The Wik Peoples v The State of Queensland
[1993] FCA 591
•23 Aug 1993
S41 93
JUDGMENT No. .....,,..,..,,,... I ........ .,..
IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993 9UEENSLAND DISTRICT REGISTRY 1 GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE, EACH OF W O M BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES
Applicants
AND : THE STATE OF OUEENSLAND First Respondent
AND : COMMONWEALTH OF AUSTRALIA Second Respondent
AND: ABORIGINAL AND ISLANDER AFFAIRS
CORPORATIONThird Respondent
AND : COMALCO ALUMINIUM LIMITED Fourth Respondent
AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD. Fifth Respondent
AND : COUNCIL OF THE SHIRE OF AURUKUN Sixth Respondent
AND : NAPRANUM ABORIGINAL COUNCIL
MINUTES OF ORDERS Seventh Respondent
AND: PORMPURAAW ABORIGINAL COUNCIL Eighth Respondent
AND : EDDIE HOLROYD
Ninth Respondent
JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 23 August, 1993 WHERE MADE: Brisbane THE COURT ORDERS THAT:
The action is adjourned to 9.30 a.m. on Tuesday, 26 October, 1993.
The applicants file and serve an affidavit detailing the steps taken on behalf of the applicants to identify whether there are any people or groups of people who may have claims to any form of native title to any of the 34 parcels which would be affected by an adjudication in favour of the applicants in this action.
NOTE : Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993 QUEENSLAND DISTRTCT REGISTRY ) GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES ! I WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE, EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES
Applicants
AND : THE STATE OF OUEENSLAND First Respondent
AND : COMMONWEALTH OF AUSTRALIA Second Respondent
AND: ABORIGINAL AND ISLANDER AFFAIRS
CORPORATIONThird Respondent
AND: COMALCO ALUMINIUM LIMITED Fourth Respondent
AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD. Fifth Respondent
AND : COUNCIL OF THE SHIRE OF AURUKUN Sixth Respondent
AND : NAPRANUM ABORIGINAL COUNCIL Seventh Respondent AND : PORMPURAAW ABORIGINAL COUNCIL Eighth Respondent
AND : EDDIE HOLROYD Ninth Respondent
Coram: Drummond J Date : - 23 August, 1993 Place: Brisbane
EX TEMPORE REASONS FOR JUDGMENT
On 30 July last I gave directions designed to enable the Court, against the background of the considered views of each party, to decide how the case might best be progressed and, in particular, whether some issues of fact or law could be identified as ones which should be determined at an early stage. Although the parties have taken steps to put the Court in a position to make such a determination, all parties save the Commonwealth are, with one qualification to which I will return, now agreed that the action should be stood over until the legislation which the Commonwealth will enact and to which the Prime Minister refers in his statement of 20 August last, which is contained in exhibit "Wl", is available to the parties, at least in draft form. Sufficient appears from the Prime Minister's statement to make it clear that the proposed legislation is likely to have a major impact on the range of issues raised in the Wik Peoples' statement of claim which will remain alive for determination by the Court after the
legislation has been passed. I therefore propose to adjourn
the matter to late October for further directions. I do not accept the Commonwealth's submissions that the action should proceed in the ordinary way until that time in circumstances where it is clear that, if that course is followed, all parties will incur considerable expense by way of legal costs, which is likely to be of no utility in the ultimate resolution of the action.
It will be necessary in my view to know what claims the applicants propose to pursue, on the assumption that the legislation is valid, before sensible directions can be given for the further conduct of the action. Therefore, while I will not make a formal direction in this regard, I will say that I expect the applicants will have delivered to the respondents a further amended statement of claim by the resumed directions hearing date which identifies the claims that will be pursued, on the assumption that the envisaged legislation is valid. The reason for not making a formal direction is that, despite everyone's anticipation at this stage, it is possible that the legislation may not in fact be available then to enable that to be done.
