Federal Court of Australia

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 10) [2022] FCA 1129

ORDERS

THE COURT ORDERS THAT:

1.    Orders 2 and 4 of the orders of Judicial Registrar Stride dated 16 September 2022 be vacated.

2.    Column 4 of items 60 and 79 of the Redmond Part A timetable in annexure A of the orders dated 30 August 2022 be amended from “5 September 2022” and “21 September 2022” (respectively) to “11.00 am AEST on 28 September 2022” in both items.

3.    Column 4 of items 62 and 81 of the Redmond Part A timetable in annexure A of the orders dated 30 August 2022 be amended from “7 September 2022” and “22 September 2022” (respectively) to “3.00 pm on 28 September 2022” in both items.

4.    In the event that the Cook Shire Council does not execute, in compliance with the Court’s orders dated 30 August 2022, as amended by order 2 above, any or all of the s 87A agreements with respect to:

(a)    the Gudang Yadhaykenu native title group in the form circulated by the State on 1 September 2022; or

(b)    the Northern Cape York #2 Identified Parcels in the form circulated by the State on 16 September 2022; or

(c)    the Atambaya native title group in the form circulated by the State on 16 September 2022,

the proceeding will be listed for urgent case management at 4.00 pm AEST on 28 September 2022 by Microsoft Teams.

5.    The applicant, the State and the Cook Shire Council must attend the case management hearing referred to in order 4 prepared to make submissions about the appropriate course to be taken in light of the continued non-compliance by the Cook Shire Council with the orders of the Court, including any application for costs on behalf of the applicant and/or the State against the Cook Shire Council and/or its legal representatives personally.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    A native title consent determination in relation to the Atambaya people is listed in this proceeding approximately two weeks from the date of this decision, being 6 October 2022. A native title consent determination in relation to the Gudang Yadhaykenu people is listed in this proceeding on the same day. Also listed for determination are some individual parcels of land within the Cape York United #1 claim area, which have been described as the “Northern Cape York #2 Identified Parcels”. The narrative about why these parcels are now subject to determination in favour of the NCY#2 group is not relevant to the issues before the Court as a matter of urgency. Suffice to say there is no notified debate about the proposed determinations of native title in respect of those parcels. Indeed, there is no debate notified to the Court about any of the proposed determinations. Connection and tenure issues have been resolved and accepted by all parties. For convenience, in these reasons I will describe these as the October 2022 determinations.

2    The present decision comes about because of the inaction and tardiness of a respondent party, the Cook Shire Council. Yesterday, as a matter of urgency and after a case management hearing in the afternoon of 21 September 2022 listed at the request of the State, the Court made a series of orders. They related to the non-compliance by the Cook Shire Council with the Court’s existing orders in respect of steps critical to the October 2022 determinations being able to proceed. The parties were informed that reasons would follow the next day. These are the reasons for the orders made on 22 September 2022.

3    The Cape York United #1 proceeding has a large number of other respondent parties, aside from the State, with proprietary interests of one kind or another in parts of the overall Cape York United #1 claim area. Only some of those other respondent parties have taken any active role in the proceeding. In the description of ‘other respondent parties’ for the purposes of this decision, I do not include the several Indigenous respondent parties who have been joined as a result of earlier decisions of the Court.

4    As the Court has noted on several prior occasions, the complex nature of this proceeding, the size of the claim area, and its division since April 2020 into regions proposed to be subject to consent determinations under s 87A of the Native Title Act 1993 (Cth), means that here has been significant pressure on the applicant, and the State, to progress work in multiple regions, with multiple groups, to achieve the objectives of the division of the claim in April 2020. I described that process, and what had come before it, in the first set of reasons for a consent determination under s 87A in the proceeding in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) [2021] FCA 1464 at [3], [12]-[16] and [18].

5    The Court’s mediation and case management functions have also been heavily and constantly engaged in order to achieve these objectives. There has been no party which has dissented from the overall objectives of the re-structure of this proceeding from 2020. At all times, the Cook Shire Council has conducted itself in this proceeding in a way which has appeared to be as supportive of these objectives as every other respondent party.

