Mortimer J
In this matter, Mortimer J made programming orders for the re-authorisation of the applicant for Part B of the Torres Strait Regional Seas Claim. These orders are set out at the end of this case note.
[1] The hearing and reasons for judgment cover two topics: (1) the process in the lead up to a section 66B Native Title Act 1993 (Cth) application and (2) why the Court foreshadows future consideration of costs orders against persons who are not a party to the proceedings, and as an alternative, against the Torres Strait Regional Authority (TSRA). This is the fourth ruling or set of interlocutory reasons the Court had had to give within three months.
Her Honour observed that [4] the responsibility for this state of affairs rests squarely with the Torres Strait Regional Authority (TSRA).
[6] A case management hearing was held on Thursday Island, 20–22 November 2017. Mortimer J set out the events on Thursday Island in Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1438 (Transcript Reasons; see summary below). The background to this proceeding is set out in Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 (Venue Reasons, see What’s New in Native Title – November 2017). The necessity for a case management hearing (CMH) on 18 December 2017 arose from the series of events since the orders made by the Court following the Thursday Island CMH in November 2017.
[4] Following the CMH on Thursday Island, and after several confidential case management sessions conducted by Registrar Fewings as part of the three-day hearing, the urgency of the need to reconstitute the applicant became apparent to the Court. The Court stated that that situation emerged through the evidence of Mr Akiba about how he did not speak for the Part B area of the Regional Seas claim, and the breakdown (through the actions of the TSRA) in the working arrangements with the relevant PBC Chairs which had been in place for several years when Gilkerson Legal were acting for the applicant.
The directions made on 22 November 2017 required a process for authorisation of a new applicant for the Part B Sea Claim to be completed by 29 March 2018, and for any application to replace the applicant under s 66B of the Native Title Act 1993 (Cth) (NTA) to be filed by 12 April 2018. Despite the orders and the consent of the parties reached at the November CMH, at the time of the CMH on 18 December 2017 the orders had not been progressed.
The Court observed that the responsibility for that state of affairs lies solely with the TSRA, and the enormous amounts of public funds which have been expended by the Court and the parties (and, indeed, by the TSRA itself) since early 2017 are also the responsibility of the TSRA. Her Honour considered that if the TSRA had kept to the (appropriate) role it played in this proceeding until approximately April 2017, the claim would be close to a consent determination at least in relation to the Western Overlap area.
[11] The Court then temporarily joined the chairs of the relevant PBCs to the proceedings, so that there were some people who were party to the proceedings with a representative role in relation to the claim group members. Mr Maluwap Nona, Ms Garagu Kanai and Mr Ned David (the claim group member respondents) are people who may hold native title in the claim area and can speak to some extent for claim group members, unlike the current applicant Mr Akiba, who speaks for country subject to the Part A claim.
The need for a stipulated process
The Court stated at [14] that ‘this ruling is necessary to ensure that the directions made on 22 November 2017 are complied with and achieve the necessary purpose of the applicant being properly authorised and constituted. Without that, this proceeding is in danger of being dismissed, or stayed, and all the hard work to date will be frustrated. It is also important to ensure that the positive direction achieved at the Thursday Island CMH is not lost.’
[17] At the close of the November CMH, the Court stated that the three individual claim group respondents together with Mr Akiba, would have the primary carriage of any s 66B application and would require funding for legal representation. Counsel for the TSRA informed the Court that the funding application was being considered by the TSRA Native Title Unit.
Due to the lack of progress following the November CMH, the Registrar listed the matter for a case management conference on 11 December 2017. Senior Counsel for the TSRA informed the Registrar at the conference that a funding decision would be made within 48 hours. That did not occur, and was part of the reason the 18 December CMH was listed.
[10] The Court considered that the lack of progress stemmed from the TSRA’s attitude to funding the chosen legal representative for the three claim group member respondents. Their chosen legal representative is Mr Oliver Gilkerson of Gilkerson Legal, the firm which was until around October 2017 acting for the applicant and working with the relevant PBC Chairs, including Mr Nona, Ms Kanai and Mr David.
