FEDERAL COURT OF AUSTRALIA Bolton v State of Western Australia [2001] FCA 1074 NATIVE TITLE – application to vacate hearing dates based on mediation processes to be undertaken – said change in policy approach by new State Government – importance of maintaining hearing dates in native title matters. Sebastian v State of Western Australia (14 July 2000, Merkel J, unreported) followed Sampi v State of Western Australia [2000] FCA 1018 followed BOLTON & ORS v STATE OF WESTERN AUSTRALIA & ORS WAG 6134 OF 1998 WAG 6286 OF 1998 WAG 6130 OF 1998 CONTI J 19 JULY 2001 SYDNEY (HEARD VIA VIDEO CONFERENCE LINK IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6134 OF 1998 GENERAL DIVISION BETWEEN: ALLAN BOLTON, GLEN COLBUNG, DALLAS COYNE & ORS APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6286 OF 1998 GENERAL DIVISION BETWEEN: ALLAN BOLTON, HAZEL BROWN, GLEN COLBUNG & ORS APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6130 OF 1998 GENERAL DIVISION BETWEEN: PATRICIA M MORICH & ORS FOR KORENG, MINANG & WUDJARI PEOPLE APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: CONTI J DATE: 19 JULY 2001 PLACE: SYDNEY (HEARD VIA VIDEO CONFERENCE LINK IN PERTH) THE COURT ORDERS THAT: 1. Application for adjournment of the proceedings be dismissed. 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 WAG 6134 OF 1998 GENERAL DIVISION BETWEEN: ALLAN BOLTON, GLEN COLBUNG, DALLAS COYNE & ORS APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6286 OF 1998 GENERAL DIVISION BETWEEN: ALLAN BOLTON, HAZEL BROWN, GLEN COLBUNG & ORS APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6130 OF 1998 GENERAL DIVISION BETWEEN: PATRICIA M MORICH & ORS FOR KORENG, MINANG & WUDJARI PEOPLE APPLICANTS AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: CONTI J DATE: 19 JULY 2001 PLACE: SYDNEY (HEARD VIA VIDEO CONFERENCE LINK IN PERTH) REASONS FOR JUDGMENT (ON APPLICATION TO VACATE HEARING DATES) 1 On 19 July 2001, I dismissed an application made on behalf of the State of Western Australia, supported by inter alia the Applicants, for twelve months postponement of the so-called programming orders presently in force, to allow a certain mediation process to be undertaken. In the exercise of my discretion, I refused the application, and stated that I would publish my reasons, which I now provide below. 2 As appears from the title to the proceedings, each of the first two above numbered proceedings were commenced in 1998, along with proceedings 6130 of 1998 to the extent that the latter proceedings might overlap geographically with any of the geographical areas the subject of proceedings 6134 and 6286 of 1998. As indicated in an index compiled for me, at least twenty-two affidavits have been filed in the proceedings, as now consolidated, between February 1999 and September 2000. The Applicants comprise the Southern Noongar Families represented by Alan Bolton and others, the Wagyl Kaip People represented also by Alan Bolton and others, and the Koreng, Minang and Wudjani People represented by Patricia Morich and others. 3 There are a number of Respondents to the proceedings, apart from the State of Western Australia. They include the following: (i) The Shire of Wagin; (ii) The Western Australian Fishing Industry Council (Inc), which has now been granted leave to form a new Respondent Group known as Respondent Group 8A – WAFIC Fishing Interests; (iii) The Australian Maritime Safety Authority and the National Rail Corporation Limited, which have now been transferred from Group 2 – Government Interests – Commonwealth of Australia to a group to be created and entitled Group 14 – Government Interest – Commonwealth Entities; (iv) W.J. and A.O. Hicks; (v) R. Butler; (vi) Uniting Church Synod of WA; (vii) Telstra Corporation; (viii) City of Albany; (ix) G.M. Miller and Others and A.E. Patterson comprising the so-called Pastoral Interest and apparently representing the Western Australian Farmers Federation; (x) Homestake Gold of Australia Limited. Whether all of such Respondents were notified of the adjournment application, and if so when, was not indicated. 4 The present proceedings are scheduled for commencement in August 2002, pursuant to orders made by French J on 27 September 2000. Such orders may be summarised as follows, without (hopefully) not detracting from the care and precision applied by his Honour in the formulation thereof: (i) The Respondents in each group to select a representative and a single address for service, and to notify the Applicants, the State and the Court of such representative details by no later than 31 January 2001; (ii) The State Respondents to file and serve on the Applicants on or before 28 June 2001 a statement containing details and evidence of current freehold and other land tenures which, in their view, caused the subject land to have been excluded from the area described in each Application; (iii) The Applicants to file and serve on or before 31 August 2001 a statement as to the extent to which they agree that some or all of the lands the subject of claim are to be excluded from the area under claim, and the basis for the Applicants' view for not excluding the remainder of the area under claim; (iv) The State Respondents to be at liberty to file and serve a statement in response to the statements filed and served by the Applicants in (ii) and (iii) above within thirty days of receipt thereof; (v) If the Applicants have filed and served a statement pursuant to (iii) above, a preliminary hearing be held on convenient dates in October 2001, limited to determining precisely the boundaries of the areas under claim. 