Case: Ward v State of Western Australia [2006] FCA 1848
Outcome: applied
emphasis in the Act on mediation towards agreement is designed to minimise cost and delay. The section should therefore not be construed to require parties to an agreement to provide evidence to the Court on an application under s 87 or s 87A of the same nature as if the case had gone to trial. The purpose of the section is to encourage parties to avoid a trial: Ward v State of Western Australia [2006] FCA 1848 at [8] ( Ward ). In most circumstances the fact of agreement will be sufficient evidence upon which the Court may act under the section. It will not ordinarily be necessary for the Court to be provided with evidence of the primary facts substantiating native title: Ward [2006] FCA 1848 at [8] . In the present case all the parties were legally represented. In relation to the consideration given by the State of Western Australia to the application, Mr Hamley, who is the Executive Director of the Office of Native Title (ONT) in the Western Australian Department of Treasury and Finance, explained the process which led to the agreement of the State of Western Australia. The process is laid down in the State's Guidelines for the Provision of Information and Support of Applications for a Determination of Native Title dated October 2004 (the Guidelines). First, the applicants were required to provide evidence of connection. In response they provided a Connection Report dated April 2006 from Dr Nicholas Smith, the Senior Anthropologist with the Pilbara Native Title Service. The report came with a DVD showing a number of the Nyangumarta People explaining their connection with country, and also with genealogies and genealogical sources. In accordance with the Guidelines this material was reviewed internally by Ms Debbie Fletcher, the Director of Research. On the basis of this internal review the ONT advised the then Deputy Premier that the State should enter into negotiations toward an agreed determination of native title. Mr Hamley explained the basis upon which this advice was given. He said: ...In particular, ONT was satisfied that the connection material supports the existence of a body of traditional laws and customs under which the claimants hold rights and interests within the area covered by the application. This was on the basis that: (a) the Nyangumarta claimants are a clearly defined group of people who acknowledge and observe a shared set of normative rules for determining group membership and are descended from Nyangumarta ancestors who were present in the claim area at the time of settlement; (b) there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the claim area by the claimants and transmission of these laws and customs to younger members of the claim group; and (c) the continued connection of the Nyangumarta people to the claim area has been underpinned by acknowledgement and observance of a normative system of law and custom. During its assessment process, the State of Western Australia engaged an independent expert anthropologist to assess the connection material. In the meantime further material was provided by the applicants from October 2006 until December 2008. The affidavit of Mr Mathews filed on behalf of the applicants exhibited the report of Dr Smith with certain deletions designed to protect confidentiality. This was only part of the connection material provided by the applicants to the State of Western Australia. Excluding the seven appendices the report ran to 240 pages. It is a comprehensive discussion of each of the elements together with supporting evidence which the applicants would need to prove at a trial to secure a native title determination. The affidavit material amply demonstrates not only that the State of Western Australia gave detailed and comprehensive consideration to the applicants' case, but also that the applicants have a strong basis for the determination of native title sought.