Federal Court of Australia

Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2020] FCA 1353

ORDERS

THE COURT ORDERS THAT:

Separate questions

1.    Pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be determined separately from any other questions in the proceeding (including questions arising under s 225(c), (d) and (e) of the Native Title Act 1993 (Cth) (the NTA)):

(a)    but for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?; and

(b)    in relation to that part of the claim area where the answer to (a) above is in the affirmative:

(i)    who are the persons, or each group of persons, holding the common or group rights comprising the native title?; and

(ii)    what is the nature and extent of the native title rights and interests?

Listing

2.    The separate question be listed for a hearing of lay evidence on the part of the applicant and Albert Bernard Bowie, George Henry Nona, Ronnie Nomoa, Walter Tamwoy and Tommy Willie Tamwoy (Badulgal respondents) on country at locations to be agreed for a period of approximately three weeks commencing on 6 October 2021 (separate question hearing).

Mediation

3.    Immediately following the separate question hearing, a mediation be conducted by Judicial Registrar Grant on country at a location or locations to be agreed between the applicant and the Badulgal respondents, and – at the discretion of Judicial Registrar Grant – the State.

Concise statements

4.    On or before 4 pm on 20 November 2020, the applicant is to file a concise statement of no more than 5 pages describing the facts and issues relevant to the separate question, such concise statement to summarise, without repetition:

(a)    what the answer to the separate question should be;

(b)    the important facts supporting that answer; and

(c)    any legal arguments supporting that answer.

5.    On or before 4 pm on 4 December 2020, the Badulgal respondents are to file and serve a concise statement of no more than 5 pages, summarising:

(a)    what the answer to the separate question should be;

(b)    the important facts supporting that answer;

(c)    any legal arguments supporting that answer; and

(d)    any specific responses to the applicant’s statement.

6.    On or before 4 pm on 16 December 2020, the State is to file and serve a concise statement of no more than 8 pages, summarising:

(a)    what the answer to the separate question should be;

(b)    the important facts supporting that answer;

(c)    any legal arguments supporting that answer; and

(d)    any specific responses to the statements filed by the applicant and the Badulgal respondents.

7.    If any of the applicant, the Badulgal respondents or the State wish to object to the concise statement method, submissions setting out the basis for the objection and the alternative proposal are to be filed and served on or before 4 pm on 28 September 2020, such submissions to be no longer than 5 pages.

Oral submissions

8.    The parties that have participated in the separate question hearing shall at the conclusion of the hearing, and at a location and date to be agreed, make short oral submissions on country in relation to the evidence that has been given.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    As a result of the orders made on 15 July 2020, pursuant to which the Badulgal respondents were joined to these proceedings, this proceeding is now moving towards a contested trial rather than a consent determination. The Court subsequently made it clear that the issues in dispute between the applicant and the Badulgal respondents were firstly to be explored though lay evidence on country, the core claims being about Badulgal, Mualgal and Kaurareg traditional law and custom in relation to the islands of Warral and Ului. A mediation was then to be held, also on country, to see if after the parties had heard all the lay evidence a negotiated solution could be reached.

2    If there was no resolution by mediation, then, and only then, would there be a further hearing to deal with any expert evidence. That of course does not prevent the parties from involving any experts they have retained in the framing of arguments about lay evidence, or the framing of the topics to be dealt with by lay witnesses, or in any other relevant capacity. That is a matter for the parties. But the Court considers evidence from those who are the custodians and recipients of knowledge about traditional law and custom in relation to Warral and Ului should be the primary focus of the hearing, especially to see if some agreement can be reached. This is also evidently a matter on which the respective communities of the Torres Strait are vitally concerned and interested and the Court’s proceedings should not be remote from them in any way: it is their asserted native title which is at issue. Dealing with these matters on country is therefore vital.

3    I note this is the first time there has been evidence in a contested trial about Kaurareg claims to sea country or to islands in the Torres Strait, the Torres Strait Regional Seas Claim (Part A) proceeding (QUD 6040 of 2001) not involving the Kaurareg people: see Akiba v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1 at [51]-[53].

4    The parties engaged constructively with Judicial Registrar Grant about the programming of the matters for a trial but were unable to reach agreement on a number of matters. A case management hearing was held on 14 September 2020 at which the parties were given an opportunity to make submissions about the timetabling orders, including whether a separate question should be stated.

5    The applicant filed a minute of proposed orders, with which the Badulgal respondents were generally in agreement. The State filed a separate minute of proposed orders. The applicant, the State and the Badulgal respondents filed written submissions. The applicant relied on an affidavit of David Knobel. The Badulgal respondents relied on affidavits of George Nona, Ronnie Nomoa, Tommy Tamwoy and Walter Tamwoy.

6    One of the issues that has the potential to delay, or indeed entirely frustrate, the progress of the contested aspects of this proceeding is that the applicant and the Badulgal respondents currently do not have funding for legal representation, or for other expenses associated with the trial. The Court was informed that the applicant has applied to the TSRA for funding and the Badulgal respondents are going to do so shortly. The Court was assisted by Mr Jock Pickering from the TSRA, who attended the case management hearing and confirmed that, once the Badulgal respondents have made their application, the TSRA will deal with the two applications as soon as possible.

