Federal Court of Australia

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v State of Western Australia [2024] FCA 1114

ORDERS

THE COURT ORDERS THAT:

1.    A preservation of evidence hearing be listed on dates to be fixed in consultation with the applicant and the State in the area in and around Port Smith, with an estimated duration of 3-4 days.

2.    The proceeding be listed for case management hearing before Judicial Registrar McGregor on 25 September 2024 at 9am AWST via Microsoft Teams.

3.    The examination of Mr James Albert (Jimmy) Edgar on 22-23 July 2024 be preserved.

4.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the evidence of the following individuals be taken and preserved:

(a)    Any further evidence of Mr James Albert (Jimmy) Edgar;

(b)    Ms Janet Mary Clare Cox (nee Edgar);

(c)    Mr Thomas John Edgar (Undabudi);

(d)    Ms Judy Anne Edgar; and

(e)    Mr Joseph Michael (Joe) Edgar.

5.    Subject to further order, the individuals may give their evidence while seated in a group of persons or being accompanied by one or more other persons, provided that:

(a)    the evidence is given by the individual, and not by the group of persons; and

(b)    each person accompanying the individual is identified.

6.    The Edgar Sibling Records are to comprise:

(a)    Affidavits of:

(i)    Mr James Albert (Jimmy) Edgar, dated 12 June 2024;

(ii)    Ms Janet Mary Clare Cox (nee Edgar), dated 15 June 2024;

(iii)    Mr Thomas John Edgar (Undabudi), dated 14 June 2024;

(iv)    Ms Judy Anne Edgar, dated 17 June 2024; and

(v)    Mr Joseph Michael (Joe) Edgar, dated 17 June 2024.

(b)    Transcript(s) of any preservation evidence hearing;

(c)    Video recording(s) of any preservation evidence hearing;

(d)    Transcripts of the examination of Mr James Albert (Jimmy) Edgar on 22-23 July 2024 before Judicial Registrar McGregor; and

(e)    Video recordings of the examination of Mr James Albert (Jimmy) Edgar on 22-23 July 2024 before Judicial Registrar McGregor.

7.    Order 4 of the orders made in this proceeding on 18 July 2024 be vacated.

8.    The affidavit of Mr James Albert (Jimmy) Edgar dated 12 June 2024, the transcript and video recording of the examination of Mr James Albert (Jimmy) Edgar on 22-23 July 2024 before Judicial Registrar McGregor (the Jimmy Edgar Records) as part of any Edgar Sibling Records be made available to the applicant and first respondent in this proceeding.

9.    The Edgar Sibling Records are not to be made available to any non-party without leave of the Court and a note is to be placed on the Court’s digital file to this effect.

10.    The parties and the Attorney-General of the Commonwealth of Australia bear their own costs of this application and any preservation evidence hearing.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

Background

1    This is a novel application. The Court is asked to use its processes, including the making of various orders, to facilitate the taking and preserving of evidence from five Karajarri people identified by the applicant, Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (ICN: 3333). The five Karajarri people are all in poor health, but some are in much poorer health than others. The applicant has been supported to bring this application by the Kimberley Land Council Aboriginal Corporation (ICN: 21), the legal representative of the applicant and the native title representative body for the Kimberley region in Western Australia.

2    The applicant is a Registered Native Title Body Corporate. The applicant holds, on trust, the native title rights and interests of the common law holders recognised in the determinations made in Nangkiriny v State of Western Australia [2002] FCA 660; 117 FCR 6 and Nangkiriny v State of Western Australia [2004] FCA 1156. As the parties have, I shall refer to these as the Karajarri Determinations.

3    The evidence is that the applicant intends to file a compensation claim under the Native Title Act 1993 (Cth) in respect of the area of land or waters the subject of the Karajarri Determinations, but no such claim has yet been filed. It is common ground that the applicant is a person who is entitled to make an application under s 50(2) of the NTA seeking a determination of compensation in respect of the land or waters the subject of the Karajarri Determinations.

4    The questions for the Court are:

(a)    whether the Court has jurisdiction to make orders for the taking of evidence from the five Karajarri people, where there is no proceeding under s 61 of the NTA on foot to which that evidence relates; and

(b)    if the court does have jurisdiction, what is the source of its power to make the kinds of orders sought and to take the five Karajarri people’s evidence; and

(c)    even if the Court has both jurisdiction and appropriate powers, should the Court, as a matter of discretion, make the orders sought and in particular, should the orders sought be made in respect of all five Karajarri people, or only in respect of some of them?

5    There is a further question for the Court in relation to what should be done with the transcript and video recording of the examination of Mr James Albert (Jimmy) Edgar, referred in existing Court orders as the Jimmy Edgar Records. On 18 July 2024, the Court ordered by consent that Jimmy Edgar be examined upon oath or affirmation pursuant to s 46(a) of the Federal Court of Australia Act 1976 (Cth) before Judicial Registrar McGregor on 22 July 2024 and 23 July 2024 in Broome. The Court also ordered by consent that pursuant to s 37AG(1)(a) of the FCA Act, the Jimmy Edgar Records not be made available to any person, including the parties, until further order. The Court noted its satisfaction under s 37AG(1)(a) was based on the fact that the Court had not decided whether it has jurisdiction to hear this application but given the state of health of Jimmy Edgar, the Court was satisfied that it was necessary for arrangements to be made to take his evidence prior to the hearing and determination of the application.

6    The State of Western Australia is a respondent to the application.

7    On 12 July 2024, the Attorney-General of the Commonwealth of Australia gave notice of intervention pursuant to s 84A(1) of the NTA.

8    Section 84A(1) describes the right of intervention as applying “in a proceeding before the Court in a matter arising under this Act” (my emphasis). Thus, the phrase incorporates some of the legal issues which the Court must determine on this application — what is the “proceeding”, what is “the matter” and whether it arises under the NTA. Therefore, out of an abundance of caution, the Court decided to allow the Commonwealth’s intervention under r 9.12 of the Federal Court Rules 2011 (Cth) instead of relying on s 84A of the NTA. The applicant and respondent did not take issue with the Commonwealth’s intervention in any event and did not oppose the making of an order under r 9.12.

9    Both parties and the Commonwealth (collectively, the parties) provided helpful and thoughtful submissions in writing and orally, and the Court is grateful to all of them.

There is a proceeding

10    One matter can be stated with clarity from the outset. There is a “proceeding” on foot. It is the proceeding commenced by the applicant by an originating application filed on 19 June 2024. Section 4 of the FCA Act defines proceeding in the following way:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

Example:     Discovery is an example of an incidental proceeding.

11    Therefore, insofar as the FCA Act, the NTA and the Rules are concerned, the applicant has commenced, and has, a proceeding in this Court. The Court must determine whether it has jurisdiction to make the orders sought in the originating application, and what is the source of its power to do so, but in making orders and giving directions along the way to the determination of these issues, it does so within a “proceeding” as that word is defined in s 4 of the FCA Act.

The evidence relied upon in this proceeding

12    The applicant read a number of affidavits for the purposes of supporting the orders it seeks in this proceeding. They fall into two categories.

