FEDERAL COURT OF AUSTRALIA

Naghir People #1 v State of Queensland [2010] FCA 1265

THE COURT NOTES THAT:

1    Having regard to the death of a senior member (elder) of the Nagilgaul People in Cairns during the week ending 12 November 2010 and the death of the wife of Nagilgaul elder Mr John Mills, during the course of the weekend of 13 and 14 November 2010, the traditional laws and customs of the Nagilgaul People require that neither Mr Phillip Mills nor other members of the Nagilgaul People including Mr Geoffrey Bob and Mr Julius Sorogo should, consistent with those laws and customs, travel or engage in meetings (including meetings to be convened on Thursday Island on Wednesday, 17 November 2010 and Thursday, 18 November 2010 in mediation of these proceedings as facilitated by the Torres Strait Regional Authority) until after the funeral of the elder of the Nagilgaul People who died in Cairns and the funeral of the wife of Mr John Mills.

2    The Mualgal People honour and respect the traditional laws and customs of the Nagilgaul People and accept that having regard to the death of the two Nagilgaul People, the traditional laws and customs of the Nagilgaul People prevent any Nagilgaul member engaging in travel or meetings until after the funeral of each person.

THE COURT ORDERS THAT:

1    The mediation of the issues raised by the principal proceeding to be convened on Thursday Island on Wednesday, 17 November 2010 and Thursday, 18 November 2010 is adjourned generally.

2    The costs of and incidental to each party’s participation in the mediation are reserved for later determination.

3    The Court directs Mr Phillip Mills (who is an applicant pursuant to s 66B of the Native Title Act 1993 (Cth) for an order that he replace the late Mr Alfred Mills as applicant on his own behalf and that of the Naghir People in these proceedings) to file an affidavit within 21 days of the date of the funeral of the two individuals referred to at paras 5 and 9 of his affidavit affirmed 15 November 2010 (that is, the date of the later funeral of the two individuals) setting out facts going to:

    (i)    whether Mr Phillip Mills has engaged in any air travel to Canberra either directly or by transit through other cities (or other air travel);

    (ii)    whether Mr Phillip Mills has engaged in any meetings in Canberra with a minister of the government of the Commonwealth of Australia or officers of a Commonwealth department of government or ministerial staff of a Commonwealth government minister;

    (iii)    whether Mr Phillip Mills has engaged in any such meetings in other places,

    in the period between the dates when Mr Mills first became aware of each death and the date of the funeral of each person.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The aspect of the proceeding presently before the Court urgently today concerns an application by notice of motion by Mr Phillip Mills on behalf of the Naghir People to adjourn a mediation of the claims and contentions of the Nagilgaul People, the Mualgal People and the interests of the Billy Family, to be conducted on Thursday Island on Wednesday, 17 November and Thursday, 18 November 2010. The adjournment application has been made necessary because last week a senior member (elder) of the Nagilgaul People passed away in Cairns and during the course of last weekend the wife of Nagilgaul elder, John Mills, also passed away.

2    The application is supported by an affidavit affirmed by Mr Phillip Mills who is an applicant pursuant to s 66B of the Native Title Act 1993 (Cth) for an order that he replace the late Mr Alfred Mills as applicant both on his own behalf and that of the Naghir People in the principal proceedings. Mr Phillip Mills gives evidence that he, Mr Geoffrey Bob and Mr Julius Sorogo are to travel to Thursday Island to represent the Naghir People in the mediation. Mr Geoffrey Bob is the “Mariged” or senior elder of the Mills and Billy families and presides over the traditional cultural protocols or laws and customs of the Nagilgaul People.

3    Mr Phillip Mills gives evidence that having regard to the death of the senior member of the Nagilgaul People in Cairns last week and the death of the wife of elder, John Mills, the traditional laws and customs of the Nagilgaul People provide that neither he nor Mr Geoffrey Bob nor Mr Julius Sorogo should travel or engage in meetings until after the funeral of each of the deceased.

4    Accordingly, Mr Mills seeks an order that the mediation be adjourned.

5    The Mualgal People through their representatives are participating in the mediation. The solicitor for the Mualgal People, Mr Jim Brooks, advises that the Mualgal People respect and acknowledge the cultural laws and traditions of the Nagilgaul People with the result that the Mualgal People would not wish to place the representatives of the Nagilgaul People in a culturally difficult position of being required to attend a mediation of the issues raised by the principal proceeding in the present circumstances.

