FEDERAL COURT OF AUSTRALIA

Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the Torres Strait Regional Authority on 8 November 2017, seeking a change of venue for the case management hearing commencing 20 November 2017, be refused.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and Summary

1    This is a ruling on an interlocutory application made by the Torres Strait Regional Authority (TSRA) on 8 November 2017, in proceeding QUD6040/2001, being the Torres Strait Regional Seas Claim (Part B) (which I refer to below as the Part B Sea Claim). The interlocutory application relates to the venue for a three-day case management hearing which is currently scheduled to be heard at the Magistrates Court on Thursday Island commencing on 20 November 2017. The parties were first notified of the date and venue for the three-day case management hearing by an email from the Court on 8 September 2017. The case management hearing does not only involve proceeding QUD6040/2001, but also six other proceedings, namely:

    QUD266/2008 Isaac Savage & Ors on behalf of the Kaurareg People #1 v State of Queensland & Ors (Kaurareg People #1)

    QUD267/2008 Isaac Savage & Ors on behalf of the Kaurareg People #2 v State of Queensland & Ors (Kaurareg People #2)

    QUD362/2010 Pearson Wigness & Ors on behalf of the Kaurareg People #3 v State of Queensland & Ors (Kaurareg People #3)

    QUD6005/2002 Victor Nona on behalf of the Badu People (Warral and Ului) v State of Queensland & Ors (Badu People (Warral and Ului))

    QUD114/2017 Bernard Richard Charlie & Ors on behalf of the Northern Peninsula Sea Claim Group v State of Queensland (Northern Peninsula Sea Claim)

    QUD115/2017 Bernard Richard Charlie & Ors on behalf of the North Eastern Peninsula Sea Claim Group v State of Queensland (North Eastern Peninsula Sea Claim)

2    These proceedings, with the exception of QUD6005/2002, are all sea claims. Proceeding QUD6005/2002 concerns a land claim over two islands. Determinations of native title have been made over most of the islands in the waters covered by the sea claims. Part A of the Torres Strait Sea Claim is also subject to an existing determination of native title, and I describe the progress of the Part A proceeding in more detail below. These seven proceedings have been managed together because there is some overlap in relation to the waters over which the native title claims are made.

3    For the reasons I set out below, the interlocutory application was refused. Orders were made on Monday 13 November 2017, but because of some significant disruption to the Court’s computer systems, the publication of reasons for the refusal was delayed by a couple of days.

4    This refusal should not be taken as, and is not, a dismissal or rejection of the important and genuine desire of Torres Strait Islander people in the Part B Sea Claim to have matters concerning their country and their waters discussed on their own country, and with as many members of the community present as possible. That is a desire which should be respected, and acknowledged. It is, as the State’s written submissions point out, a desire that is likely to be shared by many remote Aboriginal communities, and no doubt shared also by other Torres Strait Islander communities. It is a desire that, in appropriate circumstances, this Court may be able to, and would wish to, accommodate in the context of native title proceedings. It is not a desire that can always be accommodated, even if the Court might like to do so. In the present circumstances, on the evidence before the Court I cannot be satisfied that moving the November case management hearing to Mer Island is feasible or consistent with the Court’s statutory obligations. Nor can I be satisfied Mer Island is the most appropriate alternative venue.

Background

5    It is necessary to set out some of the background to the current situation regarding these seven claims, and the fixing of the three-day case management hearing. This summary is taken from the Court’s records, including reports to the Court provided by the parties, Registrar’s reports, affidavits, and documents filed in support of the interlocutory application. I have also referred to other affidavits and documents filed in relation to the Thursday Island case management hearing, only insofar as those materials recount the history or uncontroversial context of the proceeding. I have not relied on any of those materials insofar as they raise matters which are the subject of dispute or contest between the parties, or between legal representatives.

6    As its name suggests, this proceeding is the second part of proceeding QUD6040/2001, having been split off from what is called “Part A” of the proceeding by orders made by Finn J on 23 September 2008. Justice Finn was the judge of this Court responsible for the conduct of the Part A proceeding, which was in itself an extensive and complicated claim. Justice Finn spent a considerable period of time in the Torres Strait on country during the course of the Part A proceeding, as some of the evidence on this interlocutory application point out. Thursday Island was not part of the Part A claim. The TSRA evidence suggests that Finn J did not sit on Thursday Island. It would appear to be correct that no on country evidence was taken on Thursday Island in relation to the Part A Sea Claim, hardly surprising since Thursday Island was not part of the claim area. However the Court’s records indicate that French J, as his Honour then was, and prior to the proceeding being allocated to Finn J, did sit on Thursday Island in 2005 and separately, that one of the Court’s Registrars convened a hearing on Thursday Island in 2006, before the proceeding was split by Finn J into Part A and Part B. When Finn J convened Court hearings at various locations around the Torres Strait Part A claim area, his Honour did so for the purposes of taking on country evidence as part of the actual trial of the Part A claim. That is, his Honour was conducting the final, contested, stage of the Part A claim and hearing all the evidence which was necessary for his Honour to make a final decision on that part of the native title claim. In case it need be said expressly, that is a very different judicial function from the convening of a case management hearing to discuss with the parties current issues about the progress of a proceeding or proceedings. If this difference has not been explained to those members of the Part B Sea Claim group who are concerned that the Court is not conducting this case management hearing on country on an island such as Mer (although Mer is not within the claim area of the Part B Sea Claim), it should be.

7    In reasons published on 2 July 2010 (comprising 259 pages in the authorised law reports: Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1) Justice Finn upheld the claim for native title in Part A of the proceeding. His Honour made final orders on 23 August 2010. There was an appeal lodged from his Honour’s orders, which focused on federal legislation concerning fishing for commercial purposes and the interaction of that legislative scheme with native title rights. There was also a cross-appeal concerning Finn J’s findings about reciprocal rights and interests, whereby his Honour held that such rights did not have a connection to land and waters as required by s 223(1)(b) of the Native Title Act 1993 (Cth). By majority (Keane CJ and Dowsett J, Mansfield J dissenting) the appeal was allowed and the cross-appeal was dismissed: Commonwealth v Akiba [2012] FCAFC 25; 204 FCR 260. There was an appeal to the High Court from the Full Court’s decision and, on 7 August 2013, the High Court published orders and reasons on that appeal: Akiba v Commonwealth [2013] HCA 33; 250 CLR 209. The Full Court’s orders were varied, but it is not necessary to describe the details of those variations. In substance, the High Court held there was no inconsistency between the statutory regime for commercial fishing rights and the incidents of native title.

8    The Malu Lamar (Torres Strait Islanders) Corporation ICN 8051 was formed as the registered native title body corporate (RNTBC) to hold, in trust, the native title determined to exist in relation to the Part A Torres Strait Regional Sea Claim area, in accordance with s 56(2) of the Native Title Act.

9    As I have noted, Finn J separated the Torres Strait Regional Sea Claim into Parts A and B. His Honour did so because the waters covered by the Part B Sea Claim overlap with the (then) native title claims filed by the Kaurareg and Gudang Yadhaykenu Peoples (the Kaurareg People #1 claim and proceeding QUD269/2008 respectively). There were no overlapping claims in relation to the Part A Sea Claim area. Since 2010, further overlapping claims have been filed and the Gudang Yadhaykenu Peoples’ claim was discontinued in July 2017.

10    Mr Leo Akiba was one of the four individual claim group members who was named as a person constituting the applicant in QUD6040/2001 for the purposes of s 61 of the Native Title Act. I have described the unique statutory concept which is an “applicant” under this legislative scheme in my reasons for judgment in McGlade v Native Title Registrar [2017] FCAFC 10; 340 ALR 419 at [362]-[386].

11    Each of the four individual members originally constituting the applicant was authorised to represent one of four regional cluster groups. Mr Leo Akiba was authorised to represent only the Top Western islands, which comprises of Saibai Island, Boigu Island and Dauan Island: see Finn J’s reasons at [919]-[924]. The question of the authorisation of the claim, and its continuation through to trial and judgment in circumstances where two of the original four individuals had passed away and were not replaced, were the subject of findings by Finn J. His Honour considered it was not in the interests of justice to require strict compliance with authorisation: see Finn J’s reasons at [926]-[933]. I referred the parties in the current seven proceedings to these findings in the list of issues prepared for the Thursday Island case management hearing.

12    In the subsequent years, the other remaining individual who constituted the applicant has died. Mr Akiba is the sole remaining individual who constitutes the applicant for proceeding QUD6040/2001, the Part B Sea Claim. He is 81 years old. Mr Akiba has sworn an affidavit in relation to some issues currently before the Court and scheduled to be dealt with at the three-day case management hearing. For present purposes I note that Mr Akiba says in his affidavit (at [11]) that, consistently with the position I have set out at [11] above, he “cannot talk for the Part B Claim sea country because it is not my sea country”. That evidence is also consistent with some of the other documentary evidence filed with the Court for the purpose of the Thursday Island case management hearing, consisting of communications from Chairpersons of some of the Torres Strait Islander RNTBCs, in which it is contended that Mr Akiba is not a person who can speak for the sea country of the Part B Sea Claim. I shall refer to those individuals collectively as the RNTBC Chairs.

13    Despite this state of affairs, which has persisted since the High Court made final orders in August 2013, there has been no attempt to use the Court’s processes, and the express terms of s 66B of the Native Title Act, to change the constitution of the applicant so that the individuals who constitute the applicant are representatives of the members of the claim groups in the way that the concept of applicant is contemplated in s 61 of the Native Title Act, and in a way which is consistent with the authorisation provisions in s 251B of the Native Title Act.

