Background
5 It is necessary to set out some of the background to the current situation regarding these seven claims, and the fixing of the three-day case management hearing. This summary is taken from the Court's records, including reports to the Court provided by the parties, Registrar's reports, affidavits, and documents filed in support of the interlocutory application. I have also referred to other affidavits and documents filed in relation to the Thursday Island case management hearing, only insofar as those materials recount the history or uncontroversial context of the proceeding. I have not relied on any of those materials insofar as they raise matters which are the subject of dispute or contest between the parties, or between legal representatives.
6 As its name suggests, this proceeding is the second part of proceeding QUD6040/2001, having been split off from what is called "Part A" of the proceeding by orders made by Finn J on 23 September 2008. Justice Finn was the judge of this Court responsible for the conduct of the Part A proceeding, which was in itself an extensive and complicated claim. Justice Finn spent a considerable period of time in the Torres Strait on country during the course of the Part A proceeding, as some of the evidence on this interlocutory application point out. Thursday Island was not part of the Part A claim. The TSRA evidence suggests that Finn J did not sit on Thursday Island. It would appear to be correct that no on country evidence was taken on Thursday Island in relation to the Part A Sea Claim, hardly surprising since Thursday Island was not part of the claim area. However the Court's records indicate that French J, as his Honour then was, and prior to the proceeding being allocated to Finn J, did sit on Thursday Island in 2005 and separately, that one of the Court's Registrars convened a hearing on Thursday Island in 2006, before the proceeding was split by Finn J into Part A and Part B. When Finn J convened Court hearings at various locations around the Torres Strait Part A claim area, his Honour did so for the purposes of taking on country evidence as part of the actual trial of the Part A claim. That is, his Honour was conducting the final, contested, stage of the Part A claim and hearing all the evidence which was necessary for his Honour to make a final decision on that part of the native title claim. In case it need be said expressly, that is a very different judicial function from the convening of a case management hearing to discuss with the parties current issues about the progress of a proceeding or proceedings. If this difference has not been explained to those members of the Part B Sea Claim group who are concerned that the Court is not conducting this case management hearing on country on an island such as Mer (although Mer is not within the claim area of the Part B Sea Claim), it should be.
7 In reasons published on 2 July 2010 (comprising 259 pages in the authorised law reports: Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1) Justice Finn upheld the claim for native title in Part A of the proceeding. His Honour made final orders on 23 August 2010. There was an appeal lodged from his Honour's orders, which focused on federal legislation concerning fishing for commercial purposes and the interaction of that legislative scheme with native title rights. There was also a cross-appeal concerning Finn J's findings about reciprocal rights and interests, whereby his Honour held that such rights did not have a connection to land and waters as required by s 223(1)(b) of the Native Title Act 1993 (Cth). By majority (Keane CJ and Dowsett J, Mansfield J dissenting) the appeal was allowed and the cross-appeal was dismissed: Commonwealth v Akiba [2012] FCAFC 25; 204 FCR 260. There was an appeal to the High Court from the Full Court's decision and, on 7 August 2013, the High Court published orders and reasons on that appeal: Akiba v Commonwealth [2013] HCA 33; 250 CLR 209. The Full Court's orders were varied, but it is not necessary to describe the details of those variations. In substance, the High Court held there was no inconsistency between the statutory regime for commercial fishing rights and the incidents of native title.
8 The Malu Lamar (Torres Strait Islanders) Corporation ICN 8051 was formed as the registered native title body corporate (RNTBC) to hold, in trust, the native title determined to exist in relation to the Part A Torres Strait Regional Sea Claim area, in accordance with s 56(2) of the Native Title Act.
9 As I have noted, Finn J separated the Torres Strait Regional Sea Claim into Parts A and B. His Honour did so because the waters covered by the Part B Sea Claim overlap with the (then) native title claims filed by the Kaurareg and Gudang Yadhaykenu Peoples (the Kaurareg People #1 claim and proceeding QUD269/2008 respectively). There were no overlapping claims in relation to the Part A Sea Claim area. Since 2010, further overlapping claims have been filed and the Gudang Yadhaykenu Peoples' claim was discontinued in July 2017.