6    However, the actual role of the other respondent parties, including the Cook Shire Council, has been minimal. The resources they have been called on to apply to the proceeding have been minimal, because of the heavy load carried by the State as the principal respondent. All other respondent parties have benefited from the significant human, financial and administrative resources applied by the State to advance the objectives of the proceeding, both in areas where connection has been accepted, and in areas where connection has not yet been accepted but is under consideration. The other respondent parties have also benefitted from the commensurate application of resources by the Cape York Land Council, on behalf of the applicant and claim group members.

7    Nevertheless, at all stages of the proceeding, the other respondent parties have been given regular and full opportunities to participate, to make submissions, and to refine or propose amendments to Court-ordered timetables as they felt necessary to protect or accommodate their interests in the claim area. That includes regular access to case management and mediation by National Judicial Registrar Stride, and regular access to case management by the Court.

8    Since April 2020, detailed timetabling orders have been made in this proceeding for the filing of documents and steps to be taken by various parties. These timetables have taken the form of region-based timetables, initially described by reference to the anthropologist who was responsible for assisting the parties on questions of connection. As connection has been accepted, and boundaries and group descriptions finalised, the names for the areas have reverted to names identifying the particular groups of native title claimants. Progressively, as issues arose, some areas of land and waters were moved from one case management grouping to another, to accommodate the most effective and time-efficient resolution of areas within the overall Cape York United #1 claim area, and to reflect the need for some areas to be held back while matters of connection, group description, boundary identification or tenure were resolved. At all times, and with the encouragement of the Court, the applicant and the State have worked diligently, carefully and tirelessly to make these modifications and keep as much of the area within the Cape York United #1 claim on track for the speediest resolution that is possible. The size and complexity of this task cannot be overstated. It is unique in native title litigation in this country.

9    The October 2022 determinations fall under the “Redmond Part A timetable” area. On the present orders of the Court, the timetable for the Redmond Part A area alone comprises 20 pages, and 83 items involving steps to be taken, with a large number of sub-items. The steps for the Redmond Part A timetable ordered by the Court commenced in November 2020 with the provision by the applicant of a draft consent determination timetable to all respondent parties for comment. That is almost two years ago.

10    The most recent form of the Redmond Part A timetables are set out in the Court’s orders dated 30 August 2022. Some amendments were made by National Judicial Registrar Stride dated 16 September 2022, at the request of the applicant. The Cook Shire Council did not, at this stage, request any variation to the timetable. Indeed, as far as the Court can ascertain, the Cook Shire Council has seldom if ever requested any amendments to timetables from the Court. It has never made any submissions at a case management hearing about its inability to comply with the prescriptions in the proposed timetables, nor about its inability to do its (relatively small) part towards achieving the s 87A agreements and subsequent proposed consent determinations. More than once in the past, however, it has not complied with the Court ordered timetables. It has had to be reminded by the Court, during case management, of the importance of adhering to what are extremely complex timetables, which each next step generally being dependent on timely completion of the former step. It seems to have taken little heed of those reminders, even though delay affects all parties.

11    The timetables specified that all Redmond Part A respondents were to sign the s 87A agreements and provide those agreements to the State by 5 and 21 September 2022 respectively, in relation to Gudang Yadhaykenu and NCY#2, and Atambaya. These Redmond Part A respondents include the Cook Shire Council.

12    On 20 September 2022, the Cook Shire Council’s representative indicated that it would not be in a position to consider the s 87A agreement until its council meeting on 27 September 2022. I infer, although it was not clear at the hearing, that the Cook Shire Council by this stage was already non-compliant to the tune of about 15 days with the 5 September 2022 deadline for Gudang Yadhaykenu and NCY#2. To state the obvious, the notification by the Cook Shire Council came a considerable time after its non-compliance with the Gudang Yadhaykenu and NCY#2 timetable, and the day before the compliance date set by the Court for the Atambaya s 87A agreement. The Council’s legal representative, Mr Andrew Kerr, also stated he would not be in a position to get instructions on two “issues” that he had identified, relating to s 47C of the Native Title Act, until after 21 September 2022.

