Wyman on behalf of the Bidjara People v State of Queensland
[2015] FCAFC 108
•13 August 2015
FEDERAL COURT OF AUSTRALIA
Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108
Citation: Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108 Appeal from: Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 Parties: BRENDAN WYMAN, PATRICIA FRASER, HELEN COULAHAN, SHERYL LAWTON, KEELEN MAILMAN, ROBERT RAYMOND ROBINSON, FLOYD ROBINSON, RANDALL JOHNSON ON BEHALF OF THE BIDJARA PEOPLE v STATE OF QUEENSLAND
CHARLES STAPLETON ON BEHALF OF THE BROWN RIVER PEOPLE v STATE OF QUEENSLAND, BRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE, MARLENE LEISHA AND ANOTHER ON BEHALF OF THE KARINGBAL PEOPLE, BANANA SHIRE COUNCIL, CENTRAL HIGHLANDS REGIONAL COUNCIL, MARANOA REGIONAL COUNCIL, BARCALDINE REGIONAL COUNCIL, BLACKALL-TAMBO REGIONAL COUNCIL, MURWEH SHIRE COUNCIL, PAROO SHIRE COUNCIL, QUILPIE SHIRE COUNCIL, AIRSERVICES AUSTRALIA LIMITED, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, AMCI (ALPHA) PTY LIMITED, APITI OIL AND GAS EXPLORATION LIMITED, AUSTRALIA PACIFIC LNG (CSG) PTY LIMITED, AUSTRALIA PACIFIC LNG (MOURA) PTY LIMITED, AUSTRALIA PACIFIC LNG PTY LIMITED, BANDANNA COAL PTY LIMITED, CITIC WEST ROLLESTON PTY LIMITED, CRAIG LIMITED, DOCE PTY LIMITED, FAIRVIEW PIPELINE PTY LIMITED, INNOVATIVE ENERGY CORPORATION PTY LIMITED, JEMENA QUEENSLAND GAS PIPELINE (1) PTY LIMITED, JEMENA QUEENSLAND GAS PIPELINE (2) PTY LIMITED, MARY BLANTON KENNEDY, MATILDA COAL PTY LIMITED, ORIGIN ENERGY PETROLEUM PTY LIMITED, PAPL (UPSTREAM) PTY LIMITED, PEABODY ENERGY AUSTRALIA PCI EXPLORATION PTY LIMITED, PEABODY WEST ROLLESTON PTY LIMITED, SANTOS LIMITED, SANTOS PETROLEUM OPERATIONS LIMITED, SANTOS QNT PTY LIMITED, SANTOS QUEENSLAND CORP, SANTOS TOG CORP, SANTOS TOGA PTY LIMITED, SANTOS TPY CORP, SANTOS TPY CSG CORP, STANWELL CORPORATION LIMITED, TAMBO COAL & GAS LIMITED, TIPPERARY OIL & GAS (AUSTRALIA) PTY LIMITED, WILBANKS PECOS COUNTY PRODUCTION COMPANY, XSTRATA COAL QUEENSLAND PTY LIMITED, PASTORAL RESPONDENTS REPRESENTED BY THYNNE & MACARTNEY, SELWYN THOMAS CHRISTENSEN, EARLE GRAZE PTY LIMITED, DEBORAH LESLIE HAND AND ROBERT WILLIAM HAND, DARREN BRUCE HUMPHREYS, PETER JOLIFFE, CHRISTOPHER LAWRENCE KEMP AND ROBIN JEAN KEMP, ROBERT ANDREW MULCAHY, BRIGIT ANNE PRICE, GAIL LORRAINE PRICE AND OWEN ARTHUR PRICE, CLEMENT ROBERT RICHARDSON AND ORIEL ROSE RICHARDSON and BUSH HERITAGE AUSTRALIA
File numbers: QUD 857 of 2013
QUD 130 of 2014Judges: NORTH, BARKER AND WHITE JJ Date of judgment: 13 August 2015 Catchwords: NATIVE TITLE – overlapping claimant applications for determination of native title – appeal from decision of primary judge that appellants have not maintained connection with claim area – advantages of the primary judge over an appellate court – trial judge did not err in application of principles relevant to proof of continuity of pre-sovereignty normative system
NATIVE TITLE – primary judge did not hear evidence of appellants’ indigenous witnesses on country – one appellant’s representative unwell and unable to attend on country hearing – no error made in exercising discretion with consideration to fairness and limited resources – no denial of procedural fairness
NATIVE TITLE – primary judge made determinations that native title does not exist in the claim area – whether Court has the power under the Native Title Act 1993 (Cth) to make a negative determination in the absence of a non-claimant application – Court has discretionary power to determine native title does not exist following unsuccessful claimant application – appeal from primary judge’s exercise of discretion in making a negative determination in relation to the claim area – no error in exercise of discretion
PRACTICE AND PROCEDURE – primary judge refused to adjourn trial where appellant unrepresented – reluctance of appellate courts to disturb decisions of primary judges on adjournment applications – applicable principles in review of discretionary decision – no error made in exercising the discretion – no denial of procedural fairness – appellant afforded reasonable opportunity to present case
PRACTICE AND PROCEDURE – primary judge refused to accept affidavit into evidence – late production of affidavit inconsistent with programming orders – relevant matters dealt with in other evidence – no error in exercise of discretion
EVIDENCE – rule in Browne v Dunn – primary judge’s treatment of witness statements – primary judge did not make adverse findings as to credibility of witnesses – primary judge gave greater weight to oral evidence of witnesses – primary judge’s finding that revival and recreation of laws and customs had occurred in the native title claim group – witnesses’ evidence on continuity of laws and customs was the focus of consideration – no denial of procedural fairness
Legislation: Federal Court of Australia Act 1976 (Cth) s 22, s 37M, s 37M(2), s 37M(2)(a)
Native Title Act 1993 (Cth) s 13(1), s 24FA, s 61, s 61(1), s 61(2), s 61A(1), s 66, s 66(10)(a), s 67, s 81, s 82(2), s 84C, s 84D, s 213(1), s 223, s 223(1), s 223(1)(a), s 225, s 251B, s 253, Pt 3Australian Solicitors Conduct Rules 2012 r 13.1, r 13.1.3
Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth)
Judicature Act 1873 (UK) s 24(7)
Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15
Augustine v State of Western Australia [2013] FCA 338
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Banjima People v Western Australia (No 2) (2013) 305 ALR 1 at [159] [160], [695]-[696]; [2013] FCA 868
Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197
Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63
Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566
CG (deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507
Commonwealth v Clifton (2007) 164 FCR 355; [2007] FCAFC 190
Commonwealth of Australia v Yarmirr (1999) 101 FCR 171; [1999] FCA 1668
De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318
Khanchitanon v R [2014] NSWCCA 204
Maviglia v Maviglia [1999] NSWCA 188
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244; [2001] FCA 45
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27
Risk v Northern Territory of Australia [2006] FCA 404
Risk on behalf of the Larrakia People v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Sampi on behalf of the Bardi and Jawi People v State of
Western Australia [2010] FCAFC 26; (2010) 266 ALR 537
Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210
Sullivan v Department of Transport (1978) 1 ALD 383
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48
Ward on behalf of the Miriuwung and Gajerrong People v State of Western Australia (1998) 159 ALR 483; [1998] FCA 1478
Western Australia v Fazeldean (No 2) (2013) 211 FCR 150; [2013] FCAFC 58
Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191
Wik Peoples v State of Queensland (1994) 49 FCR 1
Wilkes v Western Australia [2003] FCA 156
Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3
Wyman on behalf of the Bidjara People v Queensland [2013] FCA 366
Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229
Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8Browne v Dunn (1893) 6 R 67
Maxwell v Keun [1928] 1 KB 645Date of hearing: 3-6 November 2014 Place: Brisbane (delivered in Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 503 Counsel for the Appellants in QUD857/2013: Mr SJ Keim SC, Mr LS Reidy Solicitor for the Appellants in QUD857/2013: Creevey Russell Lawyers Counsel for the Appellant in QUD130/2014: Mr VB Hughston SC, Mr J Waters, Ms T Jowett Solicitor for the Appellant in QUD130/2014: Gilkerson Legal Counsel for the State of Queensland: Ms H Bowskill QC, Mr A Preston Solicitor for the State of Queensland: Crown Law
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 857 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BRENDAN WYMAN, PATRICIA FRASER, HELEN COULAHAN, SHERYL LAWTON, KEELEN MAILMAN, ROBERT RAYMOND ROBINSON, FLOYD ROBINSON, RANDALL JOHNSON ON BEHALF OF THE BIDJARA PEOPLE
AppellantsAND: STATE OF QUEENSLAND
Respondent
JUDGES:
NORTH, BARKER AND WHITE JJ
DATE OF ORDER:
13 AUGUST 2015
WHERE MADE:
BRISBANE (DELIVERED IN MELBOURNE)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 130 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: CHARLES STAPLETON ON BEHALF OF THE BROWN RIVER PEOPLE
AppellantAND: STATE OF QUEENSLAND
First RespondentBRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE
Second RespondentsMARLENE LEISHA AND ANOTHER ON BEHALF OF THE KARINGBAL PEOPLE
Third RespondentsBANANA SHIRE COUNCIL
Fourth RespondentCENTRAL HIGHLANDS REGIONAL COUNCIL
Fifth RespondentMARANOA REGIONAL COUNCIL
Sixth RespondentBARCALDINE REGIONAL COUNCIL
Seventh RespondentBLACKALL-TAMBO REGIONAL COUNCIL
Eighth RespondentMURWEH SHIRE COUNCIL
