Gilmour J
Background
This matter concerns the claim by the Nyikina Mangala claim group (the applicant to this proceeding) and the engagement by one of the parties to the matter with respect to a connection report, prepared by Dr Palmer, an expert anthropologists acting on behalf of the claim group, in consultation with Dr Martin, an expert anthropologist acting on behalf of the State, between February 2006 and December 2012. The hearing of the claim was set down by the Federal Court to commence on-country on 2 July 2013.
OBL and the Connection Report
In 2007, Oil Basins Limited (OBL) and Backreef Oil Pty Ltd (Backreef) jointly applied for a petroleum exploration permit (the Permit) over land that had a 67.23% overlap with the Nyinkina Mangala claim area (the Overlap Area). The application for the Permit was successful and, on 30 January 2008, the State gave notice of the grant of the Permit as a future act, under s 29 of the Native Title Act 1993 (NTA). From early 2008 until May 2012 OBL, Backreef and the applicants undertook negotiations, under the NTA’s right to negotiate, which did not result in any agreement. On 29 May 2012, OBL and Backreef lodged a future act determination application, under s 35 of the Native Title Act 1993 (NTA) for a determination that the Permit could be granted, which was granted by the National Native Title Tribunal (NNTT) on 1 February 2013. On 15 February 2013, OBL were joined as a respondent party in the Nyikina Mangala claim. Counsel for OBL submitted that, in her experience, which was not inconsiderable, parties such as OBL “take very little part in the proceeding and that such part as they play, does not significantly add to the length or cost of a trial”. On 18 March 2013, OBL wrote to the solicitor for the Nyikina Mangala claimants, raising a number of issues relating to the connection. The Nyikina Mangala claimants explained by return letter to OBL that connection issues had been discussed at length between Dr Palmer and Dr Martin and that the State was satisfied connection was capable of being established on available evidence.
On 19 March 2013, OBL filed a notice of its intention to participate in all the hearings (the Commonwealth, Telstra and two pastoral companies also filed notices of intention to participate). Following mediation on 5 April 2013, a “non-unanimous request” was made that a mediation report be provided. This was provided to the Court on 19 April and set out that the State was prepared to resolve the matter by way of consent determination of native title and that the Commonwealth, Telstra and the two pastoral companies were willing to be guided by the State.
On 30 April 2013, OBL challenged the Nyikina Mangala claim group about various aspects of the connection report. OBL did this without reference to any assessment of the evidence within the connection report by an anthropologist or any other related expert. OBL also sought guidance from the applicant as to whom it ought to consult in order to comply with the Aboriginal Heritage Act 1972 (WA).
On 30 April 2013, the applicant filed a Witness Proposal, listing 18 Nyikina Mangala witnesses to be called to give evidence at the 2 July 2013 on-country hearing, if connection was contested.
Removal Hearing 15 May
On 6 April 2013, the applicant filed an application to remove OBL from the proceedings. On 8 May 2013, the applicant sought OBL’s agreement to an order to limit participation in the proceedings, offering that the applicant would not press for an order that OBL be removed as a party. However, OBL responded on 10 May 2013 that it was unable to suggest how the currently proposed hearing of connection evidence may be reduced. On 15 May 2013, at the first hearing of the removal application:
the State confirmed that, on the merits of the evidence and not for any other purpose, it accepted connection;
OBL claimed it had sought that information from the State but without response and that this was the first time it had been made aware of the State’s position; and
The Judge in the removal hearing application [at 30] stated that:
Of course, OBL well knew by this date that the State was not putting connection in issue. OBL knew as at 18 February 2013, from the SSO email of 30 January 2013, that the State was considering entering into a consent determination.
During this Hearing, OBL relied on a draft connection report, prepared by Dr Martin for the State (prepared for the purposes of mediation and subject to privilege) and an earlier report that Dr Palmer had co-written with another anthropologist (produced for mediation purposes and was subject to confidentiality restrictions). Counsel for OBL asked to amend its Response to the Removal Application and the Court adjourned the proceedings to 22 May 2013.
On 20 May 2013, OBL filed certain court documents, including a statement that OBL was solely concerned with “the area of overlap between the prospective Permit area and the Nyikina Mangala Claim Area … and … Extinguishment Issues within that Overlap Area. The content of one of these documents, Gilmour J stated [at 35]: … was a concession by OBL that connection would no longer be an issue.
