This case concerns an application for orders to take account of cultural and customary concerns of claimant groups in relation to evidence given in proceedings for the determination of overlapping claims of native title.
His Honour noted that the Court commonly makes orders about evidence in native title proceedings that take account, so far as is reasonably practicable, the cultural and customary beliefs, sensitivities and concerns of Aboriginal peoples and Torres Strait Islanders by consent or without objection.
In this case, an agreement between the two parties was not reached.
There are two overlapping claims for determination of native title over a comparatively small area of land around Oodnadatta in the Far North of South Australia, known as the 'Oodnadatta Common'.
The first claim was commenced by the Arabana People on 1 March 2013. The Arabana No 2 Application concerns the Oodnatta Common. The second claim was commenced by the Walka Wani People on 14 September 2018. This claim area exactly overlaps the Arabana No 2 claim area.
The Court dealt with the two applications in one proceeding, to be known as the Oodnatta Common Overlap Proceeding, and set the trial down for September 2019.
The Walka Wani applicants sought orders about the hearing and determination of ‘male gender restricted evidence’ and 'female gender restricted evidence'. These orders defined the nature of the restricted evidence, who can be present at the hearing when such evidence, how it could be recorded and transcribed and the form in which any evidence given in a restricted session may be made available.
The Arabana People and State objected that the Aboriginal men who can hear or be informed of the evidence would be limited to those initiated into the relevant men's law. This would exclude the Arabana People and limit their ability to give instructions, contest the evidence if appropriate and give evidence themselves about those matters.
The Arabana People proposed variations, including nominating two senior Arabana men as ‘particular persons’ who could hear the restricted evidence and provide adequate instructions to counsel, without divulging any of the evidence.
His Honour noted the inherent tension raised by the proposed orders of the Walka Wani Applicants. That is, "the more important the evidence is to the Walka Wani Applicants’ case, the more significant the prejudice to the Arabana People if none of their representatives can hear the detail of the evidence or be informed of it so as to give instructions concerning it", at .
White J concluded that it would represent "...a very grave impairment of the provision of natural justice to the Arabana People if not one of their number is permitted to hear, or be informed of, evidence which is fundamental to the claims advanced in competition with their own and which could be relied upon to defeat their own claim.", at . Nor did the Walka Wani Applicants argue that the undertakings from Mr Stuart and Mr Strangways which the Arabana People contemplate as part of their alternative orders should not be accepted.
The Court also noted that the proposed orders show that the law and culture of the Walka Wani Applicants is sufficiently flexible so as to allow the disclosure of information regarding the tjukurpa and the Red Ochre Law to some people who are not initiated as Walka Wani.
White J was satisfied that the Walka Wani Applicants' orders would unduly prejudice the Arabana People in the proceedings as they would breach the natural justice hearing rule in relation to matters at the heart of the contest between the two claimant groups. That rule is fundamental to the provision of procedural fairness.
White J declined to make orders proposed by the Walka Wani Applicants, instead making orders in the alternative form proposed by the Arabana People.