14    No doubt there are explanations for why there has been no application under s 66B to regularise the proper constitution of the applicant for the Part B Sea Claim. Having become acquainted with this matter relatively recently, it would not be appropriate in these reasons for any further observations to be made in relation to that omission.

15    Nevertheless, it has now become apparent this state of affairs is responsible for many of the issues that have now arisen and which have caused considerable tension amongst the parties and, apparently, amongst claim group members. A process, and timetable, for resolving this issue must be dealt with at the case management hearing.

16    Shortly after the High Court decision, in August 2013, Greenwood J referred the Part B Sea Claim and related proceedings to case management by the Deputy Registrar. An experts’ conference was convened in November 2013, to ascertain what further research relevant to Part B of the Sea Claim was required beyond the extensive material already filed in Part A. A number of topics were identified and from early 2014, case management conferences were convened to assist the parties in identifying a position in relation to the funding for the claim, and the provision of further anthropological material. Planning was undertaken for the resolution of these matters.

17    On 7 August 2014, Deanna Grace Cartledge of Gilkerson Legal was retained by the applicant, taking over from Peter Krebs, the then Principal Legal Officer for the TSRA. To this point, the TSRA had been the legal representative for the applicant in the Part B Sea Claim. An affidavit from Mr Krebs, affirmed 12 October 2017, has been filed in relation to the Thursday Island case management hearing. In that affidavit, he describes how, given the acknowledged unsatisfactory position of Mr Akiba being the only individual left as constituting the applicant in circumstances where he has no right to speak for the waters of the Part B Sea Claim area, Mr Krebs established a practice, on the recommendation of Robert Blowes SC, for taking instructions from persons in addition to Mr Akiba. This was a process that continued after Ms Cartledge became the lawyer on the record for the applicant, with the TSRA continuing to facilitate and assist with the taking of instructions following this process. Mr Krebs describes that process, and its origins, at [20]–[24] of his affidavit:

20.     The practice of taking instructions and decision-making in respect of the Part B proceedings came about after the successful conclusion of the Part A proceedings by the High Court of Australia on 7 August 2013. After that decision, the immediate emphasis was on establishing the RNTBC for the Part A determination area. Malu Lamar (Torres Strait Islanders) Corporation RNTBC (‘Malu Lamar’) was established for that purpose.

21.     Robert Blowes SC was one of the counsel that assisted the claim group throughout the Part A proceedings. After the High Court decision he assisted with the establishment of Malu Lamar including preparation of the corporation’s Rule Book. Under the traditional laws and customs of the native title holding group, common-law holders for each Island within the determination area exercise the recognised native title rights and interests within areas of seas contiguous to their Islands. The common law holders for one area of seas could not necessarily speak for, or exercise native title rights relating to, the seas belonging to common-law holders from another Island. To try and ensure a representation which reflected this, it was decided that each of the RNTBC Chairs for Islands within the Part A determination area from time to time, would be the members and directors of Malu Lamar.

22.     During the meetings with Robert Blowes, I can remember discussion about how Part B of the proceedings should be managed pending authorisation of a new applicant and potentially other changes to Part B of the claim. Because of the evidentiary and other work involved, it was known that this could take some time. My recollection is that Robert Blowes recommended that, pending further authorisation, decision-making for the Part B proceedings be made by the applicant and all of the RNTBC Chairs working together. I also had concerns about the capacity of the sole surviving applicant Mr Leo Akiba to understand the nature of the proceedings and to give proper instructions in the matter due to his advanced age, poor health and limited English. I based this opinion on the several times I had met him at Saibai and in Cairns.

23.     From that time on, the TSRA in performance of its facilitation and assistance function, resourced face-to-face meetings of the applicant and RNTBC Chairs for the purpose of decision-making and providing instructions. At no time during my period at the TSRA was this ever controversial. The process of making decisions by this means, including providing instructions to legal representatives, was always effective and consensus decisions were always made.

24.     It was also acknowledged by everyone attending the meetings that issues to do with resolving overlaps in the Part B claim area should only involve the common law native title holders from the Islands whose waters, under traditional laws and customs, are involved. For example, the mediation resolving the overlap between the Part B claim area and the Kaurareg native title sea claim only involved those RNTBC Chairs and other common law native title holder representatives from the Islands whose sea area was involved in the overlap. During my period at the TSRA, this was never controversial and decisions were made and instructions provided efficiently and effectively.

18    I accept that there may be disagreement with aspects of Mr Krebs’ affidavit evidence. I set out these passages not for the purpose of making any findings on contested matters based on them, but rather to explain as part of this background narrative how Gilkerson Legal came to represent the applicant, and to have a practice of consulting persons in addition to Mr Akiba for the purposes of the progress of the Part B Sea Claim. In an affidavit filed in relation to the question of change of lawyer, Mr Akiba contends he was not happy with this process, felt he was left out, and had been unhappy about the process for some time.

19    From August 2014 and until a notice of change of lawyer filed by Mr Maxwell Duncan, a lawyer with the TSRA, on 8 October 2017, there was nothing drawn to the Court’s attention to suggest that there was any difficulty with Gilkerson Legal acting on behalf of the applicant, nor about the practice they had established of consulting the RNTBC Chairs. The notice of change of lawyer purported to remove Gilkerson Legal from the record, and replace it with Mr Duncan from the TSRA. Gilkerson Legal filed an interlocutory application on 12 October 2017 seeking to remove the notice of change of lawyer from the Court’s record. Various affidavits were filed in support of, and in opposition to, that application, including Mr Akiba’s. Gilkerson Legal has now foreshadowed filing a notice of discontinuance in relation to that interlocutory application.

20    In early 2015, a mediation was conducted by Registrar Fewings and the Honourable Mr Stanley Jones AO QC, a former Supreme Court of Queensland judge, to resolve what is described as the “western overlap” between part of the Part B Sea Claim and part of the claim the subject of proceeding QUD266/2008 (Kaurareg People #1). It was reported to the Court that in-principle agreement was reached concerning the resolution of that overlap.

21    Similarly, Registrar Fewings has worked with the Badulgal and Mualgal people to resolve issues over the Warral and Ului islands.

22    Even in the current somewhat tense circumstances of the lead-up to this case management hearing, there is no suggestion that any party intends to walk away from that mediated outcome about the western overlap, or about the Warral and Ului islands.

23    Following these outcomes, the focus turned to obtaining agreement with the Commonwealth and State governments and other respondent parties to negotiate towards a consent determination pursuant to s 87A Native Title Act for the western overlap area. The Court’s records also indicate that there was an ongoing consciousness about the need for amendments to the s 61 application, and for a new authorisation process, although neither of those matters eventuated.

24    Mr Krebs described how the TSRA contracted a number of anthropologists to undertake the anthropological work for the Part B Sea Claim, namely: Dr John Burton, Dr Kevin Murphy and Dr Garrick Hitchcock. Drs Burton and Murphy had been expert witnesses in the Part A claim.

25    I do not understand the fact of these contracts to be controversial. Indeed, the TSRA has, in affidavit evidence filed for the purposes of a case management hearing convened by the Court in September 2017, to which I refer below, relied on its contractual relationship with the anthropologists as a basis to suspend their work in May 2017.

26    Towards the end of 2015, anthropological material from Dr Murphy, relating to the western overlap was provided on a confidential basis to the State and to other respondents who requested it.

27    That report attached a separate report prepared by Mr Ray Wood about the Kaurareg rights and interests in the Warral and Ului islands and waters, however there were no genealogies provided with Dr Murphy’s report. Although the Court has not seen Dr Murphy’s report, I understand that in broad terms the subject matter of the report concerned discrepancies or issues with the description of the claim group.

28    Dr Burton was asked to prepare genealogical charts for the Badulgal and Mualgal people, addressing any identified discrepancies. He was asked to undertake a similar process for the Kaurareg people. Work was undertaken by Gilkerson Legal to compare the current native title Part B Sea Claim group description and the native title holding group descriptions in existing Torres Strait Island native title determinations. The existence of further discrepancies was reported to the Court. Without setting out in any further detail all the reports to the Court about the progress of anthropological work, it can be seen that the question of discrepancies in claim group membership and identification became a recurring theme.

29    In July 2016, there was a meeting in Cairns to discuss the genealogical discrepancies, first between TSRA officers, Ms Cartledge of Gilkerson Legal, and the anthropologists (Drs Murphy, Burton and Hitchcock). That meeting concluded with a process acceptable to the TSRA for reviewing the discrepancies, which was discussed with the Part B Sea Claim representatives the following day. Further contracts between the TSRA and Dr Murphy and Dr Burton for additional work were made in August 2016. Dr Hitchcock was engaged at this time for the first time by the TSRA.

30    In September 2016, the State provided its first detailed, and confidential, response to some of the anthropological material.

31    In a report to the Court ahead of the July 2017 case management hearing before Greenwood J, Gilkerson Legal reported that collection of witness statements to be provided to the State had commenced and would continue when funding to cover the cost of face-to-face interviews is granted by TSRA. Gilkerson Legal also reported on further progress of the anthropologists’ work.

32    However, it was in approximately April 2017 that it appeared the TSRA had decided to take a different course of action in relation to the proceeding as a whole. Gilkerson Legal were requested to “hold off” briefing counsel and in May 2017 the TSRA directed Gilkerson Legal to give notice to the anthropologists (Dr Murphy, Dr Burton and Dr Hitchcock) that their work was to “pause” immediately.

33    In mid-2017, the TSRA retained Just Us Lawyers as its legal representatives, and on 15 June 2017, Just Us Lawyers filed a notice of change of lawyer in proceeding QUD6040/2001. Mr Besley, who is the practitioner with the carriage of the matter at Just Us Lawyers is a former legal officer for the TSRA.

