Quall v Northern Territory of Australia & Ors

[2008] HCATrans 127

[2008] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D6 of 2007

B e t w e e n -

KEVIN LANCE QUALL ON BEHALF OF THE BATCHO FAMILIES, THE DANGGALABA CLAN AND THE KULUMBIRINGIN LANGUAGE GROUP/PEOPLE

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

DARWIN CITY COUNCIL

Second Respondent

AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY

Third Respondent

WILLIAM RISK HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE

Fourth Respondents

DEFENCE HOUSING AUTHORITY AND PALMERSTON CITY COUNCIL AND ANZ BANKING CORPORATION AND CONSERVATION LAND CORPORATION AND CSR LIMITED AND CSR READYMIX (AUSTRALIA) PTY LTD DARWIN MODEL FLYING CLUB AND DELFIN CHASE PTY LTD DIAMOND LEISURE PTY LTD AND GIUSEPPE MAUGERI AND NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION AND NT GAS DISTRIBUTION PTY LTD AND NT GAS PTY LTD AND TELSTRA CORPORATION LTD

Fifth Respondents

ATTORNEY-GENERAL OF THE COMMONWEALTH

Sixth Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 7 MARCH 2008, AT 12.35 PM

Copyright in the High Court of Australia

MR K.L. QUALL, appeared in person.

MR V.B. HUGHSTON, SC:   If the Court pleases, I appear with MS S.L. BROWNHILL for the first respondent.  (instructed by Solicitor for the Northern Territory Aboriginal Land Division)

MS R.J. WEBB, QC:   If the Court pleases, I appear for the second respondent.  (instructed by Cridlands Lawyers)

HAYNE J:   Now, there is a submitting appearance for the fourth‑named fifth respondent.  There is no oral argument to be made by the fourth and sixth respondents.  There is no appearance I think then for the other respondents.  Mr Quall, we have had all the written papers in the case and we have therefore the written papers that you have put in in support of your case, and we have read those papers, and now is the chance for you to add anything to what you have said or has been said in the written papers, and to add anything that you want to tell us about the application to come into this Court.  So, now is your chance, Mr Quall, to tell us what you want to tell us in support of what has already been written.

MR QUALL:   Well, I am not really here to talk about the application or submission.  I am not – I discontinued my service with the lawyers that I had and I wish to hear a submission to be heard by the Court.  As I am not legally represented I plead to the Court to ask for an adjournment or a stay of proceedings so that I could make applications with legal representation.  As I have been denied natural justice from day one I have always provided evidence in the past and my evidence was not substantially accounted for or taken notice of, and I never had the benefits of lawyers.

HAYNE J:   Now, we understand that your complaint is that the first judge did not understand your case properly and did not fully consider it; that is the complaint you make.  Then the Full Court have said what they have said about that, but now you tell us, do you, that you want to adjourn this case now so that you can get some legal representation.  Is that right?

MR QUALL:   Yes, I have done the process of applying for application through the Native Title Representative Body, who is the Northern Land Council, and they rejected that, and we are at the stage of review, and I have spoken to a lady by the name of Cindy Johnson of the Native Title Tribunal who said that the Northern Land Council have litigation – Larrakia funds as a budget item and they are not in court so they still rejected my application and it is part of the process for review now.

HAYNE J:   Yes.

MR QUALL:   And I have spoken to – during my time of – I have spoken to a QC by the name of Brian Cancohen in Melbourne just recently and he said I have got a good possibility of proving my native title.  I just was in court just last week on eight matters to be heard in August, which there are two applications that are part of this present case, so if I would have the possibility of going back and doing the applications and having proper legal representation I would have a better argument than what I had to go through throughout this whole period without legal representation.

HAYNE J:   Now, Mr Welfare was looking after you at one stage, was he not?

MR QUALL:   Yes.

HAYNE J:   He was a lawyer, was he?

MR QUALL:   He is a lawyer.

HAYNE J:   He signed your summary of argument in this case, did he not?

MR QUALL:   He did sign it.

HAYNE J:   He prepared it?

MR QUALL:   He did prepare it.

HAYNE J:   Yes.  Well, then, is there anything else you want to say to us about why we should adjourn the case?

MR QUALL:   Well, that signed document, I was not consulted fully on that argument and I just discontinued my service with Mr Welfare, Robert Welfare, and so I discontinue all documents that they provided.

HAYNE J:   Yes.  Well, now, Mr Hughston, what do you say in answer to the application to adjourn the matter over?

MR HUGHSTON:   We would oppose that application, if the Court pleases.  The Full Court reasons in this matter and decision were handed down almost a year ago now in early April of 2007.  There has been one application for special leave brought to this Court already by the Larrakia applicants and this Court deal with that application and rejected it in August of 2007.  Mr Quall has not pointed to anything, your Honours, that would give this Court any confidence that if the matter did go over for any period of time that he would in fact be able to obtain legal representation.

As it is, the application has clearly been framed by lawyers for him, drafted by lawyers.  The summary of argument that has been put before your Honours has also been prepared by his lawyers, and in those circumstances we would say that there is no reasonable basis for the application.  If your Honours please.

