Federal Court of Australia

Nona of behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland [2021] FCA 1059

ORDERS

THE COURT ORDERS THAT:

1.    Subject to the exemption process through Queensland Health, the trial of the separate question and the proposed mediation are to continue as listed, on country in the Torres Strait, from 6 October 2021, with an estimate of three to four weeks.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This matter is listed for an on-country hearing, commencing 6 October 2021, with an estimate of three to four weeks, including an on-country mediation at the conclusion of the lay evidence. The hearing and the mediation concern a dispute between the applicant (comprising representatives of three claim groups – the Mualgal People, the Badulgal People and the Kaurareg People) and the Badulgal respondents (a group of Badulgal People) about who holds native title in the islands of Warral and Ului and certain islands along the north-western coast of Ului, as well as the banks, reefs and waters surrounding each of those islands out to the mean high water mark at spring tide. In Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [9]-[10] I described the islands as follows:

Warral and Ului lie in the Torres Strait, between the islands of Badu and Moa to the north and the inner islands of the Torres Strait, including Murulag (Prince of Wales Island) and Ngurapai (Horn Island), to the south. Badu has been determined to be Badulgal country (see Nona v State of Queensland [2004] FCA 1578), Moa has been determined to be Mualgal country (see Mualgal People v State of Queensland [1999] FCA 157) and Murulag and Ngurapai have been determined to be Kaurareg country (see Kaurareg People v State of Queensland [2001] FCA 657).

Native title has been determined to exist in most of the islands in the area. That includes a determination that native title exists and is held by the Badulgal and the Mualgal over “numerous uninhabited small islands, islets and rocks” lying just north of Warral and Ului: see Nona v State of Queensland [2006] FCA 412 at [1].

2    The claims made by the Badulgal respondents are summarised in Nona at [47].

3    On 21 September 2020, and after detailed submissions and hearings, the Court made the following order:

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?

4    In its case management of this proceeding for over a year, the Court has been very specific about a number of matters. First, the priority is for the Court to take the lay evidence, so as to understand, from those who claim native title, how each side to this dispute says the islands belong, and have always belonged, to them. Despite the challenges with funding, the applicant and the Badulgal respondents have been diligent in gathering witness outlines and in preparing for the giving of lay evidence. The Court has made it clear on a number of occasions that it does not consider it appropriate for the parties, including the State, to adduce any expert evidence at this stage. What matters at this stage, pre-eminently, is how the native title claimants themselves explain the traditional laws and customs which are said to give rise to their ownership of the islands, and explain how their histories, and their family and community histories of occupation and use of the islands and the surrounding islands and waters, bear out or support the accounts they are giving.

5    Consistently with this focus, the second matter the Court has been specific about is that the applicant and the Badulgal respondents will be required to participate in an on-country mediation at the conclusion of the lay evidence. The Court considers this an indispensable part of the conduct of the proceeding, which is compatible with the emphasis in the Native Title Act 1993 (Cth) on negotiated and mediated outcomes. Having been deeply involved in these proceedings, and the surrounding Torres Strait Sea Claim proceedings for several years now, it is the Court’s view that while currently the Badulgal respondents in particular see no room for a negotiated outcome, both the Badulgal respondents and the members of the three claim groups which the applicant represents will be in a much more informed position to consider and conduct negotiations after the lay evidence has been heard, and tested. With the assistance of their legal representatives, the claim group members and the Badulgal respondents will be able to understand the strengths and weaknesses of the fundamental source evidence on each side.

6    Third, the Court has been clear that it wishes to hear the key evidence given orally, not by way of witness statement or affidavit. The parties have been co-operative in identifying those parts of the evidence which are not in dispute, and not controversial, and which can be led in writing. However, the point of the lay evidence hearing is very much to hear directly and in their own voice from those with connections to the islands, the surrounding islands and the surrounding waters. It has become clear there is a need for interpreters for a considerable number of witnesses. Some of the key witnesses are also older people.

7    Fourth, the applicant and the Badulgal respondents have emphasised the importance of the Court having a view of the islands, and the Court has accepted this is critical. It is clear from the affidavits filed in support of the joinder application by the Badulgal respondents, and by the witness outlines filed on behalf of the applicant and the Badulgal respondents, that the position of the islands, in the context of sea country and land around them for a considerable area, is critical to understanding how and why native title is held. The geographical and physical features of the islands themselves, and the reefs around them, are also matters of importance, from the affidavits and outlines filed.