Removal Hearing 22 May
The applicant advised the Court that it was seeking an Order that OBL’s participation in the proceeding be limited to matters listed in s 225 (c) and (d) NTA. The applicant identified that OBL had not narrowed its response and OBL would, necessarily on the facts, be involved in a connection issue. The Court provided OBL with leave to provide further Court documents, to clarify the concerns raised by the applicant.
Removal Hearing 18 July
OBL explained that it had opposed entering into a consent determination because it was aware of information that showed serious deficiencies in the applicant’s case. OBL also submitted that it had various communications with the State and the applicant, where it had actively but unsuccessfully sought information to satisfy itself that connection need not be in issue.
OBL referred to the 1 February 2013 Future Act Decision by the NNTT and submitted that the evidence did not show a native title claim strong enough, on the balance of probabilities, to establish native title in the Overlap Area. OBL also relied on the following statement, made in an email sent by the State Solicitor to the respondents on 30 January 2013 (and sent to OBL on 18 February 2013): Whilst we do not agree …that there was one Nyikina Mangala society at the time of sovereignty, given the dearth of early ethnography for either group the State will consider, as a matter of pragmatism, a consent determination in favour of the Nyikina Mangala people, with no reference to one society at sovereignty and no demarcation of Nyikina or Mangala areas. The Hearing was adjourned to allow OBL to put further affidavit about its conversations with the State and for the State to put a response affidavit.
Removal Hearing 18 August 2013
Affidavit evidence presented by the State identified written communications between the State and OBL, including the approach by the Court when anthropological evidence is not strong with respect to an element of a connection report. This included whether there was a “society” at sovereignty and where there is a reasonable basis for the claim and the State has no evidence to present in opposition. These discussions also included advice to OBL that some early linguistic data existed, but no early anthropological material. The connection report was accepted by the State, on senior counsel’s advice that the claim would succeed in a contested hearing, as evidence of connection. All parties to the matter, except OBL, were willing to follow the State. Gilmour J considered [at 54] that submissions made by OBL disclose its fundamental misconception about the role of and obligations of the State in Native Title matters. His Honour stated:
The State acts in the capacity of parens patriae to look after the interests of the community generally. Here the State took, as it should have, a real interest in the proceedings in that capacity. It was involved in negotiations and mediation meetings with the applicant over many years. It had carefully analysed and assessed the applicant’s connection material.
The earlier views of Dr Martin, expert anthropologist for the State, were unsure as to the situation with regard to “society” and were expressed in his report and during discussions with Dr Palmer. Dr Palmer then undertook further field work and presented what Gilmour J describes [at 56] as “an impressive report by a leading expert”. His Honour went on to state: It is little wonder that, in light of this, the State altered its position, on advice from the State Solicitor-General to concede that connection would likely be made out. OBL had Dr Palmer’s connection report since December 2012. OBL took no steps to obtain its own anthropological report and, instead, submitted that if the matter went to Court, it would rely on cross examination of the expert. Gilmour J did not accept this and stated [at 57] “I do not accept that OBL had a real issue with the matter of connection.” Furthermore, His Honour stated [at 59]: There was no acceptable adequate reason for OBL to have put the whole of the applicant’s connection case in issue in circumstances where all other parties were prepared to enter into a consent determination. The State had assured OBL that it had carefully assessed the whole of the evidence and on proper advice considered that there should be a consent determination. It was also unreasonable in that OBL completely dropped its opposition to connection without providing an adequate explanation. OBL knew, as I have mentioned, by 1 March 2013, that the State had a genuine basis for contending that there should be a consent determination.
Decision to Limit Participation
The Court ordered that OBL’s participation in the proceedings be limited to those matters listed in s 225 (c) and (d) NTA. Gilmour J considered this would provide certainty in the proceedings, particularly given OBL’s earlier changes in direction on the issue of connection.
Decision as to Costs
Section 85A NTA requires each party to a proceeding to bear his or her own cost, except:
… if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs. After considering a range of case law with relation to costs, indemnity costs and the reasonableness of the parties, Gilmour J concluded that OBL’s conduct was unreasonable and warranted the making of a cost order that: 1. OBL pay the applicant’s costs of the interlocutory application dated 6 May 2013 including for the period since 19 March 2013 costs thrown away by reason of OBL changing its position on the issue of connection; and 2. The costs, the subject of Order 2 be paid on an indemnity basis forthwith.