7    The Court is doing whatever is reasonably practicable to keep the on-country trial as cost effective as possible. However, it is imperative that the trial proceed, and it is difficult to see how justice could be done between the parties in this matter if the applicant and the Badulgal respondents do not have legal representation.

8    The main point of difference between the applicant and the Badulgal respondents on the one hand and the State on the other concerns the timing and form of the hearing. Broadly speaking:

(a)    as to form, the applicant and the Badulgal respondents submit the Court should list the matter for the first tranche of a final hearing, while the State submits the Court should list a separate question hearing; and

(b)    as to timing, the applicant and the Badulgal respondents submit the Court should list the hearing in October or November 2021, while the State submits the Court should list the hearing in May 2021.

9    There were also a number of more minor points of difference and where necessary I explain below why I have adopted certain orders in preference to others.

Resolution

The form of the hearing

10    After the applicant’s proposals were clarified during oral submissions, I accept it would be a valid choice simply to list the entire s 61 application for trial, to be heard in tranches, with the first tranche to be the on-country lay evidence, and the remaining tranches to be the subject of separate programming orders thereafter. This held some attraction for me during the case management hearing.

11    However, on reflection I have decided the State’s proposed separate question is preferable. First, a self-contained separate question, together with programming orders, identifies very precisely for those tasked with the vital job of approving funding for this matter exactly what work needs to be done, and to what end. Since funding is critical, this is a weighty consideration. Second, as I will explain, in order to keep preparation as cost effective as possible, I have decided that each party should file only a concise statement. That will be sufficient in my opinion because the separate question has defined the scope of the trial. Third, it is possible that any of the three active parties whose evidence and arguments are not accepted might wish to appeal. If the on-country evidence is just one tranche of a trial on the s 61 application, then even if the expert evidence is dealt with separately after the lay evidence, there will need to be some refinement of the matters on which the Court is to issue a judgment (eg to exclude extinguishment) before any appeal. The separate question makes these matters clear from the start.

12    There is a qualification to what I have said at [11]. Unlike many other applications under s 61 of the Native Title Act 1993 (Cth), the active parties do not commence from a blank slate. The existence of a system of traditional law and custom which has continued since time immemorial throughout the Torres Strait has been recognised by this Court in Akiba. These aspects were not disturbed on appeal. At [457]-[459] and [463]-[464], Finn J summarised his findings:

I have made, or foreshadowed, my conclusions on such of the various laws and customs propounded by the applicant as I consider to have been proved. I would emphasise that together they display four attributes.

First, even though they ordinarily have only local application, most are common to the island communities of Torres Strait. I would instance laws and customs relating to descent rules, adoption, territorial control and permission, minor matters such as feasting, funerals, naming boats, etc and, importantly, elders. I emphasise this last because it is an institution of governance replicated in all local communities.

Secondly, I put to one side laws relating to land and waters. In those cases where there are discernible differences — these are, principally, laws and customs relating to kinship, marriage and affinal relations and totems — I do not consider such differences to be destructive of the one society case.

…

Thirdly, there is an obvious commonality in the laws and customs which regulate an Islander’s rights and obligations outside his or her own land or marine territory. I would instance the laws and customs relating to inter-Island marriage and affinal relationships, hereditary friendships and tebud, and permission and ailan pasin. I will return to these below.

Fourthly, without reiterating what I earlier said, I have concluded that the evidence on shared land and marine areas is consistent only with common laws across the Strait applying principles of continuing acknowledgment of prior occupation by ancestors and of descent and inheritance. What I need to emphasise in light of the Buru-Warul Kawa, etc determination and my conclusion in relation to Naghir, is that sharing is not confined to sharing within a cluster group. The laws and customs which accommodate sharing are not simply ones of individual island communities or of a cluster group.

13    And at [472]-[474]:

In Torres Strait, given the local operation of laws and customs as to descent which provided (i) an island (or “community”) identity; (ii) one’s place in the social organisation of that community; and (iii) a basis for inheritance, the Islander emphasis is unremarkable. Pre-annexation, they did not exist in a place where wider geo-political reasons would have been likely to have required of them a larger self-vision beyond, at best, that of their cluster group.

It seems to be common ground that a consciousness of Torres Strait Islander identity first, as a unique people and then considerably as later a political “identity”, were post-contact and annexation phenomena. I should emphasise in passing that the finding of a society is not premised as of course upon a finding that the groups who constituted it had a consciousness of it. This they may or may not have had. In the present matter, while the advent of the marine industries prior to annexation may have enhanced the development of a pan-Torres Strait awareness amongst some Islanders, I make no finding of consciousness of a Torres Strait society at annexation.

Notwithstanding the basis upon which Islanders identify self and others, I do not regard identity as such as a useful indicator of a “society” in this matter. For reasons I have already given, a local community based “society” fails to accommodate the phenomenon of sharing island land and waters by two or more island communities. Further, accepting that infra-Island matters are characteristically settled by laws and customs having purely local application, the severing of Island communities for reason of identity ignores those laws and customs dealing with relationships between, and reciprocal obligations of, persons on different Islands. Such laws and customs, as I have indicated, are replicated across Torres Strait. Similarly it attributes no significance to laws and customs which, though local in operation (eg in relation to elders), are characteristic of all of the Island communities. Importantly, to use identity as the State proposes disregards context in a variety of ways.

