FEDERAL COURT OF AUSTRALIA

Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1438

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 2 of the Orders made on 22 November 2017 concerning the confidentiality of a portion of the transcript of the case management hearing on Thursday Island on 22 November 2017 be vacated.

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

REASONS FOR RULING

MORTIMER J:

1    This is a ruling concerning orders imposing a confidentiality regime on part of a transcript of a case management hearing in this proceeding held on Thursday Island from 20 November to 22 November 2017 inclusive.

2    On 22 November 2017, I held a closed Court session to hear evidence from Mr Leo Akiba. Mr Akiba is presently the only individual who constitutes the applicant in this proceeding. That situation arises in circumstances I have described in reasons I gave for refusing a change of venue application for the case management hearing, which was made by the Torres Strait Regional Authority (TSRA): see Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 at [10]-[13]. I shall refer to those reasons as the “venue reasons”.

3    On the same day, and subject to further order, I ordered that the transcript of the closed Court session remain confidential to those who remained in the closed Court session, being: Mr Akiba, his daughter Deirdree Nona, his son Bishop Nona, counsel and one instructing solicitor for each of the State, the Commonwealth, the TSRA, Ms Cameron for the Kaurareg respondent, Mr Gore for the fishing respondents, Mr Ned David, Ms Garagu Kanai, Mr Maluwap Nona, Registrar Fewings and court staff.

4    By reason of circumstances which I explain in more detail below, there was no uniformity about which parties were present, and which of them had legal representatives present.

5    At the case management hearing, I informed the parties and their legal representatives that the parties would be free to make submissions that the Court should order that the transcript be released, but that I would keep the transcript confidential for the moment.

6    On 27 November 2017, my chambers was informed by Auscript, the Court’s transcription service providers, that a request had been received from the TSRA’s legal representatives, Just Us Lawyers, for a copy of the transcript of the case management hearing. Auscript advised that Just Us Lawyers requested access to the entire transcript, including the confidential portion. My chambers advised Auscript only to release the public version of the transcript, and that Auscript would be advised in due course whether the confidential portion should also be released.

7    Given that request, I considered it was appropriate to re-evaluate whether the current confidentiality order should remain in place. Although Mr Besley from Just Us Lawyers and Senior Counsel for the TSRA, Mr Bick, are amongst the individuals who, by reason of the Court’s order, may have access to the transcript, and although there has not been any request by Just Us Lawyers for amendments to the orders to include any other specified individuals, once the confidential portion of the transcript is made available to two legal representatives of one party it would be unfair, in my opinion, for that portion not to be available on the same terms to the legal representatives of all parties, even if those legal representatives were not present at the closed Court hearing. It would also be unfair if the transcript were not available, going forward, to the parties themselves if they were not present at the closed Court hearing and only their legal representatives were present. Once those two kinds of potential unfairness going forward are acknowledged, and thus require amendments to the orders, consideration also needs to be given to whether it remains in the interests of justice for confidentiality to be preserved at all over a portion of the transcript.

8    For the reasons below, I have concluded that the confidentiality order made on 22 November 2017 in relation to the transcript will be vacated.

Background and Thursday Island case management hearing

9    I set out a detailed history of this proceeding in the venue reasons, and I need not repeat that history. These reasons should be read in conjunction with the venue reasons.

10    Following the events set out in the venue reasons, the case management hearing commenced on Thursday Island on 20 November 2017 at 10.15 am. The three-day case management hearing was well-attended, and the Thursday Island court room was full each day. As well as the legal representatives, the applicant, Mr Leo Akiba, attended each day, along with members of the Part B Sea Claim group, prescribed body corporate (PBC) chairpersons, officers of the TSRA, and members of the community. In particular, the Chair of the Malu Lamar (Torres Strait Islanders) Corporation ICN 8051, Mr Maluwap Nona, was in attendance on all three days. This is of some significance given that the Malu Lamar PBC was formed to hold, in trust, the native title determined to exist in relation to the Part A Torres Strait Regional Sea Claim area: see [8] of the venue reasons. However, not all PBC Chairs for lands and waters which have been the subject of determinations of native title in the Part A or Part B Sea Claim areas were in attendance. It was explained to the Court at the hearing by Ms Garagu Kanai, the Chair of the Mualgal PBC, that not all those who wished to attend were able to secure funding from the TSRA to do so. Of course, there may also be other reasons why some PBC Chairs did not attend.

