FEDERAL COURT OF AUSTRALIA James on behalf of the Martu People v State of Western Australia [2002] FCA 849 NATIVE TITLE – overlapping applications – area outside overlap close to consent determination – application for overlap area to be dealt with separately – case management considerations – parties with interests in overlap area only – no entitlement to continue as parties in balance of area – springing order to effect termination of party status unless notice of intention to continue as party given. Native Title Act 1993 (Cth) s 67 JEFFREY JAMES, TEDDY BILJABU, BILLY DUNN AND OTHERS on behalf of the MARTU PEOPLE v THE STATE OF WESTERN AUSTRALIA AND OTHERS WAG 6110 OF 1998 FRENCH J 2 JULY 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6110 OF 1998 BETWEEN: JEFFREY JAMES, TEDDY BILJABU, BILLY DUNN AND OTHERS on behalf of the MARTU PEOPLE APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS JUDGE: FRENCH J DATE OF ORDER: 2 JULY 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. To the extent that this application relates to an area of land (the overlap area) covered by the Ngalia application WAG6143/98, it will be dealt with in those proceedings. 2. Any respondent party with an interest in the overlap area be joined as a party to the Ngalia application WAG6143/98. 3. Any respondent party, other than the State of Western Australia, the Shire of Wiluna, Telstra and the Kimberley Land Council, which asserts an interest in the balance of the area covered by this application and intends to remain a party in respect of this application, is to give notice to the District Registrar of the Federal Court at Perth and to the Ngaanyatjarra Land Council representing the applicants within fourteen days of service of these orders upon it. 4. For the purposes of the preceding order, notice to the applicants may be given by facsimile (08 94252001) or email (danodea@ngaanyatjarra.org.au). 5. Any party which does not give notice to the District Registrar, if so required by the preceding orders, shall cease to be a party at the expiry of fourteen days after service upon it of these orders. 6. Any consent orders between the remaining parties to the present proceedings shall be filed on or before 30 July 2002 together with such supporting affidavits and material as the parties consider necessary for the purposes of the Court making a determination pursuant to s 87 of the Native Title Act 1993 (Cth). 7. There be liberty to apply generally and for directions as to the date and venue of hearing of any application for a consent determination and for further directions. 8. The matter be adjourned for directions on 6 August 2002 at 9.15am. 9. The applicants to file an affidavit of service of this order on the various parties and of the communications it has had with indigenous parties to inform them of the nature of the orders. 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 6110 OF 1998 BETWEEN: JEFFREY JAMES, TEDDY BILJABU, BILLY DUNN AND OTHERS on behalf of the MARTU PEOPLE APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS JUDGE: FRENCH J DATE: 2 JULY 2002 PLACE: PERTH REASONS FOR JUDGMENT ON APPLICATION TO DEAL SEPARATELY WITH NON-OVERLAP AREA OF CLAIM 1 On 26 June 1996, an application for a native title determination was lodged with the National Native Title Tribunal on behalf of the Martu People of the Western Desert area of Western Australia located in the Pilbara region. Following amendments to the Native Title Act in 1998 the application became a proceeding in this Court from 30 September 1998. 2 The claim area comprises some 219,400 square kilometres in the Rudal River National Park comprising largely unallocated crown land. There are some fourteen parties who are respondents to the claim. They are the State of Western Australia, the Shire of Wiluna, Telstra, the Kimberley Land Council, a number of mining companies with interests in the area and indigenous parties. 3 Two other applications for native title determinations overlap the Martu application. They are the Ngurrara application (WAG6077/98) and the Ngalia application (WAG6143/98). The area of overlap of the Ngurrara claim is 6,101.67 square kilometres and that of the Ngalia claim is 2,360.39 square kilometres. The Ngalia claim also overlaps the Birriliburru claim which lies to the south of and is contiguous with the Martu claim area. There is some common membership of the Martu and Birriliburru claim groups. The Ngalia overlap in Birriliburru traverses an area from its northern to its southern boundary. On the other hand the overlap with Martu is small relative to the size of the Martu claim and intrudes just over the southern boundary. 4 The applicants seek orders pursuant to s 67(2) of the Native Title Act 1993 (Cth) which would have the effect that: 1. Insofar as part of the Martu application is overlapped by the Ngalia application, the area of the overlap and the claims of the Martu people in the area of overlap be dealt with in the Ngalia claim proceedings (WAG 6143/98). 