Federal Court of Australia

Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2026] FCA 646

ORDERS

THE COURT ORDERS THAT:

1.    The evidence of Leonard Stream, Cate Ballantyne and Keith Hall be heard on-country in the Nyiyaparli determination area at Yurlu on Wednesday, 2 September 2026.

2.    Costs of the respondent’s interlocutory application (filed on 8 April 2026) be reserved.

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

REASONS FOR JUDGMENT

LENEHAN J:

1.    INTRODUCTION

1    On 2 July 2025, by an amended originating application filed with this Court, Steven Dhu and Brendan Dhu, the applicants, seek, among other things, a declaration that they “hold rights under the traditional laws acknowledged and customs observed by the Nyiyaparli People over Ijiyangu’s traditional country within the Nyiyaparli [d]etermination area and, on that basis, are members of the Nyiyaparli People”.

2    On 8 April 2026, Karlka Nyiyaparli Aboriginal Corporation RNTBC, the respondent, filed an interlocutory application. The respondent seeks the following orders:

1.    During the trial of this action, listed for 5 days between 31 August 2026 and 4 September 2026, lay witness evidence is to be heard on-country in the Nyiyaparli determination area at a location and on dates to be identified.

2.    The [r]espondent has leave to rely upon, at the trial of this action, the lay witness affidavits of:

a.    Leonard Michael Stream, affirmed on 30 March 2026;

b.    Cate Ann Ballantyne, affirmed on 30 March 2026; and

c.    Keith Hall, affirmed on 31 March 2026.

3    On 10 April 2026, the Registrar made orders by consent, granting the leave sought in paragraph 2. Accordingly, only paragraph 1 of the interlocutory application remains to be determined. In this regard, on 17 April 2026, I made consent orders for the interlocutory application to be timetabled and determined on the papers.

4    For the reasons set out below, it is appropriate that the evidence of Mr Stream and Mr Hall be heard at Yurlu on Wednesday, 2 September 2026, for cultural and customary reasons, and that Ms Ballantyne’s evidence be taken at the same time for reasons of convenience and efficiency.

2.    RELEVANT LEGAL PRINCIPLES

5    The Court has the power, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), to make orders of such kind “as the Court thinks appropriate”.

6    As Mortimer CJ observed in Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Western Australia (2024) 307 FCR 122 at [80], that power is flexible and is to be exercised “by reference to what the interests of justice require”.

7    In relation to applications that relate to native title, s 82(2) of the Native Title Act 1993 (Cth) (the NTA) permits the Court to take into account “the cultural and customary concerns of Aboriginal peoples … but not so as to prejudice unduly any other party to the proceedings”.

8    Read together, these provisions clearly empower the Court to make orders for the taking of evidence on-country if doing so is culturally appropriate and does not give rise to undue prejudice. Indeed, given the very broad construction that has been given to s 23 of the FCA Act (it being established that it extends to all kinds of orders, whether final or interlocutory, as are “appropriate” to be made in exercise of this Court’s jurisdiction: see eg Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 (Deane J); see also Minister for Immigration and Multicultural Affairs v MZAPC (2025) 99 ALJR 486 at [25], [29] (Gageler, Gordon, Gleeson and Jagot JJ) and [59] (Edelman J)), that would be so regardless of the existence of s 82(2) of the NTA.

9    The correct understanding of the relationship between those provisions, reflecting what was said in Wyman v Queensland (2015) 235 FCR 464 at [79] (North, Barker and White JJ), is that the adoption of that procedure (by exercising the broad power conferred by s 23 of the FCA Act) “gives effect to” s 82(2) of the NTA.

10    The Court has “frequently” exercised that power in native title proceedings, which can be seen to recognise the evidentiary and cultural advantages of hearing evidence on-country: see eg Wyman, 482 [79] (North, Barker and White JJ); Jango v Northern Territory (2006) 152 FCR 150, 232 [296] (Sackville J); Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, 267 [806] (McKerracher J); Narrier v State of Western Australia [2016] FCA 1519, [160] (Mortimer J).

