Energy of Australia Pty Ltd
Mitsui Iron Ore Corporation Pty Ltd
06 Pastoral Interest
Brierly, Colin
Day, Barkley Marshall
Day, Joan Elizabeth
Day, Richard Ernest
Day, Zane Bradley
Four Seasons Corporation (Mundabullangana Station)
Pedo Pty Ltd (Mallina Station)
07 Special Leas Interests
Westraint Resources Pty Ltd
09 Fishing Interests
Western Australian Fishing Industry Council (Inc)
13 Pearling Interests
MG Kailis Group of Companies
14 Aquaculture Interests
Rinkens, Joe
15 Telecommunications Industry Interests
Telstra Corporation Limited
17 Port Hedland Port Authority
Port Hedland Port Authority
SCHEDULE OF RESPONDENTS
WAD 232 OF 2009
01 Government Interests
State of Western Australia
02 Government Interests
The Commonwealth of Australia
03 Indigenous Interest
Attwood, Mary
Dann, George
Dann, Robert
Lockyer, Shirley
Mason, Patricia
Smith, Eugenia
04 Mining Interest
BHP Billiton Direct Reduced Iron Pty Ltd
BHP Billiton Minerals Pty Ltd
Boral Contracting Pty Ltd
Dampier Salt Ltd
FMG Pilbara Pty Ltd
Itochu Minerals & Energy of Australia Pty Ltd
Mitsui – Itochu Iron Pty Ltd
Mitsui Iron Ore Corporation Pty Ltd
05 Pastoral Interest
Brierly, Colin
Day, Barkley Marshall
Day, Joan Elizabeth
Day, Richard Ernest
Day, Zane Bradley
06 Telecommunications Industry Interests
Telstra Corporation Limited