13    First, evidence from the five Karajarri people both as to their state of health, but also their substantive evidence about their country, and their traditional knowledges, laws and customs, relevant to the contended compensable act I describe at [21] below. These are affidavits from:

(a)    Ms Janet Mary Clare Cox (nee Edgar), dated 15 June 2024;

(b)    Jimmy Edgar, dated 12 June 2024;

(c)    Mr Thomas John Edgar (Undabudi), dated 14 June 2024;

(d)    Ms Judy Anne Edgar, dated 17 June 2024; and

(e)    Mr Joseph Michael (Joe) Edgar, dated 17 June 2024.

14    Second, other affidavits in support of the application:

(a)    Mr Kasawadinata Martin Bin Rashid, Chief Executive Officer of the applicant, dated 17 June 2024;

(b)    Mr Peter Yu, Professor and Vice-President (First Nations) at the Australian National University and longstanding former officer (and ultimately Executive Director) of the KLC, dated 17 June 2024;

(c)    Ms Justine Mary Toohey, Principal Legal Officer of the KLC, dated 12 June 2024; and

(d)    Ms Bethany Clare Moore, Senior Legal Officer at the KLC, dated 13 June 2024.

15    None of the second category of deponents were required for cross examination.

16    The parties also agreed a series of facts. At the hearing a Statement Of Agreed Facts prepared pursuant to s 191 of the Evidence Act 1995 (Cth) was tendered by the applicant. The agreed facts covered some of the basic facts upon which this application is made. A copy of the SOAF is Attachment 1 to these reasons.

Factual findings

17    In this section I make findings of fact relevant to the conclusion I have reached on the three questions set out above. Most of these facts were not contentious between the parties. There were some differences of emphasis between the parties about some facts, when addressing the way they submitted the Court’s discretion should be exercised. This was the only question where there was some disagreement, however, the extent of that disagreement was limited.

The foreshadowed compensation claim

18    The applicant’s evidence describes a foreshadowed compensation claim under the NTA in relation to the Karajarri Determinations. Mr Bin Rashid deposes to the shortfalls in both financial and human resources within the applicant, which mean on his evidence that the applicant is “at our capacity as an organisation”, and cannot take steps to file the foreshadowed compensation claim without the assistance and support of the KLC. Mr Bin Rashid deposes (at [58]-[59]):

As at the date of this affidavit, KTLA has not identified funding to pay for lawyers to prepare and run a compensation claim on its behalf. In any event, KTLA’s preference is for the KLC to represent KTLA in a compensation claim, because of KLC’s expertise in this sector and in preparing and running large native title claims, and because KTLA doesn’t have to find the money to pay for KLC’s costs.

As at the date of this affidavit, the KLC has advised KTLA that it does not have capacity to prepare and commence a native title compensation claim on its behalf. It has also advised KTLA that it does not currently have enough NIAA grant funding available to cover the cost of preparing, commencing and resolving a native title compensation claim on behalf of KTLA (e.g. to cover the KLC’s own costs if it were running it internally, or the costs of other lawyers if it was done externally), in addition to the other urgent matters that the KLC has to prioritise.

19    This evidence is consistent with the evidence of Ms Toohey, the PLO of the KLC.

20    The evidence does not nominate all the possible compensable acts which the applicant might identify in its foreshadowed compensation claim. It does, however, nominate one such act, to which the evidence of the five Karajarri people is said to be directly relevant.

21    The contended compensable act is the grant of special lease 3116/5247 for the purpose of “cultured pearl industry”. The parties describe this as the Pearl Industry Lease. The area of and surrounding the Pearl Industry Lease is located near Port Smith, a coastal area that is a considerable way south of Broome on the West Australian coast. Jimmy Edgar describes the saltwater coastal part of Karajarri country as Najanaja. Port Smith is north of the community of Bidyadanga, which is within the area of the Karajarri Determinations.

22    Ms Toohey deposes that the area of and surrounding the Pearl Industry Lease was previously subject to a pastoral lease. The area was subject to a number of other grants, agreed to be as follows (at [8] of the SOAF):

The area of the Pearl Industry Lease was, subsequent to the grant of the Pearl Industry Lease, the subject of a number of other grants, including grants associated with:

(1)    a caravan park, with grants for this purpose commencing in around 1990;

(2)    a bird park (formerly a tropical garden and bird park), with grants for this purpose commencing in around 1985;

(3)    an airstrip and grazing lease, with grants for this purpose commencing in around 1985; and

(4)    a land base in support of pearl oyster hatchery and/or pearling activities, with grants for this purpose commencing in around 1991 and surrendered around 1998.

23    The applicant’s evidence discloses that the foreshadowed compensation claim will seek compensation, inter alia, for loss or diminution of traditional attachment to land or connection to country and for loss of rights to gain spiritual sustenance from the land. The applicant identifies this as “cultural loss”, which is the term used by the High Court in Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 at [3(3)] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), although it is not a term found in the NTA. Senior counsel for the applicant clarified in oral argument that there may also be an economic loss claim in relation to the Pearl Industry Lease, but did not submit this aspect of any claim was relevant to the present application.

24    The applicant submits that the Pearl Industry Lease is likely not to be the only compensable act the subject of the foreshadowed compensation claim. Ms Toohey estimates, and I accept, that the foreshadowed compensation claim will not be capable of being commenced in this Court until at least 2026.

The circumstances of elders in the Kimberley region

25    Ms Toohey deposes (at [19]):

Since I re-joined the KLC in 2015, a large number of senior elders within the Kimberley have passed away, each of whom had significant knowledge about the impact of compensable acts on native title rights and interests. In the past five years, I believe more than 20 very senior and elderly members of native title groups throughout the Kimberley have passed away. These elders were, to the best of my knowledge, in the age range of 70 – 90 years old, and many were raised within the first or second generation following first contact with Europeans settlers, or would have themselves experienced first contact.

26    She continues (at [23]):

To illustrate this point: People with direct experiences of events in the 1970s, which they can remember, are now — if still alive — at least 60 years old; but, they are more likely to be in their 70s or 80s.

27    Using a report prepared by the Australian Institute of Health and Welfare, Ms Toohey deposes that the average life expectancy of a First Nations male person in the Kimberley is 66 years old, and a First Nations female person in the Kimberley is 70.6 years old. The accuracy of her evidence was not disputed and I accept it.

The barriers to commencing native title compensation claims

28    Ms Toohey’s evidence deals with this issue at a regional level, and Mr Bin Rashid’s evidence deals with it at the level of a particular RNTBC; here the applicant. Both perspectives are important.

29    Ms Toohey summarises the barriers in the following way (at [32]):

Based on that experience, I have the following observations concerning reasons why RNTBCs (including KTLA) are not in a position presently or immediately to commence compensation proceedings, even where it is desirable to do so from the perspective of needing to preserve the evidence of key witnesses in those compensation claims. In summary, the reasons include the following:

(a)    KLC does not have enough funding or capacity to advance compensation claims quickly enough to avoid loss of cultural loss evidence, and many RNTBCs have little choice other than to wait for KLC's capacity to accommodate them (Part B.1 in this affidavit);

(b)    analysis of tenure and identification of compensable acts is time-consuming and complex, but must be performed before a compensation claim can be commenced (Part B.2 in this affidavit);

(c)    the time and cost associated with, and complexity of, authorisation being given for the purpose of commencing a compensation claim (Part B.3 in this affidavit);

(d)    the need for, and time required for, consultation prior to commencing a compensation claim (Part B.4 in this affidavit); and

(e)    the notification period set in section 66(10) of the NTA (Part B.5 in this affidavit).