13    At this point, the role of s 47C in the October 2022 determinations should be explained. Section 47C concerns national parks covered by a native title application. Generally speaking, it provides for an agreement between native title claimants and the Commonwealth or relevant State or Territory that the extinguishing effect of public works in national parks (as defined) can be disregarded, thus allowing for the preservation of native title in national parks to a greater extent. In other words, s 47C operates as between native title holders and the relevant government party, be it the Commonwealth or a State or Territory.

14    In substance, as the State’s affidavit deposed, the same potential operation was given to s 47C in the determinations of native title made by the Court in July this year, in the Northern Kaanju, Southern Kaantju, Ayapathu and Lama Lama peoples’ determinations: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 6) (Northern Kaanju determination) [2022] FCA 770; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 7) (Southern Kaantju determination) [2022] FCA 771; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 8) (Ayapathu determination) [2022] FCA 772; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 9) (Lama Lama determination) [2022] FCA 773. The Cook Shire Council was a party to each determination. It signed s 87A agreements which, in relation to s 47C, contemplated notes and orders by the Court in substantively the same form as the ones proposed for the October 2022 determinations: see orders dated 5 July 2022 in relation to the Southern Kaantju determination, and the orders dated 6 July 2022 in relation to the Ayapathu and Lama Lama determinations. The Cook Shire Council agreed to be bound by those s 87A agreements in that form.

15    It should be emphasised that the only references to s 47C in the Court’s orders occurs in the “Notes” section of the orders. The form of the s 87A agreements constitutes an agreement to consent to the making of orders by the Court in the form annexed to the s 87A agreement. Like the proposed s 87A agreements and annexed orders for the October 2022 determinations, the previous s 87A agreements and annexed orders in relation to the Southern Kaantju, Ayapathu and Lama Lama determinations effectively postpone the making of any agreements or arrangements pursuant to s 47C of the Native Title Act to a time after the making of the applicable native title determination by the Court. As the notes to the orders indicate, this is because of the intensity of the resources currently being applied to resolving the native title claims themselves. The notes to the orders contemplate that if, after negotiations, agreement is reached on the application of s 47C to particular parcels within the proposed determination area, then the parties:

would not oppose an application being brought on behalf of [the relevant native title holders] pursuant to ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) to vary the Determination in relation to each park area within the Determination Area for which agreement is reached regarding the application of s 47C of the Native Title Act 1993 (Cth).

16    Therefore, it is difficult to see what these “issues” about the s 47C recitals might be. Nevertheless, the Cook Shire Council’s legal representative, Mr Kerr, has asserted them.

17    The communication on behalf of the Cook Shire Council to the Court, the applicant and State (as well as other parties) thus appeared to raise two matters. First, foreshadowed non-compliance with the Court’s orders about the time for other respondent parties to sign the s 87A agreement. Second, asserted “issues” with the proposed notes to the Court’s orders about the operation of s 47C in relation to the October 2022 determinations.

18    The urgent case management hearing requested by the State was held on 21 September 2022. At that hearing, when initially asked, Mr Kerr appearing for the Cook Shire Council made no application to vary the Court’s orders, nor any application for any other order. He simply informed the Court of his client’s “inability” to comply with the existing orders. By invitation from the Court, rather than on its own initiative, the Cook Shire Council relied upon two affidavits purporting to explain why it could not comply with the Court’s orders. One was from Mr Kerr himself, and the other was from Mr Robert Donovan, the Property and Commercial Services Coordinator at the Council, and the person responsible for dealing with native title determination applications on behalf of the Cook Shire Council. I infer, had the Court’s invitation not been made, it is unlikely any evidence about the Council’s non-compliance would have been filed. That in itself is unsatisfactory behaviour by a represented party in a proceeding such as this. As is the absence of any interlocutory application, making it clear what the defaulting respondent party submits should be done about its own non-compliance, when that non-compliance threatens to disrupt a closely programmed and imminent proposed determination of native title. These are basic and necessary responses in a complex proceeding such as this.

19    Eventually, but only in reply and responsively to the submissions of the applicant and the State, Mr Kerr indicated that his client did seek orders varying the timetable. Despite it being his client who was in default, Mr Kerr was unable to articulate for the Court which items in the Redmond Part A timetable needed to be varied. He had difficulty even locating the applicable orders and did not have a copy to hand. His lack of familiarity with the content of these orders, which bind his client, is cause for concern.

