Jones v State of South Australia [2003] FCA 538

FEDERAL COURT OF AUSTRALIA

Jones v State of South Australia [2003] FCA 538 NATIVE TITLE – application for determination of native title – motion that the Court should not make any order for mediation except in limited respects under s 86B Native Title Act 1993 whilst 'Statewide ILUA Strategy' pursued – effect of motion is to seek deferral of progress of application until Strategy resolved – some parties oppose order and seek progression of application – whether Court should accede to motion

Native Title Act 1993 (Cth) Wadi People v State of Victoria [2001] FCA 1780 noted Frazer and Others on Behalf of the Warburton Mantamaru People v The State of Western Australia [2003] FCA 351 applied Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 cited PADDY JONES & OTHERS v STATE OF SOUTH AUSTRALIA & OTHERS SG 6022 of 1998 MANSFIELD J 30 MAY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 6022 OF 1998

BETWEEN: PADDY JONES & OTHERS

APPLICANTS

AND: STATE OF SOUTH AUSTRALIA & OTHERS

RESPONDENTS

JUDGE: MANSFIELD J

DATE: 30 MAY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The application in this matter is by Paddy Jones and others on behalf of the Yankunytjatjara and Antakiranja People for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in respect of an area of land in the northern part of South Australia largely to the east of the Stuart Highway at Marla and encompassing the Oodnadatta Track and areas to its north and south. It is unnecessary to describe the claim area in any further detail. The claim area is over land on which there are a number of existing pastoral leases including a pastoral lease in respect of Todmorden Station. 2 The application was duly referred to the Native Title Registrar in accordance with s 63 of the NT Act on 15 December 1998. The notification period prescribed under s 66 has expired, and the party lists have been determined. In the normal course, therefore, in accordance with s 86B of the NT Act, the Court would refer the application to the National Native Title Tribunal (the NNTT) for mediation. Section 86B(1) obliges the Court to take that step unless an order is made under s 86B(2). It provides: 'The Court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding.' 3 By motion, the Aboriginal Legal Rights Movement (the ALRM), the relevant native title representative body under Pt 11 of the NT Act, and a party to the proceeding, has sought orders in the following terms: '1. That the following parts of the proceeding be referred to mediation pursuant to section 86B of the Native Title Act 1993; a. the resolution of overlapping claims; b. issues relating to residential licences; c. issues relating to water licences, irrigation and reticulation; d. the identification of areas within the external boundaries of claim areas in respect of which extinguishment has been confirmed by sections 36F and 36G of the Native Title (South Australia) Act 1994 (as amended); e. the identification of the non-native title rights and interests being asserted to exist by Respondents to claims and the areas within claim areas in respect of which those rights and interests are asserted. 2. All other parts of the proceeding be adjourned to a date not before January 2003 or such other date as the Court may order, on which date the Applicants, ALRM and the State shall provide a report to the Court concerning the Statewide ILUA Strategy. 3. In the alternative to 1 and 2 that the whole of the proceeding be adjourned to a date not before January 2003 or such other date as the Court may order, on which date the Applicants, ALRM and the State shall provide a report to the Court concerning the Statewide ILUA Strategy.' 4 It emerged in the course of argument that, in substance, the ALRM wanted an order that the application not be referred to mediation under s 86B, more or less indefinitely, except in respect of the issues identified in par 1 of the motion. Counsel for the ALRM acknowledged that the Court should review the order from time to time, perhaps on a three monthly basis, but it is plain from the submissions and the material presented in support of the motion that (apart from periodic reporting) the application by motion will in effect involve an order that there be no mediation for many months from the date of this judgment and perhaps considerably longer. It is also implicit that ultimately the parties may seek an order under s 86B(2) that there be no mediation (except in respect of the specified issues) because alternative informal mediation processes will have been exhausted so there will be little point in further mediation by the NNTT.