14    Although the determination operates in rem, I note in particular that the State is bound by these findings.

15    It is also appropriate to recall the findings made in several consent determinations.

16    In the very early Torres Strait determinations, little was said about the content of the traditional laws and customs: see Mualgal People v State of Queensland [1999] FCA 157, Kaurareg People v State of Queensland [2001] FCA 657. However, in both of these determinations, Drummond J did express his satisfaction about the available anthropological evidence and the existence of such laws and customs over the determined areas.

17    Cooper J in Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578 described the Badulgal at [10] as “a maritime people living off the land and waters and engaging in trade with neighbouring island communities”. His Honour accepted the affidavit evidence of one of the traditional owners of the area subject to the determination as to the traditional laws and customs of the Badulgal people at [11]. His Honour stated:

As the documentary evidence shows, the Badulgal still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty. Relationships within the Badu Island community are expressed in the idiom of kinship and identification with a particular family provides the main avenue by which any individual claims ownership of land. The continuing connection between the Badulgal and the determination area is well recognised. The late Mr Sagigi deposed in support of the Badulgal’s native title rights over the determination area:

‘(a)    Badu Island people have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their land and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life. For example, I am one of the traditional owners of particular land including land known as Mui Wakaid.

(b)    Badu Island people leave their land to the children and others in accordance with their tradition and custom and grant and withhold permission for others to use their land. For example, upon my death my interests in land will pass to my children and other members of my extended family.

(c)    Badu Island people hunt over the land, forage the land, garden the land and generally use the resources of the land albeit in somewhat changing ways over the years. For example, many Badu Islanders maintain house gardens, and also frequently collect wild plant foods such as wongai plums.

(d)    Badu Island people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons. For example, mats, drums, harpoons and other items are regularly traded with visiting Papuans.

(e)    Badu Island people conduct social, religious and economic life upon the claim area including the visiting of cultural sites of significance, conducting burials and tomb stone openings, participating in festivals and associated traditional dancing and being responsible on a daily basis for the care of the land. One such festival was the recent ordination of a priest at Badu which involved feasting and traditional dancing.’

18    The Badulgal and Mualgal people also hold native title over “numerous uninhabited small islands, islets and rocks located south of Badu Island and south-west of Mua Island in the Torres Strait”, as determined in Nona and Manas v State of Queensland [2006] FCA 412 and Manas v State of Queensland [2006] FCA 413. Dowsett J accepted and quoted with approval the anthropological report of Dr Garrick Hitchcock which his Honour found (at [10] of the first determination) “confirms the continuity of an identifiable society of Torres Strait Islander people having a connection with the lands and waters of the determination area in accordance with traditional laws which they acknowledge and traditional customs which they observe”.

19    Of the Badulgal and Mualgal people’s traditional law and custom, his Honour quoted the following passages of Dr Hitchcock’s report. At [14]:

The Badulgal are the descendants of the Indigenous inhabitants of Badu, and the Mualgal are the descendants of the Indigenous inhabitants of Mua.

…

Recruitment to both groups occurs primarily by birth, or by traditional Torres Strait Islander adoption. Whether natural born or adopted, all such children automatically acquire a community identity, which in turn confers native title rights and interests in the community’s traditional estate (for further information, see Murphy 2000:16-17; Powell 1998:44-48,51-55).

20    And at [15]:

Badulgal and Mualgal tradition and custom, from which their native title rights and interests derive, share much in common with other Western Torres Strait Islander groups, and indeed, all Torres Strait Island societies. Many aspects of the relationship between the communities forming these groups continue today, and members of the claim group continue to acknowledge the closeness between the communities forming each larger group (e.g. dialect group), and their wider identification as Western Torres Strait Islanders.

Badulgal and Mualgal also identify as a member of their Torres Strait ‘cluster group’ – in this case the Western (or Central Western) Islands, comprising Mua, Badu and Mabuiag. Following pacification and missionization in the early 1870s, relations between Mualgal and Badu (and Mabuiag) people have been strong and deeply held. Intermarriage has also continued to take place; for example, a number of Badu people have married into the Mualgal community and reside at Kubin. The cluster grouping has an important role in local social and political activity in the region. Cooperation and sharing between the islands, and participation in each other’s ceremonies are part of normal, everyday life. Sporting teams and events, lobby groups, and political representation often occurs along cluster groups lines. The Western cluster group is not merely a proximal label, but reflects ongoing relationships and customary practice, and demonstrates the continuity of these more inclusive levels of social identity and organisation.

21    The State is also bound by the findings in these determinations. The State is correct to submit that a separate question in this proceeding should not assume the existence of native title over Warral and Ului, because there is no admission from the State (as the principal responding party on connection) to that effect, and – obviously – no existing determination to that effect. However, the matters at [12] to [20] above make it as clear as it could be that, barring some exceptional or unforeseen circumstance, native title will be found to exist over Warral and Ului. The real question is who are the holders of that native title, and what is its content, although the second matter is, again, likely to be decided very much by reference to previous determinations, given the nature of native title in the Torres Strait as explained in Akiba. There has obviously been a tremendous amount of work done on the content of law and custom in the Torres Strait. The wheel need not be re-invented, and for the sake of the native title claimants and their patient endurance of the delays in bringing their native title claims to a conclusion, must not.