2. Any parties whose interests relate to the area of the overlap cease to be parties to the Martu proceedings and become parties to the Ngalia claim. It is submitted on behalf of the applicants that the proposed orders would allow the resolution of the overlap between the Martu and Ngalia claims to be dealt with in one proceeding, namely the Ngalia proceeding. The Ngalia claim is not able to be finalised as part of the Martu claim because Ngalia continues to overlap Birriliburru. Moreover, some members of the Martu native title claim group who are members of Birriliburru have interests in the proceedings relating to Ngalia beyond the boundary of the Martu claim. 5 It is submitted to the Court that the necessity to reorder the proceedings arises because the Court may make only one determination of native title per area pursuant to s 68 of the Native Title Act. In order to make a determination on the whole of the area covered by the Martu application, the Court would have to determine the Ngalia interests. 6 Section 67 of the Native Title Act provides: "(1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. (2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings." 7 Counsel for the applicants first raised the proposal for an order under s 67 at the directions hearing held on 18 June 2002. The purpose of the order is to enable the applicants to achieve a consent determination in relation to so much of the claim area as is not overlapped by the Ngalia claim. It would, of course, be possible for the applicants to file an amended native title determination application excluding the overlap area but this would delay resolution as it would require the collection of signatures from members of the claim group in the Western Desert. It would also require further processing by the Registrar of the National Native Title Tribunal in connection with its registration. 8 An order along the lines proposed is a convenient way of dealing with the matter. At the directions hearing on 18 June 2002, the State and Telstra, who were both represented, indicated that they did not have any concerns about the order. I made directions at the time in the following terms: "1. The applicants file within seven days a proposed minute and submissions for an order pursuant to s 67 of the Native Title Act 1993 that the part of the claim area covered by the Ngalia Claim (WAG6143 of 1998) be dealt with in separate proceedings. 2. The applicants serve a copy of the proposed minute and submissions and of this order on any parties with interests in the area of the overlap. 3. The directions hearing be relisted for 2 July 2002 at 2.15pm when a ruling will be made on the s 67 application. 4. The applicant bring a Minute of Proposed Further Directions at that time with a proposed date for the consent determination. 5. There be liberty to apply." 9 I am satisfied that subs 67(2) which authorises the Court to make orders providing that different parts of the area covered by an application may be dealt with in separate proceedings, contemplates both the hearing and determination of an application over particular parts of the area covered. In so saying, I have regard to the observations of Emmett J in Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229, where his Honour said: "Section 67(2) ... specifically permits the Court to deal, in separate proceedings, with different parts of an area covered by a single application, but only, it seems to me, in the limited circumstances of s 67, namely, where there are overlapping native title applications." [15] 10 I am satisfied that as an incident of dealing with part of an area covered by an application pursuant to s 67(2) the Court may make an order pursuant to s 84(8) that persons without an interest in the area to be separately dealt with pursuant to s 67(2) cease to be party to the proceedings. The minute of proposed orders included a requirement for a notice of continuance by parties with interests in the overlap area as a condition of their continuance as parties in the balance area. Tying the notice requirement to the concept of interest in that way may be productive of some uncertainty. Given the small number of parties involved, I think all parties other than those who are plainly continuing, ie, the State, the Shire, the Kimberley Land Council and Telstra, should be required to give notice. 11 I will therefore make orders accordingly together with consequential directions. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J. Acting Associate: Dated: 2 July 2002 Counsel for the Applicant: Mr M Rynne Solicitor for the Applicant: Ngaanyatjarra Land Council Counsel for State of Western Australia: Ms S Begg Solicitor for the State of Western Australia: Crown Solicitor for Western Australia Counsel for Telstra Corporation Ltd: Solicitor for Telstra Corporation Ltd: Ms S Flynn Blake Dawson Waldron Date of Hearing: 18 June 2002 Date of Judgment: 2 July 2002