30    As to (a), Ms Toohey explains that most RNTBCs in the Kimberley region do not have their own funds to pay for the legal services, and the costs of experts such as anthropologists or valuers, to prepare and commence a compensation claim, let alone litigate a matter to its conclusion. On this aspect, Ms Toohey’s evidence is that native title litigation can cost anywhere between $450,000 and $800,000 per annum, depending on the characteristics of a given proceeding.

31    The flow of funding from the National Indigenous Australians Agency, as Ms Toohey explains elsewhere in her affidavit, is insufficient to cover all the RNTBCs who have informed the KLC that they wish to bring compensation claims on behalf of common law holders. Ms Toohey’s affidavit explains this situation in considerable detail, which is not necessary to repeat here, but I emphasise that I accept all of her evidence on these matters.

32    An important aspect of Ms Toohey’s evidence should be spelled out in these reasons. Ms Toohey explains what she describes as “large-scale litigation fatigue” at [61]-[62]:

In my experience, participation in the processes under the NTA can leave deep scars within communities and can leave people feeling extremely fatigued. Based on my experience, my observations in respect of the effect of NTA processes on individuals and communities aligns with what her Honour Justice Jagot said in Widjabul Wia-bal v Attorney General of New South Wales [2022] FCA 1187 at [72], as follows:

“ ... the very process the NTA requires of proving who you are, who you are descended from, where your country is, the continuity of the traditional laws and customs of your people, translating your rights and responsibilities under those traditional laws and customs of your people into categories the common law of Australia will recognise, and negotiating with multiple others the recognition of those rights and interests which your people have held for millennia, can be exhausting, debilitating and re-traumatising. It can exacerbate the splintering effects of the dispossession of people. It can re-open old wounds. It can generate and reinforce community dysfunction. These are unintended consequences. They do not always arise. The process under the NTA can be empowering and, to some extent, can ameliorate and lighten the burden of the past. But the process can also magnify the harm done by the very past injustices the NTA seeks to redress. When we see this evidence of community and individual pain, this anguish, this grief, particularly when manifested as community discord, we should know and understand that we are seeing the effects of the past in the present. We should acknowledge this pain and the sources from which it springs. In a case such as this, where the views on all sides are genuinely held, we should recognise and accept that while the interlocutory application for joinder must be determined in accordance with the interests of justice as they appear in all of the circumstances, we need to tread as lightly as we can and to try to do no more harm.”

In my experience, these observations apply also to compensation claims and the very large numbers of future acts that native title holders have to deal with every year, again and again. In my view, there is an appreciable risk that native title groups litigating native title compensation claims will experience many of the painful by-products of going through native title determination litigation cited by Her Honour in the extracted paragraph above.

33    Even if one puts the funding and resources issues to one side, this evidence goes a considerable way to explaining, as a matter of practical reality, why it can take what to outsiders might seem like a longer time than expected, for native title holders to initiate another stage of litigation or agreement making under the NTA after the determination of claims and future act processes.

34    Ms Toohey also emphasises the challenges faced by directors of RNTBCs in the conduct of compensation claims (at [47]):

Further, many RNTBCs are run solely by a board of directors who are not remunerated for their time, or receive only limited or ad hoc remuneration. Most of those corporations do not have staff to help run a native title compensation claim, which is likely to involve numerous meetings, fieldwork trips, mediation sessions and Court hearings. I would not expect many directors who act in a largely volunteer capacity to be able to project manage a compensation claim themselves, especially when RNTBCs have many other affairs that occupy their time, including responding to future acts, and complying with the governance requirements under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

35    This evidence was consistent with the evidence of Mr Bin Rashid. He deposes (at [26]-[29]):

The Board of Directors is really diverse. Some of the directors speak multiple Indigenous languages; for some directors English is not their first language; some directors are university educated; many directors live in remote parts of the Kimberley; and some directors live outside the Kimberley region.

KTLA’s Board has four directors’ meetings a year, with the meetings generally held every three months or so. We have a quorum of seven people so we have to have at least that many people for a meeting to go ahead and decisions to be made. Most decisions by the Board are by consensus at meetings. Resolutions can be passed without a directors’ meeting if all directors sign a statement saying they are in favour of it, but that doesn’t happen very often.

The directors are only paid a small sitting fee when they attend meetings (such as Board meetings). For example, at the last Board meeting, directors were paid approximately $250 each in sitting fees for each day of the two-day meeting.

Outside of Board meetings, directors are generally not paid for doing any work on KTLA affairs. KTLA doesn’t have the money to pay them for additional work. Usually, any meetings or work that is done by the Chair or other Board members outside of Board meetings is done on a voluntary basis or is done on the basis that we are paid a small or nominal amount by either KTLA or by the partner organisation we are working with. This means that there is a real limitation on what can be done by the organisation; we often have to wait until Board meetings in order to progress things that require direction from the Board.

36    Mr Bin Rashid describes the expenses involved in events such as authorisation meetings, explaining there are about 400 Karajarri members, and approximately a further 100 or 200 Karajarri common law holders who are not yet members, and that the costs of the last authorisation meeting were over $200,000. These are very significant sums of money for a small organisation.

37    He also describes the grant funding that is received by the applicant, and how it is tied to particular projects such as Indigenous ranger projects, and is not available to pay for legal fees for compensation claims. The same is true, Mr Bin Rashid deposes, of monies received through what he describes as “relatively small” community benefit payments under agreements with mining companies in relation to exploration licences on Karajarri country: those monies are held in a charitable purpose trust and must be available to support Karajarri people generally in areas such as education or cultural activities, rather than as a source of funds to pay for legal expenses.

38    I accept Mr Bin Rashid’s evidence on these matters.

The circumstances of the five Karajarri people

39    The Karajarri people identified in [13] above are all members of the same family. The applicant’s factual submissions state (at [24]-[25]), and I accept:

…Jimmy Edgar says that he and his brothers and sisters know a lot about the area in and around Port Smith; they are the last people with stories about the area in and around Port Smith. Janet Cox notes that Jimmy Edgar has significant personal, first-hand knowledge, and that generally speaking the men (and Undabudi in particular) know more about cultural places, significant places, and law, than the women. Jimmy in particular knows stories that his brothers and sisters do not know. Undabudi also notes the strong connection that the Edgar family has with the area around Port Smith, and deposes that Karajarri people know to ask the Edgars about Port Smith. It is “right to start with the Edgar family.” Jimmy should speak first on certain matters because he is the eldest male, with Undabudi to go second; though on certain customary Law things, Undabudi has greater knowledge.

Judy Edgar likewise deposes that the Edgar Family know a lot about the Port Smith area, and have a strong connection. Jimmy has lots of stories (being knowledge and information) to tell on account of having spent lots of time with elders.

