Federal Court of Australia

Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC v State of South Australia (No 2) [2023] FCA 1376

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 4 September 2023 be adjourned indefinitely.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    In this proceeding, the Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC (AMYAC) has made an application for a determination of compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA).

2    The application area falls within the external boundary of the native title determination made by consent on 11 May 2011 in proceeding SAD 6007 of 1998 as recorded in Lennon on behalf of the Antakirinja Matu-Yankunytjatjara Native Title Claim Group v The State of South Australia [2011] FCA 474 (AMY native title determination area). As part of that determination, the Court made orders that the native title is not to be held in trust and the AMYAC is to be the prescribed body corporate to perform the functions mentioned in s 57(3). Accordingly, the native title in the AMY native title determination area is held by the common law holders and the AMYAC acts as agent or representative of the common law holders in respect of matters relating to native title and compensation under the NTA.

3    By interlocutory application dated 4 September 2023, AMYAC seeks leave to adduce early evidence or, in the alternative, preservation evidence from a witness, Ian Crombie, before the commencement of the trial in these proceedings. The early or preservation evidence is proposed to be taken at a hearing to be conducted at locations in and around Coober Pedy, South Australia. Although AMYAC initially sought to have the hearing in October or early November this year, that was not feasible from the perspective of the Court and dates in March and April 2024 have been proposed. The application is supported by an affidavit of AMYAC’s solicitor, Timothy James Wooley, affirmed 4 September 2023.

4    On 15 September 2023, I made orders for the filing of submissions by AMYAC and submissions and any evidentiary material in response by any respondent that wished to be heard on the application. I also made an order that the Court would determine the application on the papers unless a party stated in their submissions that they sought an oral hearing. No party sought an oral hearing.

5    On 22 September 2023, AMYAC filed submissions in support of its application.

6    On 27 September 2023, the Commonwealth informed the Court that it consented to the orders sought by AMYAC and did not intend to file submissions on the application.

7    On 29 September 2023, the State filed submissions stating that it neither supported nor opposed the application, but advanced brief submissions for the assistance of the Court. The Court expresses its appreciation for the assistance provided.

8    For the reasons that follow, I decline at this time to make orders for the hearing of early evidence from Mr Crombie. Rather than dismiss the application, I will adjourn the application indefinitely. The applicant will have liberty to re-agitate the interlocutory application if, at a later time, it becomes apparent that negotiations between the parties have stalled and mediation is likely to be assisted by the hearing of early evidence from Mr Crombie (or one or more other witnesses) on the issue of cultural loss.

Relevant factual background

AMY native title determination

9    The AMY native title determination was made by the Court by consent on 11 May 2011. The external boundaries of the determination enclose an area in South Australia that is to the south and largely to the west of Oodnadatta; the eastern boundary abuts the Arabana determination area; the western boundary is about 200 km west of Coober Pedy, which is within the determination area; and the southern boundary is at the level of Tarcoola and the top of the Gawler Ranges.

10    In the main, the native title rights and interests the subject of the AMY native title determination do not confer possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of others. Rather, and subject to limitations that are not presently relevant, the nature and extent of the native title rights and interests in the determination area are non-exclusive rights to use and enjoy, in accordance with the native title holders’ traditional laws and customs, the land and waters of the determination area, being:

(a)    the right to access and move about the determination area;

(b)    the right to hunt and fish on the land and waters of the determination area;

(c)    the right to gather and use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;

(d)    the right to share and exchange the subsistence and other traditional resources of the determination area;

(e)    the right to use the natural water resources of the determination area;

(f)    the right to live, to camp and, for the purpose of exercising the native title rights and interests, to erect shelters and other structures on the determination area;

(g)    the right to cook on the determination area and to light fires for domestic purposes but not for the clearance of vegetation;

(h)    the right to engage and participate in cultural activities on the determination area including those relating to births and deaths;

(i)    the right to conduct ceremonies and hold meetings on the determination area;

(j)    the right to teach on the determination area the physical and spiritual attributes of locations and sites within the determination area;

(k)    the right to visit, maintain and protect sites and places of cultural and religious significance to native title holders under their traditional laws and customs on the determination area;

(l)    the right to be accompanied on to the determination area by those people who, though not native title holders, are:

(i)    spouses of native title holders; or

(ii)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area; or

(iii)    people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by the native title holders;

(m)    in relation to Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the native title holders, the right to speak for country and make decisions about the use and enjoyment of the determination area by those Aboriginal persons.