11    I pause here to note the use of the term PBCs. As I understand the position, each of the PBCs relevant to this proceeding has been registered in accordance with s 193 of the Native Title Act 1993 (Cth) and is a registered native title body corporate as that term is defined in s 253. However, on the basis that the term “PBC” is generally used in native title proceedings to refer to both entities before and after registration, that this was the term used by all parties during the case management hearing, and that there is no relevant difference for the purpose of this ruling, I will use the term PBC in these reasons.

12    At the commencement of the case management hearing, Senior Counsel for the TSRA informed the Court that, despite what the TSRA had indicated to the Court recently (see [161]-[165] of the venue reasons), the TSRA would not be withdrawing from the proceeding as a respondent. Some exchanges occurred between Senior Counsel and the Court about the question of potential conflicts of interest in the TSRA remaining as a respondent while its employee Mr Maxwell Duncan in his capacity as an employee solicitor of the TSRA, was to be the solicitor with the conduct of the proceeding on behalf of the applicant. Further discussion of potential conflicts of interest, and how they might be addressed, was postponed until later in the case management hearing. As matters turned out, there was no opportunity to return to them, although events during the three days did nothing to diminish my concerns about the role of the TSRA.

13    As I noted in the venue reasons at [160], an interlocutory application seeking to restrain Mr Duncan from acting as the solicitor on the record for Mr Akiba was discontinued. I therefore accepted the notice of change of lawyer filed by Mr Duncan of the TSRA on behalf of the applicant, on the basis that there were no objections to Mr Duncan being the solicitor on the record, and on the basis that Mr Akiba had expressly deposed in an affidavit that he wished Mr Duncan to act for him, after Mr Duncan had visited Mr Akiba on Saibai Island, which is in the northern part of the Torres Strait, close to Papua New Guinea, a few days before the notice of change of practitioner was filed.

14    Following these matters, I then convened an informal Court session, in which I invited Mr Akiba and members of the claim group to speak directly to the Court around the bar table. This is a practice which has been adopted in native title case management for many years in Queensland, and is particularly useful in circumstances where there may be claim group members who contend they are not being properly represented by the individuals constituting the applicant, where there are disagreements between claim group members, or where there is reason to believe claim group members have concerns about the conduct of the native title proceeding. In the present proceeding, as I explained in the venue reasons at [12]-[13] and [167], it is and was the case that no-one who is entitled to speak for the waters of the Part B Sea Claim is a member of the applicant, and although the PBC Chairs who do represent communities whose waters are within the claim had been involved in consultations at least until approximately July 2017, they had no officially recognised role in this proceeding. This made a session where they could speak all the more important.

15    It is not necessary to detail what was discussed in this informal session, save to say that Mr Akiba confirmed (as he had sworn in an affidavit filed in this proceeding) that he could only speak for his traditional islands: those being Saibai, Dauan and Boigu. Mr Akiba emphasised that he could not speak for any other islands. Many members of the claim group paid a great deal of respect to Mr Akiba during this session, while also confirming that Mr Akiba did not speak for any of the sea country subject to the Part B Sea Claim.

16    Given what I said at [167] of the venue reasons, and given Mr Akiba’s confirmation once again that he has no traditional authority to speak for the waters covered by the Part B Sea Claim, the second day of the case management hearing focused on the issue of how to address the urgent need to reconstitute the applicant.

17    At the start of the second day, Mr Duncan, on behalf of the applicant, submitted that there would be practical difficulties in authorising the constitution of a new applicant, given the size and dispersal of the claim group, and suggested that instead, Mr Akiba should remain the sole applicant and act as a “conduit” for giving instructions, after consulting with PBC chairs. Mr Duncan submitted that this state of affairs ought to continue until at least April 2018. The significance of April 2018 was that, according to Mr Duncan, the parties would be able to report back to the Court by April 2018 concerning the reformulation of the western overlap of the Part B Sea Claim (see [20] of the venue reasons), as to the timeframes for the authorisation of a new or reformulated claim.

