Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia

Federal Court of Australia|2023-04-03|Before: Ms J, Smith J

Counsel for the Applicants: Mr SA Glacken KC with Ms J Wang

Solicitor for the Applicants: Northern Land Council

Counsel for the Respondent: Mr D O'Leary SC

Counsel for the Intervener: Ms C Klease

Solicitor for the Intervener: Australian Government Solicitor

Counsel for the Interested Parties Mt Isa Mines Limited and McArthur River Mining Pty Ltd Mr D Kerr

Solicitor for the Interested Parties Mt Isa Mines Limited and McArthur River Mining Pty Ltd Self-represented

BETWEEN: CASEY DAVEY, REGGIE O'RILEY, CHRIS PLUTO, DEON LANSEN, DAVID HARVEY, JOY FINLAY, GF (DECEASED) AND ADRIANNE FRIDAY ON BEHALF OF THE GUDANJI, YANYUWA AND YANYUWA-MARRA PEOPLES First Applicant

TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC Second Applicant AND: NORTHERN TERRITORY OF AUSTRALIA Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

order made by: BANKS-SMITH J DATE OF ORDER: 3 APRIL 2023

THE COURT NOTES THAT:

These orders are made on the applicants' interlocutory application filed 20 March 2023 with the consent of the parties and of Mt Isa Mines Limited and McArthur River Mining Pty Ltd as interested persons.

THE COURT ORDERS THAT:

Any requirement under r 14.02 of the Federal Court Rules 2011 (Cth) for personal service of this application is dispensed with.
Pursuant to r 14.01, r 14.03, r 34.120 and r 34.127 of the Federal Court Rules 2011 (Cth) and s 53 of the Evidence Act 1995 (Cth): (a) an inspection of the application area be held in accordance with the inspection and site evidence program and accompanying route maps annexed to these orders; and (b) evidence be taken at the times and places referred to in the program and route maps; on the terms set out below.
The persons referred to at orders 4-6 may, for the purposes of order 2, enter, access and remain on those parts of the application area within the boundaries of Perpetual Pastoral Lease 1051 (PPL 1051) and Mineral Leases MLN 1121 to 1126 held by Mt Isa Mines Limited (MIM) and within the McArthur River Project operated by McArthur River Mining Pty Ltd (MRM) referred to in the program for Days [redacted].
[redacted]
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The travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program is subject to any reasonable conditions, restrictions, supervision, or directions that may be reasonably required by MIM and MRM for the entry to, being upon, or as necessary for the safe operations of PPL 1051 and the McArthur River Project, with any dispute or objection to be dealt with under orders 10 and 11.
Registrar Colbran may, at the request of a party or of MIM and MRM, or on her own motion, conduct a case management conference to address any matters concerning the travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program.
There be liberty to the parties and to each of MIM and MRM to apply on 72 hours written notice to vary these orders and the program.
There be no order as to the costs of the applicants' interlocutory application filed 20 March 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexures [redacted]