11    In one respect, the AMY native title determination does confer an entitlement against the whole world to possession, occupation, use and enjoyment of land and waters. That is in respect of areas within the determination area where any extinguishment of native title rights and interests over the areas therein prior to 14 November 1995 is to be disregarded under ss 47A and 47B of the NTA, as listed in Schedule 5 to the determination.

Compensation application

12    The AMY compensation application was filed on 21 April 2022 and was amended on 20 October 2022. The application identifies a large number of compensable acts, which are listed in Schedule I to the application. All of the compensable acts are within the external boundaries of the AMY native title determination area.

13    By the application, AMYAC claims compensation for the effects of the compensable acts on the continued existence, enjoyment and exercise of the native title rights and interests in the land and waters the subject of the AMY native title determination, as set out above. Insofar as the compensable acts were or are within the land and waters the subject of the AMY determination where the nature and extent of the native title rights and interests is the right to possession, occupation, use and enjoyment to the exclusion of all others, compensation is claimed for the effects of those acts on those native title rights and interests.

14    The compensable acts listed in Schedule I to the application are within the following categories:

(a)    the grant of fee simple titles pursuant to the Crown Lands Act 1929 (SA) and Crown Land Management Act 2009 (SA), and/or the construction of public works or dedication of roads (comprising 1,195 acts);

(b)    the extension of terms and re-grants of pastoral leases pursuant to the Pastoral Lands Management and Conservation Act 1989 (SA) (comprising 34 acts);

(c)    the grant of Crown Leases pursuant to the Crown Lands Act 1929 (SA) and the Crown Land Management Act 2009 (SA) (comprising 4 acts);

(d)    dedications and reservations pursuant to the Crown Lands Act 1929 (SA) in relation to specified crown land and the construction of public works on those lands (comprising 24 acts);

(e)    the dedication and creation pursuant to the Crown Lands Act 1929 (SA) of specified sections of the Stuart Highway described in sub-para 5.1 of Schedule 3 of the AMY native title determination;

(f)    the grants of fee simple to Australian Track Corporation Limited in relation to the Adelaide to Darwin railway line corridor referred to in sub-para 5.2 of Schedule 3 of the AMY native title determination; and

(g)    the grant, and any renewals or extensions, of certain mining tenements pursuant to the Mining Act 1971 (SA) (comprising 11 tenements).

Mediation

15    On 26 July 2022, Bromberg J made orders requiring the applicant to provide to the State a concise statement for the exclusive purpose of mediation setting out:

(a)    the amount of compensation claimed;

(b)    the basis upon which the quantum of compensation is claimed;

(c)    the kind of any compensation claimed;

(d)    the name of the person or persons the applicant claims are entitled to compensation or the method of determining the person or persons;

(e)    the method (if any) for determining the amount or kind of compensation claimed in respect of each person;

(f)    the method for determining any dispute regarding the entitlement of a person to an amount of compensation; and

(g)    the person or persons from whom the compensation claimed may be recovered and the basis upon which the applicant claims it may recover the compensation from the person or persons,

and requiring the State to provide a concise statement in response for the exclusive purpose of mediation. The proceeding was referred to mediation before a Judicial Registrar of the Court and, since then, the parties have been actively engaged in mediation. Mediation conferences between the applicant and the State of South Australia have occurred on 5 and 6 December 2022 and on 9 March 2023.

16    On 24 May 2023, Registrar Parkyn made orders joining the Commonwealth of Australia, and other entities, as respondent parties to the proceeding. On 21 August 2023, Registrar Parkyn convened a further mediation conference between representatives of the applicant, the State and the Commonwealth.

17    In the course of mediation, the applicant has provided the State and the Commonwealth with expert evidence in relation to cultural loss. Mr Crombie is one of the principal informants relied upon by the expert. The applicant is proposing to provide the State and the Commonwealth, in and for the purpose of the mediation, with further expert evidence in relation to cultural loss, as well as expert evidence in relation to economic loss. Mr Wooley deposed that he expects that Mr Crombie will be one of the principal informants relied upon by the expert in relation to the further expert report on cultural loss.