22    It is important to make that clear because, to ensure this trial is as cost effective as possible, the Court will expect the State to focus on what is the real question in dispute before the parties, even if it is strictly correct that there is no admission as to the existence of native title. The evidence and argument should be tightly focused on that real issue in dispute. The same expectation exists in relation to the applicant and the Badulgal respondents. The Court is especially concerned that the parties adopt an approach which recognises the work done in Akiba, and for previous consent determinations, and the binding effect of those decisions, unless very good reason is shown.

23    To facilitate the parties keeping a sharp focus on what is in dispute, and what is agreed, I have decided that rather than any more traditional form of pleading, and rather than statements of facts and contentions, which can become long and unwieldy, the parties will each be ordered to file and serve a concise statement, setting out their positions.

24    Concise statements are dealt with in the Court’s Central Practice Note at [6.8]-[6.10]. At [6.8] the Central Practice Note states:

The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute, as well as the essential relief sought from the Court before incurring what might be the considerable cost of preparation of detailed pleadings. The concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form.

25    At [6.10] the form of concise statements is set out:

The concise statement must not exceed 5 pages (including formal parts) and the Court would expect that ordinarily (except in complex cases) less than 5 pages will be necessary. It will be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise:

 (a)    the important facts giving rise to the claim;

 (b)     the relief sought from the Court (and against whom);

 (c)    the primary legal grounds (causes of action) for the relief sought; and

(d)    the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage.

26    Concise statements are used regularly in a range of complex cases in this Court. They are regularly used by the ACCC in complex consumer protection cases, for example. There is an initiating process in this proceeding, very recently filed and carefully prepared, which sets out the applicant’s claim. Together with the form of the separate question, and the Court’s interlocutory decision on leave and joinder, I consider the parties have ample material upon which to frame their concise statements. I have also taken the following matters into account in deciding that the parties should articulate their cases by this method:

(a)    It is highly cost effective.

(b)    It is an intelligible and accessible form for members of the native title claimant communities to understand the issues.

(c)    Since the documents are short, and to be expressed in plain English, it will assist in ensuring the separate question hearing is fair to the Badulgal respondents in the event they cannot secure legal representation, or secure it later.

(d)    It requires the parties to be disciplined in focusing on what is really in dispute between them.

27    I have modified the content prescribed at [6.10] to reflect the fact the statements are being used in a separate question hearing on native title connection issues. However, the requirement in the Central Practice Note that the concise statements be “plain, concise and direct in every regard”, “omit unnecessary repetition” and “do no more than summarise” is applicable to the concise statements to be filed for this hearing.

28    I accept this was not a matter expressly raised with the parties at the case management hearing. Accordingly, I have provided a mechanism in the orders by which, if any of the three key parties wishes to object to this method for the articulation of its case, a period of five working days will be given for that objection to be made, by way of submissions not exceeding three pages. I will then reconsider the order in light of the submissions made. If I decide to substitute another method for articulation of the parties’ cases, the timetable set out in the present proposed orders will be maintained. As I foreshadowed at the case management hearing, only the key components of the Court’s decision form final orders today. The remainder – relating to timing and programming – will be circulated for the parties’ comments. However, the parties are reminded that the approach I have set out in these reasons reflects my views on the appropriate approach: what I am concerned to ensure by circulating part of the orders in draft is that nothing critical has been missed, and that the parties have no fundamental objections to the timing proposed.

The timing of the hearing

29    This has been a difficult issue to resolve. The State has proposed an on-country hearing in May 2021, although in oral submissions senior counsel for the State also referred to April. The applicant and the Badulgal respondents propose October or November 2021. Considerations raised by the parties include weather, the availability of the local community (both to attend hearings and to participate in logistical support such as transport and accommodation), counsel availability, funding, the need for sufficient preparation time, and the need to resolve the dispute over Warral and Ului in order to progress the remainder of the matters in the Torres Strait. I accept these are all important considerations.

30    I have given the most weight to what the evidence and argument revealed about weather and seasonal conditions, including from a safety perspective, and what the evidence revealed about the time needed to prepare for the hearing. The latter consideration also involves funding.

Weather and seasonal considerations

31    George Nona, who has been diving in the Torres Strait for four decades, deposed in his affidavit about the seasonal and weather patterns (at [7]-[8]):

From what I know, May and June is usually windy, but September, October and November is when the wind and sea is calm and it is safe for sea travel, especially if we go to Warral and/or Ului for this lay evidence hearing.

In recent years, climate change has affected our seasons so that some weather patterns have changed. In the last few years October, November and December has always been very calm weather.

32    Walter Tamwoy, who is one of the elder Badulgal respondents, and has been working on the seas in the Torres Strait almost his whole working life, explained why Badulgal travelled to Warral and Ului, and how well he knows the area (at [10]):

Although there are plenty of small islands behind Badu (i.e. northwest), we usually went to the islands between Badu and Warral, because there was more food [in that direction]. That’s why we know every passage in that area, because we always went there – even at low tide, we know how to go through the passages day or night.