3.    PROPOSED ARRANGEMENTS

11    On 24 April 2026, the respondent filed submissions in support of the interlocutory application, including a “logistical plan for the taking of on-country evidence”. As to location, the respondent proposes Yurlu, situated at the Roy Hill mine in the northern part of the determination area. The respondent submits that Yurlu: is a facility designed by Nyiyaparli people for culturally appropriate uses; is equipped with suitable facilities; and is an appropriate place, according to cultural practice, for discussion of cultural matters. As to timing, the respondent proposes that the on-country evidence be confined to a single day, being Wednesday, 2 September 2026.

4.    CONSIDERATION

4.1    Cultural and customary considerations

12    The respondent submits that there are compelling cultural and customary reasons for hearing the evidence of Mr Stream and Mr Hall on-country. In support of that submission, the respondent emphasised the following matters: that the issues in the proceeding concern the applicants’ recognition as Nyiyaparli common law holders; that Yurlu is “a proper place to speak about cultural matters”; and that an on-country environment allows for higher quality evidence than that given in a courtroom.

13    That submission was supported by the following passage from the affidavit of Marianne Rivett, affirmed on 7 April 2026, which records at paragraph [17]:

This morning I spoke to Leonard Michael Stream, one of the [r]espondent's two Aboriginal witnesses and the [r]espondent's Chair and Cultural Advisor, about the application. Mr Stream instructed me to pursue this application for the following reasons:

(a)    since the [a]pplicants are trying to be part of the [r]espondent (the corporation), and the [r]espondent's members are Indigenous people, on-country evidence is necessary to show respect to the members;

(b)    in accordance with traditional law and custom, the issue of a person's identity would usually be talked through in person, on-country, with senior Nyiyaparli people and the wider community;

(c)    to speak on-country is the malpa (Aboriginal) way. It is more friendly than giving evidence in Court and is about everyone feeling good; and

(d)    the Property is which is country [sic] the [a]pplicants say they are connected to, so they can better explain their connection to country.

14    Immediately before that passage, Ms Rivett:

(1)    Noted, at paragraph [15], that the respondent seeks that “Aboriginal lay witness evidence be heard at a property at Roy Hill mine site, known as Yurlu, that the [r]espondent has access to and use of” (which she defined as the “Property”, being the term used in paragraph 17(d)); and

(2)    Observed, at paragraph [16], that the “Property” was “located in the northern part of the Nyiyaparli determination area … approximately 100km and an hour's drive from Newman”.

15    The applicants point out that the Country of Mr S Dhu and Mr B Dhu “is at the opposite end of the Fortescue Valley within the Nyiyaparli determination area” and make a point of the fact that that does not contain within it the Roy Hill location “as suggested by” the respondent. The respondent, in turn, disputes that it made any such suggestion concerning the applicants’ Country.

16    The applicants’ submission on this issue seems to have in mind paragraph [17(d)] of Ms Rivett’s affidavit (extracted at [13] above) which does seem to convey a suggestion that Roy Hill is part of the Country of Mr S Dhu and Mr B Dhu (the “Property… is country the [a]pplicants say they are connected to”). But any such suggestion was expressly disclaimed or sought to be clarified in the respondent’s written reply. The respondent there said this at paragraphs [5]-[6]:

The [r]espondent has not submitted or otherwise stated that the [a]pplicants’ country is at or around Roy Hill, nor does it make such a submission or statement. The location of the [a]pplicants’ claimed country was not a determining factor for the making of the Application, nor the proposed location of the hearing of the evidence of the [r]espondent’s lay witnesses.

The crucial point is that Roy Hill is a convenient location with good facilities on Nyiyaparli Country and, in accordance with cultural practice, it is a proper place to speak about cultural matters, irrespective of where in Nyiyaparli Country is said to be the country of a party or witness.