18    It is fair to say there were audible and visible reactions of discontent at Mr Duncan’s suggestion amongst those claim group members present in the Court.

19    Ms Cameron, on behalf of Mr Jeffrey Bosuen, a Kaurareg respondent, submitted that it would be preferable that an authorisation meeting be held sooner, rather than later, on the basis that her client wanted to speak with the people who have the right to speak for the sea country in the Part B Sea Claim. The Kaurareg people have three claims which overlap with or are adjacent to the Part B Sea Claim.

20    Counsel on behalf of the Commonwealth submitted that the Commonwealth was “reluctant to take a lead” in resolving the authorisation process, and accepted that there were practical difficulties in arranging for an authorisation process. Counsel correctly noted that Mr Duncan’s submission that Mr Akiba would consult with the PBC chairs may not sufficiently encompass all of the persons who may be in the claim group.

21    Following these submissions, counsel for the State sought an adjournment to take instructions in response to the applicant’s articulation, for the first time, of this proposal. The Court adjourned to enable those instructions to be sought.

22    When the Court reconvened after the adjournment, the hearing took a different turn. The Court was informed by Mr Duncan that Mr Akiba instructed him he no longer wished for Mr Duncan to continue to act for him as the applicant.

23    Mr Akiba’s instructions were, Mr Duncan informed the Court, provided after consultation with PBC Chairs and representatives, including with Mr Maluwap Nona. Reflecting a proper appreciation of the seriousness of this change of position, Mr Duncan informed the Court that Mr Akiba’s instructions had been given in English, Creole and “in language”, which I infer, based on Mr Akiba’s previous affidavit of 31 October 2017, refers to Kala Kawa Ya or KKY. Mr Duncan informed the Court that:

The instructions are as such that he [Mr Akiba] was not of the realisation as to the problems the changing of the lawyers would cause the other – or the PBC chairs as representatives of each of the inhabited islands, and that, in [those] circumstances, that he was of the mind that I should not continue to act.

24    Mr Duncan indicated to the Court that he was “very satisfied” about the quality of the content of the instructions given to him by Mr Akiba. Mr Duncan submitted that Mr Akiba reiterated that he wanted Mr Duncan to continue acting for him in respect of other matters, but not in relation to the Part B Sea Claim. I infer, again from Mr Akiba’s affidavit as filed, that these other matters included matters such as securing Mr Akiba’s name on a plaque on a sea wall on the island of Saibai.

25    Mr Duncan then said:

And that was confirmed again in the presence of the rest of the community that are here or the community that’s here, as represented by the traditional owners and PBC chairs. I spoke with Mr Ned David about this. I spoke with Mr Maluwap Nona and Bishop Nona [Mr Akiba’s son]. And it was interpreted back in language that that is the case. And I’ve also been requested, you know, if your Honour is minded to, for the various members here – the various Native Title holders – to speak on that, and Mr Akiba says he is available to speak on this matter.

26    On that basis, I was satisfied that Mr Duncan’s instructions to cease acting for the applicant were properly given by Mr Akiba. Mr Duncan subsequently filed a notice of ceasing to act later that day.

27    Following this turn of events, each of the parties was invited to make submissions on what should occur next in relation to the proper authorisation of the applicant. Given that the applicant was now no longer legally represented, I invited two members of the claim group to speak. The Court was informed these two individuals had been nominated by those PBC Chairs and representatives present to speak on their behalf, and to make submissions. They were Mr Ned David, Chair of Gur A Baradharaw Kod Torres Strait Sea and Land Council (GBK), Chair of Magani Lagaugal (Torres Strait Islanders) Corporation and executive member of Malu Lamar, and Ms Garagu Kanai, Chair of Mualgal PBC. The island communities represented by Mr David are Tudu (Warria) Island, Iama (Yam) Island, Cap Islet and Zagai Island and Ms Kanai represents Moa Island.