[31]–[32] Gilkerson Legal made a request for s 203BB NTA assistance (funding) on behalf of the claim group respondents on 22 November 2017, noting that the approval of the funding was both imperative and urgent in terms of the timeframes set out in the Court’s orders of 22 November 2017. The Court found the initial response from the CEO of the TSRA to be disingenuous in the context of the agreed position established at the November CMH and found the organisation to be ‘again playing an unproductive, unco-operative and negative role, quite counter to its representative body functions, and quite inappropriate for its (objectively) very minor role as a respondent in this proceeding’ (at [31]). The Court observed from the ongoing correspondence Gilkerson Legal received in response to its request that the TSRA was flooding Mr Gilkerson with documents, and attempting to make the process as formal, document intensive and complicated as it could.
[46] The Court noted that in contrast to the ongoing funding delays and complications experienced by Mr David, Mr Nona and Ms Kanai and their legal representative, Mr Akiba’s legal representative was able to obtain funding 28 minutes after the application was made (at [80]).
The ‘obstructionist behaviour’ of the TSRA towards the claim group respondents continued, with an offer to provide Gilkerson Lawyers and Dillon Bowers Lawyers, jointly, $81,000 (inclusive of GST) to complete the authorisation process, and that such funding be split between the law firms depending on the tasks to be completed by each firm. The Court accepted Mr Gilkerson’s contention about the inadequacy of the amount offered, on the basis that Dillon Bowers had been granted by the TSRA $35,000 to ‘read in’ to the matter and attend a case management conference and a CMH.
[55]–[56] The Court was informed of a ‘Torres Strait Regional Seas Claim consultation meeting’ unilaterally convened by the TSRA in Cairns with a week’s notice. The Court found it ‘difficult to see this as anything other than a usurpation of the role envisaged by the Court’s orders for the applicant and the three claim group member respondents’ (at [57]). Her Honour further found it ‘remarkable that the TSRA held cultural concerns over the Court conducting the CMH on Thursday Island, in circumstances where the parties were given more than two months’ notice of the CMH, and on an island which is relevant to this proceeding (see [118] of the Venue Reasons), and yet appears to have had no concern itself about holding a consultation on the Part B Sea Claim in Cairns, on Aboriginal country that has nothing to do with this proceeding, with just over one week’s notice’ (at [62]).
A resolution was unanimously passed at that meeting on 8 December, directing the TSRA and their consultant to cease carrying out any further consultation sessions about the claim and endorsing the applicant and PBC Chair respondents to take over that role and action the Federal Court orders, on behalf of the claim group members supported by the legal representatives of their choice, and Gur a Baradharaw Kod (GBK).
At the time of the case management hearing on 18 December, the funding situation remained unresolved, and the attitude of the TSRA towards funding Mr Gilkerson and his clients remained ‘obstructionist to say the least’ (at [98]).
[100] The Court examined its file in relation to the TSRA’s funding of barristers and solicitors and found that in 2017, the TSRA funded at least 14 different barristers, many of whom are Senior Counsel, and law firms, on behalf of itself and Mr Akiba, and in one instance, on behalf of one of its lawyers. The Court was told during the 18 December CMH that the TSRA had sought its own legal advice from Senior Counsel about steps required for the authorisation process. The Court considered this to demonstrate ‘the preparedness of some individuals within the TSRA to continue to spend significant amounts of public funds to further its own agenda and purposes (whatever those might be), while denying funding to claim group members’ (at [102]).
The Court further stated: [117]–[118]: ‘As is apparent from these reasons, I have a level of misgiving about what is going on behind the scenes of this proceeding. The evidence to which I have referred indicates it is those “behind the scenes” matters which have provoked conduct that seems directed at neutering this Court’s ability to deal with this proceeding as its judicial functions require. It is also what is neutering the interests of the claim group members in having their native title claim, finally, progressed to a satisfactory resolution. That a native title representative body should be at the centre of, and the prime mover in, such a negative process is appalling.’
Mr Akiba submitted that he is not capable of being a member of the applicant as he does not speak for the claim area and does not wish to continue in that role. The Court noted that the orders made at the November CMH regarding authorisation and the s 66B application were not directed at a specific party, as Mr Akiba was not legally represented at the time. Mortimer J noted at [124] that ‘it is an unusual turn of events. That is because, in such situations of a breakdown within an applicant, the Court can usually rely on the legal representatives of the applicant, and/or alternatively the native title representative body, to act professionally and in the interests of the claim group members as a whole to take steps to rectify the situation.’
