Mills v State of Queensland
[2009] FCA 1431
•2 DECEMBER 2009
FEDERAL COURT OF AUSTRALIA
Mills v State of Queensland [2009] FCA 1431
NATIVE TITLE – consideration of an application pursuant to s 66B(1)(a)(ii) of the Native Title Act 1993 (Cth) to substitute for the deceased applicant representative of the Naghir People another representative of the Naghir People – consideration of the description of the meeting and participants at the meeting said to represent descendants of the ancestors of the Naghir People – consideration of the record-keeping in relation to the authorisation meeting - consideration of the submissions put to the Court by leave by the Torres Strait Regional Authority
Native Title Act 1993 (Cth) – ss 61, 66B, 87 and 87A
ALFRED MILLS ON BEHALF OF THE NAGHIR PEOPLE #1 v STATE OF QUEENSLAND & ORS
QUD 6084 of 1998
GREENWOOD J
2 DECEMBER 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6084 of 1998
BETWEEN: ALFRED MILLS ON BEHALF OF THE NAGHIR PEOPLE #1
ApplicantAND: STATE OF QUEENSLAND & ORS
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
2 DECEMBER 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application by notice of motion filed on 13 August 2009 is adjourned generally to enable a mediation process to be undertaken facilitated by the Torres Strait Regional Authority.
2.The parties have liberty to apply on 7 days’ notice.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6084 OF 1998
BETWEEN: ALFRED MILLS ON BEHALF OF THE NAGHIR PEOPLE #1
ApplicantAND: STATE OF QUEENSLAND & ORS
Respondent
JUDGE:
GREENWOOD J
DATE:
2 DECEMBER 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In this application made under s 66B(1)(a)(ii) of the Native Title Act 1993 (Cth) (the Act), the Naghir People seek by notice of motion an Order replacing the late Mr Alfred Mills, the current applicant, with Mr Phillip Mills, as the authorised representative of the Naghir People to conduct and progress an application under s 61 of the Act for a determination of native title in particular lands and waters (the “principal proceeding”).
The respondents to the notice of motion are the State of Queensland, individual commercial fishermen and the Mualgal People who also assert native title rights according to the traditional laws and customs of those people in respect of all or parts of the lands and waters the subject of the principal proceeding. The Torres Strait Regional Authority (the “TSRA”) also appears on the hearing of the motion, by leave, to make submissions as to the best method of seeking to resolve the conflicting claims of the Naghir and Mualgal Peoples, by means of a mediation subject to certain terms. The Mualgal People are a party to the principal proceeding. So too are the Commonwealth of Australia, other indigenous parties, Ergon Energy Corporation Limited and Telstra Corporation Limited.
The solicitor for the Naghir People, Mr Michael Neal, accepts that the description of the claim group has changed since the application under s 61 of the Act was filed on 3 July 1996; a Statement of Facts and Contentions filed on 30 May 2008 more accurately describes the claim group; and the application will need to be amended to correctly formulate the composition of the claim group. The composition of the claim group is important, apart from the obvious reasons, because the respondents to the motion say that the affidavits of Mr Phillip Mills in support of the s 66B application describe the Naghir People as the descendants of ancestors not reflected in the Statement of Facts and Contentions and doubts exist about whether an authorisation meeting by which the claim group is said to have authorised Mr Phillip Mills to represent the Naghir People, properly represented all of the families comprising the claim group. The respondents to the motion also say that insufficient information is available as to those persons who attended the authorisation meeting, the votes taken, the conduct of the meeting, and related matters.
The Court listed the motion for hearing. Against the background of the concerns of the respondents and some inconsistencies in facts set out in an affidavit of Mr Phillip Mills, the motion was adjourned to enable further affidavit material from Mr Phillip Mills to be put before the Court in support of the motion. Mr Neal presses for Orders under s 66B on the footing that the concerns of the respondents to the motion are now adequately addressed on the facts.
The Court has expressed concern that the principal proceeding was filed on 3 July 1996 and little has been done to advance the proceeding or its merits. That is in part due to the seasonal factors influencing access to the claim area; the difficulties of the availability of anthropological experts to undertake research and analysis to isolate the relevant integers of the claim; the likelihood that a detailed factual analysis of the movement and practices of people within the Torres Strait, undertaken in the course of hearing the claims in the Torres Strait Sea Claim application presently reserved before Finn J, would reveal facts about this claim; and the priority given to other claims which has caused resources to be dedicated by the representative body to those claims.
