FEDERAL COURT OF AUSTRALIA Wilkes v State of Western Australia [2003] FCA 142 NATIVE TITLE – PRACTICE & PROCEDURE – motion to vacate trial dates. RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS, ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY, WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY, GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY AND CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS V STATE OF WESTERN AUSTRALIA AND ORS NO. WAG 142 OF 1998 NO. WAG 141 OF 1998 NO. WAG 137 OF 1998 NO. WAG 138 OF 1998 NO. WAG 139 OF 1998 NO. WAG 140 OF 1998 NO. WAG 149 OF 1998 NO. WAG 143 OF 1998 NO. WAG 6128 OF 1998 NO. WAG 6159 OF 1998 NO. WAG 6239 OF 1998 NO. WAG 6283 OF 1998 BEAUMONT J 5 MARCH 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 WAG 143 OF 1998 WAG 6128 OF 1998 WAG 6159 OF 1998 WAG 6239 OF 1998 WAG 6283 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND ORS RESPONDENTS JUDGE: BEAUMONT J DATE OF ORDER: 4 MARCH 2003 (REASONS PUBLISHED 5 MARCH 2003) WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Motion to vacate trial dates refused. 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 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 WAG 143 OF 1998 WAG 6128 OF 1998 WAG 6159 OF 1998 WAG 6239 OF 1998 WAG 6283 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND ORS RESPONDENTS JUDGE: BEAUMONT J DATE: 5 MARCH 2003 PLACE: PERTH REASONS FOR JUDGMENT (ON FURTHER NOTICE OF MOTION TO VACATE TRIAL DATES) BEAUMONT J: 1 On 4 March 2003, I refused a motion by the South West Aboriginal Land & Sea Council Aboriginal Corporation ("SWAL&SCAC") to vacate the trial dates of this matter, then fixed to commence on that day, indicating then that reasons for that refusal would be published at a later date. These are those reasons. Background 2 The forensic history of the matter to that date is summarised in my reasons given on 5 November 2002 ([2002] FCA 1416) incorporating my earlier reasons dated 8 March 2002 ([2002] FCA 222). 3 As mentioned in my reasons given in November 2002, in 1999 the present application was fixed for hearing in September 2001; in March 2001, upon the application of the Noongar Land Council, that hearing date was vacated and fresh trial dates in March of 2002 were fixed; and in December 2001, again upon the application of the Noongar Land Council, the hearing for March 2002 was vacated and a fresh hearing to commence on 4 June 2002 was fixed. 4 As mentioned in reasons given last March, I then vacated, on SWAL&SCAC's application, the trial dates then fixed for June 2002. I then said: "A recognised Representative Body, The South West Aboriginal Land & Sea Council Aboriginal Corporation ('SWAL&SCAC'), which was joined in February 2002 as a party to the proceedings, now seeks an order vacating the June hearing. The basis for the request for vacation of the June hearing appears from the affidavits of Mr D D Pearce sworn 5 February 2002 and 7 March 2002. Mr Pearce is CEO of SWAL&SCAC and was previously CEO of the Noongar Land Council, its predecessor in this matter. According to Mr Pearce's evidence, both representative bodies have experienced serious funding and constitutional problems, with the consequence that grave difficulties have been encountered in progressing these claims, beyond engaging in 'a structured anthropological and historical research program …' during early and middle 2001 (par 10, affidavit sworn 5 February 2002). On the material before the Court, it seems that by 4 June 2001, SWAL&SCAC will be able to file and serve a preliminary anthropological report. I will so direct. However, it is apparent SWAL&SCAC will be unable to do anything more than this by 4 June, given its recent involvement in what is plainly complex litigation. This is hardly satisfactory from anybody's perspective (given especially the fact that, already, several potential witnesses have died), but, for the moment, it is unavoidable." 5 In my reasons given last November, I said: "For the reasons I gave on 8 March 2002, I vacated the trial dates fixed to commence on 4 June 2002, but directed, amongst other things, that the representative body file and serve a preliminary anthropological report by 4 June 2002. That was not done. However, upon the matter being restored to the list before me in June 2002, orders were made by me, by consent, in that month which, in addition to giving a series of pre-trial management directions, fixed the trial of the matter to commence in March 2003. It is in that context that the present application to vacate that trial date is made. The matter has been argued before me by Mr Hershowitz, who has put everything that could have been put on behalf of the applicants. It did, however, emerge, during the course of argument, that there did not appear to be any evidence upon which I could rely which would give the Court any feeling of confidence that, if the trial date were to be vacated and heard instead in December 2003 (as the applicants suggested) the matter would proceed in accordance with a timetable which, at least so far as the applicants were concerned, would be adhered to. Mr Pearce's affidavit evidence has explained that there are a