8    The Court’s adherence to these matters over a long period of time has informed its decision on whether, if possible, the trial should go ahead in October 2021, even though this will involve some hardship for those who have to travel from interstate.

Recent funding impediments

9    There have been a number of recent case management hearings, and some delays in trial preparation, principally caused to this point by uncertainty about whether the applicant and the Badulgal respondents would receive any, or any adequate, funding for the trial.

10    That matter was very recently resolved satisfactorily at a case management hearing on 27 August 2021 (27 August CMH). At the 27 August CMH, Mr Jock Pickering from the Torres Strait Regional Authority (TSRA), the body to which the applicant and Badulgal respondents applied for funding of their legal costs, confirmed that the TSRA, with assistance from the Commonwealth’s National Indigenous Australians Agency, had made offers of funding to the applicant and Badulgal respondents in accordance with the funding estimates provided by them for the ongoing preparation and conduct of the hearing of on-country lay evidence and the post-hearing on-country mediation, as currently listed from 6 October 2021. An interlocutory application by the Badulgal respondents to vacate the October 2021 hearing because no funding was available has accordingly been withdrawn.

11    The Court was subsequently informed that, subject only to confirmation of the dates for which funding is provided depending on the outcome of the Court’s decision about the October trial going ahead, the applicant and the Badulgal respondents were prepared to accept the terms and conditions of the TSRA’s offers of funding.

12    The basis on which the funding was sought, and granted, was for the two aspects of the trial in October 2021. While it is perhaps not the decisive factor, and no doubt the period covered by the funding could be altered if the trial is adjourned, it has been challenging to say the least for the applicant and the Badulgal respondents to secure funding, so it is desirable that, now it has been secured, some certainty to the (considerable) expenditure of public funds be given. As I explain below, there is little certainty attending any adjournment.

Importance of this trial to other cases in the Torres Strait

13    It is common ground, and has been the subject of previous submissions to the Court by all active parties, that the outcome of the Warral and Ului hearing will have particular relevance to the Torres Strait Regional Sea Claim (Part B) (QUD27/2019), other Kaurareg claims (QUD10/2019; QUD24/2019; QUD26/2019) and also to the Northern Peninsula claims (QUD114/2017; QUD115/2017).

14    These matters are all being jointly managed by me, and after many years of being somewhat “stuck”, they are all now subject to complex and detailed timetables towards consent determinations. However, and it is a significant qualification on the previous statement, that progress depends on the authorisation of new, combined claims, which in turn depend not only on claim group authorisation of such new claims, but on a view about how native title is held in the remainder of the Torres Strait, which is capable of being affected by the outcome in Warral and Ului. I say “capable”, because it is also possible, it seems to me, that findings about how native title is held in relation to Warral and Ului may be confined to findings about this claim area, and may not necessarily have any impact on the agreed wider position.

15    Nevertheless, at this early stage, I accept it is important to recognise the way all parties say the conduct and outcome of this trial has wider and potentially significant implications for all of the remaining native title claims which involve land and waters in the Torres Strait. In one set of submissions filed on behalf of the State, the submission was made that:

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/[20]19) that wholly surrounds the islands of War[r]al and Ului below the high water mark.

16    It is also important to recall that the State has not formally accepted connection in any of these claims.

17    The programmed steps in the other Torres Strait claims, if I may collectively describe them in that way, have also been delayed because of the COVID-19 pandemic. Nevertheless, the parties in those matters have been working hard, with the considerable assistance of Judicial Registrar Grant and at times with the assistance of Indigenous co-mediators, to stay as close as possible to the programmed timetable. The Court has insisted that active steps continue to be taken in these proceedings, notwithstanding this dispute over Warral and Ului: see Nona on behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 2) [2020] FCA 1353 at [60]-[67].

18    A significant delay in the hearing of the Warral and Ului claim would be likely to cause revision to those timetables, and could result in severe disruption to all native title claims in the Torres Strait, in circumstances where, subject to acceptance of connection by the State and authorisation by the respective claim groups, most of them are being managed on the basis that they are capable of being resolved by consent. That is an outcome which should be avoided if at all possible. The Warral and Ului trial was always programmed by the Court with the intention that it would be resolved as soon as practicable, given its relationship to these other matters. It was on that basis that I said in Nona (No 2) at [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.