HAYNE J:   Thank you, Mr Hughston.  Ms Webb, what do you say in answer?

MS WEBB:   Your Honour, nothing additional to what Mr Hughston has said.

HAYNE J:   Thank you.  Well, now, is there anything you want to add, Mr Quall, in support of the application for adjournment?

MR QUALL:   Yes, well, as I said, that application, that may have been signed by a lawyer, but it is still not my submission.

HAYNE J:   Yes.  Yes, thank you, Mr Quall.  We are not persuaded that it would be desirable to adjourn the further hearing of this application.  The summary of argument filed in support of the application was prepared by lawyers.  In all the circumstances, having regard to both the time that has elapsed, the fact that the summary of argument was prepared by lawyers, and the nature of the issues that now arise, we are of opinion that the application for adjournment should be refused.  Mr Quall, is there anything that you would wish to add then in support of the application for special leave?

MR QUALL:   Well, there is two – as I said before, I was in Federal Court last week and there is eight matters, and there is two matters that are still part of this proceedings.  Those eight matters are going to be heard in August.  So if I had legal representation I would have a better opportunity of presenting a proper submission and because of the way that the Federal Court appeal and how Justice Mansfield’s findings that day did not account for all my evidence, in future we could provide a proper submission.

HAYNE J:   Now, the Full Court dealt with these questions at pages 327 through to 340, and as well dealt with matters earlier in the judgment.  What is it that you say is wrong about what the Full Court said?  Where did they get it wrong?

MR QUALL:   Well, they got it wrong where – they stated that it was discontinued between 1937 through to 1940s, which is, you know, during the war time, and there is no government document to say that Aboriginal people had stopped continuation of practising Aboriginal laws and customs.  There is no – if there was a document that said that we did, well, you know, I would believe it.  But my family never left Darwin, they always remained in Darwin, and practising of traditional laws and customs has always taken place, and there was no strict regulations even during the time of Aboriginal people being incarcerated in Cullen Bay or other regulation that were made for Aboriginal people.  They were not consistent of confining Aboriginal people to practices of traditional laws and customs.

The evidence that I provided, all the traditional evidence that I provided was not accounted for, and our position that we were – we had no similarities with the Larrakia’s evidence.  Their evidence was based on hearsay provided by the Land Council, and even – you could look at the documents of the affidavits made by the Land Council, Bill Risk and Pauline Baban who were members of the stolen generation, the evidence that we provided, that we always opposed the Larrakia claim because we had no similarities with the – on our evidence with theirs.

HAYNE J:   Yes.

MR QUALL:   We had a land claim way back in 1975 in Darwin here and there was only – we had a dozen people who were registered as claimants for those Darwin claims in 1975 that was taking place in 1973 with Justice Ward and Land Commissioner Toohey, and in that time there was only a handful of Larrakia people then and there was not a great number of Larrakia people that were recognised then, and there was – I gave to Justice Mansfield a piece of news cutting where a notice was sent out to NT News for all Larrakia people to attend all the land claims and to give notice at meetings at Kulaluk but none of these people turned up, and none of these Larrakia people gave evidence, but my grandmother and my uncle were there, they gave evidence.  My uncle gave traditional evidence, most of the traditional evidence for Kulaluk, Myilly Point and Casuarina Reserve claims back in 1975. 

During the Kenbi land claims all this evidence was not provided.  There is evidence there of my grandmother, her name was Dolly Gurrinyee, she was part of the Kulaluk, old Arnhem Land claims.  She is noted in the Kenbi land claims through Professor Beth Povinelli as one of the ladies who was the bosses of the ceremony.  That is documented in Professor Beth Povinelli’s documentation.  She was the boss of the woman’s ceremony.  There is evidence that they were there before the forties on the Kenbi land area, which is part of the Larrakia country, which is Darwin, it is one whole country.

But the underlying thing is that people sometimes did not want to recognise Aboriginal people in the sense that they carried on ceremonies and practices and because they were not part of that society they had no real affiliation with Aboriginal people who practise all these traditional laws and customs.  But you can imagine that if one person, Aboriginal person, died a year, you know, that just goes to show that Aboriginal people will have more traditional ceremonies and other particular ceremonies to carry on those rights, and whether the white people or historians or government people document is not really – it is not a real event for them to even acknowledge.

Aboriginal people will always practise – whether they was colonised or whether they were encroached by development, Aboriginal people will always practise.  We could practise in buildings, we can practise in modern buildings, we can practise in a vehicle, we can practise out in the bush, we can practise on a boat, it happens daily with Aboriginal people.  If you look at Justice Toohey, he even states in his reports that the beginning of land rights, would they acknowledge that Aboriginal people would not just practise within their own country, they would practise outside of their countries, and that is traditional way of practising Aboriginal laws and customs because when you do practise, whether it is – whatever the practice is or that particular ceremony, it does not just belong to your own group, it belongs to other groups of people who have affiliation and have clan grouping and skin grouping responsibilities.