The Court continued at [126], stating that it’ has no confidence in the TSRA. Since I have been involved in this matter it has failed on every occasion this matter has been before the Court to act constructively and positively towards advancing the obviously necessary reconstitution of the applicant. It has also failed in the steps it has taken in between Court hearings.’
Mortimer J attributed the change in the cooperative approach taken by the TSRA and Gilkerson Legal to a change of personnel at the TSRA in early 2017, with Ms Cecilia O’Brien coming into the PLO role at the TSRA. Mortimer J noted at [127] that ‘the TSRA has, as far as I can see, abused its funding powers to a significant extent to attempt to control this proceeding for its own purposes, whatever those might be, in a way which is wholly inappropriate.’
In light of that situation, the Court was required to take a ‘much more interventionist and prescriptive role than would usually be the case’ (at [128]).
[129] The Court made prescriptive programming orders for steps to be taken towards the s 66B application. In Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 Reeves J considered the relevance of authorisation meetings at [29]–[32]. See What’s New in Native Title – April 2017. In the recent decision of Gomeroi People v Attorney General of NSW Rangiah J also set out some of the problems with respect to authorisation meetings at [48]–[53]. A case note follows in this edition of What’s New in Native Title.
The Court’s programming orders are set out at paragraph [137].
[143] Costs were not sought against the TSRA at the CMH on 18 December 2017, however the Court considered, on its own motion, whether costs should be awarded in respect of ‘a hearing that should not have needed to take place.’ The Court found at [154] that ‘the circumstances in this case are such that I consider the TSRA’s conduct to have been unreasonable even though, as the authorities make clear, that is not a threshold, or a jurisdictional fact which must be made out before the Court’s discretion on costs can be exercised.’ The Court considered that the conduct of the TSRA might justify a costs order against it, but did not consider there was a sufficient basis for a costs order presently, ‘without knowing what the motivations of those within the TSRA are for the instructions that have apparently been given’ (at [153]).
[155]–[156] The Court in conclusion noted that the conduct outlined in the reasons is conduct of officers within the TSRA who purport to discharge the TSRA’s functions as a native title representative body, not as a respondent to the proceeding.
[175] The Court reserved the costs of the CMH for all parties except the TSRA and concluded by stating that ‘the Court expects its Orders to be met. If the cause of non-compliance with the Orders is inadequate finding from the TSRA, then the Court will deal with that situation as and when it arises. If the TSRA, whether through its funding decisions or otherwise, continues to derail and disrupt this proceeding, and continues to take unilateral action without working cooperatively with the applicant and the three claim group member respondents, apparently for its own purposes whatever they might be, then the Court will, prior to the 1 February 2018 deadline for compliance with the first of these Orders, entertain whatever applications the applicant and the three claim group member respondents seek to make to the Court.’
The Court made the following orders:
Each of the steps and conduct set out be undertaken by the applicant and Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai in consultation with and working with each other.
Paragraph 1 does not prevent the applicant and Mr David, Mr Nona and Ms Kanai whether by themselves, legal representatives or third parties, speaking with and or working with the TSRA.
All factual investigations including anthropological input for identifying the relevant claim group members be completed by 1 February 2018.
The method of attendance, notification and assistance to attend the authorisation meeting be agreed between the applicant and Mr David, Mr Nona and Ms Kanai by 15 February 2018.
The authorisation process as a whole be permitted to include the use of social media as agreed between the applicant and Mr David, Mr Nona and Ms Kanai.
All other active parties be notified of the agreed process by 15 February 2018.
Any concerns by any active party in relation to the agreed process be raised with the legal representatives for the applicant and Mr David, Mr Nona and Ms Kanai by 22 February 2018.
Any revisions required to the agreed process be decided by 1 March 2018.
All pre-authorisation steps be completed by 16 March 2018.
All preparations for the authorisation meeting be completed by 23 March 2018.
The authorisation meeting be held on 29 March 2018.
Each step in the process be the subject of a joint report to the Court.
Costs are reserved and incidental to the CMH of 18 December 2017.