17    That would seem to place reliance on paragraphs [17(a)-(c)] of Ms Rivett’s affidavit, and elide over [17(d)].

18    While I have some misgivings about the state of the evidence on that issue, I am prepared to accept that, whatever Ms Rivett (or, perhaps more accurately, Mr Stream whose views she was conveying) may have had in mind in paragraph [17(d)], she clearly understood that the matters dealt with in paragraphs [17(a)-(c)] applied to Roy Hill (that being apparent from the context of paragraphs [15] and [16]). So understood, her evidence indicates that there are sound cultural and customary reasons for hearing the evidence of the respondent’s Aboriginal witnesses, namely Mr Stream and Mr Hall, at that location.

19    I should add, as to the issue of “good facilities” referred to by the respondent in the passage from the reply extracted at [16] above, I do not have before me any evidence as to that issue, although there is some information about those matters in the logistical plan which was annexed to the respondent’s submissions. I did not understand the applicants to take issue with that description of the facilities, but, in any event, it is not a matter upon which I have placed reliance in my decision on the respondent’s interlocutory application.

20    In addition to those arguments, the applicants advance two principal submissions regarding what they described as the “customary and cultural elements of the matter”.

21    First, the applicants contend that the proceeding is primarily concerned with “administrative law and good faith”, and that “most” native title aspects have already been resolved through Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496.

22    I accept, as the respondent did, that this is not a native title determination application. However, in my view, the applicants’ submission understates the nature of the factual issues in dispute. As the respondent submits, the proceeding concerns, at its core, whether the applicants hold relevant rights under Nyiyaparli traditional law and custom (a matter that very much remains a live issue) and are, on that basis, members of the Nyiyaparli People. That characterisation is reflected in aspects of the declaratory relief sought by the applicants in their originating application, the applicants seeking (amongst other things):

A declaration that the [a]pplicants hold rights under the traditional laws acknowledged and customs observed by the Nyiyaparli People over Ijiyangu’s traditional country within the Nyiyaparli Determination area and, on that basis, are members of the Nyiyaparli People.

23    In any event, as I have noted above, s 23 of the FCA Act provides ample power to make the orders sought by the respondent, even if one were to put the NTA to one side. The real point is that the issues that are recognised in the authorities at [10] above would carry no less weight even if one characterises this matter in the way the applicants seek to do. In an appropriate case, this Court can and should have regard to the cogent considerations that may weigh in favour of allowing First Nations Peoples to give on-country evidence (see eg the evidence summarised in Wyman at [80] and [82] (North, Barker and White JJ) and the observations of Mortimer J in Narrier at [160]), regardless of whether the matter is or is not a matter relating to the NTA. Why should the Court deprive itself of the “richer information” spoken of by Dr Hutchings, one of the expert anthropologists in Wyman, simply because of the legal classification adopted under Australian law? Why should First Nations People giving evidence be subjected to the kinds of public discomfort spoken of in cases like Jango (2006) 152 FCR 150 at [296] and Narrier [2016] FCA 1519 at [160] in non-NTA cases, if there is a convenient way of avoiding that unfortunate outcome? There are no good answers to either of those questions.

24    Indeed, there are recent examples in this Court where just such an approach has been taken or contemplated in matters which have little or no connection to the NTA: see eg Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 and Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9. Pabai (No 2) concerned a claim in negligence. The Court there took evidence on-country, including by visiting locations such as Boigu, where Pabai Pabai (the first applicant) resided, and Sabai, where Guy Paul Kabai (the second applicant) resided: see eg [596], [598]-[612] and [621]-[624] (Mr Pabai Pabai), [658]-[670] and [688]-[689] (Mr Kabai). Santos (No 3) concerned environmental and administrative law issues. The Court there dealt with extensive evidence concerning First Nations Peoples’ connection to country, but not in the context of the NTA. Although the hearing was not conducted on-country, that was because “[t]ime did not permit evidence to be adduced on-country” and, having regard to the “urgent nature of the proceedings”, such a course was considered “unrealistic” (see eg [36] and [886]). The absence of an on-country sitting in that case therefore reflected practical constraints, rather than any principle confining such a course to proceedings under the NTA.