20    Mr Kerr did not have a clear proposed form of orders to provide to the Court, the applicant and the State. Accordingly, the Court directed the Cook Shire Council to provide proposed orders in written form after the case management hearing.

21    By email, the Cook Shire Council proposed the following orders:

1.     Column 4 of item 78 of the Redmond part A timetable in annexure A of the orders dated 30 August 2022 be amended from “21 September 2022” to “28 September 2022”;

2.     In the event that Cook Shire Council does not sign the section 87A agreement in compliance with order 1 on or before 28 September 2022 that it is dismissed as a party to the Atambaya #1 consent determination[.]

22    In oral submissions, the applicant and the State opposed any variation to the existing orders of the Court.

23    The State also informed the Court that if the timetable for the October 2022 determinations were to be varied to accommodate any proposed changes on behalf of the Cook Shire Council to the present form of the s 87A agreement (and consequently, to the form of proposed native title determination), the State will not be in a position to make any changes to those documents after 27 September 2022, in time for the determinations to proceed. Therefore, Ms Klease submitted on behalf of the State, the Cook Shire Council would need to apply for the two consent determinations to be vacated and for new dates to be found. In the circumstances, the position of the State is entirely understandable. Mr Kerr on behalf of the Cook Shire Council has made no such application. Instead, as the proposed orders indicate, a different course is suggested.

24    The Court raised the question of what, specifically, the applicant and the State submit should occur if the Cook Shire Council does not sign the s 87A agreements. It raised the question whether the October 2022 determinations could proceed without the Cook Shire Council signing the s 87A agreements, or whether they could proceed if the Cook Shire Council were removed as a party to the proceeding, perhaps on a basis such as that for which sub-ss 37P(5)-(7) of the Federal Court of Australia Act 1976 (Cth) provide, although there may be other bases. The Court emphasised it had formed no views on these matters, but was inquiring about the position of the applicant and the State.

25    The State submitted that it would address these matters in its submissions in support of the proposed consent determinations, which are, according to the Court’s timetabling orders, due to be filed on Friday 23 September 2022. Ms Klease informed the Court she had no instructions to put the State’s position on these issues at the case management hearing. That is understandable.

26    Mr O’Gorman SC for the applicant sought leave to file short written submissions on these issues, by 12.00 noon on 22 September 2022.

27    Mr Kerr sought no leave to file responsive submissions on behalf of the Cook Shire Council. If he had sought leave, it would of course have been granted. Nor did Mr Kerr oppose the course proposed by the State and the applicant about their own submissions.

28    The Court granted the leave sought by the applicant, and its submissions were filed in compliance with the leave granted.

29    I pause here to identify the considerable additional burdens the conduct of the Cook Shire Council, and its legal representatives, have imposed on the applicant and the State. Their conduct occasioned an additional case management hearing at short notice. The active parties were in Cairns, for the purpose of case management before National Judicial Registrar Stride, on other matters in this proceeding. However, the conduct of the Cook Shire Council resulted in the legal representatives for the State and the applicant remaining in Cairns, to appear at the case management hearing, late in the afternoon of 21 September 2022. The conduct of the Cook Shire Council and its legal representatives has also caused the applicant to have to prepare additional written submissions, and for the State to add to its proposed submissions, distracting both the applicant and the State from what is on any view an intensive preparation time ahead of the proposed October 2022 determinations, with both of those parties having their substantive submissions in support of the determinations due this week. The conduct of the Cook Shire Council and its legal representatives has been tardy, inconsiderate, and without any apparent consciousness of the effect it is having on the two parties which have carried the greatest resource burden in the proceeding.

30    As I explain below, no good reason at all has been demonstrated for the conduct of the Cook Shire Council, and it deserves to be subject to criticism.