Ninth RespondentPAROO SHIRE COUNCIL
Tenth RespondentQUILPIE SHIRE COUNCIL
Eleventh RespondentAIRSERVICES AUSTRALIA LIMITED
Twelfth RespondentERGON ENERGY CORPORATION LIMITED
Thirteenth RespondentTELSTRA CORPORATION LIMITED
Fourteenth RespondentAMCI (ALPHA) PTY LIMITED
Fifteenth RespondentAPITI OIL AND GAS EXPLORATION LIMITED
Sixteenth RespondentAUSTRALIA PACIFIC LNG (CSG) PTY LIMITED
Seventeenth RespondentAUSTRALIA PACIFIC LNG (MOURA) PTY LIMITED
Eighteenth RespondentAUSTRALIA PACIFIC LNG PTY LIMITED
Nineteenth RespondentBANDANNA COAL PTY LIMITED
Twentieth RespondentCITIC WEST ROLLESTON PTY LIMITED
Twenty First RespondentCRAIG LIMITED
Twenty Second RespondentDOCE PTY LIMITED
Twenty Third RespondentFAIRVIEW PIPELINE PTY LIMITED
Twenty Fourth RespondentINNOVATIVE ENERGY CORPORATION PTY LIMITED
Twenty Fifth RespondentJEMENA QUEENSLAND GAS PIPELINE (1) PTY LIMITED
Twenty Sixth RespondentJEMENA QUEENSLAND GAS PIPELINE (2) PTY LIMITED
Twenty Seventh RespondentMARY BLANTON KENNEDY
Twenty Eighth RespondentMATILDA COAL PTY LIMITED
Thirtieth RespondentORIGIN ENERGY PETROLEUM PTY LIMITED
Thirty First RespondentPAPL (UPSTREAM) PTY LIMITED
Thirty Second RespondentPEABODY ENERGY AUSTRALIA PCI EXPLORATION PTY LIMITED
Thirty Third RespondentPEABODY WEST ROLLESTON PTY LIMITED
Thirty Fourth RespondentSANTOS LIMITED
Thirty Fifth RespondentSANTOS PETROLEUM OPERATIONS PTY LIMITED
Thirty Sixth RespondentSANTOS QNT PTY LTD
Thirty Seventh RespondentSANTOS QUEENSLAND CORP
Thirty Eighth RespondentSANTOS TOG CORP
Thirty Ninth RespondentSANTOS TOGA PTY LIMITED
Fortieth RespondentSANTOS TPY CORP
Forty First RespondentSANTOS TPY CSG CORP
Forty Second RespondentSTANWELL CORPORATION LIMITED
Forty Eighth RespondentTAMBO COAL & GAS LIMITED
Forty Ninth RespondentTIPPERARY OIL & GAS (AUSTRALIA) PTY LIMITED
Fiftieth RespondentWILBANKS PECOS COUNTY PRODUCTION COMPANY
Fifty First RespondentXSTRATA COAL QUEENSLAND PTY LIMITED
Fifty Second RespondentPASTORAL RESPONDENTS REPRESENTED BY THYNNE & MACARTNEY
Fifty Third RespondentsSELWYN THOMAS CHRISTENSEN
Fifty Fourth RespondentEARLE GRAZE PTY LIMITED
Fifty Fifth RespondentDEBORAH LESLIE HAND AND ROBERT WILLIAM HAND
Fifty Sixth RespondentsDARREN BRUCE HUMPHREYS
Fifty Seventh RespondentPETER JOLIFFE
Fifty Eighth RespondentCHRISTOPHER LAWRENCE KEMP AND ROBIN JEAN KEMP
Fifty Ninth RespondentsROBERT ANDREW MULCAHY
Sixtieth RespondentBRIGIT ANNE PRICE, GAIL LORRAINE PRICE AND OWEN ARTHUR PRICE
Sixty First RespondentsCLEMENT ROBERT RICHARDSON AND ORIEL ROSE RICHARDSON
Sixty Second RespondentsBUSH HERITAGE AUSTRALIA
Sixty Third RespondentJUDGES:
NORTH, BARKER AND WHITE JJ
DATE OF ORDER:
13 AUGUST 2015
WHERE MADE:
BRISBANE (DELIVERED IN MELBOURNE)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 857 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BRENDAN WYMAN, PATRICIA FRASER, HELEN COULAHAN, SHERYL LAWTON, KEELEN MAILMAN, ROBERT RAYMOND ROBINSON, FLOYD ROBINSON, RANDALL JOHNSON ON BEHALF OF THE BIDJARA PEOPLE
AppellantsAND: STATE OF QUEENSLAND
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 130 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: CHARLES STAPLETON ON BEHALF OF THE BROWN RIVER PEOPLE
AppellantAND: STATE OF QUEENSLAND
First RespondentBRENDAN WYMAN AND OTHERS ON BEHALF OF THE BIDJARA PEOPLE
Second RespondentsMARLENE LEISHA AND ANOTHER ON BEHALF OF THE KARINGBAL PEOPLE
Third RespondentsBANANA SHIRE COUNCIL
Fourth RespondentCENTRAL HIGHLANDS REGIONAL COUNCIL
Fifth RespondentMARANOA REGIONAL COUNCIL
Sixth RespondentBARCALDINE REGIONAL COUNCIL
Seventh RespondentBLACKALL-TAMBO REGIONAL COUNCIL
Eighth RespondentMURWEH SHIRE COUNCIL
Ninth RespondentPAROO SHIRE COUNCIL
Tenth RespondentQUILPIE SHIRE COUNCIL
Eleventh RespondentAIRSERVICES AUSTRALIA LIMITED
Twelfth RespondentERGON ENERGY CORPORATION LIMITED
Thirteenth RespondentTELSTRA CORPORATION LIMITED
Fourteenth RespondentAMCI (ALPHA) PTY LIMITED
Fifteenth RespondentAPITI OIL AND GAS EXPLORATION LIMITED
Sixteenth RespondentAUSTRALIA PACIFIC LNG (CSG) PTY LIMITED
Seventeenth RespondentAUSTRALIA PACIFIC LNG (MOURA) PTY LIMITED
Eighteenth RespondentAUSTRALIA PACIFIC LNG PTY LIMITED
Nineteenth RespondentBANDANNA COAL PTY LIMITED
Twentieth RespondentCITIC WEST ROLLESTON PTY LIMITED
Twenty First RespondentCRAIG LIMITED
Twenty Second RespondentDOCE PTY LIMITED
Twenty Third RespondentFAIRVIEW PIPELINE PTY LIMITED
Twenty Fourth RespondentINNOVATIVE ENERGY CORPORATION PTY LIMITED
Twenty Fifth RespondentJEMENA QUEENSLAND GAS PIPELINE (1) PTY LIMITED
Twenty Sixth RespondentJEMENA QUEENSLAND GAS PIPELINE (2) PTY LIMITED
Twenty Seventh RespondentMARY BLANTON KENNEDY
Twenty Eighth RespondentMATILDA COAL PTY LIMITED
Thirtieth RespondentORIGIN ENERGY PETROLEUM PTY LIMITED
Thirty First RespondentPAPL (UPSTREAM) PTY LIMITED
Thirty Second RespondentPEABODY ENERGY AUSTRALIA PCI EXPLORATION PTY LIMITED
Thirty Third RespondentPEABODY WEST ROLLESTON PTY LIMITED
Thirty Fourth RespondentSANTOS LIMITED
Thirty Fifth RespondentSANTOS PETROLEUM OPERATIONS LIMITED
Thirty Sixth RespondentSANTOS QNT PTY LIMITED
Thirty Seventh RespondentSANTOS QUEENSLAND CORP
Thirty Eighth RespondentSANTOS TOG CORP
Thirty Ninth RespondentSANTOS TOGA PTY LIMITED
Fortieth RespondentSANTOS TPY CORP
Forty First RespondentSANTOS TPY CSG CORP
Forty Second RespondentSTANWELL CORPORATION LIMITED
Forty Eighth RespondentTAMBO COAL & GAS LIMITED
Forty Ninth RespondentTIPPERARY OIL & GAS (AUSTRALIA) PTY LIMITED
Fiftieth RespondentWILBANKS PECOS COUNTY PRODUCTION COMPANY Fifty First Respondent
XSTRATA COAL QUEENSLAND PTY LIMITED
Fifty Second RespondentPASTORAL RESPONDENTS REPRESENTED BY THYNNE & MACARTNEY
Fifty Third RespondentsSELWYN THOMAS CHRISTENSEN
Fifty Fourth RespondentEARLE GRAZE PTY LIMITED
Fifty Fifth RespondentDEBORAH LESLIE HAND AND ROBERT WILLIAM HAND
Fifty Sixth RespondentsDARREN BRUCE HUMPHREYS
Fifty Seventh RespondentPETER JOLIFFE
Fifty Eighth RespondentCHRISTOPHER LAWRENCE KEMP AND ROBIN JEAN KEMP
Fifty Ninth RespondentsROBERT ANDREW MULCAHY
Sixtieth RespondentBRIGIT ANNE PRICE, GAIL LORRAINE PRICE AND OWEN ARTHUR PRICE
Sixty First RespondentsCLEMENT ROBERT RICHARDSON AND ORIEL ROSE RICHARDSON
Sixty Second RespondentsBUSH HERITAGE AUSTRALIA
Sixty Third Respondent
JUDGES:
NORTH, BARKER AND WHITE JJ
DATE:
13 AUGUST 2015
PLACE:
BRISBANE (DELIVERED IN MELBOURNE)
REASONS FOR JUDGMENT
THE COURT:
This judgment concerns two appeals, one by the Bidjara people and the other by the Brown River people, to set aside the determination made by the primary judge under the Native Title Act 1993 (Cth) (NTA) that native title does not exist in the claim area.
The claim area, which may more conveniently be called the overlap area, includes the Carnarvon National Park and the Carnarvon Gorge in central Queensland, some 600kms north-west of Brisbane. The towns of Injune and Rolleston are nearby. The larger town of Roma and the coastal town of Gladstone are, respectively, to the south and east.
At trial, the primary judge had before her three claimant applications for determination of native title in respect of the overlap area. The first (QUD23/2006) was made by the Karingbal people, having been filed in January 2006, and was largely limited to the overlap area. The second (QUD216/2008) was that of the Bidjara people, lodged in July 2008, which related to a large area of land including the overlap area. The third (QUD245/2011) was that of the Brown River people, lodged in August 2011, which, like the Karingbal people’s claim, largely coincided with the overlap area. The Karingbal people filed a further application (QUD310/2012) in June 2012, as did the Brown River people (QUD245/2011), to correct the omission of particular areas from their initial applications.
The Brown River claimants had, up until the time they lodged their claimant application in 2011, been members of the Karingbal claim group. However, following consideration of anthropological advice, which indicated that those members of the Karingbal claim group who were descended from claimed apical ancestor Jemima of Albinia, were not, for NTA purposes, Karingbal people, they filed their own claimant application. To that end, and to distinguish themselves from the members of the Karingbal claim group, they used the group name “Brown River people”, the Brown River running through the overlap area. We note that in the primary judge’s reasons and these reasons they are sometimes referred to as the Karingbal or Brown River/Karingbal people.
In July 2010, prior to the lodgement of the Brown River people’s claim, the docket judge directed that the Bidjara and Karingbal claims were to be programmed for trial on a date to be fixed in 2011. In August 2010, 10 October 2011 was set as the trial date in relation to the overlap area.