The qualification to the general agreement that the action should be adjourned stems from the submission by counsel for the State of Queensland, adopted either wholly or in part by counsel for the Commonwealth, Comalco and Aluminium Pechiney, to the effect that the applicants should be required to give particulars which will result in them identifying the
criteria by reference to which membership of the Wik Peoples is ascertained and particulars of the facts relied on to make out the content of the title or titles claimed by the
applicants.The applicants resist the giving of the particulars
sought. It is said that to give them now would involve an
onerous burden on the applicants which it is unnecessary to
impose as the respondents will be provided with detailed information as to the case the applicants will seek to make out in these and other respects well before trial. While on the face of it the request for particulars is perfectly orthodox, I am concerned that there may be a real question as to the utility of ordering that they be provided now. I am aware that specialist tribunals have developed procedures for dealing with determining the sort of matters the subject of the present request. The letter from the solicitors for Comalco of 16 August, 1993 to the solicitors for the applicants, at page 6, refers to one such set of specialist tribunal procedures.
I therefore think it is necessary, so that the Court has an understanding of the difficulties, if there are in fact real difficulties, for the applicants in formulating and presenting their case within the framework of the Court's ordinary procedures, to require the applicants to file and serve a statement describing how they propose to present their case at trial with respect to proof of the content of the
titles they assert and proof as to the existence of a group identifiable as the Wik Peoples. This statement will have to deal with at least the following matters: firstly, the categories of oral testimony intended to be called; secondly, how the applicants propose to elicit that oral testimony and their reasons for wishing to adopt any special procedure in that regard that they may advance; and, thirdly, the categories of written materials to be relied on. The statement will also need to set out reasons why the orthodox procedures for refining issues are inappropriate. There may be other matters which should be dealt with. I will decide at the next directions hearing when I will require this statement to be filed and what form it is to take.
Only when the Court has some understanding of those matters will it be in a position to ensure that, without unnecessary injustice to the applicants, the respondents have adequate notice of the case they have to meet and that the applicant's case can be confined within proper limits. It may be that these objectives will turn out to be best achievable by the ordering of particulars. It may be that other procedures, including early delivery of summaries of evidence, may be more appropriate. In any event, this Court has wide powers under 0. 10 of the Federal Court Rules to ensure that procedures best designed to facilitate the efficient conduct of the action are adopted.
I also think it would be premature to order particulars prior to the making of the assessment of how the foreshadowed legislation will affect the range of matters to be determined. Moreover, until I am in a position to decide whether there are any issues that should be tried in a preliminary way, I also think it is premature to set in train a process designed to elicit even the limited particulars sought by the State of Queensland.
I therefore decline to order the particulars in
question.
One matter that is of concern arises out of the fact that the applicants are asserting title to the 34 areas identified in their statement of claim that would give them exclusive rights of possession and user of each of those areas and all of the resources of each area. This raises the question whether persons or groups who may have grounds for contesting the Wik Peoplesr wide ranging claims have been given an opportunity to participate in this action. Notwithstanding the submission put to me on behalf of the applicants as to the care taken to identify whether possible rival claimants exist, I think the applicants should file and serve, by the next mention day, a statement on oath detailing the steps taken on behalf of the applicants to identify whether there are any people or groups of people who may have claims to any form of native title to any of the 34 parcels which would be affected by an adjudication in favour of the applicants in this action. I will consider the Commonwealth's
submission that public notice of the applicants' claim should
be given at the next directions hearing.
I will, therefore, adjourn the proceedings on the basis that the only matters that will be determined on the resumed date are, firstly, whether there should be public notice of the applicants' claim and, if so, what form it should take; and, secondly, whether, and in what form, the statement as i;o the way the applicants' propose to present their case should be filed. I will also then fix a date for the determination of other matters, including whether particulars should be ordered and whether questions of fact or law should be ordered to be determined as preliminary issues.
The matter will be adjourned to 9.30 a.m. on Tuesday, 26 October, 1993 for the purposes I have indicated.
I certify that this and the preceding
six pages are a true copy of the
reasons for judgment herein of the
Honourable Mr. Justice Drummond.
Date: 23 August, 1993
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