34    In around June 2017, the TSRA advised Gilkerson Legal and the Court that it had entered into a contract with Professor David Trigger, an anthropologist, to undertake a review of the anthropologists’ work to date. Whether or not Professor Trigger has had any previous connection with the Torres Strait Sea Claim, or the Torres Strait region, is unclear.

35    Meanwhile, productive negotiations continued and in June 2017, after a case management conference in Cairns, Registrar Fewings reported to the Court that the overlaps with the Kaurareg and Cape York claims had resolved in principle. Again, despite the current tensions, there is no suggestion that in principle resolution is any jeopardy.

Conclusion on the background

36    It is now more than four years after the High Court decision on Part A, and 10 years since proceeding QUD6040/2001 was allocated to Justice Finn. As the proceeding number indicates, it is more than 16 years since this claim was lodged. It is understandable why claim group members would feel this claim has taken far too long to resolve. Lengthy periods of time, over a decade, have been, regretfully, a feature of quite a few claims in this Court’s native title jurisdiction. Over the last few years in particular, the Court has been working hard to reduce the amount of time taken for cases to progress through the Court to determination (whether by consent or by litigated outcome), and is actively pursuing different mechanisms to address what are clearly unacceptable time periods over which matters are resolved. In native title, as I have remarked elsewhere, these delays often mean, tragically and wrongly, that the elders who have carried the claims for so long, and on whose evidence the claims have often been built, do not live to see the outcome. Mr Akiba’s frustration, which emerges in his affidavit filed for the purposes of the case management hearing, is understandable.

37    This is not the occasion to identify the causes of these long time periods. They are many and various. Overwhelmingly, there is no lack of good intentions and dedication from all involved. A frequently identified problem is funding. These reasons are not the place to canvass that issue either. But it is important to acknowledge the justifiable frustration of claim group members who are, after all, the persons very much affected by these long periods of time.

Developments from July 2017

38    On 28 July 2017, Justice Greenwood held a case management hearing. In light of the TSRA’s conduct in “pausing” the work of the currently retained anthropologists (Drs Murphy, Burton and Hitchcock) and the retention of Professor Trigger by the TSRA, his Honour made orders directing the TSRA to file a report summarising the findings and recommendations of Professor Trigger. His Honour directed that this report should be filed by 6 September 2017, observing that if there were any difficulties in meeting this timeframe the TSRA should promptly inform the Court of those difficulties.

39    A month later the TSRA did, indeed, inform the Court – through a letter to Registrar Fewings – that there were difficulties in complying with the Court’s direction. The TSRA informed Registrar Fewings that at a meeting on 24 August 2017, Professor Trigger had expressed the view that the matter was complex and he would need further time to complete his report. The TSRA gave Registrar Fewings a new estimated completion of time of the end of November 2017, after a meeting between Professor Trigger and Dr Burton, Dr Murphy and Dr Hitchcock in Cairns in September 2017.

40    The most detailed information the Court has about the tasks Professor Trigger is undertaking is contained in a “party report” filed by Mr Besley on behalf of the TSRA on 29 August 2017. This was the correspondence in which Mr Besley informed Registrar Fewings about the inability to comply with the Court’s orders.

41    Mr Besley informed the Court that:

Given the history of this matter – including the outcome of the 2013 conference of experts and the 2015 mediation – the TSRA is anxious to obtain Professor Trigger’s advice as to the progress of the anthropological research being undertaken and the extent of further research that is required in respect of the western portion of Part B. This involves an inquiry as to whether anyone in the TSRSC claim group, other than the Badulgal and Mualgal People holds native title rights and interests in the western portion of Part B, and if so, to identify the nature and extent of those rights and interests. The answer to this question will of course inform our client as to what further genealogical work is necessary to describe the rights holding group for the western portion of Part B.

42    The developing issues around the anthropological work and the role of the TSRA happened to coincide with a change in the Court’s management arrangements for the Torres Strait and Cape York native title region. From approximately August 2017, the Chief Justice allocated case management of this region to my docket.

43    After that reallocation, a case management hearing was listed for 27 September 2017, in relation to these seven proceedings, and in relation to the Cape York #1 claim (QUD673/2014 Michael Ross & Ors on behalf of the Cape York United Number 1 Claim Group v State of Queensland & Ors). By this stage, the deterioration of relations between Gilkerson Legal and the TSRA was most apparent. The parties were directed to file reports ahead of that case management hearing, and the deterioration, tensions and disputes were apparent in those reports and documents filed with them. The other significant development was the discovery by Gilkerson Legal that the TSRA had arranged to have a series of meetings on a number of islands, and the subject matter of these meetings was said to be the Part B Sea Claim. Gilkerson Legal raised concerns that the TSRA were seeking to meet with claim group members who comprised, in Gilkerson Legal’s view, their clients, about a proceeding in which Gilkerson Legal were the solicitors on the record for the applicant. The TSRA insisted on its right to convene such meetings, and referred to its statutory functions. Some of the meetings went ahead, although on some islands, the RNTBC Chairs, on behalf of their communities, refused the TSRA access to the island. Mr Akiba attended the meeting on his island, Sabai.

44    In light of all these developments, on 8 September 2017, and well ahead of the 27 September case management hearing, my associate informed all parties in the seven Torres Strait claims proceedings that I intended to list the matters for a more substantial case management hearing on Thursday Island, at a date to be fixed in the week commencing 20 November 2017. The parties in the seven proceedings were informed that further directions about necessary preparation for this case management hearing would be given in due course. The parties were invited to direct any questions about this arrangement to Registrar Fewings, and to continue to contact her in the way they had been doing over a number of years.

45    The parties in the Cape York #1 claim were also informed there would be a case management hearing in that proceeding in Cairns following the Thursday Island case management hearing. I mention that for two reasons relevant to TSRA application for a change of venue. First, there are other proceedings affected by the arrangements which have been made in relation to Thursday Island. The Cape York #1 claim case management hearing is listed for 24 November 2017 in Cairns. Second, the case management in these seven proceedings is being undertaken according to the same method of case management as applied to other native title proceedings in this region. The issue may be different, but the method is the same. What is occurring in Cairns on 24 November 2017 is occurring in a court building and in accordance with this Court’s usual processes. Claim group members will be present, and the case management hearing will take place on land that is not within the claim area of the Cape York #1 claim.

46    At the 27 September case management hearing, a list of issues prepared by the Court was distributed to the parties in the seven Torres Strait proceedings. That list made it clear these were the issues the Court saw as arising from the material filed to that point, and which would be dealt with on Thursday Island.

47    The Court invited the legal representatives at the case management hearing, including Senior Counsel for the TSRA, to make submissions about the list, or to indicate if any matters needed to be added. No such submissions were made. Senior Counsel informed the Court he would need to get instructions about whether the TSRA would press ahead with further island meetings ahead of the Thursday Island case management hearing. While the TSRA was confirming its position in relation to the island meetings, Gilkerson Legal filed an interlocutory application seeking orders restraining the holding of any such meetings before the Thursday Island case management hearing. Nevertheless, the TSRA decided to continue with the meetings. As it turned out, Gilkerson Legal did not press its application for interlocutory relief. These are matters which are likely to be dealt with at the Thursday Island case management hearing and I say no more about them in these reasons.

48    For present purposes, the critical point is that nothing at all was said, by the TSRA or any other party, against Thursday Island being the venue for the November case management hearing.

49    After the September case management hearing, preparations began in earnest for the Thursday Island case management hearing. The Court has arranged flights to Cairns, then to Horn Island and then ferry transport across to Thursday Island. Accommodation on Thursday Island needed to be booked well ahead, as the island has limited capacity. Aside from myself and my associate, these arrangements involved Registrar Fewings and a court officer. The Magistrates Court was booked with the assistance of the Court’s Queensland registry and confirmed by the acting Registrar of the Thursday Island Magistrates Court. There was no communication from the Magistrates Court to this Court suggesting any permission or approval needed to be sought from representatives of the Kaurareg people before the Thursday Island Magistrates Court could be used. Nor, despite the broader functions it has relied on in affidavits filed by Mr Besley and Ms Cecilia O’Brien, the TSRA’s Principal Legal Officer in the Native Title Office, did the TSRA suggest any such permission was required.

50    These arrangements have cost the Court in excess of $15,000. As I note below, because of the nature of the issues that had arisen in the proceedings, the apparent tensions, and the need for the Court better to understand how those issues might be addressed, while paying due regard to the need for the Court’s processes to be accessible, where feasible and appropriate, to claim group members, there was justification in convening the case management hearing in the region of the claim area, rather than in Brisbane, where it would usually be.

51    Between the 27 September case management hearing and the filing of the current interlocutory application on 8 November 2017, there were several communications between the Court and the parties, and ample opportunity for the TSRA to raise any concerns. No such concern about the venue was raised. The TSRA instead raised a number of other issues during this time, including:

    discussions between Gilkerson Legal and the TSRA concerning the conduct of the information sessions;

    the filing of the notice of change of lawyer, replacing Gilkerson Legal with the TSRA as the applicant’s solicitor on the record;

    detailed and lengthy correspondence with my chambers raising, amongst other things, its concerns about possible ex parte communications by Gilkerson Legal, concerns about the list of issues provided at the 27 September case management hearing, concerns relating to the interlocutory application filed by Gilkerson Legal on 12 October 2017, concerns that Gilkerson Legal was communicating with chambers to “smear” the TSRA, and concerns regarding what the Court is expecting from the TSRA in terms of the proposed discussion of Professor Trigger’s role and the pausing of the work of the other anthropologists.

52    During that period of time, I also made several directions, including directions concerning Gilkerson Legal’s interlocutory application relating to the notice of change of lawyer and detailed directions concerning the conduct of the Thursday Island case management hearing.