In June and July 2011, however, further programming orders were made which ultimately saw the October 2011 hearing date vacated.
In August 2011, the Brown River people’s claim was lodged, as noted above, largely in respect of the overlap area.
In September 2011, a trial date of 27 August 2012 was fixed for the hearing of the two initial claims and soon after, orders were made joining the Brown River people as respondents to those proceedings. A trial date of 27 August 2012 was then confirmed for the hearing of the three claims, brought forward to 6 August 2012 in December 2011.
In July 2012, however, following the filing of further Karingbal and Brown River people claimant applications, the August 2012 trial date was vacated, although soon afterwards programming orders were made for the trial to commence on 4 March 2013, on country, that is to say, within the overlap area.
In October 2012, that trial date also had to be vacated because of concerns raised by the Court about the practicability of commencing an on country trial in March, having regard to likely wet weather conditions.
In February 2013, the primary judge assumed judicial case management of the proceeding and in March made orders in relation to the trial, which was then programmed to commence with an opening in Brisbane on 22 April 2013, and the evidence of indigenous witnesses to be taken on country thereafter, in the week commencing 29 April 2013.
On 22 April 2013 the trial commenced before the primary judge in Brisbane. An application was then made on behalf of the Bidjara people, by Mr Robert Raymond Robinson, one of the claimants and their lay advocate, for the trial to be adjourned on the basis that the lawyer previously instructed to act for them had just ceased to act. After hearing submissions her Honour declined to adjourn the trial.
The trial then proceeded in Brisbane on 23 and 24 April 2013. On 29 April 2013, the parties attended at Carnarvon Gorge for the taking of on country evidence in accordance with the programming orders. However, immediately prior to this happening, the Court was advised that Raymond Robinson had been taken ill. As a result, on 29 April 2013, at Carnarvon Gorge, her Honour decided not to take any evidence on country and adjourned the hearing until 6 May 2013 in Brisbane. The opportunity was taken, however, for the Court to view sites in the vicinity of the Carnarvon Gorge before adjourning to Brisbane.
The trial then resumed in Brisbane on 6-10 and 13-16 May 2013, and then again on 28‑29 August 2013, during which indigenous witnesses for the various claimants gave direct evidence, followed by the expert anthropological testimony of Professor Marcia Langton (called by the Bidjara people), Dr Suzi Hutchings (called by the Brown River people), Dr Lee Sackett (called by the Karingbal descendants of Jemima) and Professor Peter Sutton (called by the State of Queensland).
Oral closing submissions were completed on 14 November 2013.
On 6 December 2013 judgment was delivered in the proceeding, with the result that none of the three claims succeeded. See Wyman on behalf of the Bidjara People v State of Queensland(No 2) [2013] FCA 1229.
In short, the Karingbal people’s claim failed because her Honour found that the descendants of Jemima, who made up the claim group in that proceeding, could not establish that Jemima was a Karingbal person at sovereignty.
While her Honour found that both Bidjara people and Karingbal people, properly described, had native title rights and interests in the overlap area at sovereignty, her Honour found that neither the Bidjara nor the Brown River people (as Karingbal people) had established that they had maintained a relevant connection with the claim by traditional law and custom, from generation to generation, since sovereignty, as required by the NTA.
As a result, her Honour not only dismissed the three claimant applications but also, on 3 February 2014, made a determination that native title does not exist in the overlap area. See Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8.
It is from that determination that the Bidjara people and Brown River people now appeal. The Karingbal people – the descendants of Jemima – lodged an appeal (on each of QUD23/2006 and QUD310/2012) and filed submissions but subsequently discontinued their appeal prior to the hearing.
The Bidjara people appeal on the grounds that the primary judge erred:
(1)in finding that they had not maintained their connection with the claim area by traditional law and custom, from generation to generation, since sovereignty;
(2)by failing to accord them procedural fairness by refusing the adjournment application made by Mr Robinson at the commencement of the trial in Brisbane on 22 April 2013; and
(3)by not hearing evidence from the Bidjara indigenous witnesses on country in accordance with the initial programming orders.
The Brown River people appeal on the grounds that her Honour erred:
(1)in failing to find that the relevant connection was maintained by traditional law and custom, from generation to generation, since sovereignty;
(2)in not hearing evidence from the Brown River claimants’ indigenous witnesses on country;
(3)in giving greater weight to the oral evidence of the Brown River witnesses, and discounting the weight of or doubting witnesses’ written statements in circumstances where the witnesses were not given notice of her Honour’s reservations;
(4)further, in finding that large elements of revival and recreation have occurred within the claim group since the maintaining of the claim in circumstances where those allegations were not put to Brown River witnesses;
(5)in declining to admit into evidence the affidavit of Margaret Louise Hickson; and
(6)by making a determination that native title does not exist in the overlap area in circumstances where the only applications for the determination of native title before the Court were claimant applications.
The State opposes each of the appeals and contends her Honour did not err as alleged or at all.
In these circumstances, the issues raised by these appeals are:
(1)whether the primary judge erred in refusing the application of the Bidjara people for an adjournment of the trial on 22 April 2013;
(2)whether the primary judge erred in failing to take the evidence of the Bidjara indigenous witnesses and/or the Brown River indigenous witnesses on country;
(3)whether the primary judge erred in fact or in law in finding that the Bidjara people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty;
(4)whether the primary judge erred in fact or in law in finding that the Brown River people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty;
(5)whether the primary judge erred in making certain findings about the Brown River indigenous witnesses’ written statements, and about the revival of laws and customs from the commencement of the native title claim, without putting these findings to the Brown River witnesses;
(6)whether the primary judge erred in declining to admit into evidence Ms Hickson’s affidavit in the Brown River claim; and
(7)whether the primary judge erred in making a determination that native title does not exist.
DID THE PRIMARY JUDGE ERR IN REFUSING THE APPLICATION OF THE BIDJARA PEOPLE FOR AN ADJOURNMENT OF THE TRIAL ON 22 APRIL 2013?
The trial was listed to commence on Monday, 22 April 2013. Four weeks were set aside.
At the commencement of the trial, the Bidjara people sought the vacation of the hearing because, as Raymond Robinson said:
[A]s it stands, your Honour, we have no legal representation. We have no money and we have no files.
Mr Robinson went on to explain that “we’ve had a dispute with Mr Hauff, who has withdrawn from the matter and we need an adjournment to get our money off him and to get other legal representation”. Mr Hauff is the principal of Trevor Hauff Lawyers (THL) who until 18 April 2013 had been the solicitors on the record for the Bidjara people.
The adjournment of the hearing was opposed by the Brown River people and the State. The Karingbal people neither consented to, nor opposed, the adjournment.
The primary judge refused an adjournment of the trial altogether, although she deferred the commencement of the trial to the following day. The Bidjara people contend that her Honour thereby denied them procedural fairness. Ground 2(a) of their amended notice of appeal alleges:
The learned primary judge erred by failing to accord the appellant procedural fairness by:
(a)Refusing the appellants’ application for an adjournment or otherwise allowing the appellant further time to prepare and present evidence in circumstances where the appellant was unrepresented, did not have funds and was unable to properly instruct an anthropologist and where the anthropologist qualified her evidence by stating that, due to limited resources available to [the] Bidjara, she had been unable to complete all the necessary investigations;
The anthropologist to whom this ground referred was Professor Langton. She said that she had been “extremely disadvantaged in this case”, although it is apparent that the disadvantage of which she spoke was attributable to the impact of the Bidjara people’s limited pre‑trial funding on her preparation and not the refusal of the adjournment.
The Bidjara people had previously had legal representation. Their original claim in 2008 was filed by the Principal Legal Officer of Queensland South Native Title Service Ltd (QSNTS). The Bidjara people continued to be represented by QSNTS until at least 2010. At different times in 2011, the Bidjara people were represented by the legal firms of RFG Finlayson and Associates and Rajesh Gopal Solicitors. THL commenced acting for the Bidjara people in early 2012 and, as indicated, continued to do so until 18 April 2013, four days before the trial was to commence. On that day, THL filed a notice of ceasing to act in relation to all of the matters involving the Bidjara people.
The circumstances in which the instructions of THL were terminated are not altogether clear. According to the oral submissions of Mr Robinson to the judge, the firm held $225,000 in its trust account paid by Xstrata Ltd, being the consideration under an ILUA. By letter dated 10 April 2013 addressed to THL, the “Bidjara native title applicant groups/Bidjara endorsed parties” instructed that firm to transfer the whole of the $225,000 immediately to Bidjara Traditional Owners Ltd. The letter asserted that the money had been paid to THL by mistake and continued:
In terms of the current and future Federal Court proceedings involving Bidjara and its native title claims process, Bidjara is yet to decide who they will engage as their legal representatives. When this decision is made, you will be informed accordingly. Bidjara has directed that Mr Ray Robinson, CEO Bidjara Traditional Owners Ltd, and a Bidjara native title applicant, has responsibility to act on behalf of Bidjara in this matter.
You would understand that this matter needs to be settled as expeditiously as possible and under these circumstances your immediate advice on receipt of this correspondence that you have transferred the amount for $225,000 to Bidjara Traditional Owners Ltd is appreciated.
The letter had the signatures of 11 persons some of whom had included a date against their signatures in an apparent indication of the date on which they signed the letter. The latest of the signatures is 15 April 2013 and it is possible that the letter was not sent to THL until that date.
The content of the letter suggested that the instructions of THL had been terminated by the Bidjara people, either expressly or by the direction that the firm give up the funding it was holding to secure its costs of representing the Bidjara people and retaining counsel.
In any event, Raymond Robinson announced at the commencement of the hearing on 22 April 2013 “I represent the Bidjara people your Honour”. As alluded to above, Mr Robinson is not an admitted legal practitioner and is the Bidjara people’s lay advocate. He then made the application for the adjournment to which we referred earlier.
In support of the application, Mr Robinson tendered the letter of 10 April 2013 referred to above and a letter of 15 April 2013 from Creevey Russell Lawyers to Mr Hauff. As this was not included in the appeal books, this Court is not aware of its contents. It was not suggested that it is of present relevance.
In his oral submissions, Mr Robinson indicated that the Bidjara people had not been able to obtain funding for legal representation from QSNTS or from the Department of Family and Community Services, Housing and Indigenous Affairs. He also said that a dispute had arisen between the Bidjara people and THL about the monies held in that firm’s trust account in the course of which Mr Hauff told Mr Robinson that he would withdraw.