6    The Torres Strait Regional Authority (“TSRA”) has appeared on the motion represented by Mr Peter Krebs, a Senior Legal Officer with the TSRA. Mr Krebs advises that the TSRA has expended $11,600.00 in facilitating the proposed mediation by paying the costs of airfares, transfers, accommodation and travelling allowances for people attending the mediation who do not live on Thursday Island. In addition, members of the Billy Family have also incurred expense in travelling to Thursday Island. Some Court costs have been incurred in making travel arrangements for participation at the mediation.

7    The Court investigated in the course of the hearing of the motion whether the solicitor for the Nagilgaul People, Mr Michael Neal, might be in a position to attend the mediation and take instructions from representatives of the People by telephone. Although Mr Michael Neal proposes to attend the mediation, it seems that proceeding on that basis is not possible.

8    Mr Krebs deposes to events leading up to the application to adjourn the mediation.

9    Mr Krebs deposes that at 9.45am on Tuesday, 9 November 2010, Mr Sam Mills attended his office and advised him that Mr Phillip Mills, Mr Geoffrey Bob and Mr Julius Sorogo were to attend the mediation. Mr Sam Mills requested arrangements to be made to fly Mr Geoffrey Bob and Mr Julius Sorogo to the mediation from Warraber Island. Those arrangements were made. Mr Krebs deposes that at 11.00am on Friday, 12 November 2010, Mr Sam Mills again attended his office and advised him that Mr Phillip Mills may not be able to attend the mediation since he would be meeting with a Minister in Canberra. Mr Sam Mills asked Mr Krebs whether there was a way to adjourn the mediation to another day. Mr Krebs advised Mr Sam Mills that any question of an adjournment was a matter for the Deputy District Registrar of the Federal Court of Australia who would be conducting the mediation. Mr Krebs advised Mr Sam Mills to request Mr Neal to contact the Court. Mr Krebs deposes that at 1.45pm on Friday, 12 November 2010 Mr Sam Mills again attended his office and advised him that there had been a death in the community and that for cultural reasons Mr Geoffrey Bob and Mr Julius Sorogo would not be attending the mediation. At 9.45am on 15 November 2010, Mr Sam Mills advised Mr Krebs that the wife of Mr John Mills had passed away on the weekend.

10    Having regard to the affidavit of Mr Phillip Mills and his evidence that the traditional laws and customs of his People provide that neither Mr Phillip Mills nor any other members of the Nagilgaul People including Mr Geoffrey Bob and Mr Julius Sorogo should travel or engage in meetings until after the funeral of the Nagilgaul elder and the funeral of the wife of Mr John Mills, which position is supported by the Mualgal People, the proper course is to adjourn the mediation. Considerable public money has been expended in facilitating the mediation and private money has also been expended by particular participants. That expenditure will be almost entirely wasted by reason of the adjournment of the mediation. However, having regard to the importance of members of the Nagilgaul People honouring and respecting the traditional laws and customs of the People especially as a matter of respect and dignity shown to the elder who passed away during the course of the week ending 12 November 2010 and also to the wife of elder, Mr John Mills, by refusing to travel or engage in meetings until after the funeral of each person, the proper course is to adjourn the mediation. The Mualgal People believe this is the proper course in view of the importance of showing respect to the cultural laws and traditions of the Nagilgaul People and the importance of honouring the deceased persons. The TSRA accepts that in these circumstances the proper course is to adjourn the mediation.

11    The costs and expenses associated with adjourning the mediation will be reserved.

12    The Court proposes to direct Mr Phillip Mills to file an affidavit within 21 days of the date of the funeral (that is, the later date of the funeral) of the two individuals referred to at paras 5 and 9 of his affidavit affirmed 15 November 2010 setting out whether Mr Mills has engaged in any air travel to Canberra either directly or by transit through other cities (or other air travel); or whether he has engaged in any meetings in Canberra with a member of the government of the Commonwealth of Australia, officers of a Commonwealth department of government or ministerial staff of a Commonwealth government minister; or whether he has engaged in any such meetings in other places, in the period between the dates when Mr Mills first became aware of each death and the date of burial of each person.

13    These matters may need to be taken into account in determining whether s 85A of the Native Title Act 1993 (Cth) is engaged.

14    These reasons for judgment are published on Wednesday, 17 November 2010. It is important to publish reasons which demonstrate the basis upon which the mediation was adjourned as the order adjourning the mediation involves setting aside the convening of meetings which has engaged public expenditure of $11,600.00 by TSRA and some private expenditure. These reasons published on 17 November 2010 explain the reasons for the orders made on Monday, 15 November 2010 on the determination of the motion.

Associate:

Dated:    17 November 2010