53    At no time during these preparations, and this considerable number of communications, did the TSRA inform the Court that arrangements of the kind in place were unsuitable, culturally inappropriate or opposed. No other island was ever suggested by the TSRA as a more appropriate location. This is despite the fact that the TSRA, it appears principally through Ms O’Brien, had been arranging and conducting the island meetings that had proved so controversial with Gilkerson Legal and some of the RNTBC Chairs.

The terms of the interlocutory application

54    The interlocutory application is filed by Mr Besley of Just Us Lawyers, on behalf of the TSRA, and is made in proceeding QUD6040/2001. These details assume some significance. The TSRA is currently named as a respondent to QUD6040/2001. That is, it asserts it has interests which will be affected by the grant of native title sought in the application. These interests are asserted in a letter sent by Mr Besley on behalf of the TSRA to Gilkerson Legal dated 8 August 2017, stating that its interests arise under a number of different statutory and non-statutory headings: it is a statutory representative body under the Native Title Act and claims to be an affected party under s 84(3) of that Act; it has obligations and interests under the Aboriginal and Torres Strait Islanders Act 2005 (Cth), including interests through its Fisheries Program; and it is a member of the Protected Zone Joint Authority through its Chair, who sits on the board of that Authority. It might be assumed that in seeking to be a respondent to the proceeding, it reserves the right to contend those interests may be affected in a number of ways, including adversely, by the applicant’s claim.

55    The interlocutory application itself is expressed on its face to be filed on behalf of the TSRA as an “indigenous respondent party”. I am not persuaded that is an accurate description to use in relation to a federal statutory authority. However, that phrase is also used in the affidavits filed in support of the application.

56    Two of three supporting affidavits to which I refer below (those of Mr Eric John Peter and Mr Seeka Milton Savage) purport, in the footer of the affidavit as required by the Rules, to identify Ms O’Brien as the “person or lawyer” who prepared the affidavit. Ms O’Brien, of course, does not act for the TSRA in this proceeding: Just Us Lawyers and Mr Besley are the solicitors on the record for the TSRA. The two affidavits are expressed to be filed on behalf of an “indigenous respondent party”. I assume this is intended to refer to the TSRA, as neither Mr Peter nor Mr Savage are respondents to the Part B Sea Claim. According to the Court’s records, the affidavits were filed by Just Us Lawyers. The basis on which Ms O’Brien came to prepare them is unclear. I return below to this issue when dealing with Mr Savage’s evidence.

57    Ms O’Brien’s own affidavit, the third affidavit in support of the application, contains no footer at all.

58    The confused and inconsistent identification of which lawyer is filing material, and on whose behalf, reflects what might appear to be some conflict of interest issues, or, at the very least, a worrying confusion in roles as between lawyers within the TSRA and lawyers outside it.

59    The interlocutory application seeks new orders listing the case management hearing on Mer Island. Mer is the country of the Meriam people, and it was, of course, the land and waters which was the subject of the High Court’s decision in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1. The application also seeks variations of existing orders which refer to Thursday Island.

The supporting material and tsra SUBMISSIONS

60    In support of the application, the TSRA relied on the following affidavit material:

(1)    Mr Eric John Peter, a Board Member of the Native Title Portfolio of the TSRA. Mr Peter swore an affidavit on 5 November 2017 deposing that according to the ailan kastom (island custom) of the Torres Strait, “if you are talking about country you should be on country”. Mr Peter deposes that it is a matter of community concern that “island business” should be conducted on the correct outer island. He deposes that it is an important part of both Kaurareg and Torres Strait Islander custom that permission is sought before conducting business on country, and extends an invitation to the Court to sit on Mer.

(2)    Mr Seeka Milton Savage, Chair of the Kaurareg (Torres Strait Islanders) Corporation RNTBC, affirmed an affidavit on 6 November 2017. Mr Savage is one of the named applicants in each of the three Kaurareg People claims. Mr Savage deposes that no notification had been given about the Court’s hearing on Thursday Island, and that given that the Mer elders would welcome the Court sitting on Mer, he supported the hearing being conducted on Mer.

(3)    Ms O’Brien swore an affidavit on 7 November 2017 deposing that Mr Peter and Mr Akiba both held concerns about the Court sitting on Thursday Island. She deposes to her knowledge from published literature and connection material held by the TSRA that all indigenous parties in the Torres Strait region regard Thursday Island as Kaurareg country. She deposes to travelling to Mer on 3 November 2017, on one day’s notice, and conducting a four hour meeting with Mer elders and other community members, in which the Mer elders asked her to extend an invitation to the Court to sit on Mer. She deposes that in addition, the following people also agreed with the change of venue to Mer:

(a)    Maluwap Nona, Chair of the Malu Lamar (Torres Strait Islanders) Corporation RNTBC, the Badu Ar Mua Migi Lagal (Torres Strait Islanders) Corporation RNTBC, and the Maluilgal (Torres Strait Islanders) Corporation RNTBC. Ms O’Brien deposes that Mr Nona told her that he agreed with Mr Savage’s desire not to have the Court sit on Kaurareg land, and to instead sit on Mer. Mr Nona apparently told her that he had spoken to the elders on Mer Island and that they considered that Torres Strait Islander business should be conducted on the outer islands;

(b)    Getano Lui, elected TSRA Member for Iama Island and Torres Strait Island Regional Council councillor for Iama. Ms O’Brien annexed an email received by Mr Peter from Mr Lui stating that holding the hearing on Mer “gives us the opportunity to measure our own performances on how far we've come” since Mabo;

(c)    Cygnet Repu, elected TSRA Member for Mabuiag Island. Mr Repu’s response was also annexed to Ms O’Brien’s affidavit, where he stated that if the discussion is about their “Land n Sea”, then the hearing should be held on their land and sea; and

(d)    Willie Lui, elected TSRA Member for Warraber Island. Mr Lui’s response was similarly annexed to Ms O’Brien’s affidavit, stating that he supported Mr Peter’s recommendation for the Court to sit on Mer “because our achievements must be made in our region”.

61    The 25th anniversary of Mabo is also put forward as a reason, if not a significant reason, for the relocation of venue: see in particular Mr Peter’s affidavit and Ms O’Brien’s affidavit, annexing correspondence between Mr Peter and Messrs Getano Lui, Willie Lui and Repu.

62    For completeness, I note Ms O’Brien annexes two substantial anthropological articles to her affidavit, and gives some opinion evidence in the body of her affidavit about the origins of the Kaurareg people, and their identification as Aboriginal rather than Torres Strait Islander. There is no evidence about the protocol through which Ms O’Brien was given access to anthropological material held by the TSRA, given this application is made in its capacity as a respondent to the Part B Sea Claim. I add this to the list of concerns about possible conflict of interest.

63    I do not consider it appropriate to give weight to Ms O’Brien’s opinions about the Kaurareg people. So far as the evidence shows, she is legally qualified. Her role in the TSRA is a legal role. The basis on which she gives opinion evidence, or expert evidence, about anthropological matters in the body of her affidavit, is not set out. There is no evidence before the Court whether Ms O’Brien has any anthropological expertise. If she does, she does not depose to it in her affidavit, which would be an elementary first step to the giving of opinion evidence. Similarly, there is no basis to receive the two articles into evidence. The content of the articles, to a greater or lesser extent, may or may not be considered accurate by those with anthropological expertise: the Court cannot know. The content of the opinion and underlying facts in the articles cannot be tested or evaluated. The articles are of no assistance to the resolution of this application. In any event, as I set out below, the Kaurareg people have three claims which are being dealt with at this case management hearing, and Thursday Island is Kaurareg country. The identity or origins of the Kaurareg people is not relevant to the interlocutory application.

64    In addition to the supporting affidavits, the TSRA also filed submissions in support. The submissions state that “there is no good discretionary bar against the exercise of that power in favour of the change of venue”, contending that the reason for the application is principally cultural. The TSRA also submits that:

there is, potentially, a difficulty with the audio-visual facilities – in particular, the microphones and related cables – at the courthouse on Thursday Island. There is real concern that these difficulties will impact upon the ability to obtain a transcript of the proceeding and to facilitate the required video link ups.

65    The TSRA stated that, at the time of the submissions, it was attempting to find out whether such difficulties would also exist on Mer.

Other submissions received

66    On receipt of the interlocutory application, directions were made allowing active parties in the seven proceedings to make submissions if they wished to do so.

67    Submissions were filed by the State, the Commonwealth and the Kaurareg applicants in the three Kaurareg proceedings. As I noted at [64] above, the TSRA also filed submissions.

68    Correspondence was also received from Gilkerson Legal. Among other things, Gilkerson Legal sought to comply with a Direction of the Court requiring it to inform the Court of which of the individuals named in the Directions dated 2 November 2017 would attend the Thursday Island case management hearing. Gilkerson Legal advised that all the RNTBC Chairs it had been able to speak to seek either to attend, or to be represented by a nominee at the case management hearing. Gilkerson Legal also advised that Mr Besley had informed it that the TSRA would directly arrange the travel and accommodation of the Chairs or their nominees. The Court was informed that none of the RNTBC Chairs who are aware of the application for the change of venue seek a change of venue. It was also informed that the Chairs note the considerable logistical challenges and the associated costs of a Court hearing on Mer. The annexures to the letter to the Court set out Gilkerson Legal’s updates to the Chairs informing them of the TSRA’s commitment in relation to travel arrangements, as well as a summary table of the Chairs that the TSRA has been able to speak with, and whether they or a nominee will attend. Although this correspondence and its attachments was not in the form of an affidavit (perhaps because of the dispute over legal representation of the applicant), no party objected to the Court receiving it and I considered it was appropriate in the circumstances to have regard to its contents, especially since Gilkerson Legal had been directed to contact the RNTBC Chairs because it was that firm which had been communicating with them over the last three years.