BANKS-SMITH J: 1 In 2015 the Court declared by consent under s 87 of the Native Title Act 1993 (Cth) (NTA) that native title exists with respect to certain land and waters, being some 7228 square kilometres the subject of the McArthur River Pastoral Lease No 1051, and is held respectively by eleven estate groups: Ngajapa v Northern Territory of Australia [2015] FCA 1249 (Mansfield J) (Determination). 2 On 14 December 2020 the applicants filed an application for determination of compensation under s 61(1) of the NTA. The compensation application concerns the effect of certain acts done in connection with the McArthur River Project on the native title rights held by the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples. 3 The Project, as described by the applicants, is conducted on areas covered by mineral leases MLN 1121 to MLN 1126 held by Mt Isa Mines Limited (MIM). MIM also holds the underlying pastoral lease (PPL 1051). The Project operations include the Mine situated on MLN 1121 to MLN 1125 inland at McArthur River, and the Port situated on MLN 1126 on the coast at Bing Bong. The Project is operated by McArthur River Mining Pty Ltd (MRM). 4 The trial in the compensation proceedings is due to commence in June 2023. As is not unusual in proceedings under the NTA, the Court intends to take some evidence on country. This course was requested by the applicants and endorsed by both the Northern Territory and the Commonwealth. The hearing of on country evidence contemplates access to places within the boundaries of PPL 1051 and the mining leases. In short, it is anticipated that the Court and other trial participants (trial party) will be driven to identified places so that witnesses are able to point out to the Court significant locations. The trial party will also stop to sit in other identified places for witnesses to give evidence and be cross examined. For context, evidence taken in this manner is part of the formal trial record and subject to the usual rules of evidence that apply to hearings under the NTA, but the manner in which such hearings are conducted on country may be relatively informal. 5 The Northern Land Council on behalf of the applicants has negotiated with MRM and MIM to facilitate access to the identified places, having regard to any relevant safety and operational requirements of the Project. 6 Initially, the parties were unable to agree on the terms upon which access might be granted. Accordingly, the applicants brought this application under r 14.01, r 14.03, r 34.120 and r 34.127 of the Federal Court Rules 2011 (Cth). 7 Relevantly, r 14.01 ('Order for inspection etc of property') provides that upon application by a party, the Court may authorise a person to enter land, whether or not the land is under the control of a party to the proceeding. 8 Rule 14.03 ('View by Court') provides that a party may apply for an order to have the Court inspect any place, process or other thing that relates to a matter in question. 9 Rule 34.120 and r 34.127 form part of the suite of procedural provisions in Division 34.7 ('Native title proceedings') of the Rules that further the object in s 82(2) of the NTA for the Court to take account of the cultural and customary concerns of Aboriginal people in conducting its proceedings, provided that it does not unduly prejudice any other party to the proceeding. Division 34.7 does not exclude the operation of the Rules generally: rather, by r 34.102 a party to a proceeding under the NTA must comply with Division 34.7 and any other rules that are relevant and not inconsistent with Division 34.7. 10 Rule 34.120 ('Evidentiary matters generally') grants to the Court power to make orders as to the manner in which evidence may be presented in a 'main application' (which includes a compensation application). Relevantly, the Court on application may make orders relating to the manner, including as to the time and place, in which evidence may be presented to the Court. 11 Relevantly, r 34.127 ('Inspection') provides that a party may seek an order as to inspection of a place and consequential orders for the obtaining of permission of owners and occupiers of land. 12 Although they are not parties to the compensation application, because of their interest, I required service of the application on MIM and MRM and they participated in the hearing before me on 3 April 2023. 13 At the conclusion of the hearing I made orders facilitating access to parts of the compensation application area pursuant to those rules. In the end, and after ongoing conferral, the orders were made by consent. However, because the orders anticipate further conferral on logistical matters, and because there is little authority on the use of such powers in the context of native title determination applications or compensation applications, I indicated that I would publish reasons. I have suppressed and so redacted some of the orders because they disclose aspects of the proposed movements of the trial party that in my view should not currently be disclosed, in the interests of the administration of justice. However, expressed generally, orders were made for the inspection of identified areas within PPL 1051 and the mining leases, in accordance with a site evidence program and accompanying route maps, and with evidence to be taken at the times and places referred to in the program and route maps. The names of the persons in the trial party who would have such access were identified. 14 Orders were also made that: 9. The travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program is subject to any reasonable conditions, restrictions, supervision, or directions that may be reasonably required by MIM and MRM for the entry to, being upon, or as necessary for the safe operations of PPL 1051 and the McArthur River Project, with any dispute or objection to be dealt with under orders 10 and 11. 10. Registrar Colbran may, at the request of a party or of MIM and MRM, or on her own motion, conduct a case management conference to address any matters concerning the travel and logistical arrangements for the conduct of the inspection and evidence taking on site in accordance with the program. 11. There be liberty to the parties and to each of MIM and MRM to apply on 72 hours written notice to vary these orders and the program. 15 I note at this point that there remain differences relating to travel and logistical arrangements that may need to be resolved in accordance with orders 10 and 11 prior to trial. However, more can be said about those matters if and when further orders are sought. 16 I turn now to explain why I considered it appropriate to make the access and inspection orders.