    (Original italics, footnotes omitted.)

40    Mr Bin Rashid’s evidence unequivocally identifies the Edgar family as the right people to speak for the Pearl Industry Lease area (at [85]):

For us Karajarri people, the Edgar family are the right family to give evidence about the Caravan Park and the Bird Park and the surrounding area. If the Edgar family’s evidence isn’t given to the Court, there are no other Karajarri people that can give that evidence. If it’s not recorded now then that evidence might be lost. Karajarri people have also been through a Court process to get their native title recognised, and understand that evidence given in front of a Court also involves questions and cross-examination from barristers who appear for the State or other respondents. We know this is a difficult process, but I also understand from that native title claim process that evidence recorded in this way might be seen as stronger, under kartiya (whitefella) law, for a compensation claim made by KTLA in the future.

41    Like some of the other deponents, Mr Bin Rashid expresses concern about the state of health of the five Karajarri people, and his apprehension that their stories about this area will be lost. He also made a point which I consider to be of some weight, about what the best form of evidence is likely to be (at [87]):

The stories of the siblings will make a lot more sense and will be stronger if they are all able to tell their stories in the same Court hearing. It will be really important to bring together their different knowledge about what happened in that Port Smith area. That is why it is so important to us to be able to preserve the evidence of the five Edgar siblings through the Court process.

42    Each of Jimmy Edgar, Janet Cox, Undabudi, Judy Edgar and Joe Edgar gave written evidence about their own state of health. It is not necessary to give great detail in these reasons, but in summary they describe living with a range of debilitating health conditions, and some of them do so to an extent that is very serious indeed.

Findings

43    I accept the evidence which I have summarised at [25] to [38] above about the circumstances of elders in the Kimberley region, and the barriers to commencing native title compensation claims in this region.

44    The requirements for commencing a compensation claim under the NTA, as contained in both the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), are on their face heavily prescriptive, and resource and time intensive. As I said more than once during the hearing of this application, the burdens imposed on First Nations peoples as moving parties in NTA proceedings, in terms of simply being able to commence a proceeding, are much higher under this legislative regime than in other commensurate practice areas of this Court.

45    It need not be the case, and it would be ironic and inequitable if the Parliament had erected so many barriers to the commencement of a proceeding that the very parts of the Australian community whose interests, historical disadvantages and mistreatment this legislation is designed to redress cannot access the legislative regime at all. That would be a situation inimical to the Preamble to the NTA.

46    Of course this Court might do what it can, within the powers available to it, to ameliorate some of the technicalities and obstacles by adopting an approach that places emphasis on substantial compliance. However, there may be limits to how much this kind of approach can be taken, and how much amelioration it can provide without contradicting the legislative scheme itself.

47    A more realistic option might be a staged approach to a compensation application. The Court could explore utilising options such as concise statements and with the assistance of the Court Registrars, mediation and case management timetabling processes. This may allow respondents, especially State and Territory respondents, to work through delivery of information required while avoiding the need to resort to applications such as the present one. It may also enable agreement on compensation for certain compensable acts and allow that compensation to flow early in a proceeding while matters that are in more substantive dispute between the parties proceed through a litigated mechanism. This is not an approach urged on the Court in this application but it is one that might be contemplated in the future.

48    In relation to the applicant’s particular circumstances, I find:

(a)    the applicant has genuine intention to file the foreshadowed compensation claim in respect of the area of land or waters the subject of the Karajarri Determinations;

(b)    the applicant has taken all reasonable steps, within its human and financial resources, to understand and begin planning for the steps required to prepare such a claim;

(c)    the applicant needs the support and assistance of the KLC;

(d)    the KLC are willing to provide that support and assistance insofar as the budgetary and operational constraints of the KLC allow;

(e)    the budgetary and operational constraints of the KLC mean it is not likely to be feasible for the KLC to assist the applicant to prepare and file a compensation claim before the current estimate of 2026; and

(f)    there is a real prospect the applicant will be able to file the foreshadowed compensation claim with the assistance and support of the KLC in 2026.

49    In relation to the circumstances of the five Karajarri people, I make the following findings.

50    Jimmy Edgar is seriously ill and in palliative care. His siblings, and others (as Mr Bin Rashid explains) defer to him in terms of knowledge and speaking for country, where appropriate. The parties agree that Jimmy Edgar is fragile and very unwell. Senior counsel for the applicant confirmed there was currently no proposal to take any further evidence from him. There are residual questions about what should be done with the Jimmy Edgar Records, but those will be resolved easily because of the conclusions I have reached.

51    Janet Cox is the eldest of the five Karajarri people, in her eighties. Her evidence refers to a number of health issues, none of them trivial, and on any view she is a very senior Karajarri woman. The parties agree that there is a risk that, by the time of the foreshadowed compensation claim, any evidence of Janet Cox may be affected by loss of memory. I consider there is a need to expedite the preservation of her evidence, and her age alone combined with the evidence about the average life expectancy for First Nations peoples, particularly those living in remote and very remote places, gives ample justification.

52    Undabudi is in his late sixties. He is an initiated Karajarri man and a Karajarri Law boss. The parties agree that there is a risk that by the time of the foreshadowed compensation claim, any evidence that he may give may be affected by loss of memory. He has a number of medical conditions, including as a cancer sufferer, combined with the increased risks which come with being in prison, having been sentenced earlier this year to a term of imprisonment.

53    The two younger siblings, Judy Edgar and Joe Edgar, are in their early to mid-sixties. As Ms Toohey’s evidence indicates, that still places them in an at-risk category in terms of average life span. Both have health conditions that, again, are not trivial.

54    Having made those findings, I turn to the resolution of the three questions.

An approach relying on equitable jurisdiction: perpetuation evidence

55    At [40] of its written submissions the Commonwealth describes the applicant’s principal approach on jurisdiction in the following way, and made the following submission:

In light of the above, it is not necessary for the Court to determine whether s 5(2) of the FCA confers jurisdiction to determine the Application. While Elna Australia v International Computers (1987) 14 FCR 461 at 466-467 (Gummow J), together with decisions from the Courts of Chancery such as Moggridge v Hall (1879) 13 Ch D 380, may be taken to indicate that the jurisdiction of the Court, as a court of equity, extends to the perpetuation of evidence, it is unnecessary to determine that question in these proceedings because the NTA expressly confers jurisdiction under s 213(2) of the NTA on the Court in relation to the “matter”, and if that were not enough (which it is), Edwards v Santos supports jurisdiction under either s 213(2) or s 39B(1A)(c) of the JA.

56    I agree with and accept that submission. At the oral hearing, senior counsel for the applicant also sensibly accepted this line of reasoning was not required, given the position adopted by the State and the Commonwealth.

57    Given the level of agreement about s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and s 23 of the FCA Act, I do not consider it is necessary for the Court to express any views on this approach relying on equitable jurisdiction principles.

Jurisdiction

58    Several other potential sources of jurisdiction were identified in the parties’ submissions.

Judiciary Act

59    All parties submit that the Court has jurisdiction to decide this application under s 39B(1A)(c) of the Judiciary Act which provides:

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note:     Section 67G of this Act, along with certain other laws of the Commonwealth, confer criminal jurisdiction on the Federal Court of Australia.

