Federal Court of Australia Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 3) [2021] FCA 1131 File number(s): WAD 41 of 2019 WAD 569 of 2019 Judgment of: MORTIMER J Date of judgment: 17 September 2021 Catchwords: NATIVE TITLE – referral to mediation – where native title holders have not appointed prescribed body corporate – where public health orders have made in-person meetings and anthropological fieldwork difficult Cases cited: Sturt on behalf of the Jaru People v State of Western Australia [2021] FCA 219 Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 15 Date of hearing: Determined on the papers Solicitors for the applicant in WAD41/2019 and WAD569/2019 Kimberley Land Council Solicitors for the first respondent in WAD41/2019 and WAD579/2019 State Solicitor's Office Solicitors for the second respondent in WAD41/2019 King & Wood Mallesons Solicitors for the third respondent in WAD41/2019 Castledine Gregory Solicitors for the fourth respondent in WAD41/2019 and the second respondent in WAD569/2019 MPS Law Table of Corrections 29 November 2021 Medium neutral citation amended to include "(No 3)". ORDERS WAD 41 of 2019 BETWEEN: JOSEPHINE FARRER, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS, MARK BIN BAKAR AND GREGORY DONALD TAIT Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent TELSTRA CORPORATION LIMITED Second Respondent SHIRE OF HALLS CREEK Third Respondent INDIGENOUS LAND AND SEA CORPORATION Fourth Respondent WAD 569 of 2019 BETWEEN: JOSEPHINE FARRER, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS, MARK BIN BAKAR AND GREGORY DONALD TAIT Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent INDIGENOUS LAND AND SEA CORPORATION Second Respondent order made by: MORTIMER J DATE OF ORDER: 17 September 2021 The Court notes that: 1. The purpose of the orders for further mediation is to discuss and review the genealogies of Ngarrawanji common law native title holders with all those Ngarrawanji native title holders who wish to attend, and to give the Indigenous Land and Sea Corporation an opportunity to engage with the common law holders, to understand their concerns about the operation of a prescribed body corporate and to provide any assistance within the Court's mediation process as the Judicial Registrar considers appropriate. 2. The purpose of the orders for further judicial case management hearing is to discuss the outcome of the mediation process and the likelihood that the Indigenous Land and Sea Corporation may need to be appointed as the prescribed body corporate for the Ngarrawanji native title holders, or whether it is likely the Ngarrawanji native title holders may be able to agree, as a group, about the establishment of their own prescribed body corporate and, if so, by the next necessary processes and timing for a nomination of that body. THE COURT ORDERS THAT: 1. Orders 4 and 5 of the orders of 11 March 2021 in each of WAD41/2019 and WAD569/2019 be vacated and, in lieu thereof, the following orders be made. 2. The matter be referred to Judicial Registrar McGregor for mediation on a date prior to 12 November 2021. 3. Judicial Registrar McGregor report to the Court on the outcome of the mediation within 7 days of its conclusion. 4. The matter be listed for further judicial case management hearing on a date in the week commencing 29 November 2021, which date is to be fixed after the filing of the report referred to in order 3 of these orders. The Court directs that: 1. The current representatives of the applicant in each of WAD41/2019 and WAD569/2019 shall ensure that a suitably qualified anthropologist conducts, by 22 October 2021, anthropological fieldwork and family consultation with the Ngarrawanji native title holders to discuss genealogies and apical ancestors on the Ngarrawanji determinations, including, if necessary, by remote audio-visual or audio link. 2. The participants in the mediation shall include any individual member of the Ngarrawanji native title holding group who wishes to attend, the legal representatives and instructors (if required) for the applicant, the first respondent, the Indigenous Land and Sea Corporation and the Kimberley Land Council, and the anthropologist or anthropologists who conduct the anthropological fieldwork or family consultation for the applicant. 3. The Judicial Registrar may release any party or participant from the mediation at any stage in her discretion. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 The principal purpose of publishing these reasons is to give the maximum possible access to all members of the Ngarrawanji native title holding group to information about how the Court is managing the continuing dispute within the group about the establishment of a prescribed body corporate (PBC) for the Ngarrawanji People. The history of the issues associated with the establishment and nomination of a PBC or PBCs to hold the native title recognised in relation to WAD41/2019 (Ngarrawanji #1) and WAD569/2019 (Ngarrawanji #2) was summarised in this Court's reasons in Sturt on behalf of the Jaru People v State of Western Australia [2021] FCA 219 at [13]-[17]. 2 As the Court explained in Sturt, the failure to nominate a PBC arises from disputes between members of the Ngarrawanji #1 and Ngarrawanji #2 claim groups about group membership. Specifically, the disputes are about which people are properly identified as descendants of the apical ancestors identified in the Ngarrawanji determinations. In Sturt, the Court expressed its concern that, given the level and length of the disputes, in order for a PBC to be established and nominated, the identity of those descendants might have to be determined by Court order, rather than by agreement of the claim groups. This was and remains a possibility. The Court continues to work towards avoiding that outcome, as these are fundamentally intramural issues which can and should be resolved by rational decisions within the native title holding group, based on a full and reasonable understanding of the available information about the family history of those concerned. 3 To attempt to resolve the dispute about claim group membership, the Court referred these matters to further mediation with Judicial Registrar McGregor. It was proposed that the mediation would occur with the benefit of Dr Anthony Redmond's expert anthropological opinion on questions of genealogy. At the last case management hearing, many claim group members expressed their views to the Court that they needed Dr Redmond's assistance to understand the genealogies. Those genealogies are an important mechanism to use in deciding which people should properly be included in the Ngarrawanji native title holding group. 4 This mediation, conducted under the March 2021 orders, proceeded on 9 and 10 June 2021 in Halls Creek, Western Australia. Dr Redmond was not able to be present at this mediation. Twenty-nine claim group members attended, as well as Kimberley Land Council staff, the CEO of the Indigenous Land and Sea Corporation (ILSC), and lawyers for the parties, some by Microsoft Teams. 