Nevertheless very little has been done to advance the claim. The claims of the Naghir People must be progressed to resolution either by mediation and determination by the Court under s 87 or s 87A of the Act; by trial; or, by withdrawal or discontinuance of the proceedings. The TSRA contends that the best way of progressing the principal claim and the competing claims of the Mualgal People is to engage an anthropologist to undertake further research work and then engage the Naghir and Mualgal Peoples in a mediation funded by the TSRA in order to determine whether a consensus might emerge between the Naghir and Mualgal Peoples which might ultimately lead to a mediated outcome between the relevant claimant group and respondents to the proceeding more generally.
In addition, on Friday 4 November 2009 Deputy District Registrar Fewings received a telephone call from Mr Billy (Senior) who said that he wished to have a conversation with the Court through his son Mr Kevin Billy. Mr Kevin Billy said that he was working on the railways in Western Australia. He said that his father was very upset because he had recently heard that a native title claim has been made over lands including Naghir Island and he wanted to tell the Court that it was his family’s island. Deputy District Registrar Fewings advised Mr Kevin Billy to seek advice from a solicitor in either Broome or Port Headland; seek advice from the Kimberley Land Council office in Port Headland; and file an affidavit in the principal proceeding deposing to his interest in the Naghir native title claim. Deputy District Registrar Fewings advised Mr Kevin Billy that his solicitor could contact Ms Fewings and obtain information in relation to the principal proceeding. Ms Fewings was contacted by Mr Scheiner who introduced himself as a solicitor in Perth who had been contacted by Mr Kevin Billy. Ms Fewings encouraged Mr Scheiner to obtain an affidavit from Mr Billy deposing to his interest in the principal proceeding. Mr Scheiner was to contact Ms Fewings, having spoken further with Mr Billy. Ms Fewings was contacted by Mr Kevin Billy on 23 November 2009. Mr Billy said that he would try to put material before the Court as soon as he could although he was having trouble doing so because he did not have a lot of money.
Plainly enough, the claims made by Mr Kevin Billy (Senior) need to be taken into account in the context of proposed further anthropological work which might be undertaken as a precursor to an engaged mediation between the Naghir and Mualgal Peoples.
It may be helpful to draw together aspects of the background of the claim by the Naghir People in determining the appropriate course so far as the notice of motion is concerned and, in the overall sense, in determining how the issues in the principal proceeding might be best progressed and hopefully resolved.
Background
In the principal proceeding Mr Alfred Mills sought on his own behalf and on behalf of the People of Naga (the “Naghir People”), a determination of native title under s 61 of the Act in relation to an area of land and waters that includes Naghir Island (also sometimes known as Mt Ernest Island) and land and waters described in a map attached to the application as Schedule B. The application was filed on 3 July 1996. In the application, the Naghir People are said to comprise Torres Strait Islanders who are the descendants of the people who occupied the claimed areas from time immemorial and from the annexation of the Island to the State of Queensland in 1879. In their application, the applicants said that they would provide further details of the Naga People.
On 3 August 1999 an amended application was filed which described the Naghir People as those persons descended from or adopted by James Mills and also, Sorogo. Sorogo was said to be the son of Mori, the last chief of the Naghir People. The TSRA was the representative body for the area of the claim and on 27 July 1999 the TSRA certified under s 202(4)(d) of the Act that Mr Alfred Mills had authority to make the application on behalf of all persons in the native title claim group and that all reasonable efforts had been made to ensure that the amended application properly described or otherwise identified all persons in the native title claim group. The TSRA’s opinion was said to be based on “clear instructions” from the claim group confirmed at a meeting of the claim group held at Thursday Island on 8 June 1999.
The TSRA also noted in its certification of 27 July 1999 that it had informed the claim group that some areas of the claim overlap with some areas included in a native title determination application made by the Mualgal People and that both groups had been advised that the overlap question would “need to be addressed in a culturally appropriate way by the holding of Island meetings and, if necessary, further anthropological enquiry”.
That imperative remains today.
The amended application was supported by two affidavits of Alfred Mills deposing to his authority from all persons in the claim group to make the application, as a senior traditional elder of the Naghir People. Mr Alfred Mills deposed briefly to the connection of his forefathers to the claim area, the maintenance by his people of that connection and the system of traditional laws and customs practised by his people over time.