The primary judge refused the adjournment, giving ex tempore reasons, the transcript of which extends over five pages. Her Honour referred to evidence that a lack of funding for the Bidjara people was not a new development as, from at least mid-2011, the Bidjara people had indicated their intention to proceed with their application despite having no formal funding. Further, despite having no funding, the Bidjara people had made eight interlocutory applications including several seeking the striking out of the claims of others. In addition, the solicitor for the Brown River people had deposed to receiving on 18 April 2013 an email from Mr Hauff in which Mr Hauff “indicated that his retainer had been terminated”, with the implication that it was the Bidjara people who had terminated THL’s instructions, rather than vice versa. Her Honour noted that the matter had been fixed for hearing for some time; that the Court and the parties had invested substantial time and costs in being ready to proceed; that there was no adequate explanation for the Bidjara people being in the position announced by Mr Robinson; that the claims had been on foot for a long time, and that the Court had on previous occasions vacated hearing dates in order, amongst other things, to accommodate the convenience of the Bidjara people. Her Honour concluded:
It would be … a great injustice to the Brown River People, to the Karingbal people and to the State of Queensland if the matter were to be vacated on the basis of such a scant evidentiary foundation as has been provided … in support of the application by the Bidjara people.
Shortly afterwards, the primary judge allowed Mr Robinson to renew his application so as to present evidence of a text message transcript of a voice mail message from Mr Hauff which was said to indicate that it was Mr Hauff who had determined to cease to act for the Bidjara people rather than the Bidjara people terminating his retainer. The message, as recorded by the judge on the transcript, read as follows:
? Trevor, hi. Look, I just got a – sugar. I decided to pull the pin on that so that if you get … this message was provided by Telstra at no charge to you.
The message indicated that it had been sent on 17 April 2013.
Understandably, the primary judge regarded this message as ambiguous. It was just as consistent with Mr Hauff indicating that he was not prepared to proceed given the withdrawal of the funding provided to him in respect of the costs of the trial. The judge went on to say that, even if it was Mr Hauff who decided that he would no longer act for the Bidjara people, the prejudice to the other parties outweighed the prejudice to the Bidjara people, especially as the Court was not provided with any indication as to when the matter could again be listed for hearing. Her Honour confirmed the refusal of the adjournment.
Later her Honour granted leave to Mr Robinson, pursuant to s 85 of the NTA, to represent the Bidjara people in the proceedings. Insofar as Mr Robinson was himself a claimant, he did not need that leave but the grant of leave recognised that he could represent all the Bidjara claimants. The primary judge also granted leave to a Mr McLeod (a non-lawyer) to represent the Karingbal claimants.
The refusal to grant the adjournment was a pre‑trial decision, but it is open to the Bidjara people to make it a ground of appeal against the final judgment as it may have affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]; [2002] HCA 22 (Gaudron, McHugh and Hayne JJ). However, appellate courts do not readily disturb decisions of trial judges on adjournment applications: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 (Kirby P) and 206 (Priestley J).
Although the Bidjara people’s ground of appeal relating to the refusal of an adjournment asserted a denial of procedural fairness, a number of Counsel’s submissions were directed more to review of the discretionary decision involved. This engaged the principles stated in House v The King (1936) 55 CLR 499 at 504‑505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ) relating to appellate review of discretionary decisions. As is well known, it is not enough that the judges of the appellate court consider that, had they been in the position of the trial judge, they would have taken a different course:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Counsel submitted that the judge had failed to take into account the circumstance that the Bidjara people were on 22 April in a position of a self-represented litigant, the volume of material to be marshalled and absorbed by Mr Robinson at short notice, the legal and evidential complexity of the case, the circumstance that in addition to being self-represented, both the Bidjara people generally and Mr Robinson had a disadvantaged background, the rights and interests in issue in the litigation including the profound effects which the judge’s decision in the trial would have on the rights of the Bidjara people, the purposes of the NTA, the circumstance that Mr Robinson was appearing for an applicant group and not just for himself, and the desirability of Mr Robinson obtaining some legal advice about the issues in the case and the manner of its presentation before the case commenced. Counsel submitted that the judge had focused unduly on the prejudice to the other parties which an adjournment would cause.
The relevant principles concerning procedural fairness are not in issue. They require that a litigant be given a reasonable opportunity to present its case and to answer the opposing case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; [2002] HCA 11 (Gaudron and Gummow JJ). A refusal of an adjournment can constitute a failure to give a litigant such an opportunity: Sullivan v Department of Transport (1978) 1 ALD 383 at 403 (Deane J).
In Sali v SPC Ltd (1993) 116 ALR 625 at 628-629; [1993] HCA 47, Brennan, Deane and McHugh JJ referred with approval to the decision of the Court of Appeal in England in Maxwell v Keun [1928] 1 KB 645 and held:
[A]lthough an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.
(Citations omitted.)To similar effect, the minority in Sali at 635 referred to Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566 at 569 in which Asprey JA said:
An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.
The majority in Sali went on to note, however, that the propositions in Maxwell v Keun had been formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
The Bidjara people’s focus on the prejudice to themselves by the refusal of the adjournment failed to have regard to the other considerations bearing upon the exercise of the primary judge’s discretion. As French CJ observed in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; [2009] HCA 27:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
See also the observations of the plurality to similar effect at [93], [95] and [100].
In this respect, the submissions of the Bidjara people did not refer to many significant matters bearing on the primary judge’s decision concerning adjournment. First, the Bidjara people had had extended notice of the trial date. The orders of Reeves J made on 8 August 2012 contemplated the trial commencing on 4 March but this was revised to 22 April 2013 on 30 October 2012. The Court indicated that four weeks were set aside for the trial. Accordingly, the Bidjara people had had more than adequate notice of the trial, just under six months. It was incumbent on the Bidjara people to ready themselves for that trial, including by securing legal representation, if that was their wish. It was obvious that by April 2013, both the Court and the parties had allocated considerable resources and energy to the anticipated trial.
Secondly, the Court had vacated previous trial dates. The trial had originally been listed to commence on 10 October 2011 and, later, on 31 October 2011, 6 August 2012 and 4 March 2013. There is a limit on the extent to which the Court and other parties can be expected to be repeatedly readying themselves for a trial. It is fair to note, however, that there was no suggestion that the Bidjara people had been responsible for the vacation of the earlier trial dates, with the exception of the hearing scheduled on 6 August 2012. That hearing was vacated on the joint application of the Bidjara people and the Brown River people because of an extension to the overlap area occasioned by their late realisation that the areas to which their respective applications related did not include all the areas for which each claimed native title.
Thirdly, the matter had been the subject of detailed case management and trial programming orders. The Bidjara people had of course participated in the trial management hearings and were aware of the arrangements which the Court had made for the conduct of the trial. It is reasonable to suppose that they also had an understanding of the arrangements which the other parties had made to ready themselves for trial.
The Bidjara people had not complied with a number of the case management orders. At a directions hearing on 8 August 2012, the docket judge, Reeves J had fixed the dates by which the parties were to file all of the statements of their lay evidence and all of the reports of their experts. In the case of the Bidjara people, that date was 19 October 2012. The Bidjara people did not comply with that direction and, on 30 October 2012, Reeves J extended the time for compliance to 7 December 2012. When making the order for extension, Reeves J also ordered:
Should a party fail to comply with the precise terms of any of these trial programming orders in relation to any witness, whether an expert witness or a lay witness, that party will not be able to call that person as a witness or rely upon his or her evidence at the trial of these proceedings.
Despite the clear terms of this order and the context in which it was made, the Bidjara people were late in serving their statements, and the statements served contained large amounts of material which had previously been withdrawn in response to objection. The Bidjara people then sought a further extension of time but this was refused by the primary judge on 25 March 2013. At the same time, the judge made other orders relating to the evidence which the Bidjara people could lead at trial which seemed to address the prejudice which the Bidjara people would otherwise suffer. Despite that, the Bidjara people applied for leave to appeal against the judge’s orders. That leave was refused: Wyman on behalf of the Bidjara People v Queensland [2013] FCA 366.
Fourthly, the evidence which the Bidjara people themselves provided to the primary judge suggested that they themselves had been responsible for THL ceasing to act for them. This was in addition to the material provided by Brown River people’s solicitor which also suggested that the retainer of THL had been terminated by the Bidjara people. Further still, the judge was entitled, given the evidence she had received and the ordinary expectations of professional conduct, to proceed on the basis that THL would not have declined to act further in the matter. Rule 13.1 of the Australian Solicitors Conduct Rules 2012 provides:
13.1A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS:
13.1.1 The client has otherwise agreed;
13.1.2 The law practice is discharged from the engagement by the client;
13.1.3The law practice terminates the engagement for just cause and on reasonable notice; or
13.1.4The engagement comes to an end by operation of law.
Rule 13.1.3 is pertinent presently. THL could have terminated the engagement only for just cause and on reasonable notice. As a termination by THL on 18 April 2013 of a retainer for a four week trial to commence on 22 April 2013 could not be regarded as reasonable notice, it is not readily to be supposed that THL would have conducted themselves in this manner. The letter of 10 April 2013 and, to a lesser extent, Mr Hauff’s communication to the solicitor for the Brown River people indicate that it was the Bidjara who terminated the engagement. Accordingly, this does not appear to have been the a case of a client being left “in the lurch” by a solicitor.
It is pertinent that the Bidjara people did not seek to adduce any further evidence on the appeal relating to the circumstances in which the instructions of THL had been terminated to contradict this view of the evidence which was before the primary judge.
It is to be expected that courts will give less significance to a disability on which a party relies when seeking an adjournment which the party’s own voluntary conduct has brought about. Parties who are minded to terminate the retainer of their legal representatives shortly before a trial should be aware that the court is unlikely to consider favourably an application for an adjournment on the ground that the party is unrepresented. Courts should be particularly alert not to allow a party to “force” an adjournment by the late termination of instructions to their legal representatives.
Fifthly, an affidavit from the Brown River people’s solicitor prepared in support of the Brown River people’s opposition to an adjournment indicated that the Bidjara people’s assertion of a lack of funding was not a recent development. On the contrary, the Court had first been informed of that circumstance on 3 May 2011. In addition, the Court had also been informed of the Bidjara people’s lack of funding at directions hearings on 3 June 2011, 11 July 2011, 9 September 2011, 8 December 2011 and 10 July 2012. This was significant in two ways. First, the primary judge was entitled to proceed on the basis that the Bidjara people had had more than adequate opportunity in which to secure funding for the litigation. Secondly, there was little to indicate that the difficulties which the Bidjara people had experienced in the past would not continue in the future even if an adjournment was allowed.