5 His Honour made the following further orders and directions concerning "Progress to hearing": (i) The issues as to the existence of native title and the extinguishment thereof be separated, so that evidence as to the existence of native title be heard, and a determination be made in relation thereto, before evidence is adduced and a determination made as to extinguishment thereof; (ii) The Applicants to file and serve on or before 31 March 2002 preliminary reports, in relation to any expert witnesses upon whose evidence they propose to rely, containing a review of, and comment upon, any literature relevant to their application, and an account of any field work which the retained expert has conducted; (iii) Any relevant Respondent to file on or before 30 June 2002 preliminary reports by the expert witnesses, upon whose evidence the Respondent proposes to rely, in response to the preliminary reports filed by the Applicants; (iv) The Applicants to file and serve Points of Claim setting out the facts and contentions relied upon in support of their claim, which facts and contentions are considered by the Applicants to be relevant to establishing their claims, together with any other matters considered by the Applicants to be relevant thereto; (v) Each Respondent intending to dispute any of the facts set out in the Points of Claim to file and serve Points of Response setting out matters disputed by that Respondent, and any additional facts or contentions relied upon by that Respondent in opposition to the Applicants' claim, and any further or alternative orders sought by such Respondent; (vi) The Applicants to file and serve on or before 28 February 2002 a statement setting out cultural and customary concerns which they wish the Court to take into account, and any proposals for the conduct of the proceedings in that regard, including restrictions as to confinement to communication and publication to one sex, and the grounds relied upon for such restrictions; (vii) The Respondents to file and serve on or before 31 March 2002 any statements in response to such claims as to cultural and customary concerns. 6 Directions were additionally given by French J as to the taking of evidence, including in particular for the service by the Applicants upon the Respondents of notice of the substance of the evidence to be given by each of the primary witnesses to be called on behalf of the Applicants, except from that of their expert witnesses, and in addition for the service of a list of all documents which the Applicants propose to tender or refer to in evidence. The trial was directed to commence in August 2002. 7 It will be observed that his Honour applied his considerable experience in relation to Native Title claims in his formulation of the foregoing directions and orders, each of which is plainly designed to ensure an informed, efficient and just hearing for the benefit of all of the many and varied parties to the proceedings. 8 On 19 July 2001, the Applicants and the State of Western Australia made application for the adjournment of the proceedings for twelve months to enable a mediation to occur before the National Native Title Tribunal as "facilitator and/or mediator", and for that purpose, for the abovementioned directions made by French J made on 7 September 2000 to be vacated. Three further or consequential orders were proposed as follows: (i) That the proceedings be adjourned to a further directions hearing to be listed for July 2002 in order to allow the parties to mediate in accordance with the so-called Mediation Programme; (ii) The Tribunal to report to the Court on the progress of the mediation by providing it with a mediation report following every proposed two monthly meeting to be held between the State and the Applicants; (iii) There be liberty to any party to apply on 14 days written notice. 9 In support of the application, evidence was provided by the Tribunal's Principal Policy Officer to the effect that the State Government had committed itself to resolving native title claims to lands etc in the South West of Western Australia by mediation in the Tribunal, which commitment was said to represent a change in political approach to that of the previous Government, as foreshadowed by policy commitments given by the Labour Party prior to the Western Australian State election which was held in February 2001. By way of implementation of this policy, the State has already negotiated a South-West mediation protocol with the Noongar Land Council in relation to the South-West Area 1 and 2 claims, such Council being said to represent most of the Applicants in the South-West Area 1 and 2 claims. 10 In further support of the application for the adjournment, the following advantages were propounded: (i) Meetings with the Tribunal are proposed to be held in August and September of this year. (ii) The State has already begun meeting its obligations under the mediation protocol by preparation of tenure information, and causing various Statement Government Departments with responsibility for the management of land and waters within the areas claimed to meet with the Noongar Land Council. Moreover it was asserted that the State has informed those Applicants not represented by the Noongar Land Council of the adjournment application, and had not received any comments as yet in response to the adjournment proposal. 