60    I accept that submission. The NTA is a law of the Federal Parliament. All parties agree the applicant is the person which is entitled to make an application under s 50(2) of the NTA seeking a determination of compensation in respect of the area of land or waters the subject of the Karajarri Determinations.

61    Despite the considerable judicial effort invested in analysing and describing the term “matter”, its basic meaning is straightforward. It means a controversy. The controversy exists outside a legal proceeding itself, but it is the legal proceeding which may submit the controversy to the exercise of judicial power: Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [26] (Kiefel, Keane, Nettle and Gordon JJ). There must be a controversy which can be quelled by the exercise of judicial power, by the determination of “rights, duties, liabilities and obligations”: see Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [24] (Gleeson CJ and McHugh J). The applicant has, in filing this originating application for the taking of evidence, provided ample evidence that the applicant claims an entitlement to compensation for the effects of the grant of the Pearl Industry Lease on their native title. The evidence also supports the proposition that the applicant claims an entitlement to compensation for the effects of other compensable acts on their native title.

62    The NTA creates an entitlement to compensation for compensable acts and it is this claimed entitlement which gives rise to the controversy between the applicant and the common law holders on the one hand, and those who may be liable to pay compensation on the other. Those who may be liable include the State, although the liability may extend to others. The State accepts there is such a controversy.

63    As the Commonwealth submits at [31] of its written submissions, by reference to a number of pre-action processes available under the FCA Act and Rules, the Court’s jurisdiction may be properly engaged even if the Court has not at that point been asked to determine the controversy (or matter) itself. An ancillary application of this nature, designed to facilitate, and form part of, the prosecution of a matter within jurisdiction discloses a sufficient connection to the underlying controversy for this Court’s jurisdiction to be engaged. In Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 367; 116 ALD 268 at [53], Kenny J said:

In the present case, the federal matter is the underlying substantive claims, not the ancillary application for leave under s 47A of the Limitation Act, and this ancillary application is to be considered as within the scope of the federal matter. The relief sought is incidental to the controversy between the parties, in that, if granted, it allows the applicants to pursue their claims in the court. The fact that preliminary discovery has a distinct curial history does not make the reasoning in Hooper inapplicable in this case. Just as an application for preliminary discovery enlivens federal jurisdiction, so too this application for leave under s 47A(3) of the Limitation Act enlivens federal jurisdiction, because, as for a preliminary discovery application, it is brought of necessity before an initiating process to vindicate a federal claim. That is, since leave cannot be granted retrospectively, the applicants apply for leave in order that they might properly bring their action, vindicate their rights, and establish the respondents’ liability. To adapt what Finn J said in Airservices, this application is appropriate because it assists in the administration of justice in relation to the making of the federal claims, which would be instituted if leave were granted.

64    So it is with the present application. The taking of evidence from the five Karajarri people assists the administration of justice under the NTA, where the controversy between the parties lies. It is by the NTA that Parliament has conferred an entitlement on common law holders to compensation for certain acts that have extinguished or impaired their native title rights and interests.

65    I add here that I agree with the applicant’s written legal submissions at [26]-[27] that the decision in Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1, and the process of pre-action discovery, provides a useful analogy to the present application.

66    The Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act to hear and determine a proceeding in which a person such as the applicant applies for the early taking and preservation of the evidence of people who will be witnesses in a foreshadowed compensation proceeding under s 61 of the NTA.

Section 213 of the NTA

67    The applicant and the Commonwealth submit that jurisdiction also arises under s 213(2) of the NTA because the NTA confers jurisdiction on this Court in respect of the underlying controversy, being the entitlement to compensation under the NTA, and this application is “ancillary to the vindication of that controversy; it is intended to assist in the pursuit of the substantive right the Applicant claims to hold” (Commonwealth’s written submissions at [35]). At the hearing, senior counsel for the State indicated that the State accepted this submission.

68    Section 213 of the NTA provides:

Provisions relating to Federal Court jurisdiction

Native title to be determined in accordance with this Act

(1)    If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

Matters arising under this Act

(2)    Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

69    If s 39B(1A)(c) of the Judiciary Act gives this Court jurisdiction, then it would be a strange constructional choice to interpret s 213(2) of the NTA as anything other than another source of jurisdiction. The key concept of “matter” is the same in both provisions. The language of “arising under” is also used in s 39B(1A)(c). Either statutory provision relevantly gives this Court jurisdiction on an application such as this, and any limiting effect of s 213(2) by reason of the need for a specific process under the NTA to be followed is not engaged here: cf Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [57].

70    For the same reasons I have given in respect of s 39B(1A)(c) of the Judiciary Act, I consider s 213(2) of the NTA confers jurisdiction on this Court to hear and determine the present application.

71    One or both of them may also confer a wider jurisdiction (see, eg the Note to s 50(1) of the NTA), but those are not issues the Court need decide here.

Sections 80 and 81 of the NTA

72    Sections 80 and 81 of the NTA provide:

80    Operation of Part

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

81    Jurisdiction of the Federal Court

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

73    The parties all addressed whether ss 80 and 81 of the NTA might also confer jurisdiction. Standing in the way of that proposition is the Full Court decision in Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2001] FCA 414; 108 FCR 453 (French, Merkel and Dowsett JJ), where the Full Court held that these provisions confer jurisdiction on this Court in respect of applications under Pt 3 of the NTA (including s 61), but go no further.

74    A later Full Court in Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) [2011] FCAFC 163; 199 FCR 23 (North, Mansfield and Gilmour JJ) expressed doubt whether this was correct but held that it did not need to decide whether Lardil was plainly wrong and should not be followed: at [42].

75    Both Lardil and Cheedy were decisions concerning, amongst other things, the application of the costs provisions in s 85A of the NTA, and therefore are not directly applicable to the issues before the Court on this application. Nevertheless, for my own part, and with respect, I find the more detailed reasoning in Cheedy between [29] and [38] to be persuasive, including the statement at [35] that:

… From the textual references referred to above, applications that “relate to native title” referred to in s 81 should not be unduly confined to proceedings claiming a determination of native title or compensation under s 61. …

76    However, even more so than in Cheedy, the correctness of Lardil does not arise for determination on the current application, especially given the findings the Court has otherwise made about its jurisdiction. Those issues can be left for another day.

Power

77    All parties agreed that the Court has power to make the orders sought and that s 23 of the FCA Act is the clearest source of power. I agree. Section 23 provides:

Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

78    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] [1998] HCA 30; 195 CLR 1, the plurality said of s 23 (at [27]):

Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make “orders of such kinds, including interlocutory orders … as the Court thinks appropriate”. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. …

79    As the Commonwealth submits, there is relevantly no statutory constraint imposed in relation to the present application, because s 213(1) does not apply to the current application.

