Gia People v State of Queensland [2008] FCA 1696 | Case summary

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 These matters have come before me as a result of my causing them to be re-listed following yet another default by the applicants in compliance with orders made by the court. They have an ongoing history of failure to comply with orders the Court has made. 2 In the Birri-Gubba matter, since 1998, there have been over 30 appearances before the Court, including eight since I began to hear directions hearings in September 2006 as the docket judge in both matters. And, in the Gia matter there have been over 20 times the matter has been before the court since late 1999, including six since September 2006. 3 On each of those occasions when the matter has been before me a number of the respondents has been represented. Orders were made in timetables providing for the applicants to do work to progress the claims to the point where the State of Queensland (first respondent in each matter) would have a proper basis on which to assess the anthropological or connection material put forward in support of the two claims instituted in the Court about 10 years ago. 4 In the directions hearings on in both matters 24 July 2007 the applicants were then represented by the Central Queensland Land Council. Their solicitor read an affidavit of Gertrude Stotz sworn 23 July 2007. She was an expert anthropologist engaged by that Land Council. Dr Stotz swore that in effect the Cape Upstart, or Birri-Gubba, claim had named a claim group which may not have been correctly identified. She said that she had assessed prior reports, peer reviews and archived research materials held by that Land Council and had conducted meetings and interviewed individual members of the Birri-Gubba and adjoining claim groups including those in the Gia matter. She swore: "I conclude from the above that the Cape Upstart application and the nearby Gia application had essentially been brought by members of certain clan-groups of the wider Birri-Gubba (Juru) society which under traditional law and custom can assert native title rights to the land and water from Ayr to Proserpine and including the Whitsunday island group." 5 On the basis of that evidence, on 23 July 2007, Dr Cecilia O'Brien filed and relied on written submissions which said that the Central Queensland Land Council proposed to seek instructions to file two new claims covering areas from the Horton River to the border of the present Gia claim and the Whitsunday Islands Group and then to combine all four. Since that time both proceedings have proceeded on the basis that work would be done to authorise the institution of those new claims and the regularisation of both proceedings. 6 In March this year, I made, once again, directions to regularise both matters with a view to assisting in the proper formulation of a claim for the persons truly entitled to bring applications under the Native Title Act 1993 (Cth). At that time the applicants were in default in the Birri-Gubba case. This resulted in the State seeking an order for costs against the Birri-Gubba applicants for wasted time and effort that had been incurred in previous failed attempts to obtain preservation evidence. After hearing argument I ordered that the Birri-Gubba applicants pay 50 per cent of the costs of the State relating to its preparation for and appearance at directions hearings in relation to the issue of what evidence ought to be preserved for the period between 1 December 2006 and 17 October 2007: Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. 7 I also made orders in March 2008 and then May 2008 for the further progress of both these matters. When I did so, the principal solicitor for the North Queensland Land Council, Martin Doré, assisted the Court in preparing what he said would be appropriate timetables to achieve these ends after that Land Council assumed responsibility for the two applicants consequent upon a reorganisation of land councils commencing on 1 July 2008. 8 Earlier this month the registrar informed me that the orders made in each of these matters had not been complied with by the applicants. I then caused the matters to be re-listed. 9 In each matter the applicants relied upon an affidavit of Dewayne Mundraby the chief executive officer of the North Queensland Land Council. He explained that, among other things, the budget allocation provided to the Land Council had been substantially reduced below what had been anticipated earlier in the year when Mr Doré made submissions to me. Mr Mundraby also referred in his affidavit to a new requirement for connection material which the State had notified to claimants for native title in late August 2008 which would involve additional work and resources. Mr Mundraby said in his affidavit that, prior to its dissolution, the Central Queensland Land Council did attend to "court ordered work" for both these matters, although I have not seen any evidence of what that work was. 10 Kym Elston, the deputy principal legal officer of the North Queensland Land Council swore and filed affidavits yesterday in each of the matters indicating that he had been allocated responsibility for progressing them. Although he referred to some difficulties in obtaining the files prior to early August 2008 he said that he had mistakenly formed the impression that the applicants in each matter needed to file affidavits in response to "certification orders", as he described them, made by Dowsett J in other Central Queensland Land Council claims which the North Queensland Land Council had taken over. I infer that Mr Elston did not read anything in the files of these two matters in respect of the last three years before he progressed to do what he described in his affidavits as steps taken under his mistaken impression. 11 Mr Elston said that, on 14 October he was on a station property 150 kilometres north of Townsville when he received a telephone call from Mr Doré pointing out that, in the affidavits he had prepared in both matters for applicants, the wrong orders had been mistakenly addressed. That is, that Mr Elston had not looked at any of the orders made by me in either of the matters including those in force from March or May this year. Mr Elston apologised to the Court for the inconvenience he may have caused as a result of his mistaken belief. He noted that the Birri-Gubba claim had been assessed as having priority in the North Queensland Land Council's views. That assessment seems to have been formed without regard to orders the Court had made in relation to the Gia matter which did not appear to have received the same prioritisation. 12 Mr Elston said that as a result of the recent priority given to the Birri-Gubba matter an anthropologist, Dr Allison Reif, has been appointed to undertake further work on it. He estimated that this material would be available to be presented to the Birri-Gubba people in the month of September 2009 and that the final connection report would be able to be provided to the State on or before 1 November 2009, "subject to instructions". 13 When re-listing these matters for today, I directed that the applicants provide a particularisation of the anthropological work that had been done up to date. In the Birri-Gubba matter Mr Elston referred to two drafts for use in a connection report, one prepared in 1999 and another prepared in 2003 which he said had only been received by the Central Queensland Land Council in 2005. He said a preliminary anthropological review of that claim and others had been undertaken and provided to the Council in August 2008. From his review of the material he said it would appear that no further work had been commissioned as recommended by internal and external peer reviews after 2005. 14 In the Gia matter Mr Elston said that no completed connection reports had been prepared, although draft material had been prepared in November 2002 and a preliminary report on anthropology and related issues was received in July 2004. Mr Elston also said that a further preliminary anthropological assessment had been prepared and received in July 2006 and that the North Queensland Land Council had received a preliminary anthropological assessment of connection materials which it had commissioned on 6 August 2008. 15 It is apparent that Mr Elston's review of the matters was so incomplete and inadequate that he did not even refer to, nor was he aware of Dr Stotz's affidavit of 23 July 2007 and presumably the reports and work which she refers to that I have set out above, or of the considered views put in submissions by the applicants through their then solicitor, Dr O'Brien in July 2007. 16 To say this is unsatisfactory is to understate matters. The affidavits prepared by Mr Elston which caused Mr Doré to inform him of his misapprehension are, I think it is safe to say, perfunctory in the extreme. They do not indicate any substantive effort having been taken by him or the North Queensland Land Council to assess or address the characteristics of these claims. 17 It is a tragedy that the applicants, who as long ago as over nine years before today brought proceedings in this court for the adjudication of their claim to native title rights, have been so failed by their lawyers and representative bodies. Even in an attempt to explain matters to the Court today, no proper investigation of the material filed on their behalf in the Court and relied on before the Court had been made. In that context it is unsurprising that all of the respondents who have appeared today support the application by the State that a deadline be set in these two proceedings for their regularisation, failing which they be dismissed. 18 The Court has power under O 35A of the Federal Court rules to dismiss proceedings where an applicant is in default by failing to comply with orders of the Court in the proceedings or failing to prosecute them with due diligence: see O 35A rr 2(1)(a), (f) and 3(1)(a). 19 In light of the history of non-compliance and lack of diligence in the prosecution of these matters by those representing the applicants, I am satisfied that the time has now come where I must bring certainty to these proceedings and require the applicants to cause them to be regularised or reconstituted within a reasonable time. I am satisfied that it is appropriate that that be done by 30 October 2009. This will allow a time reasonably sufficient having regard to the matters to which the applicants' evidence today refers, although I am far from satisfied that I can rely on Mr Elston's evidence as to timetables or work involved having regard to his complete omission of any reference to Dr Stotz's opinion as to the constitution of the claim groups given last year. 20 In my opinion injustice has been done to the individual applicants and to the respondents who have all been caused to incur costs over the history of these two proceedings. I think it fair to say that virtually nothing has been done substantively to progress them from the days they were filed. They are no closer to the time or point when the Court will be able to adjudicate upon them. It is appropriate to make orders to the effect proposed by the State and supported by the respondents represented today. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

