In this matter, Griffiths J made orders granting the applicant an extension of time to file connection reports in support of the Jawoyn native title application and in relation to non-party discovery against the University of Western Australia.
The applicant in the Jawoyn application (NTD 57 of 2017) filed two interlocutory applications: the first seeking an extension of time to 12 May 2019 for the applicant to file its connection report(s), the second seeking non-party discovery against the Northern Land Council (NLC) and the University of Western Australia. The applicant came to an agreement with the NLC and did not press the application against the NLC.
The Jawoyn claim area is overlapped by Dagoman claims. The Court has previously expressed its concerns about the Jawoyn application delaying finalisation of the Dagoman claims and in April 2018, ordered that the applicant in the Jawoyn claim had to finalise its reports on connection by no later than 12 October 2018. On 16 October 2018 the Jawoyn applicant filed an interlocutory application seeking an extension of time so as to provide its connection report by 12 May 2019.
Extension of time application
At a case management hearing conducted on 17 October 2018, the Court granted leave for the Dagoman claims to be discontinued by 16 November 2018 and ordered that a reformulated Dagoman application be filed and served also by that date. The Court was informed that the connection report in support of the new Dagoman claim had been finalised and would be provided to the Northern Territory as respondent when the new claim was also filed.
Anthropologist for the Jawoyn applicant, Mr Kim Barber, stated that he was unable to complete the report by 12 October due ‘constraints on [his] research’, relating primarily to the lack of access to the Land Interests Register and to materials kept in the Berndt Museum at the University of Western Australia. Under the terms of the Will of the widow of Professor Ronald Berndt, a renowned anthropologist, relevant papers and documents of Professor Berndt are held by the University of Western Australia and are embargoed until 2024.
Griffiths J was not persuaded by Mr Barber’s evidence and the applicant’s submissions that the applicant should have until 12 May 2019 to complete any connection report, citing s 37M of the Federal Court of Australia Act (Cth). His Honour noted the belated filing of the Jawoyn application, against a background of the competing Dagoman claims having been on foot for approximately 18 years at that time, ‘should not be permitted to blow out the timetable for finalising the foreshadowed new Dagoman claim’ at [25]. His Honour considered it reasonable to require the applicant to provide any report on connection by no later than 31 March 2019 and made orders as such.
Non-party Discovery application
Griffiths J made orders to reflect those requested by the applicant, and that satisfy the University’s requirement of a Court order to deal with the embargo on the material in its possession.