19    What is programmed for October 2021 is not the whole of the separate question trial in Warral and Ului. If the on-country mediation is successful, it may be that no further separate question trial is required. If it is not successful, then at the moment the Court understands all parties wish to adduce expert evidence (although the Court has expressed some reservations about this aspect of any future trial), and on any view there needs also to be full written submissions, as well as the summary oral submissions which are already planned to occur on country. There are at least several more months’ work in this aspect of the trial. Then there is the time needed for the Court to consider the evidence and prepare a judgment. That will at the very least involve another several months. The most conservative (and probably too compressed) estimate for all this would be in the order of 8 months, from October 2021. That would have judgment in mid-2022. It is clear if the October trial is adjourned, there is likely not to be a resolution to this matter well into 2023. Given the Court’s experience in the Torres Strait matters over the last four years in terms of the complexities attending them, that may well mean no resolution to rest of the Torres Strait matters until into 2024. Sadly, it could reasonably be expected that may be too late for some current elders, and it is a very considerable delay on claims that are already more than a decade old.

The latest case management hearing and the impact of the pandemic

20    The 27 August CMH was for the purpose of ascertaining if the funding issues had been resolved and, if so, for considering what should occur in relation to the October 2021 trial given the current situation in Australia with the COVID-19 pandemic. The Court outlined a number of issues it saw as relevant, and invited the parties to nominate other issues, and to address the issues raised by the Court.

21    It is fair to say counsel or all parties acknowledged the difficulties of the situation, and that there were no clear answers to whether the trial should proceed, as both proceeding and adjourning had advantages and disadvantages.

The geographical locations of those participating in the trial

22    Typically for a national court, and also typically for the native title jurisdiction, the participants in the separate question trial are based all over Australia. The imposition of severe and rapidly changing border restrictions makes the geographical location of the participants a dominant feature for consideration.

23    All of the witnesses for the Badulgal respondents and most of the witnesses for the applicant are based in the Torres Strait itself. Based on the most current witness outlines before the Court, only three of the applicant’s 13 witnesses are not based in the Torres Strait – these witnesses reside in Townsville or Cape York.

24    The Court participants are based in Melbourne (myself and my Associates), Brisbane (Judicial Registrar Grant and Mr Neill Warner) and Perth (Mr Dave Oldland and Ms Margaret Oldland, Transcripts Australia).

25    The legal representatives for the applicant are based in Canberra (Mr Blowes SC), Sydney (Ms Phillips) and the Sunshine Coast (Mr Knobel).

26    The legal representatives for the Badulgal respondents are based in Sydney (Mr McAvoy SC and Mr Smith) and Melbourne (Mr Bero).

27    The legal representatives for the State are based in Brisbane (Ms Kidson QC, Mr McKechnie and their instructors).

28    The legal representatives for the Commonwealth are based in Adelaide (Ms Webb QC) and Brisbane (Ms Webb QC’s instructors).

The vaccination status of all participants

29    This was expressly canvassed by the Court at the 27 August CMH. All participants travelling from outside Queensland are, or will be by the time of the trial, fully vaccinated against COVID-19.

30    Counsel for the applicant and the Badulgal respondents were unable to inform the Court whether all the witnesses, and other claim group and community members attending the on-country hearing would be vaccinated.

Border restrictions and hotel quarantine

31    At the time of the 27 August CMH, border restrictions in Queensland meant that those participants travelling from NSW, ACT or Victoria:

(a)    required an exemption from Queensland Health to enter Queensland; and

(b)    would be required to undergo 14 days’ hotel quarantine in Cairns (being the departure point for the Torres Strait).

32    An available exemption category under para [26b.] of the Border Restrictions Direction (No. 39) issued by Queensland’s Chief Health Officer under s 362B of the Public Health Act 2005 (Qld) is entry required to comply with a court order:

PART 3 – ENTRY TO QUEENSLAND – FROM A COVID-19 HOTSPOT

26.    A person who has been in a COVID-19 hotspot in the previous 14 days or since the start date identified for the COVID-19 hotspot, whichever is shorter, must not enter Queensland unless the person:

…

b.    is required to comply with an order to attend a Court or Tribunal in-person in Queensland or to give effect to orders of a Court or Tribunal in-person in Queensland

…

33    The Court made orders for the trial of this matter in September 2020, and obviously there have been a series of orders since then relating to trial preparation, and conduct of the trial. A further order will be made as part of these reasons, confirming the trial is to commence on country in the Torres Strait on 6 October 2021, and attaching the current version of the proposed trial schedule.