69    I note in particular that by this correspondence, Gilkerson Legal notified the Court it proposed to discontinue the interlocutory application it had made concerning its status as the legal representative of the applicant in the Part B Sea Claim, and concerning the reliability of Mr Akiba’s instructions indicating he wished Mr Maxwell Duncan to be the applicant’s legal representative.

70    None of the other parties’ submissions, nor the correspondence from Gilkerson Legal, support the TSRA application. Where appropriate, I refer below to the matters raised in the submissions.

Consideration

71    Both the TSRA and the Commonwealth referred to s 48 of the Federal Court of Australia Act 1976 (Cth), and the discretionary power contained in that provision for the Court to direct that a “proceeding” be conducted at a specified place.

72    I doubt in these circumstances, for the fixing of a location of a case management hearing, that it is necessary to rely on that express power. In context, and especially by the use of the defined term “proceeding”, s 48 is in my opinion concerned more with the Court’s power to order the conduct of an entire proceeding to occur at a location other than the court at the Registry in which the proceeding was issued.

73    The extract from the Full Court’s decision in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162, upon which the TSRA relies, supports this view. In that passage, the Full Court speaks of where a case can be “conducted”: that is, the whole of the case, through to trial and determination.

74    The Court’s general powers in s 23, and s 38 read with Federal Court Rules 2011 (Cth) rr 1.31 and 1.32, 1.40, 5.04 provide an ample source for any order or direction as to the venue of case management hearing. In any event, there is no doubt about the Court’s power to give such an order or direction.

75    However, any exercise of power of this kind must conform to the terms of s 37M of the Federal Court Act, to which the TSRA submissions do not refer.

The application is only for QUD6040/2001

76    The Kaurareg applicants, in their submissions, make two critical points. First, the Kaurareg People #1 claim completely overlaps with the Part B Sea Claim. Second, the interlocutory application is only made in QUD6040/2001 for a change of venue for the Part B Sea Claim, not the six other proceedings, and not – most significantly – the Kaurareg People #1 claim.

77    It might be inferred that the TSRA has overlooked this issue. It might be inferred the TSRA intended the interlocutory application to be considered on the basis that it extended to all seven proceedings. However, the omission is revealing.

78    The resolution of native title in the Torres Strait is not just about the Part B Sea Claim. The resolution is about all seven claims. At this stage, no claim (including the Part B Sea Claim) can be assumed or presumed to have precedence or priority over another, or to be made on a better or more substantive foundation than another. The question of the foundation for each claim will either be determined through negotiation and consent, or through trial. At the moment, the Court must approach each of the seven claims in an even-handed manner, making no assumptions about which claim group might have the “better” claim.

79    Thus, the management – for example – of the Kaurareg People #1 claim is just as important as the management of the Part B Sea Claim. It would appear the Kaurareg People #1 claim is not attended by the same authorisation issues, and questions over which individuals should constitute the applicant, as the Part B Sea Claim. However, that difference simply results in the need for different orders, and different management, in each matter. It does not mean that the Kaurareg People #1 claim, nor its claim group members, should be given less priority, or less consideration.

80    I accept the submissions on behalf of the Kaurareg applicants that these factors tend against any different venue for the case management hearing.

81    The Kaurareg applicants also make the following submission:

It is also submitted that the proposed change of venue has a weaker geographical connection to the primary subject matter of the overlap matters than the current venue.

82    That submission should also be accepted. Again, the proposed new location (Mer Island) appears to have been chosen with a focus only on the Part B Sea Claim, and without regard to the interrelationship of the seven overlapping claims. That is despite the island itself being well outside the area of the Part B Sea Claim. It would appear quite likely that some claim group members in the other six matters share the views and desires expressed in the TSRA material: namely, to have business about their country discussed on their country. The proposal to move the hearing to Mer denies the other claim group members the very consideration the TSRA asserts for those who support Mer as a location.

83    As the administrative centre of the Torres Strait, with a functioning court house and regular air services via Horn Island, and as the country of some of the claim groups involved in the seven proceedings, Thursday Island is an appropriate venue if the Court determines, as it has, that there is a justification to travel to the region for a substantial case management hearing.

The proffered purpose of changing the venue

84    In its submissions, the TSRA states:

The reason for the application in this case is principally cultural. Subsection 82(2) of the Native Title Act 1993 (Cth), provides:

“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.”

(Footnote omitted.)

85    Cultural concerns of the kind with which s 82(2) is concerned arise more acutely in circumstances where Aboriginal people or Torres Strait Islander people may be giving evidence at a trial, or at a substantive interlocutory application, in relation to a native title claim. The obvious examples are connection evidence for the purposes of s 223(1), or evidence of occupation for the purposes of s 47A or s 47B. Usually, the cultural and customary concerns will also be about who should be present for certain evidence, how evidence at certain sites should be given, what places should and should not be visited, decision-making around who should give evidence at sites, whether gender restrictions apply, and the like.

86    It is also conceivable, for example, that in a seriously contested interlocutory application such as a s 66B application, that it might be appropriate for the Court to have regard to customary and cultural concerns in how it decides to conduct that application, which may include considerations of where some or all of the hearing should occur, or who should be present. To extend the latter example, where there are real divisions within a claim group about which individuals should constitute an applicant, if persuaded by admissible evidence to do so, the Court might, in part in reliance on the terms of s 82(2), determine that it is best not to hold a hearing on the country of the claim area but to have it somewhere more neutral, because of competing cultural concerns that have been put before the Court. In that sense s 82(2) enables the Court to take a facultative and flexible approach, but does not dictate or require any particular procedure in any particular case.

87    The TSRA relies on the reference to s 82(2) by the Court in De Rose v State of South Australia [2001] FCA 1051. It is correct that in this ruling in De Rose, O’Loughlin J dealt with an application to change the venue of a hearing, but there the similarities with the current application end. It is instructive to describe the circumstances in De Rose and to extract some of his Honour’s reasons.

88    The transfer application was made on the sixteenth day of a long native title trial: that is, a final hearing. The Court was then sitting (as arranged quite some time beforehand) on country at a place called Ilintjitjara. Approximately 25 Aboriginal witnesses were scheduled to give evidence at this location. There were to be site visits undertaken out from this location as well. The State applied to move to a location closer to the nearest town of Marla, due to weather conditions, travelling time and a number of other reasons. Heavy rain had disrupted the hearing and made tracks temporarily impassable. His Honour refused the transfer application. His Honour said (at [7]-[10]):

It needs to be emphasised that Ilintjitjara is merely the name for a locality. There are no permanent amenities. However, great efforts have been made to accommodate the Court, the parties and their legal and other advisers. A large marquee has been erected and that has served adequately as the courtroom. The applicants, whose permanent homes are at various locations, have, for the most part, set up camp at Ilintjitjara. Although none of the parties presented evidence on the subject, I am prepared to accept, partially from my own observations and partially as a consequence of what counsel for the applicants submitted, that the location of the court at Ilintjitjara is one of convenience to the applicants and their witnesses because it is in the immediate proximity of their camp. I am also very much influenced by the frailty of many of the Aboriginal people who have either given evidence of who have been regular attendees at the hearing. Some of them are very old and very frail.

There are, I think several answers to Mr Besanko’s submissions. Whilst I accept that the travelling time is a burden to the Court and to the respondents’ advisers, it should be remembered that a change of venue would transfer the burden to the elderly, frail Aboriginal people (and the legal advisers for the applicants who are staying nearby to Ilintjitjara at a place called Railway Bore). Secondly, the facilities at Marla are, in relative terms, foreign to the applicants; I think that the Court should accommodate the fact that they are not urbanised Aboriginal people; even a remote locality like Marla might be intimidatory to some of them.

…

The Rules and the Native Title Act clearly empower the Court to give regard to the needs of Aboriginal litigants, where it is appropriate. I consider this is clearly such an occasion. I am prepared to accept that they would feel more comfortable at Ilintjitjara. Finally in considering the balancing exercise that this application has necessitated, I cannot overlook the lateness of the application. I have recited the history of the trial to date and it is evident that this application could have been made within the first few days of tabling evidence at Ilintjitjara.

I accept that there will be inconvenience to the respondents’ advisers but if I accommodate them I will cause inconvenience to the applicants, their witnesses and their advisers. I do not accept that time will be lost by continuing at Ilintjitjara. Someone, either the applicants or the respondents, would have to travel daily between the two locations. The frailty of the applicants, the fact that Ilintjitjara had always been the chosen location and the lateness of the application have caused me to refuse the application.

89    This is the kind of situation, in a trial, where concerns to ensure that indigenous witnesses give the best and most comfortable evidence they can are at the forefront of the Court’s mind. No doubt, as with Part A of the Sea Claim, if – contrary to what might be hoped after all this time – Part B needed to go to trial, then I have no doubt the judge hearing the matter would, as appropriate and as Finn J did, travel to a variety of locations on country to take evidence, and to understand the country over which the claim is made. That is not the purpose of the Thursday Island case management hearing, and it is not the stage these seven proceedings have reached. As I note, it is to be hoped no trial is necessary.

90    I do not accept the TSRA submission that the terms of s 82(2) have any significant bearing on the decision whether to move the venue of the case management hearing from Thursday Island to Mer, and I do not accept De Rose provides any support for the TSRA submission.

91    Nevertheless, it is necessary to attempt to identify in the TSRA submissions what the cultural and customary concerns are said to be. The evidence relied upon is contained in Mr Peter’s affidavit at [5]-[6]:

This is a matter of community concern as island business is being conducted off island away from the majority of traditional owners. If there is something to do with our land or waters it should be dealt with up here on the correct outer island. As the elected representatives of Torres Strait Islanders the Board of TSRA is committed to having island business discussed on-island where possible.

