Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
If settlements do not occur and native title claims have to be resolved in an adversarial proceeding, there remains the risk for the claimant community that native title may prove to be yet another of the prospects held out to indigenous communities where the realisable gain falls short of that originally expected as a result of the decision in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1. However, if compromises are able to be achieved, the cause of reconciliation between Australia's past and present will be greatly advanced and the economic, social and educational benefits available to all Australians may be better able to be accessed by members of claimant communities. 169 There remains the question of how the present native title gridlock may be resolved by mediation. Plainly, some changes to the present system of mediation and resolution are necessary. The areas of possible change include: (a) amending s 87 of the NTA to: (i) make it quite clear that the requirement of agreement of parties to mediated outcome only applies to the parties whose interests are affected by the outcome (s 87 of the NTA ); (ii) empower the Court to give effect to a mediated outcome of part of the claim when that is agreed to by all parties whose interests are affected by that outcome, leaving it to the remaining parties to contest the balance of the proceeding only insofar as their interests are affected by the outstanding and unresolved part of the claim; (b) providing for formal and confidential offers of settlement to be made by parties in the course of mediation the offers may be presented to the trial court after a final determination has been made so that adverse costs consequences may follow for the parties for whom the final outcome was not greater than that offered in the mediation; (c) greater emphasis being placed in mediation on case management and the narrowing of contested issues thereby reducing costs and enhancing the efficiency of the trial process; (d) reviewing the guidelines for Commonwealth funding of NTA claims to include as one of the guidelines whether there has been a recommendation of a mediator that the funded party has made a bona fide and reasonable endeavour to resolve the dispute; (e) each state party developing a mediated settlement model that may be used generally by the state party for mediated outcomes; and (f) adopting a practice in mediation and in the Court of determining issues that have not been resolved by mediation at an early hearing such a practice will require the parties to finally decide to either settle or contest the native title claim. 170 Hopefully, if notice is taken of the above observations, it might diminish the risk of, and the harm that can flow from, a final finding at an adversarial hearing that the 'tide of history' has washed away recognition of a community's native title under Australian law. It might also greatly advance the reconciliation between Australia's past and present. I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 28 April 2006 Counsel for the Applicants: Mr R Blowes SC with Mr A Frith Solicitor for the Applicants: Kimberley Land Council Counsel for the State of Western Australia: Ms R Webb QC with Mr S Begg Solicitors for the State of Western Australia: Crown Solicitor for the State of Western Australia Counsel for the Commonwealth of Australia: Mr A Rorrison Solicitors for the Commonwealth of Australia: Australian Government Solicitors Counsel for the Western Australian Fishing Industry Council (Inc): Mr M McKenna Solicitors for the Western Australian Fishing Industry Council (Inc): Hunt and Humphry Appearing as a representative of the Walman Yawuru Respondents: Ms R Hanigan Solicitor for Shire of Broome: Mr PL Wittkuhn of McLeods Dates of further hearing: 4, 5, 6, 7 and 27 April 2006 Date of these Reasons: 28 April 2006 SCHEDULE APPLICANTS: CORPUS, Michael DJIAGWEEN, Cecilia DJIAGWEEN, Francis DODSON, Patrick EDGAR, Elsie EDGAR, Felix HUNTER, Richard ROE, Joseph ROE, Joseph 'Nipper' ROE, Teresa SADDLER, Thelma SEBASTIAN, Frank RESPONDENTS: 01 Government Interests State of Western Australia Aboriginal Affairs Department Aboriginal Lands Trust Commissioner of Main Roads Electricity Corporation Minister for Aboriginal Affairs Minister for Energy Minister for Fisheries Minister for Lands Minister for Mines Minister for Transport Minister for Water Resources State of Western Australia 02 Government Interests Commonwealth of Australia Airservices Australia 02A Government Interests Commonwealth of Australia Commonwealth of Australia 02A Government Interests Local Government Shire of Broome 04 Indigenous Interests Bilgungurr Aboriginal Corporation Kimberley Land Council MATSUMOTO, Peter ROBINSON, Margaret Mary ROE, Edward Leonard 05 Mining Interests CONNOLLY, Peter Scott COUNTY, Brian Stanley Maple Oil Exploration NL (Administrators Appointed) (Receivers and Managers Appointed) 06 Pastoral Interests CROOK, Reginald D Thangoo Pty Ltd (Thangoo Station) 07 Telecommunications Industry Interests Telstra Corporation Limited 08 Tourism Interests Broome Crocodile Park Cable Beach Jet Boat Charter Dampier Creek Boat Tours Kimberley Birdwatching The Kimberley Connection Pty Ltd 09 Fishing Interests Australian Ocean Exporters Pty Ltd BLATCHFORD, Kevin Broometime Charters CANNEY, Pam FRASER, Alan John IGNOTI, Les IGNOTI, Peter IGNOTI, Russell Kimberley Fish and Ice Supplies Lenden Nominees Pty Ltd Leveque Wilderness Fishing Charters LEW, Ian LITTLETON, Kyran R MOORE, Gary NEWTON, Ross Pearl Coast Charters Pearl Sea Coastal Cruises WEIR, Neville 09A Fishing Interests Western Australian Fishing Industry Council (Inc) 10 Pearling Interests Australian Sea Pearls Pty Ltd Broome Pearls Pty Ltd Cygnet Bay Pearls Paspaley Pearling Company Pty Ltd Pearls Pty Ltd Roebuck Pearl Producers Pty Ltd Willie Creek Pearl Farm and Broome Coachlines 11 Petroleum Interests E-Com Multi Limited 12 Non Party (For Information Only) National Native Title Tribunal AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/459.html