Case: Frazer v Western Australia [2003] FCA 351 ; (2003) 128 FCR 458
Outcome: cited
Franks and Others v Western Australiaand Others [2006] FCA 1811 (21 December 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1811 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Arnold Franks and Others v Western Australiaand Others [2006] FCA 1811 (21 December 2006) Last Updated: 11 January 2007 FEDERAL COURT OF AUSTRALIA Arnold Franks and Others v State of Western Australia and Others [2006] FCA 1811 NATIVE TITLE mediation court supervision of mediation process mediation protocols and programs delays resource and staffing limitations of representative body specific orders proposed by National Native Title Tribunal power of Court to make specific orders orders made accordingly Native Title Act 1993 (Cth) s 86A and 86B Federal Court of Australia Act 1976 (Cth) s 23 Frazer v Western Australia [2003] FCA 351 ; (2003) 128 FCR 458 cited ARNOLD FRANKS AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS WAD6273 OF 1998, WAD6193 OF 1998, WAD6236 OF 1998, WAD6212 OF 1998, WAD6194 OF 1998, WAD6161 OF 1998, WAD6136 OF 1998, WAD6132 OF 1998, WAD6123 OF 1998, WAD6119 OF 1998, WAD6033 OF 1998, WAD6006 OF 2001, WAD6002 OF 2004, WAD6001 OF 2000, WAD286 OF 2004, WAD131 OF 2004 FRANK FRENCH AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS WAD82 OF 1998, WAD8 OF 2005, WAD6173 OF 1998, WAD6051 OF 1998, WAD6090 OF 1998, WAD6280 OF 1998, WAD6096 OF 1998, WAD6285 OF 1998, WAD6278 OF 1998, WAD6287 OF 1998, WAD6007 OF 2000, WAD6007 OF 2001, WAD126 OF 2005, WAD6005 OF 2003, WAD78 OF 2005, WAD293 OF 2005, WAD127 OF 1997, WAD6256 OF 1998 FRENCH J 21 DECEMBER 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD6273OF 1998, WAD 6193 OF 1998 WAD6236 OF 1998 WAD6212 OF 1998 WAD6194 OF 1998 WAD6161 OF 1998 WAD6136 OF 1998 WAD6132 OF 1998 WAD6123 OF 1998 WAD6119 OF 1998 WAD6033 OF 1998 WAD6006 OF 2001 WAD6002 OF 2004 WAD6001 OF 2000 WAD286 OF 2004 WAD131 OF 2004 BETWEEN: ARNOLD FRANKS AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE OF ORDER: 21 DECEMBER 2006 WHERE MADE: PERTH IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT: 1. The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minutes of proposed orders to give effect to these reasons to the extent that they are applicable to the application. 2. The directions hearing is adjourned to 29 June 2007 at 9am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD82 OF 1998 WAD8 OF 2005 WAD6173 OF 1998 WAD6051 OF 1998 WAD6090 OF 1998 WAD6280 OF 1998 WAD6096 OF 1998 WAD6285 OF 1998 WAD6278 OF 1998 WAD6287 OF 1998 WAD6007 OF 2000 WAD6007 OF 2001 WAD126 OF 2005 WAD6005 OF 2003 WAD78 OF 2005 WAD293 OF 2005 WAD127 OF 1997 WAD6256 OF 1998 BETWEEN: FRANK FRENCH AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE OF ORDER: 21 DECEMBER 2006 WHERE MADE: PERTH IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT: 1. The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minute of proposed orders to give effect to these reasons to the extent that they are applicable to that application. 2. The directions hearing is adjourned to 29 June 2007 at 9am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6273 OF 1998 WAD6193 OF 1998 WAD6236 OF 1998 WAD6212 OF 1998 WAD6194 OF 1998 WAD6161 OF 1998 WAD6136 OF 1998 WAD6132 OF 1998 WAD6123 OF 1998 WAD6119 OF 1998 WAD6033 OF 1998 WAD6006 OF 2001 WAD6002 OF 2004 WAD6001 OF 2000 WAD286 OF 2004 WAD131 OF 2004 BETWEEN: ARNOLD FRANKS AND OTHERS Applicant AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD82 OF 1998 WAD8 OF 2005 WAD6173 OF 1998 WAD6051 OF 1998 WAD6090 OF 1998 WAD6280 OF 1998 WAD6096 OF 1998 WAD6285 OF 1998 WAD6278 OF 1998 WAD6287 OF 1998 WAD6007 OF 2000 WAD6007 OF 2001 WAD126 OF 2005 WAD6005 OF 2003 WAD78 OF 2005 WAD293 OF 2005 WAD127 OF 1997 WAD6256 OF 1998 BETWEEN: FRANK FRENCH AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE: 21 DECEMBER 2006 PLACE: PERTH REASONS FOR DIRECTIONS ON GERALDTON AND PILBARA REGIONAL DIRECTIONS HEARINGS Introduction 1 On 18 and 15 December 2006 the Court convened directions hearings in respect of native title determination applications in the Geraldton and Pilbara regions of Western Australia respectively. These hearings related to cases which are the subject of mediation referrals by the Court to the National Native Title Tribunal (the Tribunal). The cases are in the Court's "Provisional Docket" which is the class of native title determination proceedings under mediation and not requiring imminent programming to trial. When it is thought appropriate to submit an application to closer judicial case management with a view to its progress to trial or other disposition, it is generally allocated out of the provisional docket to the "Substantive" docket of a judge designated for that purpose. 