We, Torres Strait Islanders, all feel more comfortable on the outer islands these are our people, they are all family and we are all related to each other. As Portfolio for Native Title I try to go around and visit the outer island people, when I go on visits I always ask permission to pay respect to the elders and community leaders. This is the Torres Strait Islander way of doing business.

92    What Mr Peter describes as the operating principles of the TSRA can be readily accepted as appropriate for a statutory authority such as the TSRA in the performance of its functions. That does not mean those operating principles must be translated with direct equivalence into the way the Court conducts each stage of a native title proceeding. The “business” of the Court is quite different to the “business” of the TSRA, and different also to the “business” of each island community about its country. The Court must take account of the interests of all parties, and here, the interests of parties in seven proceedings. The Court must also take account of the other matters I identify in these reasons – its own statutory obligations, the responsible and justifiable use of public funds, and the need for consistency of approach, at least to some extent, across its native title jurisdiction.

93    The TSRA has also relied on the fact that 2017 is the 25th anniversary of the High Court’s decision in Mabo. I do not consider that fact, notable and important as it is for many other reasons, is a relevant factor in determining the venue of a case management hearing.

The timing of the application, practical and financial matters

94    The State and Commonwealth submissions both emphasise the lateness of this application. That emphasis is well placed. Its lateness needs to be considered with considerations of practicality and logistics, also raised by the State and the Commonwealth.

95    The hearing is now just a week away. All parties have made substantial, costly, and resource intensive arrangements. So has the Court.

96    In an earlier affidavit filed by Ms O’Brien responding to the request by the Court for the TSRA to consider postponing some of the island meetings which had caused some tension and controversy, Ms O’Brien deposed to the TSRA incurring costs of almost $150,000 in paying a consultant to plan, prepare and conduct the island meetings, and to the pre-booking of charter aircraft and helicopters totalling over $35,000. She described how the organisation of the community information sessions has taken up a significant amount of TSRA staff time, which would all be lost, and would need to be re-done if meetings were rescheduled.

97    The same kind of considerations applies to the present application by the TSRA. Significant organisational work has been undertaken by the Court and by the participating parties. Financial commitments have been made and there is no certainty about what level of refunds would be available to other parties, the Court and claim group members in the seven proceedings, in relation to transport and accommodation costs incurred for the Thursday Island location.

98    The amount of resources which would be consumed internally by the Court, the State, the Commonwealth and the legal representatives of other parties, and those arranging travel for claim group members, in making new arrangements would also be considerable.

99    Critically, and this factor relates to the gaps in the TSRA evidence, the lateness also makes less certain what new travel and accommodation arrangements can be made.

100    On that matter, the Commonwealth submits:

Travel to Mer Island

11.     The most appropriate options available for travel to and from Horne Island [sic] to Mer would appear to be by way of limited commercial flights or charter flights.

12.     On the limited enquiries that the Commonwealth has been able to make in the time available:

12.1.     Commercial return flights appear to only be operated by Skytrans to and from Horne Island and Mer on Tuesdays, Wednesdays and Thursdays, at an estimated cost of at least $880 per person for a return ticket.

12.2.     Charter flights are also available with Skytrans or Torres Strait Air. Torres Strait Air has advised that it can arrange a return charter flight between Horn and Mer Islands for 6 to 7 passengers at a cost of $2,750. The flight time is approximately one hour. However, they have noted that any afternoon flight would need to depart Mer Island by 4 pm at the latest due to the available duty to the pilot.

13.     The logistical challenges of getting to and from Mer Island would appear to render it difficult for parties to be excused during the CMC.

Accommodation on Mer Island

14.     The Commonwealth has not yet been able to determine as to whether, and if so, the extent and/or capacity of any accommodation that will be available on Mer Island from between at least 19 – 23 November 2017.

15.     The Commonwealth has made enquiries with the one known commercial accommodation provider on Mer. As at the time of filing these submissions, the Commonwealth was advised that there was no available accommodation for the period 19 – 23 November 2017

101    The State submits:

Remoteness and logistics

5.    The State’s inquiries indicate that facilities on Mer are limited, particularly when regard is had to the number of persons who will be appearing at, or attending, the case management hearing over a period of three days. Apart from a general reference in paragraph [13] of the affidavit of Mr Eric Peter (filed 8 November 2017), the TSRA has not provided any information regarding how the Court or the parties and their representatives would be accommodated on Mer.

6.    In addition, Mer is one of the remotest islands in the Torres Strait. The State’s inquiries indicate that:

(a)     There is only one commercial flight to Mer per day, leaving from Horn Island, and the plane only has capacity for 7 persons. The only alternative transport is private charter. In either case, the costs are considerably higher than if the Court were to sit on Thursday Island.

(b)     As flights to Mer depart Horn Island at 7am, the State’s representatives (at least) would be required to stay overnight on Horn Island. The State has been unable to ascertain whether there is any available accommodation on Horn Island on the relevant date.

102    These are real, practical concerns which are not addressed at all by the material relied on by the TSRA.

103    It seems inevitable that due to the lateness of the application, the current arrangements in place for Thursday Island, the uncertain availability of transport to Mer, the uncertain availability of accommodation, Mer’s location, size and facilities, fewer members from the claims groups in the seven proceedings will be able to get to a hearing on Mer. That includes, I infer, fewer people from other islands on the Part B Sea Claim group. It would not be inappropriate to describe a change of venue, in remote locations such as the Torres Strait, with real accessibility issues, a week out from the hearing, as likely to wreak havoc on the parties and claim group members in the seven proceedings. I do not imagine it is the intention of the TSRA that fewer people be able to attend, nor that havoc be imposed on the parties and their legal representatives, but in my opinion from the evidence, both are real likelihoods.

104    Finally, any effect on the timetable for the case management hearing could also put in jeopardy the Court’s arrangements for a separate case management hearing in Cairns on 24 November 2017 in the Cape York #1 claim. The likelihood of any effect on that case management hearing cannot be determined with certainty because of the gaps in the supporting material, but extra travel times and arrangements could well affect that separate hearing.

Gaps in the supporting material

105    What is noticeable about the supporting affidavit material is what it does not address. There is no evidence at all about the availability of flights to Mer, or about cost. There is no evidence about accommodation on Mer, other than Mr Peter’s broad assertion that:

Mer has the right accommodation and catering resources for a large gathering, and earlier this year hosted the Mabo 25th Anniversary symposium.

106    This assertion was repeated in the TSRA’s submissions. A general assertion of this kind takes the application no further. There is no evidence whether any accommodation is available on the dates of the case management hearing, and how many people can be accommodated.

107    There is no evidence about where it is proposed the case management hearing be held, nor what facilities for the hearing are available. At best was an email exchange between Registrar Stride and Mr Besley of the TSRA. Registrar Stride asked Mr Besley:

…is that [the Torres Strait Island Regional Council building] the proposed venue? How many people could be accommodated and is there a set up for the Court bench available? I assume that the best transcript option would be a portable device that requires access to power?

108    Mr Besley replied:

We propose the hearing would be conducted in the buildings and grounds of the PBC which was a former school with wide verandas and a large courtyard space with shade. The court could be set up at the PBC in perhaps in one of the classrooms although at meetings our client has recently held the elders put their conference tables under the trees outside in the courtyard.

The TISRC building is over the road and has the conferencing facilities. I do not think that the video room is very large.

109    This email exchange was not annexed to any affidavit, and there is no evidence concerning, amongst other issues, whether any request with the PBC has been made for the use of their grounds, whether the space is sufficient to allow for parties and their legal representatives in seven proceedings as well as several witnesses, whether there is space for interested members of the public, what the transcript situation is, or who could fit in the conferencing facilities. However I assume that Mr Besley, as an officer of the Court, was careful to convey accurate information to Registrar Stride and so I have considered his email can be taken into account. Again, it is notable for the absence of real detail about any proposed arrangements.

110    In contrast, the venue on Thursday Island is a Magistrates Court, at which the Queensland District Court also sits. It has remote recording facilities, and the kinds of facilities usually employed by a court and parties for a hearing. I note the assertion in the TSRA submissions that last week there were some difficulties with the audio-visual facilities in the Thursday Island Court. Whether or not that was the case last week, the likelihood of recording facilities operating on Thursday Island is greater than the presently unknown situation on Mer.

111    There are also critical gaps in Mr Peter’s evidence about who might be disadvantaged, in a real sense, if the hearing is held on Thursday Island rather than Mer. Mr Peter’s evidence is:

I have had discussions with lots of families on the outer islands who have queried me about this travel by a few people to discuss their land and waters somewhere else. People on the islands would also like to take part in such discussions.

112    There is no indication in this evidence, nor in any other evidence, how many people have expressed these concerns to Mr Peter, nor which islands they are from. There is no evidence whether any of these people intend to come to Mer if the hearing is moved, but do not intend to come to Thursday Island. There is no evidence whether people living on the western islands would like to come to Mer for what Mr Peter calls “discussions” or whether, for example, they say the hearing should be on one of the western islands. I note that the Gilkerson Legal letter suggests that at least one RNTBC Chair wants the venue to be close to the western overlap, where she has traditional connections. The evidence is at such a level of generality that it does not provide a basis for the Court to understand how many Torres Strait Islanders in the Part B Sea Claim group feel disadvantaged, in a real and practical sense, by the hearing being on Thursday Island. Nor does it provide a basis for the Court to assess what support there is amongst the majority of Part B Sea Claim members from all islands for Mer to be the alternative venue.

113    In the submissions filed on behalf of the Kaurareg applicants, the following submission is made:

The existing work plan and budget for the Kaurareg matters does not contemplate the additional funding required to facilitate the proposed change of venue. It is submitted that a variation of funding is unlikely to be approved by the TSRA within such a short timeframe so as to accommodate a change of venue.