34    The 27 August CMH was conducted on the basis that, if the trial were to proceed in October 2021, all interstate participants entering from NSW, ACT and Victoria would comply with the restrictions and requirements imposed on any person from NSW, ACT and Victoria who sought to enter Queensland.

35    Specifically, all those participants from NSW, ACT and Victoria confirmed at the 27 August CMH that they were prepared to undergo hotel quarantine, and abide the risks which accompany ever-changing border restrictions.

36    Those participants coming from Western Australia and South Australia were, at the time of the 27 August CMH, able to enter Queensland without an exemption, and would not be required to undergo hotel quarantine. However, there was no indication that if the COVID-19 situation changed in those States, the participants from those States would not be willing to undergo hotel quarantine and abide any changed border restrictions.

The options from here

37    The following options were canvassed.

(a)    Adjourn the October tranche of the separate question. While the months of October to December are, on evidence previously adduced in case management hearings, the optimal times for an on country hearing in the Torres Strait, it was clear that there was little point in adjourning until December 2021 when first, there may be insufficient time for the hearing and mediation, and second, the pandemic situation may not be appreciably different to October. The more likely time for an adjourned trial appeared to be February to March 2022. Previous evidence indicates that the weather conditions in the Torres Strait at that time of the year would not preclude a hearing, but they would be less than ideal. That time of year is also crayfishing season, which I found in Nona (No 2) may affect witnesses’ and the community’s ability to attend, as well as the extent of available resources (such as boats). Those are not trivial issues in the Torres Strait; they concern people’s livelihoods. However, all counsel confirmed they were available from around 20 February 2022 until the end of March 2022. In Nona (No 2) at [29]-[43] I explained why, on the evidence before the Court, October was the safest, most convenient and conducive time of the year for an on-country hearing. The State supported this option, when pressed, although senior counsel made it clear the State was willing to proceed in October if the other parties wished to do so, and the Court decided that is what should occur.

(b)    Adjourn the October tranche and divide the hearing into parts. This was discussed, but my impression was this proposal did not enjoy much support. It would involve, for example, separating opening submissions and doing those remotely in October 2021. Discussion was undertaken about whether the on-country lay evidence could be heard, at least in part, in December 2021 and then resumed, together with the on-country mediation, in February 2022. There was some discussion whether some evidence might be taken remotely and/or the mediation conducted remotely. There was little support for this, for the reasons I outline below. Aside from being disjointed, and perhaps increasing preparation time and eating into funding allocations, this option is also likely to disengage the Torres Strait communities affected by the separate question who could then only listen and observe through an audio-visual link (such as Microsoft Teams) if they had access to computers and reliable internet. It would also disengage the legal representatives for the applicant and the Badulgal respondents from their respective clients and witnesses. Mr McAvoy SC noted for example that his instructor Mr Bero had not yet even been able to meet his clients in person, and that it was planned the Badulgal respondents’ legal representatives would travel to the Torres Strait a week to 10 days ahead of 6 October 2021. I understood this was so that good personal working relationships could be established with the Badulgal respondents and their witnesses ahead of the trial, especially given the important mediation which was scheduled to occur. Although the applicant’s legal representatives have had a longer association with their clients, similar considerations apply to them, in terms of the timing of their arrival in the Torres Strait ahead of the trial. Respectfully, I accept that approach is consistent with the obligations of the legal practitioners concerned.

(c)    Maintain the October 2021 trial dates. The Badulgal respondents strongly supported this option. Senior counsel for the Commonwealth also appeared to support this option, by submitting that “we can’t say there is a present basis – anything stopping, at this moment, the trial going ahead”. The applicant also initially supported this option, although counsel for the applicant expressed a number of reservations and, when pressed, supported an adjournment to February 2022, while acknowledging her clients were prepared to participate in the trial in October 2021 if the Court determined that was the preferred option.