33    As to times of year, Mr Tamwoy said (at [11]-[13]):

From my knowledge, September until Christmas is when the wind and sea is usually calm. This is ‘naigai’ time – our language for [the wind that brings] calm weather.

This is the safest time for sea travel, especially for going to Warral and/or Ului for the purpose of this lay evidence hearing.

In May, June and July the weather is usually windy and it makes the sea rough for sea travel. This is ‘sagerr’ time, when the wind blows from the southeast.

34    Mr Knobel’s affidavit also referred to local knowledge, from Mr Saila Savage (at [3]):

Me: “When is the weather best to go by boat to Warral and Ului?”

Mr Savage: “This month a good time. December, January and February monsoon, lots of rain. October, November a good time to go by boat.”

Me: “So September, this month, or October, November would be best time to go by boat?”

Mr Savage: “Yes.”

35    Thus, there is agreement, and the State accepted, that the optimal time to travel to this part of the Torres Strait, and to be travelling around by boat, is October and November. As Ms Phillips pointed out, that was the time the Court sat on country in Akiba – once in 2007 and once a year later in 2008. The State submitted that while earlier in the year might not be optimal, there did appear to be about two months when travel would not be unsuitable, even if not optimal. Initially this had been identified as May, but in oral argument, senior counsel for the State nominated March and April, and also July and August. However senior counsel also indicated that in July and August counsel were not available.

36    Ms Bowie, who appeared to assist the Badulgal respondents, pursuant to a grant of leave some time ago under s 85 of the Native Title Act, informed the Court she was appearing from Badu itself. I took the opportunity to ask Ms Bowie, without objection from the State or the applicant, a few more questions about conditions in the Torres Strait. The main points from what she told me were:

(a)    There is reasonably reliable phone data coverage on Badu, but internet wi-fi connections can be less reliable. I did observe there was a very good connection with Ms Bowie’s computer over Microsoft Teams for the entire hearing.

(b)    She explained that the sagerr wind comes from the south east and gets up to 30 or 40 kn. I take judicial notice that is about 56-80 km/h, and a very strong wind.

(c)    The divers and others using the sea consider sagerr time is a dangerous time to be on the ocean. The wind blows constantly throughout the day.

(d)    The tides can also affect the winds.

(e)    Warral and Ului are only reachable by sea travel, unless helicopters are used. This is consistent with what Mr Savage is reported in Mr Knobel’s affidavit to have said.

(f)    On a calm day the trip from Badu to Warral is about 20-25 minutes, Badu to Thursday Island is about an hour, and Badu to Moa is about 10 minutes.

37    The Badulgal respondents emphasised the safety aspect of the on-country hearing, given there will be quite a lot of sea travel. The applicant accepted this issue, as did the State. However, the State correctly contended that there was no evidence suggesting March and April were not safe. Ultimately, senior counsel helpfully summarised the State’s position as follows:

So it’s whether the court may not be comfortable with the idea of proceeding where there might simply be a lacuna in the relevant evidence about the weather conditions for that period, such as March, April and May. It may wish to be satisfied by the provision of further information from any of the parties about that. We would completely accept that. We would also ultimately accept that the court is prepared to defer a hearing until November, then obviously the State will abide by that. If the extent to which it is possible to safely and appropriately conduct a hearing in an earlier part of next year and if we are timing enabled, the parties who are leading an evidentiary case, to have sufficient opportunity to be able to present that evidentiary case.

Then for the reasons we have foreshadowed, the State received that as the preferable option. But as I said, we accept. We are not putting on an evidentiary case ourselves, we accept that safety has to be a paramount consideration for the court. And there simply is a gap in the evidence, in that respect. So we don’t – to that extent, we don’t stubbornly press for an earlier hearing. Those are the factors that we say is relevant for the court to take into account. And if the court wanted to give serious consideration to a hearing in an earlier part of next year, it may be appropriate for the court to only do that on the basis of further information, specifically about a period such as April.

38    Ms Bowie did add this in response:

The weather situation March and April, here, tends to be generally dry. It’s a part when the island is drying up from the monsoon season that happens from December, January and into February. I don’t know whether, if you recall, a couple of the affidavits from the Badulgal respondents did allude to the mere fact of climate change. What they’re basically saying is that some of the timing of seasons has changed somewhat over the last – but they’re looking at the last 20 years that it has changed significantly over the last 20 years. But their conclusion was that at least over the last few years, October and November, have been consistently calm.

39    I accept that it does appear from a weather and seasonal perspective March and April are feasible. As I explain below there are other factors which have led me to conclude that timing is unlikely to be workable, although from the perspective of getting the hearing on as soon as practicable I accept those dates are ideal.

The crayfishing season

40    The Badulgal respondents gave evidence about this season, which runs from about February to September. Ms Bowie added that in December the “free dive” crayfishing season opens. That means there is no crayfishing between the end of September and December.

41    The Badulgal respondents put this factor as an important one in their submissions (at [15]-[17]):

The Badulgal Respondents assume that the local Badu community will be involved in coordinating and facilitating the resources for a lay evidence hearing, including:

 a.    Providing transport, accommodation and meals for any visitors

b.    Providing transport and drivers to and from Warral and/or Ului, or any other nearby locations as required

 c.    Hosting visitors and explaining local community protocols as required

Badu is a large crayfishing community, where many families rely upon crayfishing as a livelihood. The crayfishing season usually ends at the 30 September each year, and does not recommence until February the next year.