Initial proposed preservation hearing

18    On 18 May 2023, Bromberg J made orders by consent granting leave for the applicant to adduce preservation evidence from William Herbert Lennon Snr and Mr Crombie. The hearing of the preservation evidence was scheduled to occur in June 2023 at locations in and around Coober Pedy.

19    Mr Wooley deposed that preservation evidence was initially proposed to be taken from Mr Lennon Snr on 20 June 2023. However, in the course of preparing for that preservation evidence hearing, it became apparent to Mr Wooley that Mr Crombie had a significant contribution to make in giving evidence about damage to the main cultural sites in and around Coober Pedy that Mr Lennon was to give evidence about but which Mr Lennon could not take the Court to given his age (90 years), ill health and frailty. The applicant proposed, and the respondents and Court agreed, that as there was spare time either side of Mr Lennon giving evidence (having regard to the airline flight schedules into and out of Coober Pedy), Mr Crombie would also give evidence on the afternoon of Monday 19 and the morning of Wednesday 21 June 2023. A program for Mr Crombie’s evidence and a book of photographs which related to both Mr Lennon’s and Mr Crombie’s evidence was provided to the Court and the respondents.

20    Due to the deteriorating health of Mr Lennon, a decision was made shortly before the scheduled preservation evidence hearing that Mr Lennon was not fit to give evidence and the hearing was vacated.

Applicant’s submissions

21    The applicant seeks to adduce evidence from Mr Crombie as soon as practicable, and ahead of any trial of the proceedings, for two reasons:

(a)    to assist the prospects of achieving a mediated outcome; and

(b)    to ensure that Mr Crombie’s evidence is available in the event mediation is unsuccessful and the claim proceeds to a full trial.

22    The applicant’s claim includes (amongst other things) compensation for cultural loss, as described by the High Court in Northern Territory v Griffiths (2019) 269 CLR 1 (Griffiths). The applicant placed reliance on the following observations of the plurality in Griffiths concerning the assessment of compensation under s 51(1) of the NTA, first at [46] and later at [218]:

46    Section 51(1) thus recognises that the consequences of a compensable act are not and cannot be uniform. The act and the effect of the act must be considered. The sub-section also recognises not only that each compensable act will be fact specific but that the manner in which the native title rights and interests are affected by the act will vary according to what rights and interests are affected and according also to the native title holders’ identity and connection to the affected land.

…

218    The court’s task of assessment under s 51(1) is necessarily undertaken in the particular context of the Native Title Act, the particular compensable acts and the evidence as a whole. As the trial judge found, s 51(1) does not in its terms require that the detrimental consequence directly arise from the compensable act. The task required by s 51(1), as the sub-section itself recognises, requires a number of separate but inter-related steps: identification of the compensable acts; identification of the native title holders’ connection with the land or waters by their laws and customs; and then consideration of the particular and inter-related effects of the compensable acts on that connection.

23    The applicant submitted that, given the “fact specific” nature of a compensation claim, the applicant bears an evidentiary burden in relation to the matters referred to in the above passages from Griffiths. The applicant accepts that, for the purposes of mediation, the government parties may reasonably require some information of the kind referred to in Griffiths in order to be satisfied that any negotiated compensation is justified. For that reason, in the mediation the applicant has provided the government parties with expert evidence in relation to (amongst other things) cultural loss and proposes to provide further evidence. Mr Crombie is one of the principal informants relied upon by the expert.

24    The applicant submitted that it will assist the prospects of obtaining a mediated outcome if the government parties have access not just to written expert material provided in the mediation but also to direct testimony of Mr Crombie given formally before the Court in an on country hearing. That way, the government parties will be able to assess the cogency of Mr Crombie’s evidence, and thereby the expert opinion founded (in part) on that evidence, including having an opportunity to cross-examine Mr Crombie to clarify any particular matters of interest or uncertainty.