number of governance and other difficulties confronting the representative body. Regrettably, it does not appear that the resolution of those difficulties has progressed in the nine months that have elapsed since his affidavit was sworn on 5 February this year. In all those circumstances, I have come to the view (taking into account also the fact that Mr Bodney has pursued and diligently prepared his own application fixed for hearing in March 2003 also), that there is no useful purpose to be achieved by imposing upon the applicants any further pre-trial directions. The only inference I can draw is that they are not able to comply with any such directions. I do not seek, and it is not appropriate that I do seek, to explore in any detail the reasons for that inability to comply with any directions, but the matters explained in Mr Pearce's earlier affidavit certainly suggest that unless the governance issues are resolved quickly (and there is no apparent prospect of that) there will be no realistic chance of the applicants progressing this matter in accordance with the orthodox pre-trial management procedures that this Court has, to this point, always adopted in these matters. That being so, it seems to me that I have really no choice but to dispense with the ordinary pre-trial management processes so far as all parties are concerned. I propose to do that. However, as a corollary to that decision, I have also come to the view that, along with Mr Bodney's claim (fixed, as I said, to commence hearing on 4 March 2003), I should at the same time hear the applicants' connection evidence, including their genealogical evidence. I will hear that evidence at this time." Conclusions on the present motion 6 By its notice of motion dated 27 February 2003, SWAL&SCAC now moves for the following orders: "1. The trial hearing dates fixed to commence on 4 March 2003 be vacated. 2. The matter be listed for a Regional Case Management Conference for all matters in the south west of Western Australia as soon as possible, [there are several such matters, each having been substantively allocated to the docket of another Judge] and 3. The parties have liberty to apply on 14 days notice for the matter to be listed for a directions hearing should any date in annexure 'DDP8' annexed to the affidavit of Darryl Drew Pearce sworn 28 February 2003 not be complied with." ["DDP8" is, as will appear, a proposed fresh timetable.] 7 The notice of motion is supported by several affidavits to the following effect: 8 By his affidavit previously mentioned, Mr Pearce, SWAL&SCAC's CEO, gave this evidence: · Despite SWAL&SCAC's appointment, "there are certain disaffected members of the Noongar Land Council ("NLC") who continue to assert that the NLC and not SWAL&SCAC is the properly appointed [Representative body] ... [and] ... [who] purport to represent interests before various judicial proceedings." · SWAL&SCAC is "representative of a broad cross section of the Noongar Community". · Parties have, over a period, willingly engaged in mediation in most of the Native Title claims in the south west of the State, although difficulties arose in progressing mediation from May 2002. Notwithstanding that the National Native Title Tribunal attempted to facilitate the process, the State declined to participate. · Because of funding limits, SWAL&SCAC wishes to move to a single Noongar claim, picking up several claims, including this one, on behalf of all Noongar people. Dr Bruce Shaw, anthropologist, has provided a "preliminary" report (annexed) which "opines that the indigenous people of the south west are a distinct and homogenous society – collectively termed Noongar". · In February 2003, SWAL&SCAC convened meetings of the Noongar community in each of the current claim areas "to inform the relevant communities and seek direction in establishing mandate and instructions regarding a Single Noongar Claim", including meetings held in Perth on 3 February 2003 and 22 February 2003, at which "the majority" present authorised such a claim. To this end, SWAL&SCAC's solicitors have been instructed to commence preparations for the filing of a new application. · SWAL&SCAC now proposes the following revised timetable for a Single Claim (including the present claim): 9 SWAL&SCAC believes that "mediation on the basis of a Single Noongar Claim better represents the anthropological evidence of a Noongar cultural bloc and attracts significant efficiencies of scale." 10 SWAL&SCAC further relies upon the affidavits of Murray Alan Jones, Trevor Eades, Frances Emily Humphries and Glenys Yarran, all sworn in February 2003, and essentially corroborating Mr Pearce's evidence that the majority present at the meetings of the Noongar community wish to present a Single Claim over the south west. 11 SWAL&SCAC also relies upon a media statement made on 27 February 2003 by the State's Deputy Premier as follows: "Move to settle South-West native title claims 27/2/03 The State Government has put forward a mediation plan to settle a series of South-West Noongar native title applications – including a 9,000 sq.m claim over the metropolitan area – to avoid protracted Federal court cases. Deputy Premier Eric Ripper said the Government wanted to settle the applications through negotiation but would not enter into endless talks with no results. Mr Ripper said the plan was linked to a timetable of achievable milestones, and if accepted by the South-West Aboriginal Land and Sea Council and native title claimants, could be put to the Federal Court for approval tomorrow. The Deputy Premier said the plan involved: · a structured program of mediation toward a final settlement by the end of 2006 for all Noongar claims outside the metropolitan area; and · a mediation program for the metropolitan native title claims until March 2004. 