ANNEXURE RESPONDENTS TO THE GIA PEOPLE CLAIM Group Identity Represented by The State of Queensland Crown Law The Commonwealth of Australia Australian Government Solicitor Local Government interests MacDonnells Solicitors Bowen Shire Council McCullough Robertson Mackay City Council Whitsunday Shire Council Ports Corporation of Queensland Infrastructure interests Blake Dawson Lawyers Airservices Australia Ergon Energy Corporation Limited Ergon Energy Corporation Limited Mining and Exploration interests Queensland Energy Resources Limited Queensland Energy Resources Limited Unrepresented Wilson, Leslie James and Douglas John and Rowan Spruce Fishing interests All represented by Gore & Associates Jeffrey James Amos Gary Bainbridge David Caracciolo Shane John Clancy John Cook Ronald Earle Andrew Gibson Mark Alfred Gulson Ted B. Koy Ken Lollback Noel Lollback Russell William Marriage Daniel Pope Trevor Lawrence Purkis Matt Quadrell Rodney David Rethus Ron Snell Tina Snell Leslie John Stephens Brett Thornton William H Weekes Barry Wilson Pastoral interests Thynne & Macartney Bruce Clark Unrepresented Janette Cottam John Lamont Cox Ralph Lamont Cox Drangfield Pty Ltd Joyce Vivian Earle and Ronald Seaton Earle and Leslie N Anderssen Karen Clare Faust Charles Christopher Faust Clive Reginald Davies William John Davies Larry Gilles Jocelyn Ellen Gordon Colin James Gordon J Hughes RB Hughes RM Hughes Raymond Allen Purvis Irrigation and Water interests CJ Cooper & Associates John E Penhallurick Margaret A Penhallurick Other interests Dean, Kath & Kohler Peter Leonard Dahl and Londa Cameron Dahl CJ Cooper & Associates PR and ED Dunwoody Unrepresented Kelsey Creek Hall Committee Laalco Pty Ltd JA and RL Nicol RJ Valmadre Proserpine Co-operative Sugar Milling Association Limited

Gia People v State of Queensland

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