Significance of taking evidence on country 17 The applicants filed written submissions that referred to the following useful extract from an article written by Black CJ, and published as 'Developments in Practice and Procedure in Native Title Cases' (2002) 13 Public Law Review 16. His Honour was addressing former Order 78, now reflected in r 34.120, and spoke of the 'new' practice of taking evidence on country as follows: The new practice is a recognition that, for many claimants, their relationship to country is not able to be explained in the abstract, and that it is necessary to be on country to gain a true appreciation and understanding of that relationship and the claimants' evidence about it. It is also an acknowledgment that, under traditional law, some evidence can only be given on country, and that there will be many cases in which it would be quite wrong to expect claimants to talk about their relationship to country by reference to maps prepared by non-indigenous peoples; maps which may have no meaning to the claimants and which cannot begin to reflect their relationship to country. 18 Subsequent decisions have reflected the important link between hearing the evidence of Aboriginal people on country and understanding their evidence about their relationship to country. 19 For example, in Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150, Sackville J observed that taking evidence on country: [273] … had the advantage that the Aboriginal witnesses could point out important features of the landscape or describe their Tjukurrpa [Western Desert term for dreamings or ancestral beings] in a familiar environment and, subject to the necessary constraints involved in recording evidence, in a setting in which they felt relatively comfortable. Taking evidence on-site also had the advantage of enabling me to observe both the physical characteristics of the country and the so-called 'demeanour' of the Aboriginal people. 20 In The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472, Mansfield J said: [80] Overall I have no hesitation in accepting the evidence of those persons. I am satisfied that each gave evidence frankly and honestly. There was nothing in the demeanour of any of them to indicate prevarication or exaggeration. The demeanour of course varied. Some persons were forthright and communicative. Some were less so. Some were more effusive when giving evidence at particular locations at which evidence was given. Some were quietly spoken or more diffident. In general, more graphic and descriptive evidence was given at 'on country' sites. 21 In Narrier v State of Western Australia [2016] FCA 1519 Mortimer J, in assessing the evidence of an Aboriginal witness, observed: [160] Her evidence on country was given confidently and with authority. The contrast when she came to give the remainder of her evidence in Leinster the next day was, in my opinion, a paradigm example of why it is so important in native title proceedings to allow Aboriginal and Torres Strait Islander people to give evidence on country rather than in a courtroom setting. Despite having her granddaughter seated next to her, it was apparent Ms Narrier felt very uncomfortable speaking in a more formal setting, with a considerable number of lawyers seated around her and a formal assembly of people in a public gallery. Although the same number of people (and indeed, for the most part, the very same people) had been in attendance when she gave her evidence on country, her demeanour was quite different. She spoke so softly it was difficult to hear, her answers were short, and she had lost the expansiveness she exhibited the day before. There were many questions she was clearly unwilling to answer at all and sometimes she did little more than shake her head. Counsel for the State presented her with several written documents which seemed to confuse her, such was her state of nervousness. I mean no criticism of the State's counsel but use this as an example of Ms Narrier's very different demeanour in unfamiliar and challenging surroundings. 22 I can also speak at a general level from my own experience of taking evidence on country in other proceedings under the NTA that the capacity to view geographical places and features often provides perspective and important context to the evidence of witnesses. 23 I consider the ability of the Court in this proceeding to hear evidence on country from the Aboriginal witnesses will enhance the prospect of a trial that is fair for all parties, with witnesses granted the opportunity to give their evidence in a more comfortable and meaningful environment.