114    The evidentiary gap identified by this submission is another critical matter. The TSRA could have, but did not, give an assurance in its affidavit material that it would meet all out of pocket expenses for other claim groups, members of the Part B Sea Claim group from other islands, and affected applicant legal representatives (such as the Kaurareg legal representatives) occasioned by the change of venue. Critically, it could have given evidence about whether it would meet the new expenses for the RNTBC Chairs to travel to Mer, pursuant to the arrangements Gilkerson Legal had put in place. It could have filed evidence that this would include any moneys lost by reason of the Thursday Island arrangements, as well as expenses associated with travel and accommodation on Mer. That would have provided the Court, in considering the application, and the other claimants and their legal representatives, with some certainty about the proposal.

115    There is no such evidence, despite Mr Peter being the TSRA Board member with responsibility for the TSRA Native Title Portfolio, and despite Ms O’Brien being the TSRA Principal Legal Officer within the TSRA Native Title Office. Ms O’Brien is clearly able to give evidence about TSRA funding and resource issues, and did so in her affidavit opposing the proposed interlocutory application to postpone the island meetings the TSRA had convened.

116    In my opinion, the TSRA could have given clear and detailed evidence about:

    the transport and accommodation arrangements on Mer that is in fact available, and fits within the case management hearing timetable;

    the cost of these arrangements; and

    whether it would bear the costs for the claim group members in any or all of the seven proceedings, and their legal representatives.

117    The absence of that material is one of the matters which leads me to refuse the application.

The relevance of Thursday Island

118    In his affidavit, Mr Peter contends (at [7]) that the Part B Sea Claim has “nothing to do with Thursday Island”. Due to the overlap with the Kaurareg claims that is not correct. Thursday Island is Kaurareg country, as Mr Peter points out. The Kaurareg people have three claims which are being managed with the Part B Sea Claim because of overlaps in the waters subject to the claims. Some of the waters in their claims have no overlap with the Part B Sea Claim area, but Kaurareg People #1 has a complete overlap. More critically, the whole of their claims, inside and outside the Part B Sea Claim, are listed for case management on 20 November 2017.

119    In the same way that some Torres Strait Islander people might feel that each step of a court proceeding about their country should occur on their country, so too some Kaurareg people might feel the same way. The evidence of Mr Peter could be modified to justify the use of Thursday Island for this case management hearing under “cultural and customary concerns” of the Kaurareg people.

120    The same contention, it might be added, could be made by members of every native title claim group throughout Australia. The practical reality is that no native title proceeding is conducted wholly on country. The further practical reality is that most native title proceedings are conducted in court rooms, as is appropriate because what is involved is an exercise of the judicial power of the Commonwealth and there are accepted, designated locations for the exercise of that judicial power, and they are the courtrooms of the Federal Court, which are locations under the control of the Court and the judge concerned. The still further practical reality is that most of the court’s facilities (whether its own, those shared with other federal courts, or those which it uses under arrangements with State courts) are on the country of indigenous people other than those who might comprise the claim group in any given proceeding. The Commonwealth Law Courts in Melbourne, for example, are located on Wurundjeri country, but there are currently four other native title proceedings being case managed from that location.

121    Finally, there is a notable irony in the TSRA application. It being plain, in the circumstances I have set out earlier in these reasons, that a substantial case management hearing was required for this cluster of claims, the Court elected to convene a hearing in the region of the seven claims. It chose to do that instead of, for example, convening the hearing in the Federal Court in Brisbane.

122    The cost to the Court of convening a hearing on Thursday Island is substantial, as I have noted above. Like the TSRA’s funds, these are public funds. The Magistrates Court on Thursday Island is the only courthouse in the region, and Thursday Island is the administrative centre of the Torres Strait, as the TSRA’s location there demonstrates.

123    This was intended to be an act of goodwill by the Court, and a recognition that it would be difficult, and much more expensive, for many claim group members to attend a hearing in Brisbane (or even Cairns), as well as a recognition that a hearing in a capital (or regional) city would make the matter very far removed from the country and waters over which the claims were being made.

124    As I have noted above, the Court has taken a similar course in relation to the hearing of the Cape York #1 claim in Cairns on 24 November 2017.

125    Implicitly, and indeed very close to expressly, the Court is now being criticised for that effort by this application. What was intended to demonstrate respect for the seven sets of claim group members is now being challenged, as I said very close to expressly, on the basis of a lack of respect. It is, to say the least, very disappointing.

Mr Savage’s evidence

126    Despite being a member of the applicant in the three Kaurareg proceedings, Mr Savage’s evidence is directly contradicted by the submission put by the legal representative of the Kaurareg applicants in submissions.

127    Those submissions state:

Finally, the solicitor acting for the Applicant in each of the Kaurareg matters has received instructions that:

(a)     The applicant for the Kaurareg matters consent to the hearing taking place on Thursday Island and oppose the change of venue for the case management hearing; and:

(b)     Mr Milton Savage, a member of the applicant for each of the Kaurareg applications, whose affidavit is relied upon by the TSRA has advised that he no longer supports the application.

128    The Court has no evidence before it about how Mr Savage came to make the affidavit filed by Just Us Lawyers on behalf of the TSRA in support of its application. The Court has no evidence about how Ms O’Brien came to be identified as the “person or lawyer” who prepared the affidavit, when the TSRA is represented by external lawyers.

129    It is conceivable that Mr Savage has changed his mind, on speaking to his own legal representatives rather than to the TSRA’s legal officers and/or external legal representatives. There may be other explanations, but for the purposes of these reasons I am prepared to accept there is an inference that Mr Savage has changed his mind.

130    What the Kaurareg submission, in conjunction with the contents of Mr Savage’s affidavit, does reveal however, is another concerning instance of the kind of conflict of interest situation in which the TSRA finds itself. If, for example, Ms O’Brien spoke directly to Mr Savage without going through his legal representatives at Marrawah Law, that might be of great concern indeed, especially when the purpose was to secure evidence in support of the application by a respondent to the Part B Sea Claim. It is to be recalled that is the capacity in which the TSRA has made this application.

131    The footer of Mr Savage’s affidavit states that Ms O’Brien filed the affidavit on behalf of an “indigenous legal respondent”. Mr Savage is not a respondent to QUD6040/2001. Therefore, it might be inferred this is a reference back to the description of the TSRA given in the interlocutory application itself. That strengthens the inference that the TSRA (whether through Ms O’Brien or through Just Us Lawyers, or both, it is unknown) has approached the client of another lawyer to secure evidence which, on its face, can now be seen to contradict the position to be taken on the application by that other lawyer, on instructions from the lawyer’s client. The filing of this affidavit raises concerns about Ms O’Brien’s role in these seven proceedings and in the Part B Sea Claim in particular, as well as her understanding of her role, given she is a legal officer employed by the TSRA. It also raises concerns about Mr Besley’s understanding of his role, and of the TSRA’s understanding of its role.

The obligations in s 37M and s 37N of the Federal Court Act

132    Section 37M(1) sets out the overarching purpose to which all the Court’s powers and functions in the conduct of a proceeding are directed:

(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.

133    Section 37M(2) then sets out, non-exhaustively, some of the objectives through which that purpose is to be achieved:

(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.

134    Section 37M(3) provides:

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.

135    As Jagot J pointed out in Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [5], judges of this Court are bound by s 37M(3).

136    Section 37N(1) and (2) impose like obligations on parties, and on their legal representatives. They relevantly provide:

(1)     The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2)     A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:

(a)     take account of the duty imposed on the party by subsection (1); and

(b)     assist the party to comply with the duty.

137    As many judgments of this Court make clear, the Court’s native title jurisdiction is not immune from these provisions, nor is it to be managed without regard to them. Rather, native title cases must be managed comfortably with these provisions, taking into account the additional, particular and important requirements in the Native Title Act, and paying special attention (as Jagot J noted in Western Bundjalung at [11]-[12]) to the fact that the Native Title Act reveals a legislative intention that issues arising under that Act should be resolved by negotiation and agreement, rather than contested litigation, if that is possible.

138    The Court’s consideration of the TSRA’s application to move the venue of the case management hearing must be considered in light of this statutory framework.

139    It is also appropriate to refer to the remarks of White J in a recent decision of Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461, which concerned whether the Court should dismiss a number of native title claims in the Northern Territory for want of prosecution. His Honour dismissed some, but not others. His Honour’s decision is subject to an appeal but I do not understand that what his Honour said in terms of the relevant applicable principles is subject to any doubt or dispute. In the context of the fact that neither the Commonwealth nor the Norther Territory had sought to participate in the hearing concerning dismissal for want of prosecution, his Honour said responsively to a submission from the Northern Land Council (at [56]):

In any event, neither the Northern Territory Government nor the Commonwealth Government are the sole spokespersons for the public interest. The Court has a responsibility, in the interests of the public, to see that litigation in the Court is conducted with reasonable efficiency and expedition and with the least delay and expense as is practical. This responsibility reflects the interests of the litigants in the particular litigation before the Court, the interests of the litigants before the Court more generally, and the interests of the public in the efficient and effective administration of justice. In recognition of these interests, the Court seeks to maximise the utilisation of the significant resources which the public has placed in it, to avoid the prejudice to other litigants which may be caused by consequential delays to the hearing and determination of their cases, and to protect litigants in the particular case against cost and delay. See AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [92]-[93], [98]. The ‘overarching purpose’ of this Court’s civil practice and procedure provisions, as stated in s 37M of the Federal Court of Australia Act 1976 (Cth), reflects these considerations.