Sixthly, the Bidjara people had had more than adequate opportunity in which to brief and instruct Professor Langton properly in relation to the preparation of an anthropological report.
Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), contains a statement of the “overarching purpose” of the Court’s civil practice and procedure provisions. Section 37M provides:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court made under this Act;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.
Counsel for the Bidjara people emphasised the purpose in subs (2)(a), namely, the objective of achieving the “just” determination of all proceedings. However, the other purposes in subs (2) are also important, in particular, the efficient use of the Court’s resources, the efficient disposal of the Court’s overall case load, and the disposal of all proceedings in a timely manner.
In our opinion, this Court should not conclude that the primary judge failed to have regard to the matters on which the Bidjara people rely presently. In her ex tempore reasons, the judge referred to many of the matters which each party had put to her. It is true that the judge did not mention every one of the matters on which the Bidjara people now rely and those to which we have referred above. However, as Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 at [1], “an ex tempore judgment should not be picked over”. This makes it difficult for this Court to conclude that the primary judge failed to have regard to a relevant consideration, including the difficulties which the Bidjara people would face in proceeding while unrepresented.
Some of the matters to which the primary judge did not refer expressly in the ex tempore reasons had been mentioned by Mr Robinson only very shortly before the judge gave her decision, and there is no reason to suppose that they were overlooked by her. It is commonly the case that ex tempore reasons do not incorporate reference to every matter mentioned in the argument. That is because they are given in a context which assumes knowledge by those to whom they are directed of the submissions on which the decision is based. Ex tempore reasons are to be read and considered fairly and as a whole, with due consideration to the context in which they were delivered: Khanchitanon v R [2014] NSWCCA 204 at [26] (Adamson J).
The case was undoubtedly important to the Bidjara people and this was a significant matter in the decision on the adjournment application. The Full Court spoke of this importance in Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34]; [2013] FCAFC 58:
[L]itigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come.
However, the importance of the issues to be determined by the trial was obvious. So also were the purposes of the NTA. This being so, it should not be inferred that, just because the primary judge did not refer to these matters expressly, their bearing on the adjournment application was overlooked.
Accordingly, we do not consider that the Bidjara people have shown an error of the House v The King type.
The same considerations apply in relation to the Bidjara people’s alternative submission, namely that on refusing the adjournment, the primary judge should have permitted Mr Robinson at least a few days in which to ready himself for the trial.
Nor, in our opinion, does framing the issue as one of denial of procedural fairness assist the Bidjara people. As noted, a failure to grant an adjournment can in some circumstances constitute a denial of procedural fairness. That circumstance will obtain if a party has been denied a reasonable opportunity to present its case. However, the matters to which I have referred indicate that that is not this case. The Bidjara people had been provided with a reasonable opportunity to prepare and present their case but, by their own action, had removed the possibility of doing so by legal counsel. It is to be remembered that procedural fairness requires that a party be given a reasonable opportunity to present a case: not every opportunity.
In our opinion, this ground of the Bidjara appeal fails.
DID THE PRIMARY JUDGE ERR IN FAILING TO TAKE THE EVIDENCE OF THE BIDJARA INDIGENOUS WITNESSES AND/OR THE BROWN RIVER INDIGENOUS WITNESSES ON COUNTRY?
Both the Bidjara people and the Brown River people complain of the fact that the Court did not take some of their evidence on country.
Arrangements had been made for evidence to be taken on country in the second week of the trial, namely, the week commencing Monday, 29 April 2013. Unfortunately, Mr Robinson, who was representing the Bidjara people, was admitted to hospital over the immediately preceding weekend. Although he had been discharged from hospital, a message received by the Court’s Registry and provided to the primary judge indicated that his medical advisors had recommended rest for a week and it seemed that subsequently he had been readmitted to hospital.
The Court received the information on the morning of Monday, 29 April when it assembled with the parties at Roma, preparatory to embarking on the on country evidence.
The primary judge outlined to the parties present the message the Court had received concerning Mr Robinson and summarised the plans which had been made for the taking of evidence in that week. Her Honour recorded that the Court had received from Ms Keelen Mailman, one of the Bidjara people claimants, an indication that, because of Mr Robinson’s illness, the Bidjara people would not be in a position to proceed. The judge indicated that, as other Bidjara people claimants were present, the Court could at least have a view of those aspects of the overlap area which the parties wished to point out and said:
There is a question as to the taking of evidence in circumstances where Mr Robinson, who is the representative, is not here. So if anybody wants to put to me what they say should happen, now is the opportunity to do so. As I understand the Bidjara people’s position, it is that evidence should not be taken in the absence of Mr Robinson.
Later, the judge pointed out that the consequence of not taking evidence on country would be that the five Bidjara people witnesses and the five Brown River people witnesses scheduled to give evidence on country would give their evidence in Brisbane in the week commencing 6 May 2013. Her Honour said:
So I am open to hear whatever applications [the parties wish] to be made, ... the Bidjara people [having] made theirs by email, effectively.
Mr Waters of counsel, then appearing for the Brown River people, pressed the Court to take the evidence of the Brown River people witnesses on country, submitting that it would be possible for the Bidjara people to apply to have them recalled for cross-examination if they wished. Mr McLeod, who had been granted leave to represent the Karingbal, supported the matter resuming in Brisbane for the taking of evidence. The State opposed the making of any further arrangements for the taking of on country evidence, emphasising the fact that the hearing had not been able to commence on the previous occasions when scheduled and the costs of taking evidence on country.
The primary judge rejected the Brown River people submission that she should proceed to take evidence on country. Given the incapacity of Mr Robinson who was then representing the Bidjara people as a lay advocate, that ruling was probably inevitable. As Beaumont J observed in Wilkes v Western Australia [2003] FCA 156 at [10] in relation to the right of an unrepresented claimant to be present at a view of a sacred site of another group, “It seems to me inevitable that, as an unrepresented party, he should be permitted to be present at each of the other sites as a necessary incident of providing him with an adequate opportunity to be heard in his own cause. I can see no alternative, in principle, or in practice”.
Accordingly, the planned on country evidence did not proceed and all evidence in the trial was given in Brisbane. The primary judge did however take a view of areas which the parties pointed out. It seems that others in the Bidjara people claim group assisted in that respect.
In her ex tempore reasons given on 29 April 2013, the primary judge referred to, and accepted, the importance which the Brown River people and Bidjara people attached to the giving of their evidence on country, to the resources, time, money and energy which the parties had committed to the proceeding, to the commitment of public funds involved in the use of the Court’s resources, and discussed the various alternatives available. Her Honour noted the disadvantages to Mr Robinson if the Brown River people proposal that their witnesses give their evidence on country in Mr Robinson’s absence was adopted (arising from the fact that he would have to cross-examine on the basis of the written record only without having seen and heard the evidence given) and to the prospect that, even if evidence on country was taken from the Brown River people witnesses, they would still be required to attend in Brisbane for the cross-examination by Mr Robinson. The judge noted the expense and organisational difficulties involved in reassembling to take evidence on country and then concluded:
So, no matter how much people want to give evidence on country, which I accept, there is a level at which the Court, frankly, can do no more and the resources which have been used to get us all here this week are simply not available to gather everybody here for another two or three days at another time.
So let me make it clear that the practical reality that we are all confronted with, the situation that we are all in, is, in my view, best resolved in the interests of justice and fairness of all people to insist, as we have done, that the view take place, which the Bidjara people have accepted should occur, and otherwise to say we are sorry. We have done the best we can to facilitate you and allow you to give your evidence in the location you wish to give it, but we cannot do so. We cannot do so because it would be unfair to proceed and we cannot come back again because it would also be unfair to impose that burden of cost, time and effort on parties in circumstances where at least part of the Brown River People’s evidence would have to be given in court and where the whole of the Bidjara people’s evidence would have to be given in court, in circumstances where both have expressed a strong desire not to do so, the fair result in this case is to say we will have the view but we will not take evidence, be it evidence in chief or any cross-examination. That evidence will all be taken in court next week.
As can be seen, the primary judge abandoned, with regret, the proposal to take evidence on country. The judge considered that the Court had made a proper effort to do so, that it would be unfair and too expensive to come back and expressed her desire to achieve fairness between the Brown River people and the Bidjara people in the way the evidence was given.
Earlier, during the course of the submissions the judge had warned the Bidjara people that she was unlikely to look sympathetically on a later application by them for evidence to be taken on country:
I should make this clear to the Bidjara people, because we’ve done everything we can and we’ve all spent a lot of money to get here and it’s just unfortunate that Mr Robinson has been taken ill, I would definitely not be looking sympathetically on [an application that] we’ve all got to come back here.
In her published reasons for judgment dismissing the claims of native title, the primary judge referred to the written submissions made on behalf of the Brown River people which included:
With the benefit of hindsight it may be that perhaps more could have been done to put witnesses at their ease. It would certainly have been preferable if elderly witnesses had been able to give evidence at bush locations on country, rather than within the confines of the courtroom.
At [484], her Honour was critical of this submission and said:
The submission is gratuitous. Those responsible for the Brown River people submissions (about which I will say more next) know that it was intended that much of the evidence of Aboriginal people was to be given on country and the only reason this did not occur was the sudden illness of one of the unrepresented parties. It would have been grossly unfair, to the probable point of appellable error, to permit evidence to be given on country in the absence of the authorised representative of one of the parties. For this reason, plans had to be changed, the on country hearing became a view only, and all parties were required to give their evidence in court. In these circumstances hindsight about the desirability of giving evidence on country is unhelpful.
As noted, both the Bidjara people and the Brown River people complain on appeal that their evidence had not been taken on country. Both allege that the primary judge had thereby denied them procedural fairness. Ground 2(b) of the amended notice of appeal of the Bidjara people claims:
The learned primary judge erred by failing to accord the Appellant procedural fairness by:
…
(b)Not hearing evidence of indigenous witnesses for the Bidjara applicant on country and, further, in not adjourning the proceedings or allocating further hearing dates for the proceedings to allow for that evidence to be given on country and in circumstances where Prof Sutton gave evidence about the importance of evidence being given on country.
The corresponding ground in the Brown River people’s notice of appeal alleges as follows:
1.The trial judge erred by denying the Appellant procedural fairness.