(d)    Maintain the present October dates and conduct the trial in Cairns (or Brisbane). Mr McAvoy SC for the Badulgal respondents indicated his clients were prepared to agree to this, as a much less preferable option than an on-country hearing, but as a way to maintain the October 2021 trial dates. However, for all interstate participants, the difficulties and risks (which I discuss below) of crossing the border remain the same regardless of whether the trial is conducted in Cairns (or Brisbane) or in the Torres Strait. Conducting the trial in Cairns or Brisbane would add three further negative factors. First, the personal risk to those coming from the Torres Strait would be increased: both Cairns and Brisbane have been in lockdown at various stages, and the prospect of further COVID-19 outbreaks in those locations is real. Therefore, people travelling from the Torres Strait would be entering a higher risk COVID-19 environment. Second, they would also be at risk of being caught up in lockdowns. The Court can take judicial notice of the increased risks associated with the Delta variant of the virus. In New Zealand, a single case sent the country into lockdown several weeks ago. That single case has since become 724 cases, and Auckland remains in Level 4 lockdown. The added vulnerability of Aboriginal and Torres Strait Islander people can be seen by the tragedy unfolding in Western NSW. As a previous case management hearing in July 2021 revealed, the costs associated with funding the travel of witnesses, other community members and support people from the Torres Strait to a trial location in Cairns (let alone Brisbane) is enormous. This option transfers the financial burden for travel and accommodation from the well-resourced parties (the State, the Commonwealth and the Court) to the chronically poorly resourced parties (the native title claimants). Neither the State nor the Commonwealth have offered, despite the Court making several inquiries, to fund such expense for the native title claimants. Those parties no doubt have reasons they consider justifiable for that position, but the fact is those parties are not a source of any assistance for additional financial burdens caused by moving the trial. To transfer an additional financial burden like that to the native title claimants, especially after all the funding difficulties which have occurred just to be able to fund the trial at all, is not a just or appropriate solution.

(e)    Conduct the entire hearing remotely in October 2021. No counsel suggested this was practicable. Senior counsel for the State submitted that if the trial was adjourned, and then in February/March 2022 an on-country hearing was still not feasible because of the COVID-19 situation, consideration might have to be given to the trial being conducted remotely instead of the trial being further postponed from then. However she expressly adverted to the real difficulties in a remote hearing. As I explain below, there would be real questions about whether any such trial conducted remotely was seen, by those affected, to be a fair trial and whether the decisions made by the Court as a result of such a trial would be apprehended to be just and reliable outcomes, which could be accepted by the communities of the Torres Strait as settling the question of who holds native title in the Warral and Ului claim area.

The position of the native title holding communities in the Torres Strait

38    A key consideration for the Court, which was discussed at the 27 August CMH, is the attitude of the communities of the Torres Strait themselves to the on-country hearing proceeding in October 2021. Mr Pickering from the TSRA, who has been extremely helpful to the Court in the logistical arrangements, agreed to make appropriate inquiries with the relevant registered native title bodies corporate (RNTBCs) and other landholding entities in the islands. To date, the result of those inquiries is that, subject to a formal request for permission being sent on behalf of the Court to the RNTBCs, and subject also to all participants complying with all relevant restrictions and laws (such as quarantine), there is no objection from the communities in the Torres Strait (in particular, the communities on Badu, Moa and Waiben (Thursday Island)) to the on-country hearing proceeding on those islands in October 2021.

The issues with conducting the October tranche remotely

39    Several factors were raised by the parties, and to that may be added the experience of the Court in native title connection trials, which is essentially what the separate question trial is.

40    Ms Phillips made it clear that her clients “very much want the court to come and have a view and for the evidence to be done, at least, with our legal teams present with our clients.” She also endorsed the submissions of Mr McAvoy SC about the difficulties in the trial being conducted remotely.

41    Mr McAvoy SC referred to his experiences with the Commonwealth government’s Royal Commission into the Protection and Detention of Children in the Northern Territory and the taking of evidence remotely from Aboriginal witnesses. He observed that the quality of the evidence was greatly enhanced if counsel were in the same location as the witness, and if not then language and cultural issues became much more difficult to navigate. He submitted that remote interviews and examination would be problematic for his clients and their witnesses. He also referred back to a matter his junior counsel Mr Smith raised at the previous case management hearing in July 2021; namely the economic benefits to the Torres Strait, in difficult times, of a relatively large undertaking such as this trial being conducted on country.

