Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 4)

[2014] FCA 649

FEDERAL COURT OF AUSTRALIA

Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 4) [2014] FCA 649

Citation:	Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 4) [2014] FCA 649
Parties:	JOHN WATSON AND OTHERS ON BEHALF OF THE NYIKINA MANGALA PEOPLE v STATE OF WESTERN AUSTRALIA AND OTHERS
File number:	WAD 6099 of 1998
Judge:	GILMOUR J
Date of judgment:	20 May 2014
Catchwords:	NATIVE TITLE – application for orders protecting confidentiality of a report – application to have a party withdrawn as a respondent and to substitute another – orders made
Legislation:	Native Title Act 1993 (Cth)
Date of hearing:	20 May 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Ms J Cole
Solicitor for the Applicant:	Kimberley Land Council Aboriginal Corporation
Counsel for the State of Western Australia:	Ms C Taggart with Ms S Begg
Solicitor for the State of Western Australia:	State Solicitor's Office
Counsel for Pastoral Interests, other than Clover Cattle Co Pty Ltd and Quixot Pty Ltd:	Ms R Williams
Solicitor for Pastoral Interests, other than Clover Cattle Co Pty Ltd and Quixot Pty Ltd:	Cornerstone Legal
Counsel for Oil Basins Limited:	Mr T Kavenagh
Solicitor for Oil Basins Limited:	Hunt & Humphry

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6099 of 1998

BETWEEN:	JOHN WATSON AND OTHERS ON BEHALF OF THE NYIKINA MANGALA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS Respondents

JUDGE:	GILMOUR J
DATE OF ORDER:	20 MAY 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

Applicant’s interlocutory application dated 16 May 2014

1.The applicant provide to the Honourable Justice Gilmour a copy of the document titled “Nyikina and Mangala Native Title Application (WC99/025 – WG6099/98) Report on Skinner Family’s Request to be Included as Claimants” by Dr Kingsley Palmer (the “Report on Skinner Family”) on or before 20 May 2014.

2.Access to the Report on Skinner Family be restricted to the Honourable Justice Gilmour, and members of his Honour’s Chambers staff and any Registrar of the WA District Registry.

3.The Report on Skinner Family be kept confidential and be placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.

4.The applicant file and serve a redacted copy of the Report on Skinner Family, such redacted copy being that attached to the affidavit of Jacki Lynn Cole sworn 16 May 2014 filed in support of this interlocutory application.

Pastoral respondents’ interlocutory application

1.Petau De Long (Dampier Downs Station) be withdrawn as a pastoral respondent.

2.Michael De Long (Dampier Downs Station) be added as a pastoral respondent.

3.There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6099 of 1998

BETWEEN:	JOHN WATSON AND OTHERS ON BEHALF OF THE NYIKINA MANGALA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS Respondents

JUDGE:	GILMOUR J
DATE:	20 MAY 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I made orders in this matter on 20 May 2014, at which time I delivered ex tempore reasons.  These are those reasons, edited, but not so as to alter their substance.

2. The applicant applies by interlocutory application dated 16 May 2014 for certain orders concerning the confidentiality, and the protection of that confidentiality, of part of a report by Dr Kingsley Palmer; that being part of the report concerning the Skinner family. 

3. The application is supported by an affidavit by Ms Jacki Lynn Cole, Principal Legal Officer of the Kimberley Land Council Aboriginal Corporation, sworn on 16 May 2014. 

4. The solicitors for the applicant have filed detailed written submissions in support of the application.  These disclose the fact that the application is either the subject of signed minutes of consent by some eight of the parties to this proceeding and an indication that the State of Western Australia, the Commonwealth, and Oil Basins Limited neither consent nor oppose the application.  This matter concerns the Nyikina Mangala native title claim, and it is set down for a consent determination by the Court on 29 May 2014. 

5. I am satisfied that the Court has the power to make the orders which the applicant seeks.  For these reasons, I will make orders in terms of the orders sought in the interlocutory application.

6. The pastoral respondents in this matter have also filed an interlocutory application dated 16 May 2014 by which they seek to have Mr Petau De Long withdrawn as a pastoral respondent and that he be substituted by Mr Michael De Long as a pastoral respondent.  The application is supported by an affidavit by Rebekah Joy Williams sworn on 19 May 2014. 

7. The relevant leases are the Dampier Downs Pastoral Leases, copies of which have been annexed to Ms Williams’ affidavit.  Mr Michael De Long, the proposed substituted pastoral respondent in relation to those pastoral leases, is registered as the current leaseholder, the lease having been transferred from his father, Mr Petau De Long, to him on 7 February 2014. 

8. Accordingly, Mr Michael De Long is now the current leaseholder of the leasehold interest, which is in the claim area.  The current leaseholder has authorised the Pastoralists and Graziers Association of Western Australia to act on his behalf, and it is Mr Michael De Long who has negotiated an Indigenous Land Use Agreement with the applicant, and who has given in-principle consent to the proposed determination of this matter by the consent determination due to take place at Langey Crossing (Lanji Lanji) later this month.  There can be no doubt that as the registered holder of the Dampier Downs Pastoral Leases, the interests of Mr De Long as the current leaseholder may be affected by determination of these proceedings in that the exercise of native title rights in the claim area will impact upon the exercise of his rights as the current leaseholder over the Dampier Downs Pastoral Leases. 

9. There has been service of this interlocutory application, but somewhat late upon a number of the parties, although I note from Ms Williams’ affidavit that during a case management conference the proposed orders were addressed by counsel then appearing for the applicant in the application, and the parties present were asked whether there was any objection to the orders sought and there was none.  In any event, it seems to me to be self-evident that the order should be made and it is difficult to conceive upon what basis, if any, any party who is not present in court this morning, personally or by telephone, could object to the order proposed.  It clearly has implications, not only for the applicant for the orders, but also for the consent determination which affects many parties generally.  Accordingly, for those reasons, I propose to make orders in terms of the orders sought in the interlocutory application. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        27 June 2014