Mortimer J
In this matter, Mortimer J refused an application made on behalf of the Kaurna people native title claim group for an extension of time to delay the commencement of the connection hearing listed by White J in Agius v State of South Australia (No 3) [2016] FCA 1416 for April 2018. The respondent parties included: the Commonwealth of Australia, the State of South Australia, South Australian Native Title Services, fishing licence holders and water licence holders, Local Government entities, Epic Energy and the Corporation of the Town of Walkerville.
The application for a determination of native title filed by the Kaurna people in October 2000 was amended in July 2001. The claim represents the last ‘capital city’ claim covering heavily populated areas of South Australia, including Adelaide, extending from south of Rapid Bay to Redhill in the north. The eastern boundary of the claim area includes the Adelaide Hills, Clare Valley and Barossa wine regions, while the western boundary includes the coastal region from metropolitan Adelaide to Port Wakefield.
In November 2016, White J made orders and directions preparing the matter for a six week trial on connection evidence in April 2018. In March 2017, the applicant applied to vacate the trial dates and alter the timetable and sought to have the trial commencing one year later, for a period of twelve rather than six weeks. The application to vacate the hearing date was based upon the burden of work the applicant submitted was necessary to prepare for the trial. The applicant submitted that the capacity to do that work was dependent upon the success of a funding application. Mortimer J considered without funding the applicant would undertake little or no preparation for the trial.
Background
In 2004, the State informed the Court that Indigenous Land Use Agreement (ILUA) negotiations were positive. Sample tenure documents were exchanged between the State and the applicant in 2004 and 2005 so that the applicant could consider whether to accept the extent of proposed extinguishment by the State. Unresolved tenure issues in 2008, saw Mansfield J refer the claim to the National Native Title Tribunal (the Tribunal) so as to identify those parts of the claim area in which native title rights may be extinguished. In early 2009, the Tribunal reported that almost 93% of the claim area was subject to total extinguishment of native title, a little over 3% was subject to partial extinguishment, less than 1% was not extinguished and that the tenure status of just over 3% of the claim area could not be accurately determined.
In March 2011, the State and the applicant agreed to identify issues in agreement and in disagreement. By draft minutes of order filed in October 2011, the parties informed the Court that the matter would be progressed once the applicant received funding. In June 2012, a case management conference was convened to identify tenure issues including extinguishment. The solicitor for the applicant, Mr Campbell, informed the Court that the applicant wished to audit the State’s mapping system and the applicant sought further details of the State’s tenure mapping system. A few months later, a communication to the Court indicated the applicant was seeking funding to engage an expert to assess the State’s tenure mapping system.
In early 2015, the tenure mapping issue was referred to the Tribunal, which made a portal of the mapping available to the parties a few months later. In June 2015, the applicant advised the Court that it agreed that 98% of the area was extinguished, however the applicant pressed the issue of funding to conduct an ‘audit’. Mr Campbell indicated that he would not look at the portal until he received funding. The applicant was ordered to provide their position in relation to extinguishment by 1 September 2015. The applicant did not comply with that order, but instead filed a memorandum on 2 September 2015, which sought to further adjourn the issue of extinguishment until funding was provided for an ‘audit’ of the mapping systems.
In March 2016, White J ordered the applicant to commission a connection report and inform the State and the City of Adelaide with detailed particulars, of the aspects of the tenure maps relating to the City of Adelaide provided by the State which they considered to be inaccurate by 31 August 2016. On that date, Mr Campbell provided an affidavit outlining that the applicant had not commissioned a connection report as the $20,000 in funding it had received from South Australian Native Title Services was insufficient.
In March 2017, the matter came before Mortimer J. A case management hearing was held at that time to ascertain the extent to which the parties had progressed with White J’s orders. Prior to that hearing, Mr Campbell filed an affidavit deposing the steps taken since 11 November 2016 to secure further funding for the applicant to prepare for the trial. An application for special funding for $3.8 million had been made to South Australian Native Title Services.
Mortimer J placed the matter on the priority list of native title applications in the South Australia District Registry, on the basis that it was listed for the trial. Her Honour expected that priority status would weigh in favour of the funding being granted. The funding decision was due to be made in May 2017.
Reasoning
Mortimer J noted that ‘determining where to draw lines in case management processes is not an exact science’, but is guided by the overarching purpose in s 37M(1) of the Federal Court Act of Australia Act 1976 (Cth), which is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The Court must do its best to reach a conclusion that is consistent with the overarching objective, while ensuring the active parties have a reasonable opportunity to present their respective cases. Her Honour clarified that the latter requirement is not co-extensive with any party’s insistence that it should be able to present a case in whatever way it chooses or on any timetable it proposes.
Mortimer J outlined the relevant authorities on the interrelationship between case management, judicial power and assertions of lack of funding, holding that they tend firmly against the application to delay the trial. In Levinge & Ors v Queensland [2012] FCA 1321, Reeves J stated that the Court has generally been reluctant to accept a lack of funding, or representation by a party, as a sufficient reason to delay a trial of native title proceedings. His Honour also considered that the Court cannot allow the policies of the Executive Government in relation to the allocation of funding for native title claims to paralyse its processes once its jurisdiction has been properly invoked, at [18]-[19].
Mortimer J observed that the history of the proceeding demonstrates the way the applicant’s claim, and the processes of the Court, have been driven by actual or anticipated funding decisions. Her Honour considered that to be ‘a wholly inappropriate approach to administration of this Court’s responsibilities under the Native Title Act in particular, but more generally in terms of its functions in the administration of justice’ at [160].
Mortimer J considered that the present application was an attempt by the applicant to re-agitate the timetable they had unsuccessfully proposed before White J. Her Honour stated that this was a wholly inappropriate approach; once the Court has determined the issue, ‘and in the absence of significant changes in circumstances not previously brought to the Court’s attention, parties should, and are expected to, comply with the orders made’ at [121].
In relation to the applicant’s failed application for discovery, considered by the applicant to support a year-long extension, Mortimer J held at [173] that the Court is not obliged to acquiesce to the manner in which a party chooses to conduct its case in violation of the Court’s statutory responsibilities, and in violation of its own responsibilities under s 37N. The Court is not required to do so when a party repeatedly raises a lack of funding but and exercises very little restraint, or focus, in the way that the public monies the party has received are spent. Her Honour considered that the applicant’s case was in a ‘parlous state of preparedness’ as a result, lacking in proper focus on the key components of connection hearings being claimant evidence and an anthropological report. Her Honour considered that there was sufficient evidence available to file preliminary connection evidence to progress the claim, including the presence of an anthropologist that has had close working relationship and knowledge of the claim since its inception. Mortimer J noted the flexibility of the Court’s processes in relation to witnesses and experts, which would provide the anthropologists an opportunity to develop and refine their opinions after the filing of the initial connection report further tended against vacating the hearing.
To increase the likelihood of the applicant producing a meaningful report on connection, Mortimer J varied White J’s orders to provide an extension for the filing of the applicant’s expert evidence. The remainder of the application to vary the earlier orders was refused.