140    In taking account of these central aspects of the administration of justice in this Court, I do not overlook, discount or reject the matters raised in the evidence by representatives of some of the islands communities who are part of the Part B Sea Claim group. Nor do I discount Mr Peter’s evidence on behalf of the TSRA, in terms of that authority’s perspective on how, and where, matters of central importance to Torres Strait Islanders should be discussed.

141    Rather, in these kinds of circumstances, the Court must weigh a variety of interests and factors, in order to determine what it considers in the particular circumstances (including the time at which the application is made) to be the most appropriate course.

142    It is critical to recall that, overwhelmingly, on all sides of these seven proceedings – the TSRA, the State, the Commonwealth and the Court – the expenditure of public funds is occurring. That expenditure should always be careful, justifiable, and responsible, targeted at the real issues in dispute between the parties and the real questions raised in a proceeding.

143    My view is that additional expenditure to move this case management hearing to the region with which the seven proceedings are concerned is justifiable, given the concerns of claim group members and the issues raised on the material. However, I am not persuaded the same can be said, at this late stage and in the absence of the material to which I have referred, of the TSRA transfer application.

144    Given the matters to which I referred about the lateness of the application, the particular challenges with Mer as a location and the presence of six other proceedings, in my opinion it would not be an efficient use of the judicial and administrative resources available for the purposes of the Court to move the location of the case management hearing. The move also is likely to increase costs across the parties and the Court, and that is not proportionate to the importance of what is, after all, a case management hearing and not the trial of any claim for native title.

An important, but separate, issue raised by this interlocutory application

145    Some of the issues and filed evidence, which are scheduled to be discussed, raise questions about whether the TSRA, and certain legal representatives of the TSRA (notably, Mr Besley) have actual or potential conflicts of interest in the proceedings.

146    Mr Besley was a legal officer at the TSRA during the conduct of the Part A proceeding. He is now employed by Just Us Lawyers and is the legal representative who has been communicating with the Court, and filing evidence (including his own affidavits) on behalf of the TSRA, in its capacity as a respondent to the native title claim.

147    The change of lawyer notice filed on 8 October 2017, said to be on behalf of Mr Akiba, was filed by Mr Maxwell Duncan, who is an employee of the TSRA. It is he who is nominated as the new legal representative for Mr Akiba, in Mr Akiba’s capacity as the individual who currently constitutes the applicant in QUD6040/2001. It would appear that Mr Duncan, and the TSRA, intend to continue to act for the applicant, however the applicant may be reconstituted following the inevitable (and now urgent) application under s 66B of the Native Title Act.

148    In other words, the TSRA proposes to be both an active respondent to the native title claim, through external lawyers and to be, by its employee solicitor, the legal representative for the applicant. The actual, as well as apprehended, conflict of interest is obvious.

149    The situation has been further complicated by the evidence filed and relied upon by the TSRA in this interlocutory application.

150    I have already noted at [126]-[131] above the matters of concern about Ms O’Brien’s securing of Mr Savage’s affidavit evidence in this interlocutory application, and her apparent access to a range of anthropological material held by the TSRA, so as to use it in support of this application and, it might be said, against the interests of the Kaurareg applicant and claim group members.

151    Somehow, the TSRA has sought to make itself the centre of this cluster of proceedings, rather than the seven claim groups and the active respondents. Indeed, the premise of this entire interlocutory application is the opinion of the TSRA, as a respondent to the Part B Sea Claim proceeding, about where the case management hearing should be held.

152    While it may be the case that the TSRA has a range of statutory functions under various legislation (including the Native Title Act and the Aboriginal and Torres Strait Islanders Act), it is not the existence of those functions but the manner and circumstances in which the TSRA chooses to perform them that is material for the present issues. The existence of a statutory function does not authorise any statutory authority to perform or utilise that function so as to place itself in a position of conflict of interest, and then to use the existence of the function as a reason to ignore the conflict.

153    Despite the foreshadowed withdrawal of the Gilkerson Legal interlocutory application concerning the legal representation of the applicant, it is apparent that before the notice of change of lawyer can be accepted by the Court, and before any further steps can be taken by the TSRA in this proceeding, these conflict of interest issues must be resolved, as the Issues List for the Thursday Island case management hearing sets out at para 2(e).

A final observation

154    The evidence filed by the TSRA, by way of general statements, constituting the belief of Mr Peter and relating to general inquiries made by Ms O’Brien, without direct evidence from the elders concerned, is that the elders on Mer would welcome members of the Part B Sea Claim group from other islands and also welcome members from the other six claim groups. The Court was, through Ms O’Brien’s reporting of the Mer elders’ statements, also said to be welcome. For the purposes of considering this application, I have accepted that is the attitude of the Mer elders. I am confident, in similar circumstances, that would be the approach of the elders of any other claim group, or of the elders of other island communities within the Part B Sea Claim, in relation to their own country. Nothing in these reasons challenges or seeks to diminish the sincerity, or importance, of that indication of welcome. However, there are other considerations to which greater weight must be given in the somewhat extraordinary circumstances of this application.

155    It is regrettable that the TSRA has sought to make this application in the manner it has, and at the time it has. Given the knowledge of TSRA office holders and employees about the logistics of getting around the Torres Strait, the expense, and the amount of organisation which has been put into the arrangements to this point, it must have occurred to those within the TSRA responsible for giving instructions and for the making of this application, that the application faced substantial challenges in succeeding. Especially so without any detail at all about the logistics of what is proposed. This glaring omission from the evidentiary material is baffling.

156    Had this matter been raised at the outset, on 8 September 2017 when the Court first proposed a substantial case management hearing in the region, then a venue other than Thursday Island, or venues in addition to it, may have been feasible. I emphasise “may”. Whether or not only Mer Island would have been appropriate would still have been a real question, but these matters could have been addressed in an organised, sensible, cost effective and timely way.

157    I have accepted the obviously sincere, and justifiable, sentiments expressed by Torres Strait Islanders, even though they are mostly indirectly expressed through the reports of Ms O’Brien and Mr Peter in their affidavits and in short email attachments. Given those sentiments, it is possible that the refusal of this application may be seen negatively by some Part B Sea Claim group members, and by some of the island elders in particular. It may, wrongly, be perceived as a rejection by the Court of the importance of those sentiments, and a refusal by the Court to acknowledge the ailan kastom described by Mr Peter, to the effect that “if you are talking about country you should be on country”, where proper respect can be paid. As I have attempted to explain at some length, it is not a rejection of those matters at all. The Court must balance a range of factors in making its decision.

158    It would be regrettable if the refusal of this application, in those circumstances, were to be used as an occasion for stirring up further discontent about the Part B Sea Claim proceeding, the other six proceedings, or the Court’s role in all of these proceedings. Both at the Thursday Island case management hearing, and more critically after it, there is a need for all involved to work cooperatively and constructively towards a determination of these seven proceedings, including but not limited to the Part B Sea Claim, as soon as reasonably practicable.

Conclusion

159    The application must be refused.

Postscript

160    After these reasons for judgment had been prepared in final form, two events occurred. The first was the filing by Gilkerson Legal, on 13 November 2017, of a notice of discontinuance in relation to the interlocutory application dated 12 October 2017. That discontinuance brings to an end any challenge by Gilkerson Legal to the notice of change of lawyer filed by Mr Duncan from the TSRA. Whether the Court will recognise that notice as effective will depend on the state of the conflict of interest issues to which I have referred in these reasons.

161    The second event was an email sent to Registrar Stride by Mr Besley, also on 13 November 2017. Registrar Stride has drawn the email, which was sent ex parte, to the Court’s attention.

162    In that email, Mr Besley states:

Second, the TSRA will now withdraw from the proceeding as a respondent, and give notice to the Court pursuant to s 84(6) of the Native Title Act 1993 (Cth) and obtain the necessary consents for its transition to the role as the solicitor for Mr Akiba.

163    It is unclear what is meant by “and obtain the necessary consents”.

164    No notice of withdrawal has been filed.

165    The potential conflicts to which I have referred in these reasons will remain an issue to be canvassed at the Thursday Island case management hearing. The TSRA’s conduct to date (whether by itself, its internal legal officers or its external legal representatives) is relevant to the case management of this matter going forward. If the TSRA has formally withdrawn as a respondent to QUD6040/2001 by that time, the Court will consider the situation as it then stands.

166    Mr Besley’s email also contends:

First, the suggested imperative for the attendance of the PBC Chairs and certain others was the pending interlocutory application in relation to the notice of change of solicitors and the conduct of community meetings. There is no other suggested basis for their attendance – which is consistent with the well-known reasoning of Drummond J in Ankamuthi People v Queensland (2002) 121 FCR 68.

167    This contention is not correct. The Ankamuthi situation was quite different. It is common ground that Mr Akiba, while the remaining individual constituting the applicant, has no traditional authority to speak for the land and waters covered by the Part B Sea Claim. The people who, in accordance with traditional law and custom speak for those lands and waters are represented, or at least much more likely to be represented, by all or some of the RNTBC Chairs. That is why I have said, as a matter of urgency, there needs to be an authorisation meeting and a s 66B application.

168    The Court will not shut its eyes to this reality in the forthcoming case management hearing on Thursday Island, and it is disappointing to see the attitude taken by the TSRA through its external legal representatives on this matter. The people who will be at the now inevitable authorisation meeting should be involved, at least through some of their representatives, in the forthcoming case management hearing. For the TSRA to proceed as if they should not participate in this process is extraordinary. Indeed, it is contrary to the premise which appeared to underlie the interlocutory application that I have refused – namely, the critical need to involve the people whose country is at issue in a native title claim. The Court continues to expect the TSRA to facilitate the attendance of all those RNTBC Chairs, or their representatives, who wish to attend the Thursday Island case management hearing.

Associate:

Dated:    15 November 2017