For the proposed lay evidence hearing, it would be optimal for the crayfishermen to be available for numerous reasons, including:

 a.    Providing essential transport and drivers for sea travel

b.    Attending the hearing, as many local crayfishermen are claimant group members and have a vested interest in the outcome of the determination.

42    I accept this is a consideration. One of the important factors in determining that the lay evidence should be on country was so that the communities whose native title claims are at stake could be present and could hear and understand the evidence and the arguments. That is also the reason I have decided to order, as I had indicated I was inclined to do, short oral submissions on country about the effect of the lay evidence: that is, not final closing submissions, but rather each party’s summary submissions of the effect of the lay evidence.

43    I have given some weight to this factor, which tends against the earlier dates.

Preparation time

44    This is also a matter to which I have given some weight. Mr Knobel deposed that of the nine members who comprise the applicant three live on Badu, two live on Moa, one lives on Thursday Island, one lives on Horn Island, one lives in Bamaga and one lives in Townsville. At least one member of the applicant does not have access to a telephone or laptop computer capable of video conferencing. Thus even getting instructions from the applicant poses considerable challenges, especially given the added restrictions due to COVID-19. I accept members of the applicant have a preference for meetings in person.

45    However, as I observed during the hearing, the COVID-19 pandemic has meant that many people, in many industries and walks of life, have had to adjust to communicating in ways that are less than ideal, and not their preference. The Court’s conduct of hearings by Teams is but one example; there are many more extreme ones. Children are schooled from home; university students are learning online; health practitioners can only deliver health care through telehealth in some circumstances. Therefore, all parties must make reasonable adjustments and adaptations, because proceedings simply cannot be put on hold. That is especially so in matters such as native title, where the repositories of the most important knowledge are generally older people, and the passage of time is prejudicial to their ability to participate in proceedings.

46    Therefore, in terms of taking instructions, I am less persuaded about the arguments that this can only occur in face-to-face meetings. However, what I am persuaded about is Mr Knobel’s evidence about the time needed to prepare evidence. Since the Badulgal respondents are not yet legally represented, they did not present any evidence on this matter, but some of the same considerations will apply to them, regardless.

47    Mr Knobel deposed (at [10]):

Whilst every effort will be made to do the most amount of work in any trips approved up to Torres Strait, the preparation of the evidence is likely to require (at the minimum) three trips:

a.    The first trip is required to provide information to members of the claim group, take instructions from the Applicant, to identify the persons whom the three groups regard as the people most capable of giving evidence relevant to the connection of Badugal, Mualgal and Kauareg to Warral and Ului and to commence the process with the persons so identified.

b.    The second trip will be required to further develop the evidence with the witnesses and carry out a survey of the locations at which the witnesses will give their evidence including development of the logistics which will be necessary for the Court and parties to participate in the hearing.

c.    The third trip will be for the purpose of proofing the witnesses prior to the hearing including at the locations selected.

48    Ms Phillips expanded on this during oral submissions, emphasising that the applicant is a recently constituted applicant, and previously the applicant’s legal representative only acted for the Badulgal, so there is less familiarity with the likely sources for evidence from the Mualgal and Kaurareg peoples. I accept that is an important consideration. I accept that it is likely that three trips to the Torres Strait will be required.

49    The fact that only outlines of evidence are required should alleviate some of the preparation time, and also remove the need to have affidavits translated and witnessed, and other time-consuming processes. Obviously interpreters may still be needed for proofing witnesses and preparing outlines.

50    The Court would expect as much use as possible to be made of evidence led in the Akiba proceeding. The Court understands that evidence was also video recorded and that should be examined as a potential source as well.

51    I note that in their joinder application the Badulgal respondents gave an account of law and custom connecting them to Warral and Ului. While I accept this was not intended to be a complete account, it gives some indication of the scope of the evidence, which is not tremendous. The three-week hearing estimate incorporates, as I understand it, quite a lot of travelling between islands and evidence being given in different places. However, I would not have thought the actual volume of evidence to be adduced should be especially large.

52    Another factor is that senior counsel for the State submitted there needed to be a lengthy gap between the filing of the outlines and the hearing. She nominated three months. I accept a reasonable gap is necessary. However, for it to be that large, a hearing in March or April is simply not feasible, taking into account Mr Knobel’s evidence. Although the present time of year is ideal for trips to the Torres Strait, the applicant has no funding. It has not had full funding since 30 June this year and counsel and solicitors have often been acting for no fee. That is commendable but unsustainable. The reality is that funding decisions are likely to be made as soon as practicable after the Court has pronounced its orders and given its reasons, so the funders can see what is required to be done.

53    It might be reasonable to expect that a funding decision could be made in late September or early October, which should still enable some work to be done this year and perhaps one or even two trips to the Torres Strait before the monsoon season starts in December. However, this is presently too speculative to provide a basis for the Court’s decision on the timing of the on-country hearing. While Mr Pickering indicated the TSRA would attend to the funding application by the applicant, and to any funding request by the Badulgal respondents, there is no evidence about how long that might take, even if the TSRA uses its best endeavours to arrange funding as soon as practicable.