Particulars
(a) Her Honour failed to provide the Appellant with a reasonable opportunity to present its case by refusing to hear the evidence of the Appellant’s Aboriginal witnesses on-country and in an informal setting as had been earlier ordered by Reeves J and instead ordering on 29 April 2013 that the Appellant’s Aboriginal evidence be heard in the Federal Court in Brisbane (Reasons at [481]-[484]).
The balance of ground 1 in the Brown River people’s notice of appeal contained complaints which are more in the nature of a challenge to the discretionary decision of the judge declining on 29 April to proceed with evidence on country, rather than to a denial of procedural fairness.
Counsel for the Bidjara people submitted that the primary judge gave undue prominence to the resource limitations on returning to take evidence on country and had thereby omitted to consider the fairness to the Bidjara people of allowing their witnesses to give evidence on country and the prejudice which they would suffer if they did not. The judge undoubtedly did have regard to the resource limitations but not so as to ignore the other relevant considerations. So much is evident from the summary of the matters to which the judge did have regard set out earlier in these reasons.
This Court frequently agrees to take evidence on country in native title hearings. In doing so, it gives effect to s 82(2) of the NTA:
(2)In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.
In the present case, Dr Hutchings, the anthropologist retained by the Brown River people, had stated in an affidavit made on 19 April 2012:
[24]It is important to the claimants, from a cultural point of view, that they are able to speak about their country on location, as far as is practicable. One of the principal reasons for this is that according to cultural practice, the proper place to speak about country is within the country. The place provides the stimulus and, according to the claimants’ belief, the necessary spiritual components to facilitate proper discussion of relevant cultural matters.
[25]In addition, claimants usually feel more comfortable speaking on their country because they understand it to be their home. Giving the evidence on country also provides the opportunity for family and community members to attend together, thus satisfying the need for claimants to speak about their country together with others as noted above.
These paragraphs of Dr Hutchings’ report concerned the cultural and customary concerns which the Brown River people wished the Court to take into account in conducting the proceedings.
During the course of the present trial, Professor Sutton, the anthropologist called by the State referred to the advantages of evidence being taken on country as follows:
Being on site always triggers much better information, much richer information. The other aspect to it though is to do with the confidence of the speaker ... [T]his kind of venue favours and advantages people who are used to speaking in public. It disadvantages those who are not and ... being out on country usually levels that one out pretty well.
Counsel for the Brown River people, whose submissions on this topic were adopted by counsel for the Bidjara people, submitted that the judge’s ex tempore reasons did not indicate that she had taken any account of these concerns.
This submission cannot be accepted. The primary judge can hardly be taken to have overlooked these concerns, these being the reasons why the Court had made arrangements for the taking of evidence on country. Further, and in any event, the judge referred expressly in her ex tempore reasons to the importance which the Brown River people and the Bidjara people witnesses attached to the giving of evidence on country, saying:
All of those witnesses had indicated through their representatives that they wished to give evidence at this location rather than in the court at Brisbane and that, indeed, it was considered very important by them to have the opportunity to give their evidence, as they say, on country rather than in the court. It was clear from what Mr Robinson said last week that he had considered people that he thought could give evidence in court and, indeed, he identified a number of people, Bidjara people, who could do so, but there were also a group of five people that he identified would very much wish to give evidence on country, including he himself.
I’m not in a position today to distinguish between the strengths of various feelings that people have about the importance of giving evidence on country, but I know it is important to all those who indicated that they wished to do so and consistent with that I decided a timetable that would facilitate that happening,
We also observe that, during the course of the submissions on 29 April as to the course of action to be followed given Mr Robinson’s absence, the judge said:
I actually accept that all of the people who have indicated that they want to give evidence on country will not feel comfortable giving evidence anywhere else. I accept that.
In the context of ex tempore reasons, this should be understood as an express reference by the primary judge to the matters which had warranted the order that evidence be taken on country.
Next, counsel for the Brown River people submitted that the primary judge had accommodated the difficulties for the Bidjara people arising from Mr Robinson’s illness without paying proper regard to the difficulties which that accommodation caused to the Brown River people. Again, this submission is not borne out by the judge’s ex tempore reasons. The passages set out earlier indicate that the judge did have regard to the competing interests and the effect on each party before deciding that the practical course was to abandon the attempt to take evidence on country and to take all the evidence in Brisbane.
One difficulty for the Bidjara people with this ground of appeal is that, having succeeded on 29 April 2014 in persuading the Court not to proceed to take evidence on country in that week, they did not make any application subsequently for the Court to take evidence on country at another time. This means that the judge was not asked to exercise again the discretion concerning the taking of evidence on country.
Counsel for the Bidjara people sought to overcome this difficulty by reference to the judge’s statement on 29 April that she would not be “looking sympathetically” on an application by the Bidjara people that the Court return to take evidence on country. He submitted that the omission of the Bidjara people to make a second application was explicable by their perception that it would have been futile to do so. However, there is no evidence that Mr Robinson, who was representing the Bidjara people, was aware of the judge’s statement on 29 April, he not having been present at the time it was made. Nor is there any evidence that Mr Robinson had been influenced by the judge’s statement not to make a second application for the evidence to be taken on country. The evidence before this Court is just as consistent with the Bidjara people being content to present their evidence in Brisbane, given their success in avoiding the trial proceeding on country in Mr Robinson’s absence.
The Brown River people did not make any renewed application for on country evidence after 29 April 2014. We observe that the primary judge’s statement that she would not look sympathetically on a further application was directed to the Bidjara people and not to the Brown River people but the Brown River people may reasonably have taken the view that that intimation applied to themselves as well. However, on the appeal counsel for the Brown River people provided an explanation for a renewed application not having been made. That was to the effect that trial counsel was aware that the evidence in chief of the relevant Brown River people witnesses would be in writing and had had reasonable grounds for thinking that none would be subjected to a rigorous cross‑examination. In this circumstance, counsel had been content for the whole of the Brown River people evidence to be given in Brisbane. That indicates that trial counsel made a forensic choice. The making of that choice may not preclude the Brown River people altogether from asserting that a denial of procedural fairness occurred, but it does very much weaken the strength of the argument.
The fact that the evidence in chief was to be given in writing is relevant in another way. It meant that limited evidence in chief would have been given on country, had the trial proceeded that way. Counsel for the Brown River people made that plain in opening:
It’s my proposal ... when we are on country and back in Brisbane, to provide each witness with the witness statement, go through any changes they might make, make those corrections, ask them if they … adopt their statement as being true and correct, tender the statement to you and then just ask them a few questions – not many because I’m aware of the time – just to make them a bit comfortable because if I put them straight into cross‑examination, that would be very difficult for them. Ask them a few questions to make them comfortable and then we go into cross‑examination.
Whilst the importance of cross‑examination is not to be under estimated, this indicates that the Brown River people’s witnesses were able to give the evidence in chief which they wished, irrespective of the place where the evidence was taken.
Finally, we observe that neither counsel for the Bidjara people nor the Brown River people pointed to any indication in the evidence of a witness being apparently discomforted or inhibited while giving evidence in the courtroom in Brisbane. We are conscious that, having regard to the limitations of a written transcript, the absence of such an indication is not conclusive, but it does point against there having been a denial of procedural fairness.
Accordingly, we consider that neither of these grounds of appeal of both the Bidjara people’s appeal and the Brown River people’s appeal is made out.
DID THE PRIMARY JUDGE ERR IN FINDING THAT THE BIDJARA PEOPLE HAD FAILED TO MAINTAIN THEIR CONNECTION WITH THEIR COUNTRY BY TRADITIONAL LAW AND CUSTOM?
Primary judge’s findings
The primary judge found, at [625] of her reasons, that there was a strong Bidjara identity, having regard to the evidence of the Bidjara witnesses, and that the evidence supported the inference that a Bidjara society had continued to exist since sovereignty, “at least in the common, rather than the NTA, sense of a society”. Her Honour explained what she meant in this regard by stating:
That is, a distinct body of people who identify as Bidjara existed at sovereignty and may be inferred from the evidence to have continued to exist at all subsequent times.
Her Honour added that unlike the Karingbal (being in context a reference to the Brown River people) it could not be inferred that the concept of a Bidjara society was largely the result of the native title claim process and the anthropological evidence required to be gathered in support. Her Honour found that the Bidjara plainly existed as a distinct body of people who identified as Bidjara and who demonstrated a real interest in their own cultural heritage well before the era of the NTA.
Her Honour thus stated that the issues for the Bidjara were whether their contemporary society is “united in its acknowledgment and observance of the traditional, that is pre‑sovereignty, laws and customs of the Bidjara people”, as required by s 223 of the NTA and as explained in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, and whether those laws and customs “found their continued connection to that part of the overlap area” which her Honour had found was Bidjara country.
Her Honour found, at [627], that the anthropological evidence about the pre-sovereignty system for the acquisition and enjoyment of communal rights in land of the Bidjara must have included differential rights and responsibilities based on “familial/environmental clusters”. Her Honour said that the only additional observation which should be made was that the extent of the geographic differences of the areas incorporated within Bidjara country were so vast that the notion that all Bidjara held all of the same rights and interests in the whole of Bidjara country under the pre-sovereignty traditional laws and customs was “untenable”.
Her Honour thus found, at [628], that the evidence supported the inference that this important aspect of the pre-sovereignty traditional laws and customs had been lost by the time of the generation of Uncle Rusty Fraser, Bob Mailman and Betty Saylor. She accepted a submission made on behalf of the State that no evidence of any continued acknowledgment or observance of these aspects of the law and custom was given by Uncle Rusty, Ritchie Fraser, Bob Mailman or Betty Saylor at the preservation of evidence hearing held in 2001 before Ryan J.
Her Honour also noted that while Floyd Robinson said he had been told about people getting different parts of country, it was apparent that other contemporary Bidjara witnesses denied the existence of any such notions in their current dealings with each other. Even Floyd Robinson, who had been told these things, accepted the basic rule now was that the whole of Bidjara country belongs equally to all Bidjara. Her Honour said that was in “stark contrast” to the position that would have existed under traditional Bidjara law and customs.
Her Honour specifically accepted, at [629], a submission made by the State that:
The idea that all 10,000 Bidjara people hold undifferentiated – and therefore unregulated – rights and interests in the whole of such area of land and waters as may properly be found to be Bidjara country is not consistent with what can reasonably be presumed to have been the normative system in place at sovereignty.