11 The State informed me that the directions made by the Court concerning the provision of tenure information have been complied with, though some of the later directions to be complied with in terms of anthropological evidence and the like had not progressed "terribly far… due to the devotion of resources to the mediation process". The State also submitted that it was hoped that the mediation process would significantly reduce the length of the trial proceedings, and that the resolution of anthropological issues would be achieved by the mediation program. It was stressed that the mediation process was particularly expedient or advantageous, given the "issue of resources". 12 The Solicitor for the First and Second Applicants supported the State's application, as did Ms Morich on behalf of the Womba Group of Applicants, who also informed me as follows: "… in regard to mediation with the Nurwar (sic) Land Council. We have not continued mediation with the Nuwar (sic) Land Council for reasons unknown to us. We'd like to say that members of our group as well claim to be custodians of that area as well. Our claim is unregistered at the moment. We have no legal assistance at this time and we request that mediation continue with the assistance of the State Government because the process prior to (sic) meant that we were looked on by the Nuwar (sic) Land Councillors as not the same as the applicants they are representing." Ms Morich asserted that she had made an affidavit in the proceedings "around 1998", which is not presently listed in the Tribunal's report furnished to the Court. The mediation to which she referred in the transcript extracted above was said by her to have taken place in 1998. 13 The legal representatives for the Commonwealth and the Pastoral Respondents signified their consent to the proposed orders sought by the State. Mr Graham, not listed among the original Respondents to the proceedings, and whose locus standi was said to involve affected mineral interests, opposed the adjournment application. None of the remaining represented parties made a submission in relation to the adjournment application. 14 In the course of the adjournment debate before me, I put to the Solicitors for the State and the First and Second Applicants three matters in particular: (i) the concern of the Court that listing arrangements be adhered to, and that the public interest in ensuring that native title claims be brought on for hearing in accordance with Court directed timetables be observed; (ii) there was no good reason why an effective mediation process could not be implemented over the ensuing twelve months prior to the commencement of the Court hearing in August of 2002; on the contrary, a mediation process would be likely to be much more effective than that presently proposed, because all affected or interested parties would have the advantage of knowing or estimating the respective strengths and weaknesses of their opponents' cases, based upon the kind of information which such parties would have found themselves obliged to provide in conformity with the Court's directions; (iii) Experience dictates that at least the vast majority of mediations, and indeed successful ones, have taken place in the context of pending or even currently conducted court hearings; in short, the pressure of imminent court hearings has the tendency to obviate tactical manoeuvring and obfuscation between litigating parties. I did not understand there to be any material dissent in principle from propositions (i), (ii) and (iii) above. The main point made in favour of the adjournment was that the preferred process was likely to succeed because of the constructive weight which the Government would apply thereto. The optimism so expressed to me is not supported by the experiences of the parties to this litigation in relation to the earlier mediation process, which appears to have been lengthy but abortive. Moreover the apparent exclusion of Ms Morich thus far from the newly commenced process hardly augers well for its success in an environment unconstrained by the imminence of commencement of the hearing 15 I drew attention to two recent decisions of this Court involving applications for the adjournment of Native Title proceedings, in order to enable the parties or the predominant parties to mediate, namely Sebastian v State of Western Australia (14 July 2000, Merkel J, unreported), and Sampi v State of Western Australia [2000] FCA 1018 (Beaumont J). The judgment in Sampi was delivered on 31 July 2000, shortly after that in Sebastian. Beaumont J drew upon the following dictum of such immediately preceding judgment of Merkel J: "…arrangements have been made for the matter to proceed to hearing in Perth on 4 October with opening statements and then continuing in the week commencing 11 October at locations in the claim area. The concern of the court of course is that arrangements have been made with listing and allocation for