54    In relation to the Badulgal respondents, there was at the time of the case management hearing no funding application even lodged yet. The Court has emphasised on several occasions to the Badulgal respondents that they cannot delay in applying for funding to secure legal representation, if that is what they wish to do. It seems they have delayed to this point. The Court has made it clear that preparation for the on-country hearing will continue, and it is the responsibility of the Badulgal respondents to determine if they wish to present their case themselves, or with the assistance of Ms Bowie, or with the assistance of legal representatives. If the latter, those representatives will need to be funded. Participating in and complying with court timetables is part of the responsibility which comes with being joined as a party to the proceeding: the party must, as s 37N(1) of the Federal Court of Australia Act 1976 (Cth) states,

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.

55    The overarching purpose, in s 37M(1), is

to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(Emphasis added.)

56    Therefore, while Ms Bowie informed the Court that the Badulgal respondents were taking steps now to apply for funding, their progress has been slow and I do not consider the applicant and the State should have to wait until the Badulgal respondents pronounce themselves ready to start trial preparation. The Court’s timetable will be prepared on the basis that the Badulgal respondents will have to meet the same timetable as the applicant.

57    Regrettably, I do not consider there is a certain enough basis for the entire timetable to be premised on the applicant being able to make two trips out to the Torres Strait in October and November. This would need to occur, it seems to me, in order for the applicant and the Badulgal respondents to be ready for a hearing in April and in order to give the State enough time to consider the evidence that is filed. The funding situation is simply too uncertain for the Court to proceed on this basis. That is very unfortunate indeed.

58    Of course, if funding is forthcoming in time for two trips to be made this year, and the evidence is able to be prepared earlier, then the applicant should promptly inform the Court. The Court will then reconsider whether it is indeed possible to bring forward the on-country hearing to April 2021. In that case, the Court would require better information about the weather and seasonal conditions in April in the Torres Strait. While that timing would have the disadvantage of being within the crayfishing season, the considerable advantage this option has is that the whole of the trial of the separate question would be easily completed before the end of 2021.

59    Given the uncertainty in the funding situation, however, the timetable will presently be set on the basis of a hearing in early October 2021, but I have attempted to strike dates for the filing of outlines of evidence which would make an April 2021 hearing achievable, if the TSRA, as the responsible representative body, organises funding in time for that to occur.

Delaying other Torres Strait proceedings?

60    The State emphasised the need for a holistic approach to all the matters in the Torres Strait, referring to the current joint programming orders for all matters. It contends (at [6]-[7]):

Should the timetable proceed on such a basis, then this claim (noting that it is only the lay evidence that is being timetabled) is unlikely to be finished hearing until well into 2022.

Such a delay is problematic in circumstances where the evidence and issues regarding connection for this claim remain inextricably linked to other claims in the Torres Strait, in particular, the part of the Torres Strait Regional Seas Claim (Part B) (QUD27/19) that wholly surrounds the islands of Waral and Ului below the high water mark.

61    As I explain below, I do not accept the progress of each of the Torres Strait matters is as dependent on the others as the State’s position suggests.

62    All of the Torres Strait matters have remained unresolved for far too long. As the list given by the applicant in submissions shows, aside from Akiba in 2010 and Mosby on behalf of the Kulkalgal People v State of Queensland [2014] FCA 628 in 2014, there have been no determinations in the Torres Strait since 2006. Several of my own previous decisions have explained the twists and turns which have at least in part been responsible for this hiatus, but there must be no more prevaricating, no more excuses for not giving all the people of the Torres Strait the finality in relation to their native title which they deserve. The Court needs to do its part, along with the parties and the funding agencies too. Native title in parts of the Torres Strait has been recognised on a sufficient number of occasions, especially by the Akiba decision, for the Court to say with some confidence that there is unlikely to be a question of whether there is native title in the remaining areas, but who holds it. Therefore, some prominence must continue to be given to having these matters resolved as efficiently as possible, while also ensuring that a fair process is undertaken.

63    I had hoped, and indeed had publicly expressed such hope at a case management conference in Cairns last year, that the areas covered by the Torres Strait Part B claim could be determined this year. That was of course before the COVID-19 pandemic, but also before the Court was informed of the very lengthy program the parties had in mind to negotiate a different claim structure, have that authorised by the various groups, and then file restructured claims. The parties have proposed, and the Court has accepted, a model which “front loads” the work so that it is completed prior to the filing of these proposed restructured claims. On that model authorisation by the claim groups occurs just prior to the restructured claims being lodged, and after the State has, through the negotiation process, had substantive input so that any concerns it has can be addressed.