25    The applicant makes the application for the purpose of the Court hearing “early evidence” and also “preservation evidence”. The applicant submitted that the hearing of “early evidence” is contemplated by paragraph 6.2(j) of Native Title Practice Note (NT-1) and is referred to in previous native title cases such as Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (Lovett) at [16]-[19] and in extra-judicial commentary such as Justice Michael Barker, "Innovation and management of native title claims: what have the last 20 years taught us?" [2013] FedJSchol 14 at [17]. The applicant submitted that, while these references to “early evidence” have related to native title claims, the Court should utilise the same concept in this compensation claim. Hearing the early evidence will place the parties in the most informed position possible for the mediation.

26    With respect to “preservation evidence”, the applicant submitted that Mr Crombie is a 65 year old Aboriginal man. He has lived most of his life in Coober Pedy and Oodnadatta, both very remote areas of South Australia, and is currently living in Port Augusta, a regional town in the north of South Australia. The applicant referred to the Australian Bureau of Statistics figures released on 29 November 2018 which state that the life expectancy at birth for Aboriginal men living in remote and very remote areas is 65.9 years, and for those living in regional areas is 70 years. The applicant acknowledged that Mr Crombie is not at the moment gravely ill, but he has diabetes. The applicant submitted that any trial of the proceeding is likely to be a considerable time in the future. If mediation is ultimately not successful and this matter proceeds to trial at a later time, and Mr Crombie was not then able to give evidence, the applicant’s claim would be greatly disadvantaged.

27    Finally, the applicant submitted that the taking of evidence from Mr Crombie is an efficient use of the applicant’s resources because much of the work to prepare Mr Crombie’s evidence has already been done for the vacated June 2023 preservation evidence hearing, and Mr Crombie and the applicant’s representatives have some travel credits from the cancellation of that hearing. If Mr Crombie’s evidence is delayed for a significant period much of the work already done to prepare Mr Crombie’s evidence will be thrown away, and travel credits will expire (unless they can be used for other purposes associated with these proceedings).

State’s submissions

28    As noted earlier, the State neither consented to nor opposed the application. Nevertheless, in addition to providing the Court with submissions concerning the applicable legal principles, the State noted the following matters.

29    First, there is no evidence that Mr Crombie is currently unwell or suffers from any known medical condition which requires the urgent taking of his evidence on oath.

30    Second, with respect to mediation, the State does not consider that the negotiations between the parties have stalled.

31    Third, the State does not dispute that there has been cultural loss suffered by the applicants. The State has engaged an anthropologist to provide a report for the purposes of the mediation process and will be in a better position to finalise a view as to cultural loss following receipt of that report by the end of December 2023. The State submitted that it would be prudent to schedule any early evidence in a period after the parties have exchanged expert reports within the mediation and have had time to consider the contents and the impact of those reports on their respective cases.

32    Fourth, there are alternative options available to the Court. In particular, it would be open to the Court to order that Mr Crombie give his evidence-in-chief by way of affidavit, including by exhibiting photographs if relevant, and the respondents preserve any cross-examination if and until the matter proceeds to trial.

Consideration

33    There is no doubt that the Court has power to hear early or preservation evidence. Section 46 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the Court may, for the purposes of any proceeding, order the examination of a person upon oath or affirmation before the Court at any place within Australia and may empower any party to the proceeding to give in evidence in the proceeding the testimony so taken. The practice of receiving early or preservation evidence in native title proceedings is well-established. It is expressly referred to in the Court’s Native Title Practice Note and is contemplated by rr 34.120 and 34.126 within Div 34.7 of the Federal Court Rules 2011 (Cth), which contains rules of procedure applicable to native title proceedings, including compensation proceedings.

34    The relevant issue on the current application is whether there is a sufficient justification for the Court to convene a hearing in Coober Pedy in March next year to receive Mr Crombie’s evidence.

35    Applications for preservation evidence have historically arisen in the context of native title determination applications. The need for preservation evidence in such proceedings arises due to the lengthy delays in resolving claims once they have been filed and the likelihood that crucial witnesses may become incapacitated or die before having the opportunity to provide evidence: see, for example, Frazer and Others v State of Western Australia (2003) 128 FCR 458 (Frazer) at [30] (French J); Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 6) [2003] FCA 663 at [39] (Lindgren J); Rose (on behalf of the Kurnai Clans) v State of Victoria [2010] FCA 460 (Rose) at [25] (North J). Justice Mansfield explained the practice of receiving preservation evidence in Eringa No 1 Native Title Claim v State of South Australia (2007) FCA 182 as follows (at [15]):

Almost invariably (although not necessarily) preservation evidence in a claim under the Native Title Act 1993 (Cth) will be given by an indigenous person whose evidence is sought to be preserved to be available to the applicants if the claim proceeds to hearing. It is therefore a consensual process. The person being examined is generally available for cross-examination. That process enables a Court to see that the evidence has been able to be tested, and so to give the evidence appropriate weight.