28    In short, each of the active parties other than the TSRA – the State, the Commonwealth, Mr Bosuen, as well as Mr David and Ms Kanai – agreed that there was an immediate need to commence the process for reauthorisation of the applicant. Senior Counsel for the TSRA declined to make formal submissions, and instead offered “some observations”. Senior Counsel’s observations were, in summary, that the Court should not make orders requiring the reauthorisation of the applicant as that was a “perilous” course. Instead, Senior Counsel proposed:

that authorisation meetings be called for the relevant claim groups for the eastern and western overlaps. They’re identified. And in the case of the western overlap, they reached agreement in principle at the 2015 mediation. They are much easier to prepare a properly constituted authorisation meeting for. They can appoint an applicant for new claims. When the new claims are instituted the current part B [Sea] claim can be dismissed by the court and replaced by [those new claims]…

29    These observations appeared to indicate the TSRA assumed a particular course for the Part B Sea Claim would be followed.

30    After taking a brief adjournment, I ordered that Mr David, Ms Kanai and Mr Maluwap Nona each be joined as respondents to the proceeding on a temporary basis, pursuant to s 84(5) of the Native Title Act, and that Registrar Fewings conduct a case management conference commencing in the morning of 22 November 2017. These Orders were designed to facilitate a discussion between the parties at the case management conference to agree a way forward to regularise the constitution of the applicant and resolve the authorisation issue, in particular to agree if possible, on clear next steps in the process for authorisation of the applicant.

31    The Orders joining the additional respondents were to allow Mr David and Ms Kanai, as representatives of the PBC Chairs, and Mr Maluwap Nona, as the Chair of Malu Lamar, to take part in the case management conference and (at some stage) to retain lawyers in their own right, given they had all expressed clear views to the Court that they did not wish to be represented by the TSRA. I considered it was in the interests of the administration of justice in this proceeding for there to be some individuals, who at least had been nominated by those claim group members present, and who represented communities within the area of the Part B Sea Claim (as opposed to Mr Akiba) to have the status of parties in the proceeding until the authorisation of an applicant in accordance with the Native Title Act could occur. I emphasised that their joinder was temporary, and they were likely to be removed after the determination of the necessary and inevitable s 66B application, when a properly representative applicant would exist.

32    On the final day of the case management hearing, following the case management conference convened by Registrar Fewings in the morning, counsel for the State provided an oral report to the Court of the outcomes of that conference. Counsel advised:

After an initial case management conference involving all parties we understand there was then a separate session involving the Indigenous respondents, Mr David, Mr Nona and Ms Kanai with the representative of the TSRA. We understand that was a productive session. And in a subsequent resumed case management conference involving all parties with that prior session as the background the parties have agreed that the following orders which I propose to the court will be appropriate orders to make. They are orders which are designed to ensure the undertaking of a process to authorise a new applicant for the Part B Seas Claim and orders… ensure that an appropriate application is then brought and heard and determined by the court to make an order. So I have, really, five orders that we would propose to the court.

33    The proposed orders sought a process for authorising a new applicant for the Part B Sea Claim to be completed by 29 March 2018, with a s 66B application filed by 12 April 2018. Proposed order 3(b) was that “any respondent who wishes to be heard in relation to the [s 66B] application file submissions in response by 3 May 2018.” Counsel for the Commonwealth and the solicitors for Mr Bosuen and the fishing respondents consented to those proposed orders.

34    However, once again, and somewhat contrary to the position counsel for the State conveyed that all parties (including the TSRA) had taken by the conclusion of the case management conference, the TSRA then announced it did not consent. Again, it stood apart from the other parties, including all the other respondents. It is important to bear in mind the TSRA is a respondent to this proceeding because it asserts it has interests that may be affected by a determination of native title. It is also important to recall, as I noted in the venue reasons, that despite this apparently minor role (I note the TSRA did not even appear at the hearing of the Part A Sea Claim, as the Federal Court Report of the decision reveals), it has purported to assume a central, and generally oppositional role, in case management of the Part B Sea Claim since approximately July this year, contrary to the position it has taken until that time.

35    Senior Counsel for the TSRA informed the Court that the TSRA “doesn’t consent to but doesn’t oppose the making of these orders.” Senior Counsel proposed that the word “respondent” in proposed order 3(b) should be changed to “party” because “it’s not inconceivable that the applicant may wish to be heard in relation in some way to the section 66B application.”