Her Honour then noted, at [631], other “discontinuities” in respect of the Bidjara relationship to land. Her Honour observed that the contemporary Bidjara witnesses seemed to have lost any real understanding of at least the eastern boundaries of their country based on traditional knowledge. Her Honour did not consider that the expansive boundaries claimed to have been supported by Uncle Rusty were supported by any rational view of the evidence or as a result of the handing down by word of mouth of the knowledge of traditional boundaries. Her Honour found that traditional notions of country and the country of neighbours of the Bidjara appeared to “have largely been lost”.
As to the basic criterion for membership of the Bidjara claim group, her Honour noted at [633] that the evidence was that descent from a Bidjara parent, whether through the female or the male line, was the rule. In that regard, her Honour accepted, at [634], that there had been an adaptation over time, in this regard, but that this was appropriately described as adaptation of a pre‑sovereignty rule, as opposed to a new rule.
Her Honour also accepted, at [635], that an original rule of patrilineal or patrifilial descent that operated pre‑sovereignty had been replaced by a contemporary cognatic system, but one which appeared to be unregulated, without any imposition of any kind of limitation on the reckoning of group membership which, as a consequence of the cognatic descent model, would be ever expanding.
Her Honour found, at [637], there was a lack of evidence about adoption as a criterion for membership of the Bidjara. Her Honour also accepted, at [638], a submission made by the State that the expansive approach to group membership evident from Raymond Robinson’s evidence, who claimed that many people were Bidjara, regardless of how they identified themselves, was inconsistent with traditional laws and customs; as was his position that if anyone spoke the Bidjara language they must be Bidjara.
So far as Raymond Robinson’s evidence was concerned, her Honour also said, at [638], that his role as an advocate for the Bidjara gave him prominence in the proceedings disproportionate to other witnesses, a few of whom made claims to similar effect, and she was not prepared to use his advocacy as evidence of material discontinuity.
At [639] and following, the primary judge, so far as social organisation was concerned, accepted the State’s submission that in almost all respects the former laws and customs regarding social organisation had ceased to operate for the Bidjara. Her Honour accepted there was no evidence regarding kinship rules or a kinship system. She accepted the evidence of Professor Sutton, who described the practice whereby older men and women are simply referred to as “Uncle” and “Aunty” as one that had evolved rapidly in the national Aboriginal domain in recent decades and did not reflect genealogical relationships but the recognition of status and gender, with the consequence that the use of such terms is “a post‑classical innovation and represents a departure from traditional kinship norms”.
It is submitted an application may be made to the Court under Pt 3 of the NTA where there is no existing “approved determination of native title” for an area: see ss 13(1) and 61A(1) of the NTA.
Further, the Court’s jurisdiction to “hear and determine” applications under Pt 3 of the NTA is exclusive of all courts other than the High Court pursuant to s 81 of the NTA.
A determination under s 225 of the NTA must relate to an “application” made to the Federal Court under Pt 3 of the NTA. Part 3 provides a detailed regime for the making of “applications”.
The Karingbal submissions note s 253 of the NTA defines the terms “claimant application” and “non‑claimant application” as follows:
claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.
…
non-claimant application means a native title determination application that is not a claimant application.The submissions refer to the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) at [8.22], which states that a non-claimant application is:
basically an application, seeking a determination about whether native title exists in relation to an area, by a person who neither claims to hold native title nor is acting on behalf of those who do.
It is submitted the consequence of the distinction is that a non-claimant application will be for a determination that native title does not exist.
It is further noted the table beneath s 61(1) of the NTA distinguishes between “native title determination applications” that are “claimant applications” and those that are “non-claimant applications”. A person making a claim on behalf of a native title claim group, or compensation claim group, must be authorised by such a group: see ss 61(1), (2) and 251B of the NTA. Authorisation of the person making the application goes to the Court’s jurisdiction to hear the application: see Wongatha at [1269]‑[1270] and ss 84C and 84D of the NTA. While an application other than on behalf of a native title claim group or compensation claim group need not be authorised it must satisfy statutory requirements.
The Brown River/Karingbal people point to a particular notification requirement which exists for non-claimant applications. When notifying a non-claimant application, the Native Title Registrar must include a statement of the kind set out in s 66(10)(a), namely that:
the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE);
By reference to the Explanatory Memorandum at [25.57], they say the purpose of this statement is to:
draw attention to the operation of some aspects of the NTA which may affect the notified person’s decision about whether, when and how to respond to a notice … In the case of non-claimant applications (item 95 inserts a definition of this term into section 253, these are applications for a determination of native title by a person who does not claim to hold native title) the notice must include a statement that section 24FA protection will apply to the area covered by the non-claimant application unless there is a relevant native title claim relating to that area at the end of 3 months from the notification day … .
Section 24FA protection is the authorisation of future acts that arises under s 24FA of the NTA when certain conditions are satisfied for a non-claimant application (typically, that a non-claimant application has been made, notified and after the notification period has ended, there are no claimant applications made in response).
The Brown River/Karingbal people submit the status of an application under s 61(1) of the NTA as a non-claimant application will alert persons to the fact that a determination that native title does not exist is being sought, and if there are competing claimant and non‑claimant applications for a particular area, they will be heard in the same proceeding, pursuant to s 67 of the NTA.
They say it is a purpose of the NTA that the orders open to be made on an application under s 61, in the form of a determination of native title, be those sought in applications as notified. The Brown River/Karingbal people further submit that if the public is not alerted to the prospect of a negative determination of native title, the notification requirements of s 66 of the NTA will not be fulfilled and so a person receiving notification will not be aware of information that “may affect the notified person’s decision” as to how to respond to the application.
Pursuant to s 213(1) of the NTA, a negative determination, as a form of native title determination under the NTA, must be made “in accordance with the procedures in” the NTA. In the Brown River/Karingbal appellants’ submission, they say those procedures require a nonclaimant application before a determination that native title does not exist can be made. By reference to Commonwealth v Clifton (2007) 164 FCR 355 at [43]; [2007] FCAFC 190, the Karingbal say they are “procedures which the legislature intended to be critical to a valid exercise of the jurisdiction of the Federal Court”.
Further, the Brown River/Karingbal people contend that in the present proceeding, the negative determination sought by the State of Queensland was effectively a counter-claim, which should have been positively propounded by the making of a non-claimant application. In the non-claimant application/counter-claim, the State would have borne the onus of proof of the negative proposition that native title did not exist: see Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 at [74]; [2010] FCAFC 3. They submit it is unlikely that the NTA permits a respondent to avoid that onus through the expedient of not making a formal counter‑claim.
It follows, in the Brown River/Karingbal appellants’ submission, that the Court’s jurisdiction under s 225 to determine whether or not native title exists depends on there being an application which complies with the NTA for either a positive determination (where that is sought) or a negative determination (where that is sought).
In summary, they say the fact that a non‑claimant application was not positively advanced should preclude the State from an entitlement to a negative determination as a remedy.
In relation to the contention that the Court does not have the power to make such a negative determination, the State submits that neither the provisions of the NTA nor the Full Court’s decision in Clifton support the proposition that the Court lacks the power to make a determination that native title does not exist in determining a claimant application under s 61(1) of the NTA.
The State notes that the ultimate holding in Clifton is that before a determination may be made that native title is held by a particular group, an application under s 13(1) must be made, by a person or persons authorised by that group in the manner required by s 61(1): see Clifton at [57] as well as the emphasis on authorisation at [20], [22], [36] and [52]. It says once such an application has been made, the Court may not make a determination that another group of persons, who have not authorised the making of an application for a determination of native title, hold native native. That is, a person cannot secure a positive determination of native title as a respondent to the claimant application.
The State submits, however, that the Court’s jurisdiction having been properly invoked by an application under s 13(1) of the NTA, the resolution of disputes arising in relation to that application (including as to the ultimate issue, whether native title exists) is patently an inherent aspect of a determination of the application under s 13(1).
The State says that the fact there are procedures which apply in the case of non‑claimant applications is not to the point. Those procedures are designed to bring the non‑claimant application to the attention of persons who may be affected by the “presumably negative” determination which is sought (importantly, any potential native title claimants).
The State says that where the Court’s jurisdiction has already been invoked by a (claimant) application made under s 13(1), with the requisite procedures that attracts (including authorisation and notification), that purpose is met – that is, bringing the proceeding to the attention of any person with an interest that may be affected by a determination (negative or positive) in the proceeding.
The State submits that the request for a determination to be made, giving effect to the primary judge’s reasons, is not a counter‑claim by the State which results in any shift of onus. The precise question posed for the Court’s decision in relation to the claimant applications before the Court in this case was whether or not native title exists. That is a matter in controversy between the parties to the claimant applications themselves. The State submits that having answered that in the negative, after a full hearing on the merits, the Court’s discretion as to the form of orders to be made (dismissal of the applications or a determination that native title does not exist) was enlivened.
We broadly accept the submissions made on behalf of the State.
In CG (deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 similar submissions to those now made on behalf of the Brown River/Karingbal people were considered and rejected by Barker J, following the unsuccessful claimant application of the claimants in that case.
We note, as did Barker J in Badimia, that similar submissions were also made in Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 and rejected by Jessup J.
In Badimia at [43]‑[51], Barker J said as follows:
43In Yugara, the Queensland South Native Title Services similarly submitted that a negative determination could only be made in circumstances where a non‑claimant application had been filed. The argument put on behalf of the claimants was substantially the same as that put here on behalf of the claimants. Jessup J rejected that submission, observing that there was ‘neither inconvenience nor injustice in taking the view … that such a holding would be wrong’, and confirmed that the Court had the power to make a negative determination in respect of a claimant application which had been unsuccessful following a contested hearing.
44In doing so, his Honour stated at [16]:
That is to say, the court has before it applications for determinations of whether or not native title exists. Those applications have been duly made conformably with item (1) in s 61(1), and have been through the statutory procedures to which their Honours referred in Clifton. That either or both of those applications might result in a determination that native title does not exist strikes me as an inescapable possibility under the statutory scheme. Even without the submission of any respondent, the Act contemplates the making of such a determination as within the range of possible outcomes.
45His Honour further observed at [18]:
when any application for a determination of native title is made, it is a matter of public record that the person or group concerned may, at the end of the proceeding, be recognised as the holder or holders of native title. By the terms of s 225, it is also a matter of public record that the proceeding may result in the making of a determination that native title does not exist in relation to the land concerned.
46In my view, the Court should follow the ruling and reasoning of Jessup J in Yugara, which I consider, with respect, to be correct.