Also, whether you practise here in Darwin or go to Daly River or go to Bathurst Island or go to East Arnhem Land, you are still practising your traditional laws and customs.  If there was a type of ceremony that was done in your own country, even in modern times today, you would join, you would participate in those ceremonies, it never ends.  The lies that produces the argument that there was a discontinuation of practice of laws and customs is – to me it is totally – you know, it is hard to believe that, and you could look at the records of Cullen Bay in the compound where the Aboriginal people there, they had freedom to move, they could go anywhere, they were allowed to move.  The compound was so dysfunctional that people would die within the centre themselves without authority.  So the Aboriginal people in them days, they had movement, they had, you know, access to their own traditional laws and customs, so there was no authority to succumb to them.

My grandfather, his name was Sam Batcho Gundook.  He used to work for a Mr Abbott, the Administrator of the Northern Territory.  Now, during the – it is actually documented in the book that Mr Abbott would say that him and his wife would just leave Darwin and they would walk towards the coastline.  He would go and he did not know where he was going.  But he would go and he would be gone for months and months and months and he would never come back, but he always knew that he was going for, you know, his purposes.

In my evidence when I talk about my grandfather, he was actually going to practise in West Arnhem Land ceremonies called a.....A.....ceremony is what they used to call the Sunday businesses.  Today West Arnhem Land calls that certain business ceremonies.....

There is also in those records that Abbott spoke of when he went missing actually during the war and he was concerned about where he was, but eventually him and his wife walked from wherever they was up in West Arnhem Land and they walked and they made it to Katherine and he was given information that they were safe and that they were in Katherine.

So what I am saying is that on the one hand you get my grandmother who has been documented as a boss lady to carry on the woman ceremonies.  That is provided by Professor Beth Povinelli in the Kenbi land claim evidence.  There is also evidence in Bill.....book by.....in a transcript provides that my uncle did ceremonies over at Cox Peninsula and there is records of that.

During the court I cross-examined Mike Walsh.  He was the principal anthropologist for the Northern Land Council.  He was there in 1973 in Kulaluk and 1975 as a linguist at that time, but he was there.  He was there from the time Larrakia people started their land claims.  The documentation that he provided for the Kenbi land claims – the significant thing about this is that there is a sacred site at the Larrakeyah Barracks and it is called.....and because the Defence moved there at a time during the late 1930s they had to stop ceremonies at Larrakeyah Barracks and then the wording documented is that they “ceased ceremony”. 

I think that is where the opposition and the evidence against us of participating and carrying on ceremonies comes from, those statements, because the ceremony did not stop.  It was taken and put over the other side to a place called Darramanggamaning, but when the Kenbi land claim evidence was made, they made a book called a “Kenbi Land Claim” 1979 or 1976 – anyway, when they made that book they made a map of all the sacred sites over Cox Peninsula, but that particular site, Darramanggamaning was never highlighted of its presence and why and its significance of that site.  My evidence to Justice Mansfield states that that is a significant site of the Larrakia.  But a lot of people do not understand just why I am saying that. 

When they had the Kulaluk land claim, the majority of Larrakia people were never there, but when they went to the Kenbi land claim they took, in another site called a.....they created a site that was fabricated by the Northern Land Council.  It is a Wadjikan site and how they created the dreaming stories of the Larrakia to the Warren story was documented by.....and it has been written in evidence that it is a Wadjikan site.  It is in

the transcript of Mike Walsh that this site is a Wadjikan site.  It is not Larrakia.

So what I am saying is that the remarks or statements made that the ceremonies ceased at Larrakeyah Barracks is not the meaning of Larrakia people ceasing of practising law and customs and it did not follow up on the Kenbi land claim because they totally left the significance of that site out.  But if you look at the Kenbi land claim, we had an old man from West Arnhem Land who gave in restricted evidence about the site and how we connected in and that has never been documented or accepted by government or accepted by the Northern Land Council and to me they fabricated the whole claim over there to dysfunction the Larrakia’s argument. 

My evidence to Mansfield describes what our creation story is and our dreamings of that site and the significance to West Arnhem Land.  That is why I am here now.  All that evidence that I provided for is not accepted or accounted for because it is important and I am saying that is why there is no similarities of the Larrakia in our evidence.

It even states in Justice Gray’s finding in the Kenbi land claim that Professor Peter Sutton says that the Larrakia has got no culture.  If they got no culture, why does the Land Council take their claims to the Federal Court, and 90 per cent of them or 80 per cent of them being stolen generation, and you have two stolen generation people signing the affidavits to go to court to say that they have traditional law and customs?

HAYNE J:   Yes.  Thank you, Mr Quall.  Mr Hughston, Ms Webb, we will not call on you.

The issues which the applicant, in the written submissions, sought to agitate in this Court focused largely upon whether the case which the applicant had sought to make at trial was properly understood and fully considered.  The Full Court of the Federal Court of Australia examined those issues and considered that there had been no failure of the kind alleged.  We see no reason to doubt the correctness of those conclusions of the Full Court.

The particular complaints advanced in the course of oral argument this morning focused upon the assessment of the evidence led at trial that had been made by the trial judge.  In this respect, we are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  For these reasons, special leave to appeal is refused.

The Court will adjourn to Wednesday, 26 March at 10.15 in Canberra.

AT 1.06 PM THE MATTER WAS CONCLUDED