31    In his own affidavit, Mr Kerr sought to make something of the fact that as a solicitor employed by Preston Law until 19 August 2022, he did not have the day to day conduct of the Cook Shire Council’s role in this proceeding. Rather, he deposed that this responsibility lay with Mr Martin Wright, then also employed by Preston Law. It was only after 19 August 2022 that Mr Kerr asserted he assumed responsibility for the conduct of the Cook Shire Council’s role in this proceeding, when he moved to another firm.

32    However, Ms Marchesi for the State in her affidavit deposed that Mr Kerr has always been the solicitor on the record for the Cook Shire Council in this proceeding, although “the parties understood Mr Martin Wright of Preston Law was the lawyer at Preston Law who was responsible for the day-to-day carriage of the proceeding on behalf of Cook Shire Council”. Indeed, it was the case that Mr Wright generally appeared at case management hearings for the Cook Shire Council. When I raised this issue with Mr Kerr, he professed not to be aware whether or not he was solicitor on the record for the Cook Shire Council prior to 19 August 2022. Again, that in itself is a matter of some concern. It is of concern that an officer of this Court does not know, one way or the other, especially after the question has been raised in affidavit material, whether they were the solicitor identified on the Court’s record as responsible for the conduct of a part in a proceeding.

33    Being the solicitor on the record is not a minor detail. There are many aspects of the FCA Act, and the Federal Court Rules 2011 (Cth), which impose obligations on those lawyers who appear on the Court’s record as acting for a party to a proceeding.

34    A pertinent example is s 37N(2) of the FCA Act, which provides:

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

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

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

35    Rule 11.01(2) of the Rules provides:

(2)     If a party is represented by a lawyer who has general authority to act for that party, the address for service for the party must be the address of the lawyer.

36    Again, the operation of this rule is no minor matter. It is the mechanism through which other parties, and the Court, identify who is the lawyer appearing for a party, and responsible for the conduct of the proceeding. See also r 4.02 and r 4.03.

37    The Court’s records disclose that Mr Kerr has been the solicitor on the record for the Cook Shire Council since at least 2016. The first document filed to this effect, a Form 28 notice of change of address for service, was filed on 1 March 2016, and listed Andrew Macrae Kerr as the solicitor for the Cook Shire Council. There is an earlier Form 5 submitted on behalf of the Cook Shire Council in this proceeding, which is also signed by Mr Kerr. While it is correct that Mr Wright signed some administrative notices on behalf of the Cook Shire Council, and undertook appearances, that is to say no more than that Mr Wright had the day to day conduct of this proceeding under the supervision of Mr Kerr. These matters are consistent with the fact that on 26 August 2022, the Cook Shire Council filed a Form 5 ‘notice of acting – change of lawyer’, which again listed Mr Kerr as the solicitor on the record although through a new law firm, being Moray & Agnew Lawyers. Mr Kerr deposed that he has moved to this firm.

38    At the very best for Mr Kerr, the non-compliance of the Cook Shire Council with orders of this Court was a matter of joint responsibility as between him and Mr Wright. The fact that, on Mr Kerr’s own evidence, and that of Mr Donovan, there is no record of the Cook Shire Council being given copies of any proposed s 87A agreement or draft determination of native title prior to 15 September 2022, might indicate some failure of responsibilities by both of them. I make no positive finding to that effect, but the inference might be available. However, against this is the evidence of Ms Marchesi about the feedback she received from Mr Wright: see [43] below. The Court has far from a full account.

39    As Ms Marchesi’s affidavit makes clear, the substantive terms of the s 87A agreements have been available to the lawyers for the Cook Shire Council, and thus the Council itself, for a very long period of time. As I have noted, in substance all the form of the s 87A agreement does is to indicate a party’s consent to the orders and determination annexed to the agreement. Thus, it is the proposed form of orders and determination which may go through several iterations in the lead up to any s 87A consent determination.

40     Ms Marchesi deposes (at [5]-[8]):

On 28 April 2022, the State circulated on a confidential and without prejudice basis the first drafts of the s 87A agreements for groups within the Redmond Part A timetable which included the s 87A agreement for the Atambaya group.

Included in the list of recipients to [the] email circulated by the State on 28 April 2022 was Mr Martin Wright of Preston Law and Mr Andrew Kerr of Preston Law.