10 Mr Leo Akiba was one of the four individual claim group members who was named as a person constituting the applicant in QUD6040/2001 for the purposes of s 61 of the Native Title Act. I have described the unique statutory concept which is an "applicant" under this legislative scheme in my reasons for judgment in McGlade v Native Title Registrar [2017] FCAFC 10; 340 ALR 419 at [362]-[386].
11 Each of the four individual members originally constituting the applicant was authorised to represent one of four regional cluster groups. Mr Leo Akiba was authorised to represent only the Top Western islands, which comprises of Saibai Island, Boigu Island and Dauan Island: see Finn J's reasons at [919]-[924]. The question of the authorisation of the claim, and its continuation through to trial and judgment in circumstances where two of the original four individuals had passed away and were not replaced, were the subject of findings by Finn J. His Honour considered it was not in the interests of justice to require strict compliance with authorisation: see Finn J's reasons at [926]-[933]. I referred the parties in the current seven proceedings to these findings in the list of issues prepared for the Thursday Island case management hearing.
12 In the subsequent years, the other remaining individual who constituted the applicant has died. Mr Akiba is the sole remaining individual who constitutes the applicant for proceeding QUD6040/2001, the Part B Sea Claim. He is 81 years old. Mr Akiba has sworn an affidavit in relation to some issues currently before the Court and scheduled to be dealt with at the three-day case management hearing. For present purposes I note that Mr Akiba says in his affidavit (at [11]) that, consistently with the position I have set out at [11] above, he "cannot talk for the Part B Claim sea country because it is not my sea country". That evidence is also consistent with some of the other documentary evidence filed with the Court for the purpose of the Thursday Island case management hearing, consisting of communications from Chairpersons of some of the Torres Strait Islander RNTBCs, in which it is contended that Mr Akiba is not a person who can speak for the sea country of the Part B Sea Claim. I shall refer to those individuals collectively as the RNTBC Chairs.
13 Despite this state of affairs, which has persisted since the High Court made final orders in August 2013, there has been no attempt to use the Court's processes, and the express terms of s 66B of the Native Title Act, to change the constitution of the applicant so that the individuals who constitute the applicant are representatives of the members of the claim groups in the way that the concept of applicant is contemplated in s 61 of the Native Title Act, and in a way which is consistent with the authorisation provisions in s 251B of the Native Title Act.
14 No doubt there are explanations for why there has been no application under s 66B to regularise the proper constitution of the applicant for the Part B Sea Claim. Having become acquainted with this matter relatively recently, it would not be appropriate in these reasons for any further observations to be made in relation to that omission.
15 Nevertheless, it has now become apparent this state of affairs is responsible for many of the issues that have now arisen and which have caused considerable tension amongst the parties and, apparently, amongst claim group members. A process, and timetable, for resolving this issue must be dealt with at the case management hearing.
16 Shortly after the High Court decision, in August 2013, Greenwood J referred the Part B Sea Claim and related proceedings to case management by the Deputy Registrar. An experts' conference was convened in November 2013, to ascertain what further research relevant to Part B of the Sea Claim was required beyond the extensive material already filed in Part A. A number of topics were identified and from early 2014, case management conferences were convened to assist the parties in identifying a position in relation to the funding for the claim, and the provision of further anthropological material. Planning was undertaken for the resolution of these matters.
17 On 7 August 2014, Deanna Grace Cartledge of Gilkerson Legal was retained by the applicant, taking over from Peter Krebs, the then Principal Legal Officer for the TSRA. To this point, the TSRA had been the legal representative for the applicant in the Part B Sea Claim. An affidavit from Mr Krebs, affirmed 12 October 2017, has been filed in relation to the Thursday Island case management hearing. In that affidavit, he describes how, given the acknowledged unsatisfactory position of Mr Akiba being the only individual left as constituting the applicant in circumstances where he has no right to speak for the waters of the Part B Sea Claim area, Mr Krebs established a practice, on the recommendation of Robert Blowes SC, for taking instructions from persons in addition to Mr Akiba. This was a process that continued after Ms Cartledge became the lawyer on the record for the applicant, with the TSRA continuing to facilitate and assist with the taking of instructions following this process. Mr Krebs describes that process, and its origins, at [20]-[24] of his affidavit:
20. The practice of taking instructions and decision-making in respect of the Part B proceedings came about after the successful conclusion of the Part A proceedings by the High Court of Australia on 7 August 2013. After that decision, the immediate emphasis was on establishing the RNTBC for the Part A determination area. Malu Lamar (Torres Strait Islanders) Corporation RNTBC ('Malu Lamar') was established for that purpose.