80    That being the case, the power in s 23, as has been repeatedly observed, should be construed as extending to all kinds of orders, whether final or interlocutory, as are “appropriate” to be made in exercise of this Court’s jurisdiction: Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622 (Deane J). The term “appropriate” is deliberately flexible, designed to address novel situations as well as well-established ones. The phrase “as the Court thinks appropriate” connotes a judgment by the Court in the particular circumstances of the case, by reference to what the interests of justice require to ensure the protection and/or enforcement of the right or subject matter in issue: Jackson at 621 (Brennan J). Here, the right or matter is the applicant’s assertion of a right to compensation for the effects of the grant of the Pearl Industry Lease on the native title of the Karajarri common law holders.

81    The ‘right’ conferred by the NTA to claim compensation for “cultural loss” would be a hollow one if this Court did not have power to make orders for the early taking and preservation of evidence capable of proving the loss that has been suffered. More hollow if, as here, the evidence is likely to be the evidence most probative of loss and/or adverse effect. Section 23 confers power to make orders of the kind sought, where the Court is satisfied on the evidence that they should be made.

82    Other sources of power to make the orders sought in the originating application were also identified. I deal with them briefly, and accept they may provide alternative sources of power to the Court.

Section 46 of the FCA Act

83    Section 46 of the FCA Act provides:

Orders and commissions for examination of witnesses

The Court or a Judge may, for the purposes of any proceeding before it or him or her:

(a)    order the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person, at any place within Australia; or

(b)    order that a commission issue to a person, either within or beyond Australia, authorizing him or her to take the testimony on oath or affirmation of a person;

and the Court or a Judge may:

(c)    by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and

(d)    empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Court or Judge directs.

Note:    Proceedings include incidental proceedings, such as discovery (see the definition of proceeding in section 4).

84    The orders made by the Court on 18 July 2024 for the examination of Jimmy Edgar, referred to above at [5], were expressly made under this provision, and in my opinion were within the power of the Court.

85    In Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No 8) [2021] FCA 295, Middleton J was dealing, amongst other matters, with an application for oral discovery. The debate between the parties was whether the power in s 46 of the FCA Act extended to making orders for oral discovery. Middleton J did not accept a submission that s 46 was limited to “obtaining evidence for use at a later hearing (of a proceeding as yet undetermined)”: at [84].

86    Middleton J expressed the view (at [84]-[85]) that the s 46 power was wide enough to extend to orders for oral discovery, but his Honour’s remarks are obiter as, following Jones v Treasury Wine Estates Limited [2016] FCAFC 59; 241 FCR 111, his Honour found there was power to make such orders pursuant to s 23 of the FCA, as well as ss 33ZF and 37P(2)-(3) of the FCA Act: at [87]-[105].

87    As I have explained above, the applicant has brought a “proceeding”. While this proceeding is related or connected to, a controversy between the parties which is not yet the subject of a proceeding in this Court, it is nevertheless a “proceeding” for the purposes of s 46 of the FCA Act. Relevantly to s 46, the purpose of this proceeding is the preservation of the evidence of the five Karajarri people in a form likely to be admissible in a later proceeding. Orders are sought for the taking and preservation of evidence of each of the five Karajarri people. The Court has power to make those orders under s 46 of the FCA Act.

88    It may be that orders for the preservation of the evidence are better seen as made pursuant to s 23 rather than s 46. In cases where the Court has made orders for preservation of evidence, there has been a claim in this Court under s 61 of the NTA, so it is doubtful any consideration needed to be given to the questions which now arise. Section 23 provides ample power.

Rule 29.23 of the Federal Court Rules 2011 (Cth)

89    The applicant also seeks to rely on r 29.23 of the Rules, which provides:

29.23    Evidence of future right or claim

(1)    If a person claims to be entitled to any property or office on the happening of a future event, the person may apply to the Court for an order that evidence that may be material to establishing the right or claim be taken and preserved.

(2)    An application mentioned in subrule (1) must be made by filing an originating application, in accordance with Form 60.

(3)    The respondent to the application is the person against whom the right is alleged or the claim is made.

(4)    If the application is about any matter or thing in which the Crown may have an interest, the Attorney‑General may be made a respondent.

(5)    If the Attorney‑General is made a respondent under subrule (4), a deposition taken in the proceeding may be admissible in other proceedings despite the Crown not being a party to the proceeding to obtain evidence for a future right or claim.

(6)    The Court may take the evidence in a proceeding to obtain evidence for a future right or claim or it may appoint an examiner under rule 29.11.

90    The applicant’s legal submissions fairly concede that this rule “may not be a perfect fit” but contend the rule can provide the Court “comfort” as to the existence of power. The applicant accepts this Rule is primarily directed to a contingent claim, and on its face relevantly deals with a claim to “property”, which it accepts this application may not be.

91    The parties made some submissions about how a compensation claim might be described as a claim to “property”. The Court commends their creativity, but it is not necessary to consider those submissions in any detail.

92    Given the conclusions I have reached on s 23 and s 46 of the FCA Act, I do not consider it is necessary to decide if r 29.23 supports the making of the orders sought. The same approach applies to whether r 29.11 confers power: it is unnecessary to decide this issue.

Discretion

93    I am satisfied the Court has jurisdiction to hear and determine the application for the taking and preservation of the evidence of the five Karajarri people prior to the commencement of the foreshadowed compensation claim, and that it is appropriate for the purposes of s 23 of the FCA Act to make orders for that to occur.

94    What remains to be determined is the scope of the orders to be made. On one end of the spectrum, the orders could go no further than orders preserving the evidence of Jimmy Edgar, which has already been taken, together with a finding that there was jurisdiction and power to take that evidence. On the other end of the spectrum, the Court could make orders for the taking and preservation of the evidence of all five Karajarri people.

95    This was the issue on which the parties expressed differing positions. Some of the differences are no doubt informed by apprehensions of what consequences an application such as the present one might have for litigation under the NTA, especially in relation to compensation.

96    The word “floodgates” was mentioned.

97    That apprehension is understandable. However, I do not see the orders made in this case as giving support to such apprehensions.

98    This is a well prepared and carefully considered application, dependent on a particular combination of circumstances in relation to five people whose evidence is critical to any evaluation of the loss suffered or contended to be suffered by reason of a particular compensable act. The likelihood of the commencement of the foreshadowed compensation claim is well established on the evidence, and neither fanciful nor mere aspiration. The filing of the foreshadowed compensation claim is, on current estimates, expected to be around two years away which, in terms of the often glacial progression of native title matters, is not very long at all.

99    The applicant and the Commonwealth agree that the evidence supports the perpetuation of the evidence of Jimmy Edgar and Janet Cox. The Commonwealth submits that evidence in respect of the perpetuation of the three other Karajarri people is “less clear”. However, the Commonwealth accepts that if the Court considers the witnesses should be permitted to give evidence “concurrently (or at least in the presence of one another)”, then the health of Janet Cox “means that the evidence of each of the Edgar Witnesses (bar Jimmy Edgar, whose evidence has already been taken) should also be taken sooner rather than later”. The applicant also submits that there is a desirability for the siblings to give their evidence in the same proceeding. The applicant’s evidence is that this would be appropriate under Karajarri Law.