64    As the Warral and Ului claim demonstrates, the authorisation process may not end up going the way it was planned. I do not say that critically of anyone, but rather to illustrate that there is a real and not fanciful risk at various points in this process of claims being derailed, stalled or the subject of new disputes. It has been a feature of the Torres Strait matters since I first took over case management of them in 2016. First, it was the Torres Strait Part B sea claim, which was beset by a range of problems relating to the composition of the applicant, to funding, and to the role of the TSRA. My previous decisions addressed those issues in detail: Akiba v State of Queensland [2017] FCA 1336; Akiba v State of Queensland [2017] FCA 1438; Akiba v State of Queensland [2017] FCA 1560; Akiba v State of Queensland [2018] FCA 772; 263 FCR 409. Those problems were resolved in 2019, with the authorisation of a new applicant and a wholesale change in attitude by the TSRA, which has been both responsible and welcome. Then, almost immediately after this was resolved, the Kaurareg claims experienced a dispute also about the composition of the applicant, which led to enormous disruption, change of legal representation and delay: see Savage v State of Queensland [2020] FCA 231. Then, no sooner than the Kaurareg claims were back on an even keel, did the present dispute in the Warral and Ului claim emerge. That history provides a probative basis for the Court taking into account that it cannot be assumed there will not be further disputes or disruptions, and where that leads in my opinion is that the best way to manage the new proposed regionally focused approach is to require the parties to just keep working to the timetables that have been agreed which, after all, and as I have observed before, are not towards trial but towards a negotiated outcome.

65    It seems to me that what is most likely to happen because of the Warral and Ului separate question process is that there may be some additional evidence about native title in and around those two islands, including (I accept) evidence about native title to the seas around the islands. If and when anything emerges which is unexpected, the parties will simply need to be ready to take that into account and continue to move forward with the rest of their negotiations. If at some stage some impassable road block emerges, then the Court will hear the parties on what should be done to work around it, but there will need to be detailed evidence to support any suggestion that timetabled work should slow or stop. Because all the timetabled work is occurring as part of a negotiation, it is not transparent at all to the Court. If the Court is going to be asked, yet again, to accept further delay in proceedings which have already been delayed, then probative evidence will have to be adduced to explain the connection issues, in detail, which necessitate further delay.

66    The other option, which should be articulated so that the parties are aware that the Court’s acceptance of further delay is not a “given”, is that the proceedings are exposed to dismissal for want of prosecution, and the parties may be left to negotiate until they can being new claims. That would mean a loss of future act rights, of course, and may affect funding decisions. The other option which should be articulated is that proceedings may simply be set down for trial.

67    I cannot emphasise strongly enough that although the situation is far from ideal, and parties such as the State are needing to engage in some juggling and readjustments, the parties should not operate on the expectation that the presently agreed timetables in any other Torres Strait proceeding (and I include in this the Northern and North Eastern Peninsula sea claims) will be further delayed or put on hold because of the Warral and Ului separate question.

Other preparatory orders

68    The following steps will be taken in order to reduce the costs of the separate question and facilitate the efficient conduct of the proceeding:

(a)    The Badulgal respondents will file their outlines after the applicant. That should assist the Badulgal respondents to include evidence that is responsive to the evidence of the applicant, and may reduce the necessary scope of the Badulgal respondents’ evidence, if there is agreement on some aspects.

(b)    There will be no reply evidence. Reply evidence from the applicant to the evidence of the Badulgal respondents can be given orally on country

(c)    There will be no objections process. Evidence is being given orally and objections can be taken at the time of the evidence. Objections to any documents adduced through a witness will also be dealt with orally on country, and rulings made.

(d)    No party other than the applicant and the Badulgal respondents will be permitted to adduce lay evidence, unless leave has been granted. Leave will only be granted on application, supported by affidavit.

(e)    There will be short submissions at the conclusion of the on-country hearing (with a gap of a day or two if the parties request it for preparation). The Court expects this would take no more than a day, but would allow two days if the parties request it. The purpose is for each party to summarise for the Court the key points it considers have emerged from the lay evidence, and what the evidence means for each party’s case as outlined in its concise statement.

(f)    The parties will be required to file a draft trial timetable early in the trial preparation process, so that all those invited are able to make travel plans as early as possible. The Court accepts changes may be necessary but in broad compass expects the parties to work co-operatively, with the assistance of Judicial Registrar Grant, to identify at least the geographical locations for the hearing, and the duration of time to be spent in each location.

(g)    The hearing will start on 6 October 2021, allowing time for travel on 5 October 2021, 4 October 2021 being a public holiday in Queensland. As I have noted, in the happy event that funding decisions are made in time for work to be done in the Torres Strait this year, the Court will reconsider whether an April 2021 listing is possible.

(h)    The Court agrees with the State that the parties should identify what parts of the transcript of evidence from Akiba the party proposes to rely upon (if any).

(i)    In my view the parties can work co-operatively on a joint statement of customary and cultural concerns. There have been hearings in the Torres Strait before and the parties should be well aware of what needs to be in such a document. This will reduce costs.

69    If the disputes are not resolved by the on-country mediation, the parties should not assume they will be given a long period of time after the on-country hearing to prepare any expert evidence. They will be expected to be working with their experts during the rest of this year and next year to assist the experts to be ready to provide any opinion evidence to the Court at relatively short notice. The parties should assume there will be a compulsory experts’ conference and a joint report, also to be organised in a relatively short period of time after the on-country hearing, such process to be tightly managed by Judicial Registrar Grant. While the parties will be heard on the form of expert evidence, the parties should not assume the Court will make orders providing for full anthropological reports, in an open-ended way. The Court will expect the parties to confer and ascertain if there is a more economical and quicker way for short-form anthropological opinion to be provided.

Associate:

Dated:    21 September 2020