21. Robert Blowes SC was one of the counsel that assisted the claim group throughout the Part A proceedings. After the High Court decision he assisted with the establishment of Malu Lamar including preparation of the corporation's Rule Book. Under the traditional laws and customs of the native title holding group, common-law holders for each Island within the determination area exercise the recognised native title rights and interests within areas of seas contiguous to their Islands. The common law holders for one area of seas could not necessarily speak for, or exercise native title rights relating to, the seas belonging to common-law holders from another Island. To try and ensure a representation which reflected this, it was decided that each of the RNTBC Chairs for Islands within the Part A determination area from time to time, would be the members and directors of Malu Lamar.
22. During the meetings with Robert Blowes, I can remember discussion about how Part B of the proceedings should be managed pending authorisation of a new applicant and potentially other changes to Part B of the claim. Because of the evidentiary and other work involved, it was known that this could take some time. My recollection is that Robert Blowes recommended that, pending further authorisation, decision-making for the Part B proceedings be made by the applicant and all of the RNTBC Chairs working together. I also had concerns about the capacity of the sole surviving applicant Mr Leo Akiba to understand the nature of the proceedings and to give proper instructions in the matter due to his advanced age, poor health and limited English. I based this opinion on the several times I had met him at Saibai and in Cairns.
23. From that time on, the TSRA in performance of its facilitation and assistance function, resourced face-to-face meetings of the applicant and RNTBC Chairs for the purpose of decision-making and providing instructions. At no time during my period at the TSRA was this ever controversial. The process of making decisions by this means, including providing instructions to legal representatives, was always effective and consensus decisions were always made.
24. It was also acknowledged by everyone attending the meetings that issues to do with resolving overlaps in the Part B claim area should only involve the common law native title holders from the Islands whose waters, under traditional laws and customs, are involved. For example, the mediation resolving the overlap between the Part B claim area and the Kaurareg native title sea claim only involved those RNTBC Chairs and other common law native title holder representatives from the Islands whose sea area was involved in the overlap. During my period at the TSRA, this was never controversial and decisions were made and instructions provided efficiently and effectively.
18 I accept that there may be disagreement with aspects of Mr Krebs' affidavit evidence. I set out these passages not for the purpose of making any findings on contested matters based on them, but rather to explain as part of this background narrative how Gilkerson Legal came to represent the applicant, and to have a practice of consulting persons in addition to Mr Akiba for the purposes of the progress of the Part B Sea Claim. In an affidavit filed in relation to the question of change of lawyer, Mr Akiba contends he was not happy with this process, felt he was left out, and had been unhappy about the process for some time.
19 From August 2014 and until a notice of change of lawyer filed by Mr Maxwell Duncan, a lawyer with the TSRA, on 8 October 2017, there was nothing drawn to the Court's attention to suggest that there was any difficulty with Gilkerson Legal acting on behalf of the applicant, nor about the practice they had established of consulting the RNTBC Chairs. The notice of change of lawyer purported to remove Gilkerson Legal from the record, and replace it with Mr Duncan from the TSRA. Gilkerson Legal filed an interlocutory application on 12 October 2017 seeking to remove the notice of change of lawyer from the Court's record. Various affidavits were filed in support of, and in opposition to, that application, including Mr Akiba's. Gilkerson Legal has now foreshadowed filing a notice of discontinuance in relation to that interlocutory application.
20 In early 2015, a mediation was conducted by Registrar Fewings and the Honourable Mr Stanley Jones AO QC, a former Supreme Court of Queensland judge, to resolve what is described as the "western overlap" between part of the Part B Sea Claim and part of the claim the subject of proceeding QUD266/2008 (Kaurareg People #1). It was reported to the Court that in-principle agreement was reached concerning the resolution of that overlap.
21 Similarly, Registrar Fewings has worked with the Badulgal and Mualgal people to resolve issues over the Warral and Ului islands.