47While the claimants submit that such a ruling results in public notification procedures for native title claims being circumvented, I am satisfied s 225 confers on the Court power to make a negative order that native title does not exist and so do not accept that s 225 should be construed in a manner that limits the power of the Court to make a determination of one sort or the other.
48If a claimant application fails, the unsuccessful claimants must necessarily appreciate that, in its discretion, the Court may either simply dismiss the proceeding or make a negative determination.
49The reality is, particularly in a proceeding like this, that the claimant application of the claim group has followed the procedures of the NTA, and has been notified so that any other indigenous persons who wished to become respondents in the proceeding could become respondents to assert any competing native title claims. None did so, although at the hearing indigenous witnesses, belonging to groups who considered they were neighbours of the Badimia, gave evidence.
50While I recognise the arguable basis of submissions made on behalf of the claimants concerning the limited powers of the Court as to what determinations it can make now in this proceeding, I prefer the construction of s 225 and the other provisions of the Act arrived at in Yugara and contended for by the State, which submissions, set out above, I generally accept.
51Thus, the question then becomes whether a negative determination should be made in the circumstances of this case.
For the reasons given by Jessup J in Yugara and adopted by Barker J in Badimia we are of the opinion that the Court has the discretionary power, following an unsuccessful claimant application, to simply dismiss the claimant application or to determine, if appropriate, that native title does not exist.
In those circumstances, ground 6 of the Brown River people’s notice of appeal, to the extent that it raises the question of the power of the Court to make a negative determination, must fail.
As to the exercise of the discretionary power to make a determination, the written submissions of the appellants in the Karingbal appeal in substance state as follows:
(1)To the extent that the primary judge was entitled to make a negative determination it was in the exercise of her discretion to do so, which discretion is governed by the principles in House v The King, in particular at 504‑505 (Dixon, Evatt and McTiernan JJ).
(2)In [2] of her reasons of 3 February 2014 (Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8) (the determination decision), the primary judge stated:
While I accept the State’s description of the relevant statutory provisions, the issue is ultimately one of discretion. It is true that the Court’s jurisdiction is to be exercised so as to ensure, where possible, all matters in controversy between parties are ‘completely and finally determined’ (s 22 of the Federal Court of Australia Act 1976 (Cth)). It is also true that s 225 of the NTA expressly contemplates that a determination may be made that native title does not exist in relation to certain land. I accept also that negative determinations have been made where a claimant application has failed rather than the claimant application merely being dismissed. I further accept the State’s submission that the claims in the present matters failed after a trial on the merits by competing claim groups after a detailed examination of the evidence. I agree that this circumstance weighs in favour of the making of a determination as sought by the State.
(Emphasis added by the Karingbal appellants.)(3)Section 22 of the FCA Act states:
The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
(4)Section 22 has its origins in s 24(7) of the Judicature Act 1873 (UK) and is directed to the harmonised administration of legal and equitable remedies in a single proceeding. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161; [1981] HCA 48, Gibbs CJ, Stephen, Mason and Wilson JJ said that the power conferred by s 22 was:
designed to ensure that the Court can grant relief which is appropriate to both legal equitable claims and to avoid multiplicity of proceedings. Its effect is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible.
(5)In Clifton, at [41], the Full Court of this Court (Branson, Sundberg and Dowsett JJ) described s 22 as a provision which does not expand the jurisdiction of the Court.
(6)Section 22 is directed to promoting finality of proceedings to avoid multiplicity of proceedings concerning any of “those matters”, which expression is clearly a reference to “all matters and controversy between the parties”.
(7)Section 22 is not relevant to the making of a negative determination of native title consequent upon the dismissal of a native title determination application, given the in rem nature of the determination, as to which see Wik Peoples v State of Queensland (1994) 49 FCR 1.
(8)By allowing s 22 to be one of the considerations influencing her Honour’s decision, the primary judge considered an irrelevant matter and thereby committed an error in the House v The King sense.
We accept the submission made on behalf of the State that it was open to the primary judge in the circumstances to make a determination in the terms that her Honour did; and there was no error in the exercise of the discretion to do so by referring in a general sense to s 22 of the FCA Act.
As to the exercise of the discretion we accept that a range of factors may lead a court, in the particular circumstances of a claimant application, to make a determination that native title does not exist.
In Yugara, Jessup J took into account that:
(1)There was no suggestion in the evidence of the existence of any groups other than the Yugara or the Turrbal (the contesting groups) which held rights and interests in the claim area. Nor was there any basis in the evidence to find that the normative system of laws and customs which inferentially existed at sovereignty had continued substantially uninterrupted to the present time (at [22]).
(2)The Yugara people were the only people (with one exception) to avail themselves of the opportunity to respond to the initial public notification of the original Turrbal application, made under s 66(3)(d) of the NTA on 13 December 2000, and there was no basis to infer that there are in probability other groups who would have potentially viable claims in relation to the claim area (at [23]).
(3)The Court determined that the pre‑sovereignty normative system of laws and customs had not continued in the relevant area (at [24]).
(4)While a research project which had the objective of identifying which people, if any, may hold native title within the claim area had not been completed at the time of the commencement or completion of the trial, neither of the applicant groups before the Court had sought the deferral of the trial to await the outcome of that research and indeed both opposed the State’s earlier application to defer the trial until the results of the research were known (at [29]).
(5)There was a “persuasive argument” that it was too late for other groups who may have viable native title claims to be advanced and there would be “something odd about a system which permitted successive native title applications to be made with respect to the same area of land on the ground that more information had come to hand, in which the only persons who could not benefit would be those who had taken the trouble to bring their case forward in a timely way (that is, because the claims determined in those cases would be res judicata)” (at [30]).
(6)The relevant native title interests clearly knew of the existence of the proceeding and inferentially knew the broad nature of the applications made in November 2012 and October 2013 (in relation to the research project) and there is “strong public interest in the finality of litigation” (at [31]).
(7)The imminent delivery of the research report did not make a positive contribution to the case that a negative native title determination should not be made.
(8)While one person had become a respondent on the basis that he wished to resist the claims made by demonstrating that he was himself the holder of native title, he subsequently filed a notice stating he did not wish to take an active part in the proceeding and thereafter did not appear at the trial and was not permitted to file an affidavit in relation to the proceeding. Later, he had supported the position advocated by one of the claimants. His situation added nothing to suggest a negative native title determination should not be made (at [36]‑[40]).
(9)For more than 16 years there had been native title determination applications in relation to the claim area.
In Badimia, the Court made a negative determination after regarding the following factors, namely that:
(1)There had been a full and complete trial on relevant connection issues in the area the subject of the claim (at [79]).
(2)The trial was conducted following the lodgement of a considered claimant application by the claimants and no other indigenous persons sought to challenge the alleged interests (at [80]).
(3)The native title claim group was identified and formulated by the claimants having regard to their indigenous knowledge and with the assistance of the relevant native title representative body (at [80]).
(4)The matter proceeded to trial with the advice and representation of experienced solicitors and counsel, and an experienced anthropologist was called on behalf of the claimants at trial (at [80]).
(5)A suggestion by claimants that, as a result of the Court’s decision, thought might be given to the identification of a new claim group comprised of only the descendants of some of the apical ancestors identified in the proceeding by the Court, was artificial (at [81]).
(6)The case before the Court, unlike that in Wongatha, did not fail by reason of lack of authorisation, and in Wongatha the primary judge (Lindgren J) recognised that, within a very large claim group, there were families or groups who may well, on their own, be able to advance separate claims for native title if properly authorised (at [83]).
In this case, the primary judge said, at [2] of her reasons in the determination decision, that the Court’s jurisdiction is to be exercised so as to ensure where possible all matters and controversy between parties are “completely and finally determined”, as s 22 of the FCA Act states. Her Honour, in so stating, went on immediately to indicate that s 225 of the NTA expressly contemplates that a determination may be made that native title does not exist in relation to certain land. It may be seen that her Honour was stating a more general point about the importance of finality in legal proceedings, including claimant applications, and did not limit her consideration of the exercise of her discretion by what s 22 appeared to require.
In making the determination that she did, her Honour, at [2], specifically noted that the claims in the present matters failed after a trial on the merits by competing claim groups after a detailed examination of the evidence. Her Honour said that this circumstance weighed in favour of making a negative determination. It cannot be said that her Honour thereby took into account an irrelevant consideration.
Her Honour, it may be noted, also gave close consideration to the fact that the Bidjara claimants were not legally represented and that the balance of their claim, which was not before the primary judge, might lead to different conclusions. Her Honour, however, considered that the balance of the claim in the circumstances was irrelevant. As the Brown River people were represented at the trial, this finding is not relevant to their submissions.
She also declined to accept a submission that the Bidjara claimants might be estopped from pursuing a subsequent claim in relation to the balance of the claimed areas.
At [4], she said that another relevant matter was the fact that although the claims had been on foot for many years there were essentially only two claimant groups in the overlap area, being the Bidjara and the Brown River (Karingbal) claimants. No other group asserted a claim to any part of the overlap area. The evidence did not enable any inference to be drawn that any other group might have such a claim. Her Honour observed that the evidence disclosed the existence of other traditional societies at sovereignty in the vicinity of the overlap area, although some of these appeared to have been absorbed into and become part of the Bidjara, and that the Bidjara had also taken over country left by another group. Again, it cannot be said that her Honour erred in taking into account those considerations.
Finally, her Honour observed, at [5], that her finding that the claimants did not possess rights and interests under traditional laws and customs was a circumstance that involved considerations different from those expressed by Lindgren J in Wongatha, where his Honour contemplated that on the evidence alternative claimant applications might well be conceivable. Again, it cannot be said that her Honour erred in so stating.
In all the circumstances it is not demonstrated that her Honour erred in the exercise of the discretion whether or not to make a negative determination, in a House v The King sense, by taking into account some irrelevant factor, failing to regard some relevant factor, failing to ask the right question or asking the wrong question.
Indeed, we consider that, in the circumstances, it was appropriate, if not inevitable, that a negative determination should have been made once each of the three claims failed on the basis that they did, and there was no suggestion there was any other group traditionally associated with the overlap area the subject of the claims.
In these circumstances, ground 6 of the Brown River appellants’ notice of appeal fails.
CONCLUSION AND ORDERS
For these reasons, the Court makes the following orders.
(1)In each of the appeals QUD 857 of 2013 and QUD 130 of 2014:
(a)The appeal be dismissed.
(b)There be no order as costs.
I certify that the preceding five hundred and three (503) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and White. Associate:
Dated: 13 August 2015
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