The initial draft Atambaya s 87A agreement included a set of draft recitals regarding any agreements made pursuant to s 47C of the Native Title Act 1993 (Cth) (the NTA) following the determination of native tile being made, in a substantially similar form to those agreed as part of the Kwok timetable for the Ayapathu, Southern Kaantju and Lama Lama groups.

Cook Shire Council was a party to those s 87A agreements for the Ayapathu, Southern Kaantju and Lama Lama native title groups. Drafts of those s 87A agreements were circulated by the State on 25 March 2022 to the Kwok respondents, including to Mr Andrew Kerr of Preston Law and Mr Martin Wright of Preston Law.

(Emphasis added, original emphasis omitted.)

41    Ms Marchesi’s reference to “recitals” clearly refers to the notes in the orders proposed to be made by the Court.

42    At [11]-[12]:

On 2 June 2022, the State circulated an updated s 87A agreement for the Atambaya native title group to the Redmond respondents, including Mr Martin Wright and Mr Andrew Kerr of Preston Law on behalf of Cook Shire Council.

The draft Atambaya s 87A agreement circulated on 2 June 2022 included the draft recitals and specific reference to Lot 26 on NPW404, being the park area within the proposed Atambaya determination area identified by the Applicant to which they seek an agreement pursuant to s 47C of the NTA. The current tenure for Lot 26 on NPW404 is [a] national park, being the Jardine River National Park.

(Emphasis added.)

43    Then at [13]:

On 9 June 2022 and 8 July 2022, the State received comments from Mr Martin Wright on behalf of the Cook Shire Council in relation to the updated draft Redmond s 87A agreements circulated, respectively, on 28 April 2022 and 2 June 2022.

(Emphasis added)

44    In the absence of any evidence to the contrary, the Court is entitled to infer those communications by Mr Wright were made on instructions from his client, the Cook Shire Council. Mr Donovan’s evidence is silent about these events.

45    Ms Marchesi deposes at [14]-[15]:

The Redmond Part A timetable provided the due date for agreement in principle on the terms of the Redmond s 87A agreements was 7 July 2022.

In the absence of any objections, the State has proceeded on the basis that as at 7 July 2022 the draft recitals were agreed in principle as between the parties to the Redmond s 87A agreements. Accordingly, the State circulated execution copies on 16 September 2022.

46    The State was entitled to make the assumption it did. There were case management hearings held by the Court on 9 June 2022 and 29 August 2022. No issues about the s 87A agreements, nor the proposed orders and determinations, were raised on behalf of the Cook Shire Council.

47    Ms Marchesi then deposes (at [16]) that the State was:

first advised of Cook Shire Council's concerns with respect to the drafting of the s 47C recitals on 16 September 2022 by way of correspondence sent by Mr Andrew Kerr in response to the State's without prejudice email circulating the execution copy of the s 87A agreement for the Atambaya native title group on 16 September 2022.

48    I note this is approximately a month after Mr Kerr left Preston Law and commenced at Moray & Agnew Lawyers.

49    In my opinion, the most that can be said is that it might be inferred Mr Kerr has only personally turned his attention to the interests of his client in this proceeding after he left Preston Law.

50    While that is a possible explanation for the very late raising by Mr Kerr of whatever concerns he has about the proposed s 47C notes in the proposed Court orders annexed to the s 87A agreements (or possibly only the Atambaya s 87A agreement), the explanations for such delay are really a matter as between the Cook Shire Council and its lawyers. They are not matters for the Court.

51    At all times, the Court, National Judicial Registrar Stride, the applicant and the State (and of course, all other respondents) acted on the basis that the Cook Shire Council was legally represented and that it was conducting itself, through that legal representation, as it saw fit in respect of its proprietary interests in the claim area. The Cook Shire Council is the party to this proceeding and it is its conduct with which the Court is primarily concerned. At all times until 16 September 2022, the Cook Shire Council has not indicated it had any difficulty with the present proposed s 87A agreements. It had no difficulty with the same form of notes about s 47C in the orders for three of the four determinations in July this year. Mr Wright communicated with the State on 9 June 2022 and 8 July 2022 about the present s 87A draft agreements (and therefore, in substance, about the proposed orders and notes in the determinations). Presumably, he made those communications on instructions. The first communication was before the previous consent determinations in July, and the second was after it. But both communications occurred substantively at the same time the Cook Shire Council had publicly committed itself to similar orders (including the s 47C notes) for three of those four determinations.

