Lake Torrens Overlap Proceedings (No 2)

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FEDERAL COURT OF AUSTRALIA

Lake Torrens Overlap Proceedings (No 2)
[2015] FCA 1195

Citation: Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195
Parties: KOKATHA PEOPLE, ADNYAMATHANHA PEOPLE AND BARNGARLA PEOPLE v STATE OF SOUTH AUSTRALIA, KELARAY PTY LTD AND STRAITS EXPLORATION (AUSTRALIA) PTY LTD
File number: SAD 90 of 2009
Judge: MANSFIELD J
Date of judgment: 9 November 2015
Date of hearing: 21 October 2015
Place: Port Augusta
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 23
Counsel for the First Applicants: V Hughston SC and C Evans
Solicitor for the First Applicants: South Australia Native Title Services
Counsel for the Second Applicants: Mr Roder SC and D Billington
Solicitor for the Second Applicants: Norman Waterhouse
Counsel for the Third Applicants: D O’Gorman SC and A McAvoy SC
Solicitor for the Third Applicants: Teitzel and Partners
Counsel for the First Respondent: D O’Leary and P Tonkin
Solicitor for the First Respondent: Crown Solicitor’s Office (SA)
Solicitor for the Second Respondent: Ashurst
Counsel for the Third and Fourth Respondents: K Bickford
Solicitor for the Third Respondents: McDonald Steed McGrath
Solicitor for the Fifth, Sixth and Seventh Respondents: DMAW Lawyers
Counsel for the Other Party: The Other Party did not appear

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 90 of 2009
BETWEEN:

ANDREW STARKEY AND JOYLENE THOMAS ON BEHALF OF THE KOKATHA NATIVE TITLE CLAIMANTS
First Applicant

MICHAEL ANDERSON, ANTHONY CLARK, MARK McKENZIE, DEIDRE McKENZIE, BEVERLY PATTERSON AND ANGELINA STUART ON BEHALF OF THE ADNYAMATHANHA NO.5 CLAIMANTS
Second Applicant

ERIC PAIGE, LORRAINE BRISCOE, HARRY DARE, JEANNE MILLER AND LINDA DARE ON BEHALF OF THE BARNGARLA (LAKE TORRENS) NATIVE TITLE CLAIMANTS
Third Applicant
AND:

STATE OF SOUTH AUSTRALIA
First Respondent

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD
Second Respondent

KELARAY PTY LTD
Third Respondent

STRAITS EXPLORATION (AUSTRALIA) PTY LTD
Fourth Respondent

OZ EXPLORATION PTY LTD
Fifth Respondent

OZ MINERALS CARRAPATEENA PTY LTD
Sixth Respondent

OZM CARRAPATEENA PTY LTD
Seventh Respondent

DOUGLAS MAXWELL GREENFIELD
Other

JUDGE:

MANSFIELD J

DATE OF ORDER:

9 NOVEMBER 2015

WHERE MADE:

PORT AUGUSTA

THE COURT ORDERS THAT:

1.Dr Willis should give his “lay” evidence separately from, and prior to, his evidence as an expert witness, and to the extent that such evidence should be restricted men’s evidence, the giving of that evidence will be in accordance with the orders made on 21 October 2015; and

2.In the event that, in the course of the hearing of expert evidence, either separately or jointly, it is necessary for that evidence to be given in a restricted men’s evidence session, there will be a further restriction on those persons who may be present for that evidence, to exclude the particular senior counsel for the third applicant from being entitled to be present during that session of evidence.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 90 of 2009
BETWEEN:

ANDREW STARKEY AND…

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Details
Case
[2015] FCA 1195
Decision Date

CaseChat Overview and Summary

The case of Lake Torrens Overlap Proceedings (No 2) involved the native title claims of the Kokatha Aboriginal people and other parties. The primary legal issue before the court was determining the appropriate restrictions on who could hear and view culturally restricted men's evidence provided by Dr Willis, an expert witness for the Kokatha claim group. The court was required to balance the cultural and customary concerns of the Aboriginal people against the rights of the parties to have their chosen counsel present during the evidence. This balance was necessary to ensure that justice was both done and seen to be done.

The court considered its powers under the Federal Court of Australia Act 1976 and the Native Title Act 1993 to order restricted access to evidence. It noted the precedent set in Western Australia v Ward, which held that the court could prevent a counsel from participating in a part of the hearing to protect cultural and customary concerns. The court accepted Dr Willis's affidavit, which expressed his genuine concerns about giving culturally restricted men's evidence in the presence of the senior counsel for the third applicant, due to potential breaches of Western Desert law. The court found that Dr Willis would not give the restricted evidence if the senior counsel was present, thereby impacting the proceedings.

The court ordered that Dr Willis would give his lay evidence separately from his expert evidence, with the restricted men's evidence being provided in accordance with prior orders. Additionally, if restricted men's evidence was necessary during the hearing, the court restricted the presence of the senior counsel for the third applicant to exclude him from that session. These orders aimed to respect Dr Willis's cultural concerns while ensuring the proceedings could continue effectively.