that to occur on the basis of those dates being met but also there is, even more importantly, a public interest in getting native title claims that have been through the tribunal and the tribunal processes on for hearing in accordance with an orderly timetable. Whilst I think the court is sensitive to considerations of funding and other problems that may occur in native title matters, litigants in native title matters can't expect that the court will make them exceptional litigants or exceptional cases and in the normal course when a court fixes directions it's expected they will be abided by. In the normal course, when the court fixes a trail date, it expects that that will be adhered to, in fairness to the litigants in the case, in fairness to litigants in other matters in the court, and also in consideration of the function of the court to hear and determine disputes without delay. So my intent and purpose throughout has been to try and maintain a timetable which adheres to what was fixed in October 1999. The fact that there have been differences in applicant groups and the fact that there may have been some questions overhanging funding seemed to me to be matters that should have been sorted out in October 1999 [when the trial dates were set], not during the course of 2000. Now, I'm not expecting all to be perfect in an imperfect world, but they're just fundamental rules that timetables shouldn't be fixed if the parties don't think they can adhere to them but once they're fixed it seems to me the parties are obliged to adhere to them. … I have the view that the court has obligations to the community to bring these matters on in accordance with orderly timetables in fairness to the parties but also in the public interest to get native title matters resolved. If every time applicant groups turned into disputants between themselves native title matters had to go off indefinitely as this one will have the propensity to do, in the end the court's processes not only break down, but fail to serve the interests that they were set up to establish, which is to resolve disputes, [and] not [to] become a vehicle for enabling them to continue. … I think the parties have an obligation to try and maintain hearing dates once they've agreed to them. In the absence of unforeseen circumstances I think the court should not alter that process [and should] try to maintain hearing dates. Our system is largely dependent upon that degree of certainty and whilst, if I was satisfied that maintaining the hearing date would produce some injustice or unfairness to the parties I may take a different view. I'm not satisfied that what has been put to me in submissions, which I should say hasn't been supported by any affidavit material that suggests unfairness or injustice, that there is unfairness or injustice in maintaining the hearing date that I've indicated has been set now since 22 October 1999. In those circumstances it seems to me incumbent upon the parties to organise themselves to deal with what was always anticipated to be the position absent any unforeseen or new circumstances that might arise hereafter. In that regard it's not fruitful to surmise or hypothesise as to what may happen if a circumstance arises that should result in the court taking a different view. It can be dealt with when that happens but on the situation that's currently before me and on the material that's currently before me, I've decided that it's not appropriate to vacate the trial date and I propose to maintain it." I informed the parties that I proposed to apply such statements of principle to the present application. I am not satisfied that any unfairness or injustice would be thereby occasioned by my refusal of the application. The circumstance that the applications for adjournment in both cases were apparently made only by the Applicants involved, whereas in the present case the applications have the further support of those Respondents listed in [13] above does not seem to me to justify a different conclusion. The emphasis of the State and the Applicants upon the need for conservation of their respective resources never travelled beyond the vaguary of such submission, and in any event I am far from persuaded that their respective resources will be misdirected as a consequence of adherence to the procedural orders of French J. 16 In the result, I dismissed the adjournment application. Since the proceedings had been previously listed on 19 July 2001 for mention, I made no order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 7 August 2001 Solicitor for the First and Second Applicants: Noongar Land Council Solicitor for the Third Applicants: The Applicants appeared in person Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Western Australian Fishing Industry Council Hunt & Humphrey Solicitors Solicitor for Pastoral Respondents Jackson McDonald Solicitors Solicitor for The Uniting Church Synod of Western Australia Rev J M Thomson Uniting Church Synod of Western Australia Solicitor for Telstra Corporation Blake Dawson Waldron Solicitor for Mr R Graham The Respondent appeared in person Solicitor for Mr R Butler The Respondent appeared in person Solicitor for Amicus Curae Miss L Lloyd National Native Title Tribunal Date of Hearing: 19 July 2001 Date of Judgment: 19 July 2001