'Strenuous efforts over the years to settle the Perth metropolitan native title applications – including by the National Native Title Tribunal – have been unsuccessful.' Mr Ripper said. 'The Gallop Government has also supported two six-month adjournments of the Perth metropolitan court case for mediation, but this cannot continue indefinitely. 'A final 12-month period of negotiation gives the combined metropolitan claimants fair warning that there must be real progress to avoid the matter proceeding to trial in March 2004. Mr Ripper said there were a number of overlapping native title claims over the Perth metropolitan area, some dating back to 1994. The State Government had invested almost $5000,000 in tenure searches through the Department of Land Administration to assist in the resolution of the metropolitan claims. 'Native title agreements are preferable to court cases, but open ended negotiation for years on end is an injustice in itself,' Mr Ripper said. 'It diverts resources from more prospective negotiations, and denies the rights of those parties, including indigenous parties, who contest the merits of the claim.' The Deputy Premier said the State Government recognised that it was difficult for any indigenous people to meet the onerous requirements of Federal native title laws to prove their native title rights. 'It is particularly difficult for indigenous groups that have been most dispossessed of their traditional country to achieve determinations of native title,' he said. 'For this reason, the Government is willing to explore avenues outside the native title process to recognise the aspirations of indigenous people.'" 12 In this connection, SWAL&SCAC points also to a letter written to it on 27 February 2003, by the State's Executive Director Office of Native Title, as follows: 13 However, the State has not reached any agreement with SWAL&SCAC in this connection, and it now opposes SWAL&SCAC's motion. 14 In the course of oral argument, counsel for SWAL&SCAC also proposed, as an alternative to the orders sought in its motion, an adjournment of the trial for six weeks when extinguishment issues would be first dealt with. 15 SWAL&SCAC's motion, and its alternative proposal, are opposed by all respondents, and, in particular, by Mr Bodney. 16 In my opinion, the further deferment of these proceedings even for another six weeks, would, at the least, be quite unfair to Mr Bodney. He is unrepresented, elderly and not in good health. His evidence, which was taken on a preservation basis, is now complete, as is his anthropological material. He is entitled to ask the Court to perform its constitutional duty to adjudicate upon his claim now. By contrast, the extraordinary, and for the most part, unexplained delay on the part of SWAL&SCAC, and its predecessor, to progress its own claims, must weight very much against SWAL&SCAC in deciding how the present discretion ought to be exercised. 17 In my view, the interests of justice require that this trial of these applications, lodged many years ago, and already the subject of long periods of unsuccessful mediation, now proceed rather than be deferred once more, as SWAL&SCAC has again proposed. Orders 18 Accordingly, it was ordered that SWAL&SCAC's motion be refused. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 5 March 2003 Counsel for the First Applicants: Mr P Kennard Solicitor for the First Applicants: SWAL&SCAC Mr Bodney appeared in person Solicitor for the Bodney Applicants: Counsel for the State of Western Australia: Mr S Wright Solicitor for the State of Western Australia: Crown Solicitors Office, Western Australia Counsel for Commonwealth of Australia: Mr A Beech Solicitor for Commonwealth of Australia: Australian Government Solicitor Counsel for various local government bodies and some mining interests: Ms A Vivian Solicitor for various local government bodies and some mining interests: Minter Ellison Counsel for WAFIC: Mr M McKenna Solicitor for WAFIC: Hunt & Humphry Counsel for Group 15 in WAG 142/98 and Group 12 in WAG 149/98: Mr K Jagger Solicitor for Group 15 in WAG 142/98 and Group 12 in WAG 149/98: Freehills Counsel for Town of Bassendean & others (various local government bodies): Mr P Wittkuhn Solicitor for Town of Bassendean & others (various local government bodies): McLeods Counsel for South West Aboriginal Land & Sea Corporation: Mr M Rynne Solicitor for South West Aboriginal Land & Sea Corporation: SWAL&SCAC Date of Hearing: 4 March 2003 Date of Orders: 4 March 2003 Date of publication of Reasons for Judgment: 5 March 2003