25    Second, the applicants submit that the hearing should take place in a “neutral location”, namely the Perth registry of the Federal Court of Australia, “due to the nature of contentions raised by the affidavits of Mr Stream and Mr Hall”. The “nature” of those “contentions” is not further identified, but I assume that that submission has in mind that: (a) the applicants wish to cross-examine those witnesses as regards some of the “contentions” they advance; and (b) they perceive that process will be more difficult if it takes place on-country (or to adapt their terminology, at a “non-neutral location”).

26    I also note in that regard that the applicants are representing themselves. If, at the time of the trial, that remains the case, they themselves would be undertaking any cross-examination. I accept that the location at which the evidence is given may make that process more intimidating or difficult for a person in that position if they perceive it to be a “non-neutral” location. Indeed, that is perhaps more likely to be so given some of that evidence concerns matters very personal and important to the applicants: see eg paragraphs [57]-[82] of Mr Hall’s affidavit (affirmed on 30 March 2026) and paragraphs [42]-[43] and [57]-[66] of Mr Stream’s affidavit (affirmed on 30 March 2026).

27    Understood in that way, the applicants’ submission has some force, and I have considered it carefully. However, it must be weighed against the established benefits of hearing culturally sensitive evidence on-country. In circumstances where only a very limited portion of the evidence is proposed to be taken on-country, those concerns do not outweigh the significant considerations favouring the respondent’s proposal. That is particularly so when, on the respondent’s proposal, the remainder of the evidence would indeed be given at a “neutral” location (being the Perth registry). Further, the Court is accustomed to dealing with the challenges faced by litigants-in-person, albeit that it is “constrained by its concurrent duty to remain an impartial adjudicator”: Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479 at [53] (Markovic, Derrington and Anastassiou JJ); see also Chalik v Chalik [2025] NSWCA 136 at [69]-[72] (Bell CJ, Payne and Free JJA). In this regard, for completeness, I note that Mr S Dhu studied law: see Dhu (No 2) [2021] FCA 1496 at [128]-[129] and the applicants are, to my observation, very ably representing themselves in this litigation. Nevertheless, if the potential issues I have identified at [26] above do in fact concretely arise and stand to imperil the fairness of the proceeding, they can be considered and addressed within those constraints.

28    I should say that if I have misunderstood this submission and the applicants instead have in mind that cross-examination should be made more onerous or challenging for Mr Hall and Mr Stream as witnesses by subjecting them to the kinds of discomfort spoken of in cases like Jango (2006) 152 FCR 150 at [296] and Narrier [2016] FCA 1519 at [160], I reject that submission. That would subvert the very object of the approach adopted by the Court in those cases and in the other authorities I have referred to.

4.2    Absence of undue prejudice

29    The applicants further submit that the proposed order would impose unnecessary financial and logistical burdens both on the Court and the applicants. In particular, the applicants contend that the costs of an on-country hearing are uncertain and potentially significant and relied also upon possible difficulties and inconvenience facing witnesses.

30    In response, the respondent submits that the burden – on the Court, the witnesses and the applicants – is modest and proportionate. I accept the respondent’s submissions for several reasons.

31    First, the on-country component is confined to a single day within a five-day trial, with the balance of the hearing to be conducted in Perth.