2 A chronic problem of delay has arisen in the mediation of native title determination applications in the various regions of Western Australia. The delays are largely due to limitations on both the human and financial resources available to carry out the necessary work. Those limitations affect representative bodies, the applicants they represent, unrepresented applicants, the State Government and other respondents. The greatest difficulties have been associated with the resolution of overlaps between native title determination applications and the preparation, by or on behalf of applicants, of materials sufficient to satisfy the State Government of the relationship with the area of land or waters under claim necessary to support a native title determination. The provision of so-called "connection material" typically involves the services of an anthropologist to research the particular claim group, its traditional laws and customs and the nature of the connection of the group to the land and waters in question under those traditional laws and customs. That work may involve the collation of research literature and extensive field investigations. The amount of time required is substantial and may extend for many months and sometimes in excess of a year. There is a limited number of suitably qualified anthropologists available to carry out such work. Preparation of connection material may also involve the collation of historical, archaeological and linguistic evidence. Under the current practice of the State Government of Western Australia, connection material, when submitted to it, is assessed by an expert engaged by the State. The process of assessment is outlined in a document published, in October 2004, by the Office of Native Title of the State of Western Australia entitled "Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title". 3 The mediation of native title determination applications is primarily a matter for the Tribunal. That priority is reflected in ss 86A and 86B of the Native Title Act 1993 (Cth) (the Act). The role of the Tribunal in mediation was heightened by the amendments made to the Act in 1998. They introduced a far more detailed regime for the mediation of native title determination applications than had previously been the case. Every such application must be referred to the Tribunal for mediation unless the Court orders otherwise (ss 86B(1) and (2)). The role of the Tribunal is reinforced by the Federal Court's facility to request it to provide reports on the progress of any mediation (s 86E). That role covers the process of information exchange of which the provision of connection material to the State is an important element. 4 In Frazer v Western Australia [2003] FCA 351 ; (2003) 128 FCR 458 at 466 I observed that: '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 a report 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.' In that case it was made clear that the provision of connection evidence between applicants and State is neither outside nor antecedent to the mediation process but an aspect of it (at [27]). 5 Shortly prior to publishing the decision in Frazer I made orders in relation to the Pilbara and Geraldton regions providing for the development of mediation timetables. The form of orders was along the lines of those made in Frazer (at [33[). They required the preparation by the applicants, overlapping applicants and the State of a program setting out a timetable for the exchange of information and specific issues to be negotiated. It was also directed that there be a detailed timetable including proposed meeting dates and venues set in a regional context and an outline of a negotiating protocol to be adopted by the State and the applicant. The parties were told that they had to lodge a copy of the relevant programs at the Court. Absent any agreement on such a program in a particular application, the applicant and any other interested parties were required to show cause why the application should not be referred to a substantive docket judge. In both the Geraldton and Pilbara regional areas mediation protocols and timetables were established pursuant to the Court's orders and have not been adhered to. Maps are attached to these reasons showing the claims in the two regions and charts provided by the Tribunal of the progress and anticipated progress of existing mediation protocols. 6 Directions were given on 1 August 2006 that the representative body for the Geraldton and Pilbara regions, the Yamatji Land and Sea Council (Yamatji), provide a report at the adjourned directions hearing on the feasibility of a single connection report covering a number of applications in the area as a means of progressing their resolution. Those applications are Budina (WAD131/2004), Malgana (WAD6236/1998), Nanda (WAD6136/1998), Thudgari (WAD6212/1998) and Gnulli (WAD6161/1998). 7 In its regional reports to the Court dated 18 and 15 December 2006, relating to the Geraldton and Pilbara regions respectively, the Tribunal has informed the Court of significant non-compliance with the mediation protocols agreed between the State and the representative body in each case. Of 16 applications in the Geraldton region, nine have current mediation protocols and six have not been complied with. Of the 24 applications in the Pilbara region, 17 have current mediation protocols. Ten of those have not been complied with. In each case the Tribunal has expressed the view that parties must adopt a more rigorous adherence to the protocols if applications in the region are to be resolved within reasonable timeframes. It submitted to the Court that if by the time of the next directions hearing parties are unable to comply with the timeframes agreed in the mediation protocols, the Court should consider replacing them with programming orders. The Tribunal has proposed draft orders for applications grouped according to subregions which it has defined within each of the regions. It submitted that the draft orders were intended to expedite the resolution of applications with a particular focus on overlaps. I am prepared to make orders in the terms proposed by the Tribunal on the basis that closer support and engagement by the Tribunal with the parties offers more promise for progress than reliance upon the existing mediation protocol. It is important, however, to note that those protocols should not be regarded as displaced by the orders which I propose to make.