36    What Senior Counsel then went on to say made it clear that what appeared to be a minor amendment to one word of the proposed consent order revealed a much more significant turn of events, one which had the prospect of derailing the progress of this matter yet again.

37    Senior Counsel submitted that the reason that the applicant may wish to be heard in relation to a s 66B application was as follows:

I was informed over lunch time that Mr Akiba and his daughter Deirdree Nona made contact with the native title unit of my client during the course of the morning and in that contact Mr Akiba made it very clear that he was very upset about what had happened yesterday. He felt he had been treated with disrespect and with disregard to his role as an elder in the region, that the termination of Mr Duncan’s services occurred under some duress, that he wanted to reengage Mr Duncan.

I’m instructed that as a result of further dialogue with the native title unit it is likely that steps will be taken to engage an external independent lawyer to advise him and that an ..... Saibai language interpreter will be engaged to assist him to understand better what is going on in relation to the proceedings. And he conveyed that he wishes to have time to think about who will be the right person to move the matter forward.

38    Senior Counsel informed the Court that the reason none of this was raised in the case management conference in the morning was because this change had not yet occurred at that time, and he was only given these instructions around 1.45 pm.

39    In that half an hour he did have (before Court resumed at 2.20 pm), Senior Counsel did not inform any of the other legal representatives, nor the Registrar, of this significant change of position.

40    What Senior Counsel conveyed to the Court appeared to me to be contrary to everything that the Court had been informed about Mr Akiba’s position to that point. Mr Akiba was not in Court when Senior Counsel made these statements. I adjourned the hearing and directed all parties to go back into a case management conference with Registrar Fewings. There was no agreed outcome from that short case management conference. However it was clear that all parties, expect the TSRA, were taken aback by what had occurred. The claim group members in Court were visibly shocked, and concerned.

41    During the adjournment I was informed by Registrar Fewings that Mr Akiba wished to speak to me personally. When the Court reconvened, I explained to all present that Mr Akiba had made this request, but it was not one I could accommodate in the circumstances. I explained that I considered the closest action I could take would be to hear from Mr Akiba in a closed session of the Court, with limited numbers of people present. I directed the Court be closed so that Mr Akiba could give confidential evidence concerning the matters raised by Senior Counsel for the TSRA, and I directed that only those people I have set out at [3] above remain in the Court.

42    Taking into account that Mr Akiba is an elderly man who had, in my opinion and from my observations of him in Court, found the case management hearing and his role in it something of a strain, I considered it appropriate that Mr Akiba would only be asked questions by me. I gave leave to other parties and legal representatives present to submit any additional questions they wished me to ask Mr Akiba, and I would decide whether or not to ask the question. As it turned out, only one question was submitted, Senior Counsel for the TSRA objected to the question, and I determined the question was unnecessary in light of the evidence Mr Akiba had given. I also considered this method of questioning went some way towards accommodating Mr Akiba’s wishes that he speak directly to me.

43    I considered it was appropriate that Mr Akiba give sworn evidence to the Court, which he was content to do. Mr Akiba had his daughter, Ms Deirdree Nona, with him as a support person. He also had his son, Bishop Nona, acting as an interpreter, so that Mr Akiba could speak in his own language through a person he knew and trusted.

44    The closed session then proceeded.

45    Once Mr Akiba’s evidence was concluded, the Court was re-opened. By this time, it was 4.15 pm on the last day scheduled for case management, and many of the matters the Court had hoped to address could not be addressed. However, what had become very clear was that the main action that needed to occur was for an authorisation meeting to be organised by the three new indigenous respondents and Mr Akiba, through legal representatives, and as the persons currently representing the claim group members, so that after such a meeting a s 66B application could be made. As I noted at one stage during the hearing, until there is a properly constituted and authorised applicant, nothing can occur. The proceeding cannot be discontinued. It cannot be progressed: nothing can occur, because the Court is well and truly on notice that Mr Akiba has no authority to speak for those persons who claim to hold native title in the Part B Sea Claim area.

Transcript confidentiality

46    I consider the confidentiality order made as a result of the closed Court session should be vacated. The order was made in urgent circumstances, and served a limited purpose, which is now spent.