42    For the State, Ms Kidson QC also accepted the difficulties of a remote hearing, and noted the additional difficulties of evidence being given through interpreters, as well as remotely.

43    I accept all of those factors illustrate the impracticability of conducting this trial remotely.

44    It is the consistent experience of this Court in native title proceedings that the best and most reliable evidence is given by Aboriginal and Torres Strait Islander people on their country, and where they are able to show the Court and participating parties what they are explaining or describing, where they can be comfortable with their families and other support people in giving evidence about sometimes highly sensitive matters, and invariably matters that are inextricably linked to Country itself. This is all the more so when the matters in issue are disputes between Indigenous groups, as here. Since native title proceedings generally involve group or communal rights, the participation and presence of members of the claim groups other than those who might be witnesses is also vital. Witnesses will give better evidence if they are confident all appropriate members of the community are present, so that if necessary others can correct them about what they are describing or saying, but also hear and know what the witnesses have said. The subject matter of the evidence is laws and customs shared between all members of the communities, so community presence and knowledge of what is being said is seen as vital by the claims groups as a whole, and by the witnesses.

45    Experience has shown that evidence given about native title in any kind of environment distanced from country tends to be far less fulsome, and indeed it can be very difficult to encourage witnesses to say very much at all.

46    One of the objects of a trial is to secure the best and most reliable evidence about the issues in dispute; this is most likely to facilitate the just and appropriate resolution of the dispute between the parties. I am confident from past experience, including past experience conducting hearings remotely over the last 18 months, that there would be a real risk of the Court not obtaining the best and most reliable evidence if this trial were to be conducted remotely.

47    Further, I am also persuaded that the perception of the fairness of the trial by the claim groups represented by the applicant, and by the Badulgal respondents and those who support them, would be imperilled. The Court is deciding a weighty matter for these communities, with long-term effects, and their acceptance of, and respect for, the outcome will be in part dependent on their views about the fairness and appropriateness of the way the trial was conducted.

48    The Court recognises the strength of traditional law and custom in the Torres Strait, the maintenance of connection to land and waters, and the weight afforded to doing business on country, and in person. That is the way of the Torres Strait.

49    While the COVID-19 pandemic has challenged and disrupted this way of doing business, including Court business, as these reasons have sought to explain, for both the just resolution of the current dispute, and the proper administration of justice in terms of the final determination of how native title is to be held and exercised in those parts of the Torres Strait not yet determined, there are some points in the Court process where remote hearings are incapable of delivering a fair hearing and an outcome that is perceived to be just. This is one of them.

The Court’s decision

50    From the matters set out above, it is the Court’s view it is neither just nor practicable to conduct a remote hearing for the lay evidence. The utility and effectiveness of any mediation, if conducted remotely, is also likely to be severely diminished. The whole concept of the arrangement the Court decided on was an on-country hearing where interested claim group members could see and hear the witnesses, and their evidence, see and hear it tested, and then engage, as communities (whether directly or indirectly) in a mediation about whether a negotiated outcome about native title to the islands could be reached. The Court remains of the view that the administration of justice in this matter is best served by that model being maintained.

51    That means the real choice is between continuing with the hearing in October 2021 as ordered, or adjourning the on-country hearing to February and March 2022.

52    The preparedness of all participants from interstate to undergo hotel quarantine demonstrates the commitment of the legal representatives to their clients’ cases and is to be commended. The Court has a similar commitment to the appropriate conduct of this trial.

53    Most trial preparation has been completed. Retaining the October hearing date has the advantages of the least waste of resources, the least disruption to the schedules of all witnesses and legal representatives who have set aside this time now for more than a year, as has the Court, and no disruption to other litigants which is likely if the Court adjourned the trial to February and March 2022 when other matters were already listed. Somewhat tangentially I accept, there are the likely economic benefits in a difficult time to Torres Strait businesses and communities. This option keeps most of the witnesses and claim group members at home, minimising the travel they need to undertake and therefore minimising the risk of exposure to COVID-19. All interstate participants will abide by all restrictions, and are or will be fully vaccinated, so risks have been minimised as much as possible. Retaining the trial dates allows the matter to be heard and determined as soon as reasonably practicable, with less adverse effects on all the other Torres Strait proceedings.

