This case concerned the issues around having an on-country hearing and mediation at the conclusion of the lay evidence. It was a dispute between the applicant and the respondents (a group of Badulgal People) regarding who holds native title in the islands of Warral and Ului. The Court had to decide how to conduct the proceedings due to the Covid-19 health pandemic.
Her Honour considered five options which had been canvassed to advance the proceedings. These were to hold the hearing and mediation in October 2021 on country, adjourn it to February or March 2022 and hold it on country, adjourn and divide the hearing into parts, conduct it remotely or to conduct the trial in Cairns or Brisbane.
In making her decision, Her Honour gave weight to several factors:
All parties were prepared to commence the proceedings in October.
Both the applicant and respondents had received funds to be able to conduct the proceedings in October.
Court participants who were in other States were prepared to travel and quarantine per Queensland health advice.
It was not certain that the pandemic situation would have improved by February/March.
The Torres Strait would receive economic benefits by undertaking the trial on country after difficult times due to the pandemic.
It was preferable for witnesses to give evidence on country as in her Honour’s experience it allows witnesses to give the best lay evidence.
Conducting it on country facilitates better community involvement and understanding of the proceedings.
Conducting it remotely was impractical.
Conducting the trial in person outside the Torres Strait would have further burdened the poorly resourced applicant and respondents.
Conducting it on country allowed for the just and appropriate resolution of the dispute and for mediation to take place under the best circumstances.
For these reasons, Mortimer J decided to conduct the trial on country in October 2021.