36    In addition to hearing preservation evidence, the Court may grant leave to a party to adduce early evidence to “to give applicants an opportunity to tell their story to the Court at an early stage and to facilitate subsequent mediation” and “give some added impetus to the mediation process”: Frazer at [30] and [31] (French J); see also Lovett at [16] (North J) and Rose at [26] (North J).

37    Similar circumstances may arise in the context of compensation applications. In so far as an application seeks compensation for cultural loss, it will be necessary for the applicant to prove such loss. That would ordinarily require evidence from individual members of the native title holding group concerning their physical and spiritual connection with the land and waters by their traditional laws and customs and the effects of the compensable acts on that connection. In such cases, it is possible that crucial witnesses may become incapacitated or die before having the opportunity to provide evidence, which creates the need for the taking of preservation evidence. If negotiations in the course of mediation become stalled over the question of cultural loss, the taking of early evidence with respect to that issue may give some “added impetus” to the negotiations.

38    Ultimately, decisions about the scheduling of preservation or early evidence must be guided by the overarching purpose of civil practice and procedure as stated in s 37M of the FCA Act. The Court must exercise its discretionary powers with respect to the management of civil proceedings in a way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

39    As Mortimer J (as her Honour then was) observed in Agius v State of South Australia (No 4) [2017] FCA 361 (at [84] and [85]), determining where to draw lines in case management processes is not an exact science; while the just resolution of disputes requires that parties have a reasonable opportunity to present their case, this does not mean that a party is entitled to insist on presenting its case in a particular manner or on a particular timetable.

40    Conducting a hearing in Coober Pedy for a few days in March 2023 to take evidence from Mr Crombie will be a relatively expensive exercise for the Court and each party that wishes to participate in the hearing. A party requesting the Court to undertake such a hearing must demonstrate that the need for the hearing, having regard to the interests of justice, outweighs the costs involved.

41    On the basis of the evidence presently before me, I am not persuaded that there is a sufficient need to take early or preservation evidence from Mr Crombie on country having regard to the interests of justice. The evidence indicates that Mr Crombie is not seriously ill and there is no present risk of the Court being unable to hear Mr Crombie’s evidence at a later point in time, if the matter fails to settle. With respect to mediation, it appears that the parties are actively engaged in negotiations, and each of the applicant and the State have engaged experts to provide evidence. I am not persuaded that there is an impasse between the parties that might be assisted by the taking of early evidence. For present purposes, it can be accepted that Mr Crombie is an important witness and informant for the applicant’s expert evidence. As part of the mediation process, the applicant should be able to reduce Mr Crombie’s principal evidence (to the extent it is relied on by the applicant’s expert) to writing, whether in the form of a witness statement or affidavit, and provide the written evidence to the State. That process would be expected to assist negotiations in mediation.

42    The State’s submissions indicate that the State will be in a better position to finalise its view as to cultural loss following receipt of its own expert anthropological report by the end of December 2023. There is a possibility that, at that time, the State’s position may change and negotiations between the parties may stall. If that were to occur, the balance of considerations may alter and the applicant may be able to persuade the Court that the interests of justice favour the taking of early evidence from Mr Crombie (and possibly other witnesses) on country to facilitate further mediation.

43    Having regard to the above matters, I will not at this time make orders for the hearing of early evidence from Mr Crombie. Nor will I dismiss the applicant’s interlocutory application. I will instead adjourn the application indefinitely. The applicant will have liberty to re-agitate the interlocutory application on the basis of additional evidence if, during January 2024 or at a later time, it becomes apparent that negotiations between the parties have stalled and mediation is likely to be assisted by the hearing of early evidence from Mr Crombie (or one or more other witnesses) on the issue of cultural loss.

Associate:

Dated:    8 November 2023

SCHEDULE OF PARTIES