100    The State accepts there is a high risk that the evidence of Jimmy Edgar, Janet Cox and Undabudi will not be available at any hearing of the foreshadowed compensation claim in several years’ time. In written submissions, the State submitted that the evidence does not support an order for the taking and preservation of the evidence of Judy Edgar or Joe Edgar. In oral submissions, senior counsel for the State clarified that the case for immediate preservation of evidence of Judy Edgar and Joe Edgar “is not clearly made out” and there is “no immediate risk or not sufficient immediate risk”.

101    I deal with some of the other points made in my reasons below.

102    I have accepted the applicant’s evidence that it is more likely than not that the foreshadowed compensation claim will be filed on behalf of the Karajarri People, but it will not be filed until 2026; that is, two years from now. The rest of my findings proceed from that basic finding.

103    The findings I have made at [25]-[38], [43] and [49]-[53] above lead to two conclusions, one broader than the other:

(a)    there is a reasonable prospect that none of the five Karajarri people will be well enough to be available to give oral evidence after the foreshadowed compensation claim is filed and at the time when the applicant would ordinarily be preparing its evidence for that claim (which might easily be up to a year after the claim is filed; ie likely 2027);

(b)    alternatively, that if some of them are well enough to give evidence, their memories are likely to be less reliable than they currently are and their states of health will be such that it is more likely than not that at least some of them will not be able to travel on country, and may not be able to travel at all so that giving evidence concurrently, or in the presence of each other, may not be practicable.

104    What is close to certain, given the evidence, is that there is no real prospect of all five siblings being able to give concurrent evidence, or be present while each of them gives their evidence, unless their evidence is taken imminently. That is a sobering finding for the Court to have to make.

105    I place considerable weight on the prospect of concurrent evidence, or evidence being given by one sibling with others present; at least as between the four siblings who have not given oral evidence and been cross examined. I consider that if each of them are present, supporting and listening to their siblings, the well documented inclinations of some First Nations witnesses to reticence might be more limited than it would otherwise be. Given their affidavit evidence as read, the oral evidence accounts of each witness are also likely to jog each other’s memories somewhat, and provide as much detail as they are practicably able to give. While the strict constraints of an adversarial trial with non-Indigenous witnesses might suggest such a process is inimical to truthful and reliable evidence, I do not accept that proposition in circumstances such as the present. There is ample research and practical experience of Judges in this Court, to demonstrate that First Nations witnesses give more fulsome accounts of traditional law and custom, and traditional and personal narratives, when they feel comfortable and surrounded by the right people. That has certainly been my experience as a Judge on this Court over the last 11 years.

106    It would appear there is some possibility Jimmy Edgar might be able at least to be present when his siblings give evidence, and I am persuaded this could enhance both the depth and reliability of the evidence the others would give.

107    It is well established that this Court has the power to modify how First Nations Peoples give their evidence. These powers are expressly recognised in Div 34.7 of the Rules, and were recognised in the previous version of the Court’s rules: see generally Hon Michael Black AC, “Developments in Practice and Procedure in Native Title Cases” (March 2002) 13 Public Law Review 16.

108    Rule 34.125 provides:

34.125     Evidence given in consultation with others

A party may apply to the Court for an order that the Court receive into evidence statements from a group of witnesses, or a statement from a witness after that witness has consulted with other persons.

Note:     If a statement is made by a witness after consultation with other persons, the identity of the persons may, at the order of the Court, be recorded in the transcript.

109    In his article, the Hon Michael Black AC describes aspects of the evidence of the then part heard claim underlying the Karajarri Determinations, which was before North J at the time. Jimmy Edgar was a witness in this claim, and annexed his written statement to his current affidavit in this application.

110    In the section of the article about modes of giving evidence, the Hon Michael Black extracts some of the testimony of Mr Patrick Dodson. This extract of Mr Dodson’s testimony supports the view I have taken about the desirability of taking and preserving all five Karajarri people’s evidence:

The people have to be in the presence of the bosses of the law, or at the place any information is to be given. They have to be in the control of the law, as it were, from our point of view, our Aboriginal law. So they got to be there, they got to be face to face, they got to be seen and it’s not only for them just to receive information or observe those things, because it’s also about what kind of a human being they are, what kind of a man they will be or won’t be… you can’t take that information outside of those places and those times and go and talk about it privately outside. It’s not permissible. It’s not what the law allows.

111    Now Mr Dodson was speaking more specifically about why evidence should be restricted, and not available to third parties. What he says, however, also underlines the collective nature of the subject matter native title holders are speaking about, and why the evidence is likely to be at its most reliable, and its highest quality, when given while as many of the right people are present as can be present.

112    To this point, the practice in this Court of group evidence, or evidence in front of the right people, has largely occurred in connection trials. However, there is no difference in principle why the same process should not, and will not, be adopted in appropriate compensation trials. The Rules themselves make no such distinction.

113    Indeed, there may be more justification in compensation situations such as the one raised by the present application, where there are several members of the same family, acknowledged by the common law holders to be the right people for the area where the alleged compensable act is said to have occurred. Group evidence about the impact of the compensable act may be the best form of evidence, given the impact to be assessed is the impact on native title rights and interests, being communal and collective interests, and what is being assessed is the impact of the compensable act having regard to the spiritual and usufructuary significance of land and/or waters under consideration: Griffiths v Northern Territory (No 3) [2016] FCA 900; 337 ALR 362 at [301]-[302] (Mansfield J).

114    As the discussion by Mansfield J from [303] to [312] illustrates, the Court’s task is not to assess personal loss or personal harm as such, although of course one person’s testimony about how the compensable act has affected their enjoyment and use of their native title rights and interests may be probative of damage to the collective and communal interests. That will be more likely where the person is an elder, or recognised as able to speak directly for the country where the compensable act occurred. Mansfield J observed at [318]:

Not all groups will be the same; hence it is not enough to make the inquiry about effects by reference only to a statement of what would be the determined native title rights were it not for extinguishment. An evaluation of what are the relevant compensable intangible disadvantages, with a view to assessing an amount that is fair and reasonable, requires an appreciation of the relevant effects on the native title holders concerned, which, may include elements of ‘loss of amenities’ or ‘pain and suffering’ or reputational damage. In that respect, evidence about the relationship with country and the effect of acts on that will be paramount.

115    From this part of his Honour’s reasons through to [384], there are many passages which emphasise the importance of the Court assessing overall harm or loss, collectively, although this may be based on the testimony of individuals.

116    For example, at [372]:

… The response of the native title holders to any interference or damage to that spirituality must therefore be understood in view of the bond understood to exist between a person and the spirituality of country.

117    In the present circumstances, the evidence of the “right” people for the Port Smith area and the area of the Pearl Industry Lease, has been collected and harnessed as one segment of testimony that can be given, and preserved, until the foreshadowed compensation claim is filed. Authorities in this Court thoroughly support the Court taking and preserving all five siblings’ evidence as a distinct segment of evidence. That, in my opinion, is likely to provide ultimately the best and most reliable evidentiary picture to the Court about the impact of the compensable act on the Karajarri People’s native title rights and interests. Where practicable and otherwise appropriate, securing the best and most reliable evidentiary picture in proceedings under the NTA should be an important consideration, given the Preamble and the objectives of the NTA, especially the objectives in the Preamble that:

[the people of Australia intend] to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

118    And:

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title.