32    Second, the witnesses whose evidence is to be taken on-country reside in the Pilbara. In this regard, it is necessary to distinguish between the respondent’s Aboriginal witnesses, Mr Stream and Mr Hall, and its non-Aboriginal witness, Ms Ballantyne. As to Mr Stream and Mr Hall, the appropriateness of taking their evidence on-country is supported, as explained above, by cultural and customary considerations. By contrast, Ms Ballantyne is a non-Aboriginal witness who, according to the applicants, would not be giving evidence “of gravitas” in respect of on-country issues. Even accepting that characterisation, her evidence should nevertheless be taken at Yurlu for obvious reasons of practicality and efficiency. Once it is accepted that the Court and parties will travel to Yurlu for the purposes of hearing the evidence from Mr Stream and Mr Hall, Ms Ballantyne’s participation does not materially increase the burden of the exercise. In those circumstances, it is efficient for her evidence to be taken at the same time. Should her evidence take longer than expected, her evidence could, of course, be completed in Perth.

33    Third, the issues raised by the parties regarding Mr Tucker (one of the applicants’ witnesses) can be put to one side. There was some contest in the written submissions as to the state of the evidence regarding Mr Tucker’s health condition. But all of that is irrelevant for the purposes of this interlocutory application, because it is not proposed that Mr Tucker give evidence on-country. Other issues regarding his capacity to give evidence can be determined if they arise, but I do note that the respondent indicated in its reply at paragraph [14] that it accepts the following:

Should Mr Tucker remain in ill-health at the time of the hearing of evidence in August 2026, it will be a matter for the [a]pplicants as to the arrangements to be made for the taking of his oral evidence, and the [r]espondent will accommodate any reasonable arrangements proposed. For example, if Mr Tucker remains in hospital in August 2026 and is unable to attend court in Perth, the [r]espondent would agree to his evidence being taken at the hospital if that can be arranged.

34    Again, those are issues that can be dealt with if they concretely arise.

35    Fourth, as regards the applicants, Mr B Dhu and Mr S Dhu, there is no suggestion that they are unable to travel to Yurlu.

36    Fifth, the applicants emphasised that the respondent does not have “a defined financial amount” attributed to the logistical plan. That is true. However, the limited duration and logistical simplicity of the proposed arrangement suggest, at least to me, that those costs are unlikely to be substantial. Moreover, no evidence was advanced by the applicants identifying any limit on the costs they could meet, or otherwise indicating that they would be unable to contribute to the costs of the proposed arrangement.

37    Finally, I reject the applicants’ submission that the “only other” occasions in which courts have exercised their discretion to hold hearings outside a registry was during the “exceptional times” of the COVID-19 pandemic. As the authorities I have mentioned above amply demonstrate, the taking of evidence on-country in matters concerning native title is neither unusual nor exceptional, with the benefits of doing so well-established. Those benefits, of course, come with some financial and logistical cost. But there is nothing on the material before me to suggest that that cost is disproportionate or will cause undue prejudice.

38    In those circumstances, I accept the respondent’s contention that the proposed arrangement represents “a reasonable, practicable and relatively low costs means” by which its proposed on-country evidence can be taken “without causing undue prejudice” to the applicants and “undue inconvenience to the Court”.

39    I also note that, although not the subject of any evidence, it appears from the logistical plan that travel to and from Yurlu may be able to be undertaken on the same day, such that no overnight accommodation would be required for the applicants or the Court. I did not understand the applicant to dispute that that was so. Nevertheless, given the state of the evidence, I have not placed any weight upon that matter, but I note that that is advanced by the respondent as an important aspect of its logistical plan upon which the Court and the applicants can be expected to rely.

5.    CONCLUSION

40    On balance, the cultural and evidentiary benefits of taking (limited) evidence on-country outweigh the (relatively) modest burden of the proposed arrangements. It is my view that it is appropriate to make an order that the evidence of Mr Stream, Ms Ballantyne and Mr Hall be heard at Yurlu on Wednesday, 2 September 2026. The respondent did not expressly seek the costs of this interlocutory application and neither party addressed the question of costs in their written submissions. I will therefore reserve the costs of the interlocutory application; that issue can be addressed (if necessary) at a later stage.

Associate:

Dated:    27 May 2026