5 Judicial Registrar McGregor reported on the outcomes of that mediation as follows: Before the conclusion of the mediation, the mediation participants agreed the following outcomes should be reported to the Court: a. Dr Redmond would undertake the planned field work and family group consultations in the period 28 June 2021 to 5 July 2021. b. A further mediation is to be convened in the week commencing 5 July 2021 (on 6 and 7 July 2021). This meeting would be open to all members of the Ngarrawanji native title group. It is intended the meeting would be a court process, where the KLC funded facilitator would run the meeting in conjunction with Dr Redmond for the purpose of working through the apical ancestors and the descendants of those people, including the current family groups. It is intended the ILSC would also attend the meeting and be present to assist the court. c. The mediator will file a further mediation report at the conclusion of the mediation on 6 and 7 July 2021. 6 Since that mediation, public health orders and border restrictions implemented in response to the COVID-19 outbreaks across Australia have continued to prevent, or make it practically difficult for Dr Redmond to enter the State of Western Australia. The applicant in each matter and the ILSC have jointly proposed that Dr Redmond's fieldwork and consultations, and his attendance at a further mediation, be performed remotely if necessary, and that the performance of these tasks occur in October and November 2021. 7 The Court considers it is necessary to bring to a conclusion these issues about whether the Ngarrawanji People can themselves achieve the nomination of a PBC. As the parties acknowledged in their report to the Court, more use of online communication methods may be necessary. 8 The difficulties that border restrictions have caused to the progress of native title cases in this Court are enormous. There have been postponements and adjournments of many on-country hearings, and on-country mediation work, depending on the State or Territory involved. Across the country, substantial modifications have had to be made to how work towards native title determinations is being progressed. People have had to get used to meeting online, and to conducting and participating in hearings online. Especially on the eastern seaboard, lawyers and judges have been conducting hearings online for more than 18 months now. There have been only a few on-country hearings. Representative bodies and claim groups have had to come to terms with finding different ways to have discussions. The reality is that border restrictions, lockdowns, isolation orders and travel restrictions are going to be a feature of Australian life for some time to come, whatever occurs with vaccination numbers. The Court can take judicial notice of the tragedy unfolding in western NSW, where COVID-19 has infected numbers of people in several Aboriginal communities. Going forward from this time, there will be no certainty about being able to have in-person meetings or discussions, nor will there be certainty about having advisers attend meetings in person (whether lawyers or anthropologists or people from representative bodies or government). 9 Therefore, ways have to be found, within the ever-changing restrictions, to keep the work on native title claims and determinations going. Otherwise, there will be continued uncertainty for all those with interests in native title claim areas, or determined areas, elders will continue to pass away before outcomes are achieved, and there will be even longer delays in the benefits of native title being available to communities. 10 While shifting from in person meetings to online meetings can be difficult, it is important to realise that online meetings and hearings can also improve people's access to information and to court proceedings. It is not always possible for people to travel for in-person meetings, or for court hearings; perhaps because of health or family reasons, perhaps because of cost. With an increased focus through representative bodies and government on ensuring communities have reliable internet access and reliable computer hardware, it is possible for these methods to ensure larger numbers of claim group members, or native title holders, can participate in decision making, and can stay informed about their native title claims or determinations. 11 It is not only native title holders who must adjust. Other professionals, such as anthropologists, are also needing to adjust how they work, and learning to do their work online and not in person. One change the broader restrictions bring is the need to look more closely at using experts, including anthropologists, who reside in the same State as the native title holders, or claim group. Here, that means looking for anthropologists who reside in Western Australia. Considering using different anthropologists is one way to allow face-to-face field work to go ahead. 12 The main point to be understood is this: more flexible approaches are required. That might mean moving all meetings online and doing field work online. It might mean changing anthropologists. It might mean more compromise in people's positions just to get an outcome. 13 The Ngarrawanji native title holders are at something of a crossroads. The Court has made determinations of native title, but there is currently no body appointed to represent native title holders in dealings with third parties, including with government, so that the native title can in fact be used to benefit the Ngarrawanji People. There is a gap, and the law requires that gap be filled. 14 If the Ngarrawanji People cannot fill it themselves by nominating a PBC, and agreeing on a Rule Book that makes sure that all people who are properly members of the Ngarrawanji native title holding group are able to become members of the PBC, then the Court will have to take the process out of the hands of the Ngarrawanji People and place it in the hands of the ILSC. This option was made clear to the Ngarrawanji People in Sturt at [18]. The orders made today are intended to bring this process to a conclusion, one way or the other. Which way is adopted is a choice for the Ngarrawanji native title holders, as a whole group. 15 The ILSC is the government body which Australian law identifies as able to step in and hold the native title of a group on trust or as agent if the group cannot itself agree on a PBC nomination. When they are mediating before Judicial Registrar McGregor, the Ngarrawanji native title holders should understand that if no PBC is nominated before the next judicial case management hearing at the end of November 2021, it is highly likely the Court will appoint the ILSC to hold the native title of the Ngarrawanji common law holders on trust or as agent. All native title holders will then have to deal with the ILSC, and the ILSC will be involved in making decisions about Ngarrawanji native title. That is not the outcome the Native Title Act 1993 (Cth) intends to be the preferred outcome, but it is a "back-up" for situations such as this. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate: Dated: 17 September 2021