119    In compensation proceedings, the Court’s evaluation of witness evidence will be central to its assessment of “cultural loss”, if compensation is otherwise available for a specified act. As Mansfield J observed in Griffiths by reference to various kinds of common law proceedings where damages are sought, it is the personal testimony of those who have suffered damage and harm that will be most persuasive, and most effective. The applicant, and the Karajarri common law holders it represents, should not be tangibly disadvantaged in adducing the best evidence it can by reason of the complexities of the NTA in terms of what is required before a proceeding can be responsibly commenced.

120    It almost goes without saying that the factors I have considered above overwhelmingly favour the testimony of the four remaining Karajarri people being taken on country, or in locations close to country, where they are likely to feel at their most comfortable and safe, and therefore most likely to provide reliable evidence.

121    The State in its submissions made something of the fact that there are other ways to preserve accounts given by people which may ultimately be sought to be adduced in evidence. As the State submits, affidavit evidence has already been prepared, and it is detailed. Oral accounts could be video recorded. The applicant would have choice over the locations in which those accounts were given, and who was present.

122    The State was quite correct to point to those alternatives. It is obvious those alternatives would be better than nothing occurring. Senior counsel for the State accepted the accounts would not be tested, and that was likely to affect the weight given to the evidence. Issues of admissibility might loom larger because respondents (being the parties likely to object to admission of evidence) would not have been present when the evidence was taken.

123    I do not consider the availability of these options is sufficient to deny the applicant the orders sought. It is in the interests of the administration of justice for the best and most reliable evidence to be available, if that can be facilitated.

124    Therefore, the primary reason I have decided to make the orders sought is to afford the applicant the best chance of adducing the most reliable and in-depth evidence possible, in circumstances where it can be tested both individually and collectively, where potential witnesses are likely to be at their most comfortable and in the best state of health they can be.

Costs and resources

125    There was some discussion at the hearing about how long the evidence hearing would take, and where it would be held. I have proceeded on the basis that the hearing will take three to four days and is likely to occur in and around Port Smith. I accept that will mean all parties, including the State, will incur not insignificant costs. Again, I refer back to my basic findings about the likelihood that the foreshadowed compensation claim will be filed — on that assumption, it is probable these costs will be incurred in the future in any event. It is just a question of when.

126    Bringing those costs, and the expenditure of human and other resources forward is not on the evidence such a hurdle that it should, as a factor, overwhelm the justice in affording the applicant the opportunity to adduce and preserve this evidence in a way likely to make it of its highest quality and at its most reliable.

Other considerations

127    Even with orders made in the form broadly sought, those orders will not necessarily prevent or preclude later argument about the admissibility of the evidence preserved. Although I accept that the present application reduces the risk of admissibility issues as much as humanly possible. However, the Court is entitled to proceed on the basis that the State and any other respondents would not object to preserved evidence without serious justification, and therefore the proposed course provides the most likely opportunity for the applicant to be able to eventually adduce this evidence in support of the foreshadowed compensation claim.

128    As the applicant submits, where a witness becomes unavailable to be called after a compensation claim has been filed (due to death or other circumstances) any preserved evidence is likely to be admissible under s 63 of the Evidence Act 1995 (Cth), read with s 72. Section 86 of the NTA may also apply, if this proceeding is considered another proceeding in this Court.

Disclosure of the Jimmy Edgar records

129    This issue concerns first, the disclosure of the Jimmy Edgar Records, and then (logically) what disclosure regime should apply to the remainder of the preservation of evidence records once they are completed.

130    The State submits (at [103]):

The Respondent agrees with the Applicant's submission that, if PPE is taken, parties ought to be permitted to access the transcript or recording of the PPE, rather than having those records kept sealed by the Court until publication. This is consistent with practice in native title determination proceedings to take “early evidence”, and that evidence, having been exposed to other parties, may assist with the narrowing of the issues in dispute.

(Original emphasis, footnotes omitted.)

131    I accept that submission. In Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47 at [25]-[26], in the context of a final trial judgment, North J explained what had occurred in relation to preservation evidence taken earlier in the life of the Kurnai and Gunai/Kurnai claim:

… In relation to preservation evidence the main purpose was to ensure that the evidence of elderly witnesses was not lost by the passage of time. Additionally, it was thought that the exposure of some parts of the evidence prior to the commencement of a full trial might cause the Indigenous parties to reassess the chances of resolving the group composition issue without a judicial determination.

….

One of the values of the early and preservation evidence hearing was that the evidence was exposed to the state. As a result, the state was able to make some assessment of that evidence and to address submissions to the court concerning its view of the cogency of the evidence at that stage. On 11 March 2008, the state indicated that it was willing to enter into negotiations with the Gunai/Kurnai. Again, this created a dynamic which appeared to hold some possibility of moving the positions of the Gunai/Kurnai and the Kurnai on the group composition issue.

132    While as North J explained, these efforts did not necessarily all come to fruition, the objective his Honour pointed to is relevant: disclosure of accounts that take the form of preservation evidence, which has been tested, may assist in a number of ways both in terms of trial preparation and in terms of agreement making. Disclosure may assist by encouraging respondents to agree that some acts are compensable and perhaps even agree on amounts of compensation; that is a real possibility where, as here, the evidence proposed to be preserved is likely to be evidence on “cultural loss” about the effects of the grant of the Pearl Industry Lease, and the Edgar family are agreed to be the right people to be giving this evidence.

133    A further reason is that if the State has expended human and financial resources in participating in the preservation hearings, it is only fair that it should receive a copy of the records created.

134    Pending their admission into evidence in the course of a compensation proceeding, the usual Harman principles will apply to the use of the records, both the Jimmy Edgar Records and the further records created when the rest of the evidence is taken and preserved: see Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; 235 CLR 125.

135    Therefore, order 4 of the orders made on 18 July 2024 in this proceeding should be vacated and the Court should order that copies of the Jimmy Edgar Records be made available to the applicant and to the State. There is no other interested party known to the Court at the moment. As currently put, the Commonwealth does not have an interest in the foreshadowed compensation claim in relation to the Pearl Industry Lease; and appeared to assist the Court on issues of principle in this application. Once the foreshadowed compensation claim is filed, other interested parties, including the Commonwealth, can apply to receive copies of the records, and that will be a matter for the Court to consider at that point.

136    The records, including the Jimmy Edgar Records and any future records, will be held by the Court as records of this current proceeding. There will be orders that no third party is to have access to those records without the leave of the Court. The applicant and the State will be notified of any third party application, and will be heard before any access decision is made.

Costs

137    Whether or not s 85A of the NTA applies to this proceeding, that being another issue which engages the Full Court decision in Lardil, it is my opinion there should be no orders as to the costs of this application, or as to the costs of the taking and preservation of the evidence of the five Karajarri people.

138    The proceeding has been conducted efficiently and cost effectively, and its novelty and importance was acknowledged by all participants. No orders for costs were sought, and I accept none should be made. The parties should each bear their own costs of this proceeding, including the taking and preservation of evidence for which the Court’s orders provide.

Associate:

Dated:    24 September 2024

Attachment 1