52    In respect of the present s 87A agreements and proposed determinations, through its lawyers the Cook Shire Council has had every opportunity to ask for extensions of time, to provide justifications for any extensions sought, and to engage with or without the Court’s assistance in any negotiations with the applicant and the State about particular terms of the s 87A agreements, proposed orders and determinations, or about the timetabling in the Court’s orders. Through its lawyers, it has been present when the Court has on many occasions emphasised, and re-emphasised, the importance of abiding by the timetables set. The timetables have, as a matter of careful practice, been set by agreement between the parties either directly or through case management and mediation by National Judicial Registrar Stride. There could not have been a more careful and consultative process. The timing for steps in the Court’s orders is laid out months, and years, in advance.

53    Like any other party, the Cook Shire Council needs to organise itself to comply with Court orders. That it has conspicuously failed to do. The excuse that its next Council meeting is not scheduled until 27 September 2022 defies belief. The deadline of 21 September 2022, and 5 September 2022 for the Gudang Yadhaykenu and NCY#2 s 87A agreements, have been present in the Court’s timetabling orders since last year. Compliance with Court orders may affect how the Cook Shire Council must conduct its business. While Mr Donovan deposed that there is no delegation in place for any person to execute s 87A agreements on behalf of the Council, he does not depose that no such delegation could be made. Nor does he depose about whether any consideration was given to convening a special or extraordinary Council meeting to ensure compliance with the Court’s orders, even on or after 15 September 2022. Together, his evidence and that of Mr Kerr does no more than suggest the Cook Shire Council considers it can take its own time in executing the s 87A agreements, rather than displaying any consciousness about its obligations under the FCA Act to comply with orders of this Court. The situation reflects very poorly on the Cook Shire Council.

54    What makes the situation reflect even more poorly on the Council and Mr Kerr is that, as both the State and the applicant submitted during the hearing, the only change to the draft determination made in September 2022 (and therefore in effect a change to the s 87A agreements) was a change to the description of apical ancestors – a matter of no direct relevance to the Council’s interests. It was the April and June 2022 versions which contained the proposed orders with notes about s 47C, and all other determination clauses of any interest to the Council. That version of the proposed orders (including the s 47C notes) and the proposed determination was served prior to the July determinations, where the Cook Shire Council consented to three similar sets of orders about the operation of s 47C.

55    The Cook Shire Council has had months to consider the matters affecting its interests. On the evidence, Mr Wright gave that consideration in June and July and provided some communications to that effect to the State. The Cook Shire Council has had since at least 19 August 2022, when it changed legal firms, to seek any variations to the timetables for compliance with Court orders. Although in reality it retained the same individual lawyer, so it is difficult to see precisely what changed in substance. It sought no variations until a little over a week ago, despite the tightness of the timetables under which this proceeding is being conducted. On the evidence before the Court, and the narrative I have set out, it is difficult in the extreme to see what possible substantive issue the Council could have in any event.

56    It would be a travesty of justice for the non-compliance and tardiness of the Cook Shire Council to affect the October 2022 determinations. Its conduct is disrespectful to the other parties, especially the applicant and the claim group members and the State, and disrespectful to the Court. It has had the benefit of the enormous amount of human and financial resources expended by the State as the principal respondent in this proceeding. It has been content to take the advantages given to it by the State doing the overwhelming majority of respondent work, but then when it comes to its own very minor role, it has been unable to take the very few steps required of it in accordance with Court’s longstanding orders.

57    The question is, as I emphasised at the case management hearing, what should be done?

58    The Cook Shire Council now seeks an indulgence to extend until 28 September 2022 the deadline for it to execute the s 87A agreements. It did not come to the Court offering to alter its corporate behaviour one iota, despite its non-compliance. It simply insisted that the Court and all parties ignore its non-compliance and wait until, in its own time, it conducts its next scheduled meeting. Nor was any apology proffered on its behalf. That is why I have described its conduct as disrespectful.