47    The purpose of the closed session, and of making orders that the transcript be kept confidential to those present, was, in unusual and unexpected circumstances, to facilitate Mr Akiba being as comfortable as possible in giving evidence to the Court, so that he could explain, in his own words, what had happened that morning to cause such a drastic change of course.

48    I also considered it vital, given what appeared to have been agreed as a course to regularise this proceeding and was now under threat of derailment again, to understand what Mr Akiba wanted to happen about this proceeding, and more particularly about his role in this proceeding. From the events the day before, the Court was informed of an agreed course, and I considered it vital to understand from Mr Akiba himself, whether that was still the case, or whether, as Senior Counsel for the TSRA had indicated, it was not.

49    I need say nothing of what was revealed by Mr Akiba’s evidence, save to indicate that it provided part of the reason why, in public session at the conclusion of the case management hearing, I stated that I continued to be disturbed by the conduct of the TSRA. The transcript of Mr Akiba’s evidence will speak for itself.

50    I sought Mr Akiba’s views about whether he wished his evidence to remain confidential. It is fair to say he indicated that would be his preference. However after I explained that the Court could not necessarily act only on what he preferred, although it was important to the Court to know what his view was, he (most responsibly) accepted that it was a matter for the Court. Bishop Nona interpreted Mr Akiba’s answer thus:

He is happy. He is comfortable. You can tell everybody.

51    I have taken Mr Akiba’s ultimate position into account in deciding to vacate the confidentiality order.

52    I have also given weight to the fact, as I note above, that there was no uniformity in those who were present and those who were not. Not all parties were present – for example, the State, the Commonwealth, and the TSRA did not have a client in the room but each had two legal representatives present. The fishing parties had a legal representative present (Mr Gore), and the Kaurareg People had their lawyer, Ms Cameron, but she had no client present. The other parties (Mr David, Ms Kanai and Mr Maluwap Nona) were present but had no legal representative. The same is true of Mr Akiba himself, because Mr Duncan had filed a notice of withdrawal of practitioner. The urgency of the situation had this consequence, but it is not in the interests of fairness that this unevenness in terms of access to evidence before the Court should continue.

53    Finally, this Court operates on principles of open justice, which are expressed in s 17(1) of the Federal Court of Australia Act 1976 (Cth). Evidence, and court proceedings, should be conducted in public unless there is good reason, related to the interests of justice, for it to be otherwise. As I have explained, at the time on the afternoon of 22 November 2017, I considered there was good reason. I do not however consider there is a continuing justification, particularly in light of an application being made by one party for the transcript.

54    The claim group members of the Part B Sea Claim are also entitled to know what evidence has been adduced at a case management hearing concerning their claim to native title. That is especially so when some of them were in court and listening to Senior Counsel for the TSRA announce, apparently on behalf of Mr Akiba (although it is unclear how that came to pass), a wholesale change of position, including contending that Mr Akiba had been acting under duress and was treated with disrespect by members of his community, and yet they were not permitted to be present to hear Mr Akiba himself explain what had occurred, and what his view was. They should be able to read Mr Akiba’s evidence for themselves.

55    If there are any further issues about access to the transcript, because it must be purchased, the parties will be able to raise those matters with the Court. Since the TSRA is purchasing a copy of the transcript for its own purposes, it is reasonable to expect that, in performing one of the many functions relating to the support of native title claimants that its Senior Counsel outlined to the Court at the case management hearing, it would purchase and pay for copies of the transcript for Mr Akiba, Mr Maluwap Nona, Mr David and Ms Kanai, since they are all parties. It is also reasonable to expect the TSRA would arrange for the transcript to be available for those claim group members who might wish to read it.

Conclusion

56    The confidentiality order will be vacated.

57    Despite its rocky course, the case management hearing was constructive, and productive. It should now be possible for Mr Akiba, Mr Maluwap Nona, Mr David and Ms Kanai, to work together on behalf of the Part B Sea Claim group members, to ensure compliance with the Court’s orders in relation to a s 66B application, as proposed by counsel for the State to the Court on behalf of all parties. It is now clear that Mr Akiba, in addition to the other three individuals, has confirmed to the Court that he and they do all wish to work together towards this goal.

Associate:

Dated:    1 December 2017