Orders

Orders of the court

1. Dr Willis should give his “lay” evidence separately from, and prior to, his evidence as an expert witness, and to the extent that such evidence should be restricted men’s evidence, the giving of that evidence will be in accordance with the orders made on 21 October 2015; and

2. In the event that, in the course of the hearing of expert evidence, either separately or jointly, it is necessary for that evidence to be given in a restricted men’s evidence session, there will be a further restriction on those persons who may be present for that evidence, to exclude the particular senior counsel for the third applicant from being entitled to be present during that session of evidence.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue has been resolved by agreement in respect of the proposed restricted men’s evidence to be adduced by the first applicant through members of the Kokatha claim group by the orders made on 21 October 2015. Relevantly, those orders provided: Gender restricted evidence of the First Applicant:(1)This order applies to the First Applicant’s Restricted Men’s Evidence, being oral evidence, transcript, reports, submissions and other material in written or symbolic form that is identified by the Court as being the First Applicant’s Restricted Men’s Evidence.(2)The First Applicant’s Restricted Men’s Evidence must not be viewed or heard by any person other than:(a)any initiated man giving evidence on behalf of the First Applicant;(b)any non-Aboriginal male party;(c)any non-Aboriginal male expert engaged by a party for the purpose of providing advice about such matters for the purpose of these proceedings;(d)any non-Aboriginal male Counsel or non-Aboriginal male solicitor of a party; and(e)any Judge and those male Court staff or contractors as directed by the Judge.(3)Notwithstanding order 2(d) above, Mr McAvoy SC, Counsel for the Third Applicant is permitted to view any transcript, reports, submissions and other materials in written or symbolic form that is identified by the Court as being the First Applicant’s Restricted Men’s Evidence, but is not entitled to cross examine or be present when such evidence is provided (other than any expert evidence, which is subject to a separate direction).(4)The First Applicant’s Restricted Men’s Evidence as identified by these orders and the Court in accordance with these orders must not be disseminated during the course of this proceeding to any person at all and under any circumstance, save as to those who may view or hear such evidence, transcript, submissions, expert reports and other material in written or symbolic form as provided for in order 1 or order 3 above, and upon conclusion of this proceeding all such material will be destroyed and the destruction of such material will be attested to by affidavit.(5)There be liberty to apply to permit another person or persons to read or be informed about the evidence, or particular parts of the evidence, and to apply that the witness not be released and be available for further cross-examination. These reasons for decision relate to the role or proposed role of that senior counsel for the third applicant when Dr Willis gives his evidence.CONSIDERATION It is accepted that the Court has power under s 17(4) and s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) to order that evidence be taken in the presence of a limited number of persons. Section 82(2) of the Native Title Act 1993 (Cth) specifically provides that cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders may be taken into account in native title cases, with the result that, if it be necessary to ensure that justice be done and be seen to be done, the Court has power to prevent a particular counsel or solicitor appearing for a party to participate in a part of the hearing: see Western Australia v Ward (1997) 76 FCR 492 at 499 per Hill and Sundberg JJ. As their Honours indicate, it is necessary to have regard to the respective interests of the parties, balancing the cultural and customary concerns of the Aboriginal people in question against the right of a party to have a counsel of that party’s choosing.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

These reasons for decision relate to the role or proposed role of that senior counsel for the third applicant when Dr Willis gives his evidence.CONSIDERATION It is accepted that the Court has power under s 17(4) and s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) to order that evidence be taken in the presence of a limited number of persons. Section 82(2) of the Native Title Act 1993 (Cth) specifically provides that cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders may be taken into account in native title cases, with the result that, if it be necessary to ensure that justice be done and be seen to be done, the Court has power to prevent a particular counsel or solicitor appearing for a party to participate in a part of the hearing: see Western Australia v Ward (1997) 76 FCR 492 at 499 per Hill and Sundberg JJ. As their Honours indicate, it is necessary to have regard to the respective interests of the parties, balancing the cultural and customary concerns of the Aboriginal people in question against the right of a party to have a counsel of that party’s choosing. I proceed on the basis that Dr Willis has real and genuine concerns that it would be contrary to Western Desert law for him to give that part of his evidence which concerns culturally restricted men’s evidence in the presence of that senior counsel for the third applicant in the circumstances. It is a little difficult to assess the extent of his concern. It is expressed only in the annexure to an affidavit of the solicitor for the first applicant of 3 September 2015; the annexure is a copy of the affidavit of Dr Willis in a matter in the Environment Resources and Development Court of South Australia in which the following judgment was given: Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (2011) LGERA 151). His affidavit was filed in respect of an application seeking orders, in that matter, that would limit those who could hear and deal with Kokatha restricted men’s evidence. That affidavit is not specific to the present circumstances. Paragraphs [23]-[26] of the affidavit of Dr Willis identify the Kokatha people as part of the Western Desert cultural and social block of Aboriginal society, bound by the same or by a substantially similar body of law and custom, including as to cultural restrictions on traditional knowledge. It exposes that Dr Willis in 1996-1997 did particular consultancy work in relation to the area between Port Augusta and Olympic Dam in South Australia, including in part concerning the Kokatha people’s claim area in this proceeding. Part of the outcome of his work was a report of 23 September 2006 entitled “Lake Torrens South – Confidential Men’s Report”. The affidavit also refers in general terms to other material relating to the Kokatha people’s involvement with Lake Torrens. Dr Willis says that by giving evidence of a culturally restricted character in the presence of an Aboriginal man of another group, he would be branded untrustworthy by Aboriginal people all over Australia, so his professional and personal reputation would be damaged. He would lose important friendships. He refers to the risk of a range of significant adverse physical sanctions which might be inflicted on him. Reading his affidavit carefully, he does not say that such sanctions are any longer likely, or that he specifically fears them. However, I accept that he would not give the evidence he might otherwise give in support of the Kokatha claim group claim if he is required to give culturally restricted men’s evidence in the presence of the particular senior counsel for the third applicant.