59    The applicant and the State, not surprisingly, are overwhelmingly concerned to ensure the October 2022 determinations take place as scheduled. That is the Court’s concern as well. Having now made six determinations in this proceeding, the sense of relief in claim group members, and the enormous significance of a native title determination to them, is palpable. The State well understands these matters. The Cook Shire Council appears to have little understanding of this.

60    The applicant has proposed in its written submissions a variation to the execution date for the s 87A agreements to 28 September 2022. While the State submitted the timetable should proceed as it was, the reality is that while the Cook Shire Council remains a party to the proceeding, by reason of s 87A(1)(c)(ix) of the Native Title Act, there may be doubts whether the Court would have power to make any determination of native title under s 87A in favour of the Atambaya, Gudang Yadhaykenu or NCY#2 groups. I make no finding one way or the other on this matter, but it is clear from the terms of s 87A(1) that there would be a real question about the Court’s power in those circumstances. As at least the written submissions of the applicant recognised, it is arguable that these preconditions turn on whether the persons listed in s 87A(1)(c) are parties. If those persons are not parties, then there may be no impediment in terms of power. Again, I make no findings on this matter, but simply record that this is one possible view of how the provision operates. Indeed the second order proposed by the Cook Shire Council itself appears to recognise this as the correct approach, since it contemplates the removal of the Cook Shire Council as a party if it does not execute the s 87A agreements.

61    It is not necessary to decide these issues immediately. For present purposes, the Court can expect that the Cook Shire Council will now seek to discharge its responsibilities as a party to this proceeding, even if it is doing so in a non-compliant, and uncooperative way. By the Court’s orders made yesterday, it will have until 11.00 am on 28 September 2022, the day after the council meeting, to comply with the Court’s orders about execution of the s 87A agreements.

62    Thereafter, if the Cook Shire Council fails to comply with the Court’s orders, as amended, there may be further consequences. The applicant in its written submissions has suggested two alternative courses, and explained why it may be that one is preferable to the other. Both involve removal of the Cook Shire Council as a party – one alternative involves its removal from the entire proceeding; the other involves the division of the proceeding into Part A and Part B, and the Council’s removal from Part A (being only the October 2022 determinations). The alternative of a division of the Cape York United #1 proceeding into two parts is a serious step. The Court would not take that step without hearing from the State, and the other parties. Although it did not seek any right to respond to the applicant’s submissions, the Court would not be inclined to take either step without again hearing from the Cook Shire Council. Removal of a council from a proceeding such as this is also a serious step, even where its conduct has been as disrespectful and inappropriate as the conduct I have described.

63    The appropriate course is for the Court to give the Cook Shire Council the indulgence it seeks. That is not because there has been any acceptable justification given by the Cook Shire Council for the indulgence, but rather because this is the most effective way for the Court to preserve the likelihood of the October 2022 determinations going ahead. As the State indicated, it cannot accommodate any changes to the s 87A agreements and proposed determinations on the present timetable. It is to be hoped the Cook Shire Council takes an appropriately restrained position at its council meeting, and acts consistently with the way it acted in respect of the determinations in July this year.

64    Orders need to be made vacating two of the orders made by National Judicial Registrar Stride, as the dates for filing by the State of the s 87A agreements with the Court need to be compatible with the extension given to the Cook Shire Council. As the applicant submitted, this situation affects the Atambaya, Gudang Yadhaykenu and NCY#2 s 87A agreements and proposed determinations. The first order proposed by the Cook Shire Council was wrong, because it did not address both agreements and nominated the incorrect item in the timetables, despite this being its own application.

65    If the non-compliance of the Cook Shire Council persists, then the Council, the applicant and the State will be required to attend yet another urgent case management hearing next week. The costs of these extra hearings, preparation for them, and their consequential effects, are occasioned because of the conduct of the Cook Shire Council. For that reason, the Court has expressly included in the orders provision for either the applicant or the State, or both, to make costs applications against the Cook Shire Council or its lawyers, if they see fit.

Associate:

Dated:    23 September 2022

SCHEDULE OF PARTIES