In 2005, Mr Alfred Mills passed away. Consequent upon his death, a meeting described by Mr John Mills in a statement of May 2009 annexed to the affidavit of Mr Michael Neal filed on 28 May 2009, of all the main families comprising the Naghir People, was said to have occurred in 2006 at which the elders agreed that Phillip Mills, Sam Mills, Toshi Nakata and John Mills would all represent the Naghir People in connection with the native title claim. Phillip Mills was chosen as the chairperson of the Naghir People. Sam Mills was chosen as his deputy. Toshi Nakata was chosen as the public officer of a representative corporation on behalf of the Naghir People and John Mills was chosen to be the senior representative elder of the Naghir People.
In his statement annexed to Mr Neal’s affidavit, John Mills explained that he was the son of Mothe Edward Mills. Alfred Mills was the son of Mothe’s brother Frank Mills and the brothers were the sons of James Mills. John Mills said that Ina Titsesy, Cessa Nakata, Florence Durante (Phillip’s sister), Patrick Mills, Sam Mills (Senior), Phillip Mills, Sam Mills (Junior), Toshi Nakata and John Mills attended the meeting in 2006. Mr John Mills said in his statement that he could not recall whether the descendants of Sorogo attended the authorisation meeting in 2006.
Mr Neal commenced representing the claim group in May 2007 and received instructions from John Mills, Toshi Nakata, Phillip Mills, Sam Mills and other Naghir People. Mr Neal recommended to those instructing him and the TSRA that an application be made to the Court under s 66B of the Act to replace the deceased representative applicant, consistently with the authorisation meeting of 2006. However, instructions were given to seek leave to discontinue the principal application. Subsequently, conflicting instructions were given to Mr Neal not to seek leave to discontinue the principal application. Mr Neal recommended to the instructing group that an authorisation meeting of the Naghir People be convened to authorise relevant individuals to represent the Naghir People in connection with their native title claim and give consent to the making of an application to the Court under s 66B of the Act to replace the late Mr Alfred Mills with one or more authorised representatives in the prosecution of the native title claim.
In order to progress the proceeding, the Court made Orders directing the Naghir People, notwithstanding that the Court was unaware that Mr Alfred Mills had died in 2005, to file a Notice of Facts and Contentions describing the applicant group; the Society at the time of sovereignty; the current Society; the relationship between the Society at the time of sovereignty and now; the rights and interests asserted at the time of sovereignty and now; the traditional laws and customs of the Naghir People; the facts establishing historical connection and current connection; and a site register. Annexure A to the Notice of Facts and Contentions set out a “summary of genealogical data setting out the biological and/or adoptive connections between some but not all of the current Naga People with their ancestors, including their ancestors living at the time of sovereignty.” By para 1 of the Notice of Facts and Contentions, the Naga People are described as members of the Kulkalgal grouping of Torres Strait Islanders and more particularly the Naga People comprise those members of the Kulkalgal group who are descended from ancestors Sorogo or Neru, or alternatively, individuals recruited by adoption in accordance with the traditional laws and customs of the Naghir People. Naghir Island is said to be located in a regionally strategic position and Naghir People are said to have had widespread links with people from the western, central and southern islands of Torres Strait. At the time of sovereignty, Naghir Island was regarded as a principal place of residence of the Kulkalgal group. The Naghir People continue to assert that they are part of the Kulkalgal group of Torres Strait Islanders which, in turn, “is a sub-set of the larger society of Torres Strait Islanders”.
On 11 August 2009 Mr Phillip Mills swore an affidavit in support of the notice of motion seeking an Order replacing the late Mr Alfred Mills with Mr Phillip Mills as the representative of the Naghir People in relation to the claim. Mr Phillip Mills said that after the death of Mr Alfred Mills, a group of Nagilgaul People held a meeting to choose a group of people to represent the Naghir People. A meeting was convened of members of the Naghir People by notice for Thursday 4 August 2009 so as to authorise a new applicant to represent the Naghir People in the proceeding and authorise an application under s 66B of the Act. The notice invited all members of the Naghir People to attend and described the Naghir People as those Kulkagal Torres Strait Islanders descended from Sorogo or Neru or recruited by adoption in accordance with the traditional laws and customs of the Naghir People. Copies of the notice were published in the Torres News on three occasions on 15, 22 and 29 July 2009. The notice was placed on noticeboards of the Torres Strait Island Council and the Torres Shire Council, and in other nominated places. The meeting was adjourned to Monday 10 August 2009 and notice of the adjourned meeting was communicated to representatives of Naghir families. Phillip Mills deposed in his affidavit that the meeting on 10 August 2009 was well attended by representatives of the descendants of Naga ancestors. There were 12 Naga adults at the meeting. The meeting resolved that appointment of a new applicant in the proceedings was to be made by elders and that sufficient elders were present to make a decision. Phillip Mills was authorised by the meeting to be the applicant in the claim proceeding and deal with matters relating to it. Phillip Mills said: “While the main island is Naghir, a reference to the people of Naghir should be a reference to Nagilgaul People. We take our name from our ancestor Naga who continues to reside on Naghir, though not in a human form.” [emphasis added]
Phillip Mills also deposed at para 12 of his affidavit sworn 11 August 2009 that Nagilgaul People wish to progress their claim to obtain recognition of native title in Naghir Island and other areas within the claim. Phillip Mills said: “We have had many meetings with Mualgal People and many times thought we had reached agreement in principle about recognition of our native title including recognition of the interests of those people who have family connections in both Mualgal and Nagilgaul. We have no aim to exclude any people who have traditional connections to Naghir from a determination of native title.”