54    On the other hand, in allowing the trial to proceed, there are a multitude of risks which are somewhat incalculable beyond an acknowledgement that they are not fanciful and must be considered as not unlikely to occur. There is a risk that participants may not be granted an exemption to travel by the relevant Queensland government department, Queensland Health. The Court accepts Queensland Health will make independent decisions in the best interests of those it has a responsibility to protect, and the Court will accept whatever decision is made. Even if exemptions are granted, the Court can take judicial notice of the fact that the spread of COVID-19 is unpredictable and swift. It may seem unlikely, given the case numbers in NSW, that Queensland will stay free of COVID-19 over the next few months. Therefore, a number of risks arise. One is that, the Court having decided the trial should proceed, the situation will change between now and the start of October. The recent “pause” by the Queensland government on admissions to hotel quarantine (while expressed not to apply to those with exemptions based on court orders) establishes there continues to be a real risk of rapid changes to border restrictions. The Court can take judicial notice of the fact that State and Territory governments have taken, and are likely to continue to take, immediate decisions with no or little notice to change border restrictions, and restrictions within the State and Territory concerned. Further, there is a tangible risk of further lockdowns within Queensland, or further restrictions on re-entry to other States and Territories from Queensland. This means the trial participants could become stuck in Queensland after the trial, at not only considerable personal cost but also considerable financial cost. There is a real risk that one or more interstate participants could be exposed to COVID-19 in Queensland hotel quarantine and that event could disrupt the trial significantly, as well as have significant consequences for the individual or individuals concerned. While one cannot discount completely the risk that the participants in the trial could bring COVID-19 to the Torres Strait, in my respectful opinion in the circumstances proposed this risk is as negligible as it could be, since all participants will be fully vaccinated and would have done hotel quarantine in Cairns. It is more negligible than the current situation in the Torres Strait, where, as Mr Pickering from the TSRA explained to the Court, people are travelling freely between the Torres Strait and Cairns.

55    Finally, it must be acknowledged that there is no certainty at all that the Court, the parties and their legal representatives will be in any better or different situation to travel to Queensland and the Torres Strait in February and March 2022. Increased and increasing vaccination rates give cause for some optimism, and in reality this is the key consideration in adjourning the matter – the prospect that increased vaccination rates will result in eased border restrictions and freer travel between States. However that an easing of border restrictions will follow increased vaccination rates is far from certain. Again, the Court can take judicial notice of the variety of views expressed by State and Territory leaders and health officials on this matter. Overseas experience suggests that a decrease in restrictions, even with high vaccination rates, has resulted in COVID-19 being present in the community, and cases numbers being higher than, for example, the case numbers currently being experienced in Victoria but which have resulted in Queensland shutting its border to Victoria. What that will mean for interstate travel cannot be predicted. More critically, what that will mean for the people of the Torres Strait, in terms of the risk of COVID-19 spreading into their communities, is also a matter which cannot be predicted. Even if general border restrictions ease, there may remain quarantine restrictions for entry into remote communities. The salient point is that it is far from self-evident that the overall position will be substantially improved or different in February and March 2022, in terms of the logistics and practicalities around the conduct of an on-country hearing in the Torres Strait.

56    The Court is presented with a very difficult decision. On balance I consider there are still more factors weighing in favour of the trial continuing as scheduled in October 2021 than against it. If Queensland Health grants all participants an exemption to travel to Queensland, and allocates places for those from NSW, ACT and Victoria in hotel quarantine, then the reality is that the trial is able to proceed. The Court understands that logistical arrangements (travel and accommodation and the like) have, at least to a great extent, remained in place. The challenges of quarantine, and the risks and uncertainties to which I have referred will exist in September and October 2021, but are also likely to exist (perhaps in different forms) in February and March 2022. Delay beyond early 2022 is the least preferred option by all parties and by the Court, including because of the flow on effect to the other Torres Strait proceedings.

57    I have consulted with the Chief Justice, who is supportive of the trial proceeding in October 2021, subject to Queensland Health being satisfied, through the exemption process, that the proposed arrangements are appropriate in terms of health and safety.

Associate:

Dated:    1 September 2021

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