Mortimer J
In this matter, Mortimer J refused an interlocutory application made by the Torres Strait Regional Authority (TSRA) to change the venue for the hearing of a case management hearing from Thursday Island to Mer Island.
This proceeding related to Part B of the Torres Strait Regional Sea Claim. Part A was determined by Finn J in Akiba v Queensland (No 3) [2010] FCA 643. Finn J separated the claim into Parts A and B, as the waters covered by Part B overlapped with the native title claims filed by the Kaurareg and Gudang Yadhaykenu Peoples, which have since been discontinued.
The remaining living applicant, Mr Leo Akiba was authorised to represent only the Top Western Islands in the claim: Saibai, Boigu and Dauan. In the proceeding, Mr Akiba filed an affidavit stating that he is not authorised to speak for the Part B Sea Claim and despite the High Court making final orders in August 2013 no application pursuant to s 66B of the Native Title Act 1993 (Cth) has been made.
In 2014 Gilkerson Legal was retained by the applicant to replace Peter Krebs, TSRA Principal Legal Officer. The TSRA engaged anthropologists for Part B of the Sea Claim and overlapping areas. In mid-2017 TSRA retained Just Us Lawyers as its legal representatives and a change of lawyer form was filed by them in relation to QUD6040/2001. In June 2017 Just Us Lawyers advised Gilkerson Legal that it had retained Professor David Trigger as an anthropologist.
Four years have passed since the conclusion of Part A and more than 16 years since the claim was lodged. Mortimer J advised the parties in September 2017 that the Court would hold a case management hearing involving all seven of the Torres Strait Island claims in the Magistrates Court on Thursday Island for some considerable expense. No objection was made by the TSRA at this time.
The interlocutory application was filed by Just Us Lawyers on behalf of the TSRA in the Part B Sea Claim, in which the TSRA is named as an Indigenous respondent party. Her Honour was not persuaded at [55] that that ‘is an accurate description to use in relation to a federal statutory authority.’
Her Honour observed at [58] that: ‘the confused and inconsistent identification of which lawyer is filing material and on whose behalf, reflects what might appear to be some conflict of interest issues, or at the very least, a worrying confusion in roles as between lawyers within the TSRA and lawyers outside it.’
The interlocutory application sought new orders listing the case management conference for Mer rather than Thursday Island for cultural reasons but no cogent or substantive reasons were alluded to in the Court’s assessment that could sufficiently warrant the change of venue.
An important but separate issue raised by the interlocutory application is whether the TSRA and their legal representatives in this claim have actual or potential conflict of interest in the proceedings, as the TSRA propose to be both an active respondent to the native title claim through external lawyers and to be by its employee solicitor, the legal representative for the applicant. The Court found that before any further steps can be taken in the proceeding these conflict of interest issues must be resolved.
Her Honour in conclusion made the following observations at [168]: ‘The Court will not shut its eyes to this reality in the forthcoming case management hearing on Thursday Island, and it is disappointing to see the attitude taken by the TSRA through its external legal representatives on this matter. The people who will be at the now inevitable authorisation meeting should be involved, at least through some of their representatives, in the forthcoming case management hearing. For the TSRA to proceed as though they should not participate in this process is extraordinary. Indeed, it is contrary to the premise which appeared to underlie the interlocutory application that I have refused-namely the critical need to involve the people whose country is at issue in the native title claim. The Court continues to expect the TSRA to facilitate the attendance of all of those RNTBC Chairs, or their representatives, who wish to attend the Thursday Island case management hearing.’