As to mediation of these issues, Phillip Mills said at para 13 of his affidavit sworn 11 August 2009: “We see the mediation conducted by the National Native Title Tribunal up to now as having run its course. While we would prefer to reach agreement about recognition of our native title with all of the respondents, if we cannot do that, we are committed to demonstrating to this Court our connections to each other and to Naghir.”
Phillip Mills said that the Nagilgaul People sought the assistance of the Court to ensure that all parties in the claim worked towards a determination of native title as soon as possible.
The respondents to the notice of motion expressed concern that no details were provided by Phillip Mills as to the individuals who attended the meeting described in the affidavit of 11 August 2009 and no information was provided as to the representative families, the content of the resolutions passed, the terms of the resolutions, those who voted, a register of attendees or the votes cast and other such matters. There was force in those submissions. The notice of motion was adjourned. Phillip Mills filed a further affidavit on 8 September 2009 sworn on 7 September. Phillip Mills said that 13 Nagilgaul adults were present at the meeting on 10 August 2009. They were Marcellus Mills, Jensen Pearson, Kris Billy, Illarlo Sabatino, Jullus Sorogo, Emily Beckley, Paul Mills, Phillip Mills, Patrick Mills, John Fell, Ellen Mills, Wrench Mills (Jnr), and Laura Billy.
Phillip Mills at para 4 of his affidavit observed that the meeting acknowledged the way in which Nagilgaul People were described in the notice of meeting as being those Kulkalgal Torres Strait Islanders who are descended from ancestors Sorogo, Wagub, Gin Gin or Neru, or recruited by adoption in accordance with the traditional laws and the customs of the Naga People. At para 5, Phillip Mills said that the meeting acknowledged the attendance of elders from each of the families descended from ancestors Sorogo, Wagub and Neru.
The respondents say that para 4 introduces confusion as the meeting acknowledged that the Nagilgaul People are descended from four ancestors, Sorogo, Wagub, Gin Gin and Neru and para 5 suggests that the meeting recognised that there were elders from each of the families descended from three of those ancestors. Phillip Mills subsequently filed a further affidavit on 7 October 2009 in which he explained that he had incorrectly described the notice of meeting as making a reference to descendants from ancestors Sorogo, Wagub, Gin Gin and Neru whereas the notice simply made reference to people descended from ancestors Sorogo or Neru and made no reference to Wagub or Gin Gin and thus the issue was simply one of misdescription of the notice. The respondents say that the notice was not simply misdescribed but rather, Phillip Mills, deposed that the meeting acknowledged a description of Kulkagal Torres Strait Islanders as that group of persons descended from the four nominated ancestors and that elders from three of those families attended the meeting.
At para 6 of the affidavit of Phillip Mills filed 8 September 2009, Phillip Mills said that each of the Nagilgual People attending the meeting were elders and that each of the family groups were Nagilgual People and were properly represented. The meeting was said to have confirmed that under the traditional laws and customs of Nagilgual People important decisions are made by elders, and that there were sufficient elders present at that meeting to make a decision to appoint a new applicant in place of Mr Alfred Mills. Moreover, under traditional laws and customs of Nagilgual People, when a decision is made by elders, the whole of the Nagilgual People are bound by the decision and thus it was not necessary for the meeting to expressly resolve that the decision to appoint a new applicant must be respected or otherwise binds the group as a whole. The traditional laws and customs compel Nagilgual People to acknowledge and honour the decisions of the elders.