22 Even in the current somewhat tense circumstances of the lead-up to this case management hearing, there is no suggestion that any party intends to walk away from that mediated outcome about the western overlap, or about the Warral and Ului islands.
23 Following these outcomes, the focus turned to obtaining agreement with the Commonwealth and State governments and other respondent parties to negotiate towards a consent determination pursuant to s 87A Native Title Act for the western overlap area. The Court's records also indicate that there was an ongoing consciousness about the need for amendments to the s 61 application, and for a new authorisation process, although neither of those matters eventuated.
24 Mr Krebs described how the TSRA contracted a number of anthropologists to undertake the anthropological work for the Part B Sea Claim, namely: Dr John Burton, Dr Kevin Murphy and Dr Garrick Hitchcock. Drs Burton and Murphy had been expert witnesses in the Part A claim.
25 I do not understand the fact of these contracts to be controversial. Indeed, the TSRA has, in affidavit evidence filed for the purposes of a case management hearing convened by the Court in September 2017, to which I refer below, relied on its contractual relationship with the anthropologists as a basis to suspend their work in May 2017.
26 Towards the end of 2015, anthropological material from Dr Murphy, relating to the western overlap was provided on a confidential basis to the State and to other respondents who requested it.
27 That report attached a separate report prepared by Mr Ray Wood about the Kaurareg rights and interests in the Warral and Ului islands and waters, however there were no genealogies provided with Dr Murphy's report. Although the Court has not seen Dr Murphy's report, I understand that in broad terms the subject matter of the report concerned discrepancies or issues with the description of the claim group.
28 Dr Burton was asked to prepare genealogical charts for the Badulgal and Mualgal people, addressing any identified discrepancies. He was asked to undertake a similar process for the Kaurareg people. Work was undertaken by Gilkerson Legal to compare the current native title Part B Sea Claim group description and the native title holding group descriptions in existing Torres Strait Island native title determinations. The existence of further discrepancies was reported to the Court. Without setting out in any further detail all the reports to the Court about the progress of anthropological work, it can be seen that the question of discrepancies in claim group membership and identification became a recurring theme.
29 In July 2016, there was a meeting in Cairns to discuss the genealogical discrepancies, first between TSRA officers, Ms Cartledge of Gilkerson Legal, and the anthropologists (Drs Murphy, Burton and Hitchcock). That meeting concluded with a process acceptable to the TSRA for reviewing the discrepancies, which was discussed with the Part B Sea Claim representatives the following day. Further contracts between the TSRA and Dr Murphy and Dr Burton for additional work were made in August 2016. Dr Hitchcock was engaged at this time for the first time by the TSRA.
30 In September 2016, the State provided its first detailed, and confidential, response to some of the anthropological material.
31 In a report to the Court ahead of the July 2017 case management hearing before Greenwood J, Gilkerson Legal reported that collection of witness statements to be provided to the State had commenced and would continue when funding to cover the cost of face-to-face interviews is granted by TSRA. Gilkerson Legal also reported on further progress of the anthropologists' work.
32 However, it was in approximately April 2017 that it appeared the TSRA had decided to take a different course of action in relation to the proceeding as a whole. Gilkerson Legal were requested to "hold off" briefing counsel and in May 2017 the TSRA directed Gilkerson Legal to give notice to the anthropologists (Dr Murphy, Dr Burton and Dr Hitchcock) that their work was to "pause" immediately.
33 In mid-2017, the TSRA retained Just Us Lawyers as its legal representatives, and on 15 June 2017, Just Us Lawyers filed a notice of change of lawyer in proceeding QUD6040/2001. Mr Besley, who is the practitioner with the carriage of the matter at Just Us Lawyers is a former legal officer for the TSRA.
34 In around June 2017, the TSRA advised Gilkerson Legal and the Court that it had entered into a contract with Professor David Trigger, an anthropologist, to undertake a review of the anthropologists' work to date. Whether or not Professor Trigger has had any previous connection with the Torres Strait Sea Claim, or the Torres Strait region, is unclear.
35 Meanwhile, productive negotiations continued and in June 2017, after a case management conference in Cairns, Registrar Fewings reported to the Court that the overlaps with the Kaurareg and Cape York claims had resolved in principle. Again, despite the current tensions, there is no suggestion that in principle resolution is any jeopardy.