Scope of the Rules 24 By the date of the hearing, there was no real opposition by MIM or MRM in principle to the request of the parties to enter onto the application area, although they (at present) seek certain logistical conditions, as foreshadowed above. Rule 14.01 permits the making of an order and the exercise of the discretion is not conditioned upon whether there is permission from the owner or occupier. Indeed, if permission were not in issue it is unlikely that an order would be required. In any event, whether or not there is permission is a matter relevant to the Court's discretion. 25 Rule 34.127, on the other hand speaks of the 'obtaining of permission'. The question might be asked as to whether the respective rules are inconsistent, having regard to r 34.102. I do not consider this to be the case. The fact that consequential orders might be made as to how permission to access property might be sought under r 34.127 does not mean that if consent is not forthcoming, there is no power to grant access. The power under r 34.127 can co-exist with the power in r 14.01 without inconsistency. For example, if permission is not forthcoming, there is no reason that the parties cannot resort to r 14.07. Any withholding of permission, or unreasonable terms of any purported grant of permission, would be matters to which the Court would have regard when considering whether or not to make an order under r 14.01. However, r 34.127 does not purport to condition any order for inspection upon the consent of the owner or occupier of the land. 26 An objective of Division 34.7 is to facilitate the taking of evidence on country where appropriate. In particular, this is apparent from its rules that encourage different methods of taking evidence that pay regard to cultural and customary matters. It would be counterintuitive to read r 34.127 narrowly and in a manner which might, by an owner or occupier withholding permission, prevent access to areas of significance to an NTA claim. Therefore, I consider that it is open to the applicants in this case to rely on r 14.01. 27 I should add that searches have not revealed any reported authorities addressing the question of r 34.127 and any inconsistency with r 14.01 or r 14.03. Rule 34.127 was referred to by Mortimer J in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 as follows: [67] There was also an opportunity for the court to inspect some of the areas identified by the applicant's expert Dr Palmer, in his first report, as sites of significance to the claimant group. This inspection occurred on 30 October 2013, in the company of some members of the claim group, their legal representatives, the state and its legal representatives and Dr Palmer. Mrs Bogdanek was also invited, but informed the court her personal commitments meant she needed to return to Townsville. This inspection was not by reason of an application by any party, and did not constitute a view for the purposes of s 53 of the Evidence Act 1995 (Cth). Rather, its purpose was for the court to see and identify some of the critical places about which evidence had been given, and to which multiple references had been made on maps which were tendered in evidence by the applicant, a process contemplated by r 34.127 of the Federal Court Rules 2011 (Cth), read with r 1.40. 28 It appears by her Honour's reference to r 1.40 that the Court of its own initiative directed the inspection in that case, but there is no suggestion that permission was in issue. 29 It is, however, necessary to say something further about an order for a view under r 14.03, having regard to s 53 of the Evidence Act 1995 (Cth). That section provides for an application to be brought by a party for a view and prescribes certain conditions. The discretion to order a view under r 14.03 may be governed by s 53 of the Evidence Act: Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [2015] FCA 429 at [6]-[7] (Edelman J). Section 53(1) provides that, on application, a judge may order that a 'demonstration, experiment or inspection be held'. There are qualifications to the exercise of the discretion to order an inspection. Relevantly, the key considerations in s 53(3) are whether the inspection, and any evidence on the inspection, will assist the Court in resolving issues of fact or understanding the evidence, and whether there is a danger that the inspection, and evidence on the inspection, might be unfairly prejudicial or might result in an undue waste of time.

Exercise of discretion 30 For the reasons I have given, I consider that it is open to the Court to order inspection of the identified areas within PPL 1051 and the mining leases, in accordance with the site evidence program and accompanying route maps, and with evidence to be taken at the times and places proposed, pursuant to r 14.01, r 14.03, r 34.120 and r 34.127 of the Rules. The next question is whether I should do so. In this regard I have also considered s 53(3) of the Evidence Act. I have determined that it is appropriate to make the orders sought, having regard to a number of matters. 31 First, the very nature of the compensation application, which relates directly to the land in question, supports an inspection. The Court will be assisted by seeing first-hand the areas relevant to the application and that will be referred to in the evidence. 32 Second, there will be evidence about the infrastructure and scale of the Project operations. The applicants submitted that it would assist the Court if it were able to see the infrastructure in order to understand its dimensions and interconnectedness, and I accept that submission. 33 Third, the applicants referred to the fact that the proposed on country evidence by the native title holders will seek to illustrate the nature of their connection to country that is described in their affidavit evidence. Combining written evidence with oral evidence on country is a common and long established practice, and was the manner in which evidence was taken in Northern Territory v Griffiths (deceased) on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7; (2019) 269 CLR 1. The High Court acknowledged that the assessment process by a trial judge for compensation applications is complex (at [216]). The applicants submitted that the complexity of this type of application favours an inspection and on country evidence. I expect that I will be assisted by hearing on evidence on country in that it will place evidence about places and connection in context. Working from photographs and videos in such scenarios may be a poor substitute where the opportunity to visit the relevant sites and hear evidence in proximity to such sites is otherwise reasonably possible. 34 Fourth, I consider that the on country evidence can be taken efficiently and the parties are in agreement in that regard. Most of the trial will be undertaken in the usual setting of a Court room, located in Darwin. Only part of the trial is to be conducted on country. The parties have worked closely to come up with a feasible on country program. There are suggested limits on the number of persons in the trial party. I consider the program can be given effect sensibly and without disproportionate cost. 35 Fifth, I accept there will be some disruption to MIM and MRM in facilitating access to the compensation claim area. However, it is for that reason that there are to be discussions about reasonable logistical requirements on their part. Having regard to the significance of this application for the applicants, I do not consider the imposition on MIM and MRM for a relatively small number of days is disproportionate or unfair. 36 For those reasons, I made the orders as asked on 3 April 2023. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Native Title Act 1993(Cth)ss 61, 82, 87

Federal Court Rules 2011(Cth)rr 14.01, 14.03, 14.07, 34.102, 34.120, 34.127, Division

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