Because the affidavit of Phillip Mills filed 8 September 2009 introduced confusion as to the proper description of “Kulkalgal Torres Strait Islanders” and concern as to whether the descendants of the ancestor Gin Gin ought to have been present at the meeting, the motion was adjourned to enable Phillip Mills to file a further affidavit. He did so, and in that affidavit, sworn 7 October 2009, he explained para 4 of the earlier affidavit as a misdescription of the notice of meeting and as to the confusion in connection with para 5 of the earlier affidavit which made reference to an ancestor “Wagub in the addition to the ancestors Sorogo and Neru”, Phillip Mills sought to clarify the confusion in this way. He said that Neru and Wagub were sisters. Neru was married to James Mills and for that reason is often described as one of the apical ancestors of the Nagilgaul People. Wagub, a Nagilgaul person, was married to Sorogo. The Notice of Facts and Contentions incorrectly referred only to apical ancestors Sorogo and Neru whereas the document ought to have referred to additional ancestors Wagub as well as the sister of Wagub and Neru, Gin Gin. Phillip Mills said that his reference to Wagub in the earlier affidavit did not affect the representation of the Nagilgaul People at the meeting of 10 August 2009 because those people who attended the meeting and who were descended from Wagub are more accurately described as descended from “each of Sorogo and Wagub”.
Accordingly, the reference to the descendants of Wagub is a reference to the descendants of Sorogo and Wagub and the meeting of 10 August 2009 was attended by the descendants of ancestors Sorogo (and Wagub who is also a Nagilgaul ancestor) and Neru. The descendants of the ancestor, Gin Gin, the sister of Wagub and Neru, apparently did not attend the meeting. Notwithstanding the apparent misdescription by Phillip Mills in his affidavit filed 8 September 2009 of the content of the notice of meeting, it nevertheless seems to be the position that the correct description of Nagilgaul People is the description adopted by Phillip Mills at para 4 of his affidavit of 8 September 2009, being those persons descended from ancestors Sorogo, Wagub, Neru and Gin Gin and those persons recruited by adoption in accordance with the traditional laws and customs of the Nagilgual People. The Notice of Facts and Contentions could more precisely and ought properly to have made reference to the other ancestors.
Although the affidavit filed 8 September 2009 sets out 13 individuals who attended the meeting on 10 August 2009 in contradiction to the earlier reference to 12 attendees, it remains the position that there seems to be no register of attendees, no minutes of the meeting and no record of the resolutions put and agreed. Perhaps no register of attendees was kept and Mr Phillip Mills simply relies upon his recollection of the events and the decisions of the elders.
It seems to me that the appropriate course to adopt is this.
The notice of motion should be adjourned generally to enable matters to progress in the manner submitted by the TSRA. The parties ought to participate in a mediation facilitated and funded by the TSRA with a view to trying to bring the Nagilgaul People (or Naga People) to a consensus with the Maulgal People in relation to those matters described at paras 12 and 13 of the affidavit of Phillip Mills of 12 August 2009, consistently with the opinions expressed by the TSRA in its certificate of 27 July 1999 noted at [12] of these reasons. The TSRA has foreshadowed that additional anthropological research will be necessary so that an informed decision might be reached as to the matters in issue between the two peoples. Against the background of the anthropological information and findings, a mediation might well have a prospect of engaging the parties in a meaningful way and resulting in a common position. In that event, decisions can then be made about the representation of the claimant group and whether all of the families descended from the relevant elders have participated or alternatively have had an opportunity to participate, in reaching a decision as to which individual or individuals ought to represent the claimant group. Discussions can then take place with the respondents to the proceeding more generally and in particular the State of Queensland. In addition, the TSRA will need to engage with Mr Billy (Senior) and Mr Kevin Billy, his son, and in addition, with Mr Scheiner, the solicitor for Mr Kevin Billy, in relation to those matters which Mr Billy wishes to raise.
I propose to leave to the parties further discussions between Mr Neal on behalf of Nagilgaul, Mr Brookes on behalf of Maulgal and Mr Hunter on behalf of the TSRA as to the arrangements to be made and a timetable to be set for obtaining further anthropological evidence and convening discussions in mediation of the matters in issue. If it emerges that programming orders cannot be agreed, I will give liberty to the applicant, the Maulgal People and the TSRA to apply to the Court for appropriate programming orders on 7 days’ notice to the other parties.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 2 December 2009
Solicitor for the Applicant: Mr M Neal, p&e Law Solicitor for the State of Queensland: Ms G Morrison, Crown Law Office Solicitor for Whap Charlie, John Manas & Osa Bosun on behalf of the Mualgal People Mr J Brooks, Solicitor Solicitor for Various Fishermen: Mr P Gore, Gore & Associates Solicitor for Torres Strait Regional Authority Mr P Hunter, HWL Ebsworth
Date of Hearing: 15 October 2009 Date of Judgment: 2 December 2009
0
0
0