FEDERAL COURT OF AUSTRALIA BA (deceased) on behalf of the Kariyarra People v State of Western Australia [2012] FCA 854 Citation: BA (deceased) on behalf of the Kariyarra People v State of Western Australia [2012] FCA 854 Parties: BA (deceased), CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE v STATE OF WESTERN AUSTRALIA and others as per the attached schedule CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE v STATE OF WESTERN AUSTRALIA and others as per the attached schedule File number(s): WAD 6169 of 1998 WAD 232 of 2009 Judge: NORTH J Date of judgment: 14 August 2012 Date of hearing: 22 May 2012 Date of last submissions: 5 June 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 WAD 6169 of 1998 Counsel for the Applicant: Mr S Wright Solicitor for the Applicant: Mr M Meegan of Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr G Ranson Solicitor for the State of Western Australia: State Solicitor for Western Australia Solicitor for the Commonwealth of Australia: Australian Government Solicitor Solicitor for Group 5: Ashurst Australia Solicitor for Group 6: Cornerstone Legal Solicitor for Group 7: Squire Sanders (AU) Solicitor for Groups 9, 14 and 17: Hunt and Humphry WAD 232 of 2009 Counsel for the Applicant: Mr S Wright Solicitor for the Applicant: Mr M Meegan of Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr G Ranson Solicitor for the State of Western Australia: State Solicitor for Western Australia Solicitor for the Commonwealth of Australia: Australian Government Solicitor Solicitor for Group 3: Mr A Rumsley Solicitor for Group 4: Ashurst Australia Solicitor for Group 5: Cornerstone Legal IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6169 of 1998 BETWEEN: BA (deceased), CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents JUDGE: NORTH J DATE OF ORDER: 14 AUGUST 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Mediation by the National Native Title Tribunal cease. 2. The application is referred to mediation by a Registrar of the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 232 OF 2009 BETWEEN: CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents JUDGE: NORTH J DATE OF ORDER: 14 AUGUST 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Mediation by the National Native Title Tribunal cease. 2. The application is referred to mediation by a Registrar of the Court. Note: Entry of orders is dealt with in Rule 39.23 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6169 of 1998 BETWEEN: BA (deceased), CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 232 OF 2009 BETWEEN: CYRIL GORDON, TR (deceased), KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA and others as per the attached schedule Respondents JUDGE: NORTH J DATE: 14 August 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In May 2012, the Australian Government announced institutional reforms to the native title system that would shift the responsibility of mediation in native title claims from the National Native Title Tribunal (the Tribunal) to the Federal Court effective from 1 July 2012. 2 At a directions hearing on 22 May 2012, the applicants sought an order from the Court for the mediation to cease in the Tribunal and for it to be referred to a Registrar of the Court. 3 The Court indicated to the parties that such an order should not be made without first inviting a response from the Tribunal. Orders were therefore made in the following terms: 3. Subject to the filing by 29 May 2012 by the National Native Title Tribunal of any objection, mediation by the National Native Title Tribunal cease on 29 May 2012; 4. The application is referred to mediation by a Registrar of the Court. 4 On 28 May 2012, in response to these orders, the Court received a letter from Member O'Dea of the Tribunal which expressed the view that some matters in these proceedings could be usefully advanced if left in further mediation before the Tribunal. Those matters were stated to include any outstanding intra-indigenous issues including intra-claim group issues and the negotiation of pastoral access matters including a potential pastoral Indigenous Land Use Agreement (ILUA). 5 On 30 May 2012, the Court wrote to the parties inviting submissions in response to Member O'Dea's letter and on the question of whether the matters should remain with the Tribunal or be transferred for mediation by a Registrar of the Court. 6 On 5 June 2012, the Court received submissions from the applicant in both proceedings which stated that they preferred the mediation to cease in the Tribunal and commence in the Court. 7 On 5 July 2012, the Court received submissions on behalf of Gene Smith, Mary Attwood, George Dann, Shirley Lockyer, Patricia Mason and Robert Dann, the first three of whom are members of the native title claimant group in WAD 6169 of 1998 and all of whom are respondents in WAD 232 of 2009. These submissions supported the applicants' submissions that mediation in relation to all issues, including the intra-indigenous dispute, be conducted by a Registrar of the Court. 8 The Court did not receive submissions from any of the other respondents. 9 In view of the institutional transfer of mediation from the Tribunal to the Court effective 1 July 2012 and the continued preference of the parties for the mediation to be transferred to the Court, the mediation of both Kariyarra matters by the Tribunal should cease and be referred to a Registrar of the Court. I certify that the preceding nine (9) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 14 August 2012 SCHEDULE OF RESPONDENTS WAD 6169 OF 1998 01 Government Interests State of Western Australia 02 Government Interests The Commonwealth of Australia 05 Mining Interest BGC Contracting Pty Ltd BHP Billiton Minerals Pty Ltd Dampier Salt Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd 06 Pastoral Interest Brierly, Colin Day, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, Zane Bradley Four Seasons Corporation (Mundabullangana Station) Pedo Pty Ltd (Mallina Station) 07 Special Leas Interests Westraint Resources Pty Ltd 09 Fishing Interests Western Australian Fishing Industry Council (Inc) 13 Pearling Interests MG Kailis Group of Companies 14 Aquaculture Interests Rinkens, Joe 15 Telecommunications Industry Interests Telstra Corporation Limited 17 Port Hedland Port Authority Port Hedland Port Authority SCHEDULE OF RESPONDENTS WAD 232 OF 2009 01 Government Interests State of Western Australia 02 Government Interests The Commonwealth of Australia 03 Indigenous Interest Attwood, Mary Dann, George Dann, Robert Lockyer, Shirley Mason, Patricia Smith, Eugenia 04 Mining Interest BHP Billiton Direct Reduced Iron Pty Ltd BHP Billiton Minerals Pty Ltd Boral Contracting Pty Ltd Dampier Salt Ltd FMG Pilbara Pty Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui – Itochu Iron Pty Ltd Mitsui Iron Ore Corporation Pty Ltd 05 Pastoral Interest Brierly, Colin Day, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, Zane Bradley 06 Telecommunications Industry Interests Telstra Corporation Limited