Harrington-Smith on behalf of the Wongatha People v State of

Background to the motion 5 The motion is supported by an affidavit of Brian Wyatt sworn 30 May 2003, an affidavit of Arthur Berwick Sayers sworn 17 June 2003, and a further affidavit of Mr Sayers sworn 23 June 2003. Mr Wyatt is the Executive Director of the Goldfields Land and Sea Council ("GLSC") and Mr Sayers is the Manager of Corporate Services of the GLSC. 6 The GLSC represents the present applicants ("the Wongatha applicants") and the applicants in four other applications for native title determination under the Native Title Act 1993 (Cth) ("the Act") in the Court, which relate to areas which overlap various parts of the area the subject of the Wongatha applicants' claim. They can be referred to briefly as the Wutha, Koara and Mantjintjarra Ngalia claims. It will be convenient to refer to the four applications mentioned as "the GLSC applications", and the applicants in them as "the GLSC applicants". 7 The GLSC applications are not in competition with one another. But there are four other applications for determination which are in competition with the Wongatha application. First, there is the Cosmo Newberry application, which is in respect of an area wholly within the area of the Wongatha claim. The Cosmo Newberry applicants are represented by the Ngaanyatjarra Council. Secondly, there is the Maduwongga application, which overlaps the southern part of the area covered by the Wongatha application. The Maduwongga applicants are not represented by any native title representative body but they are legally represented. Thirdly, there is the Ngalia Kutjungkatja (No 1) application, which overlaps the area of the Wongatha application on the west, and fourthly, there is the Ngalia Kutjungkatja (No 2) application relates to the same land as is the subject of the Mantjintjarra Ngalia application. The Ngalia Kutjungkatja (No 1) and Ngalia Kutjungkatja (No 2) applicants are not legally represented. 8 I am hearing the Wongatha application and all the other applications mentioned, to the extent that their areas are wholly or partially within the area of the Wongatha application. 9 The basis of the present motion by the Wongatha applicants that they do not have funding from the Aboriginal and Torres Strait Islanders Commission ("ATSIC") to enable them to be legally represented any further in the proceeding. ATSIC is a Commonwealth statutory authority responsible for administering Aboriginal and Torres Strait Islander programs throughout mainland Australia. ATSIC's Commissioners and Regional Councillors are elected by Indigenous Australians. 10 Although the motion is brought by the Wongatha applicants, the motion is, of course, supported by the other GLSC applicants, who are in the same financial position as the Wongatha applicants. 11 The history in relation to funding, as disclosed by the three affidavits mentioned, covers a considerable period and presents a sorry and unfortunate picture. 12 The GLSC relies exclusively on the Commonwealth Government through ATSIC for funding by way of grant for carrying out its facilitation and assistance functions under ss 203B and 203BB of the Act. The general terms and conditions of grant include a condition that litigation is not to be undertaken without the express authority of ATSIC, and that special funding is to be sought and obtained for each piece of litigation. To date ATSIC has provided the GLSC with a total of $454,000 for the proceeding. 13 The GLSC wrote to ATSIC on 22 November 2002 shortly before the third tranche of the hearing was complete seeking further funding, but approval was not forthcoming. 14 At a directions hearing on 20 January 2003, I fixed the fourth tranche of dates to commence on 4 August 2003. On 24 January 2003 the GLSC wrote again to ATSIC seeking funds. The letter enclosed a spreadsheet of estimated costs in support of a claim for $502,211. According to the letter, it was estimated that of this amount, $200,000 would be expended prior to 30 June 2003 and the remainder thereafter. The letter emphasised that the costs referred to were only those which the GLSC could not absorb within its ordinary budget, and that there were many costs, including all of the "support costs", which the GLSC was already bearing out of that budget. 15 On 13 March 2003 the GLSC sent a reminder letter to ATSIC. 16 On 11 April 2003 the GLSC wrote again to ATSIC referring to a telephone conversation that morning and urging ATSIC to indicate that funds would be provided, and indeed to provide funds, so that the GLSC could ensure that the GLSC applicants complied with directions of the Court which had been made with a view to preparation for the August hearing. The letter sought funds totalling $151,658 to cover the GLSC's revised estimate of costs which would have been incurred by 30 June 2003. 17 GLSC financial statements were prepared to the quarter ending 31 March 2003 showing a litigation deficit of $532,228 from an overall budget of $2,502,427. 18 On 24 April 2003 Mr Wyatt wrote to ATSIC pointing out that the GLSC did not know where it stood in relation to the further funding of the claim. The letter concluded: "Unless I receive advice urgently in regard to the requests I must now assume that you will not provide us with any supplementary funding for the year to 30 June 2003. As a consequence I must order the close down of our activities." 19 The GLSC repeated its position to ATSIC officers by email and letter on 2 May 2003 and 7 May 2003. 20 On 9 May 2003 the chairman of the GLSC, Mr Ian Tucker, wrote to Mr Wayne Gibbons, the Chief Executive Officer of ATSIC, expressing his concern over the funding position. The letter included the following: "With the lack of response from ATSIC on this matter, the Executive Director has decided he has no choice but to close down operations for the remainder of the financial year. GLSC will also be obliged to advise the Federal Court that it cannot continue the proceedings on behalf of the Wongatha people." At last, on 21 May 2003 ATSIC replied. Its reply was as follows: "I write in relation to your application for litigation funding for the Wongatha native title claim. I wish to advise you that ATSIC has appointed Mr Andrew Chalk of Chalk & Fitzgerald to undertake an assessment of the application for additional funding for the continuation of litigation on this claim. Mr Chalk has asked to be provided with copies of all documents filed by the parties in the proceedings, including witness statements or affidavits, expert reports, pleadings (statements of facts and contentions/points of claim and response and the like) that would assist him in his review. In addition, he has asked for copies of my orders and the transcript of the hearing to date be sent to him. He has indicated that you previously provided him with copies of some reports which had been filed prior to the commencement of the hearing but that these were returned to you following the completion of the initial review and has asked that these be sent to him also. Mr Chalk proposed to commence the review when the materials and documents he has sought are delivered to him. The commencement of the process would be assisted if your legal section was to make contact with Mr Chalk immediately to arrange for the information he requires to be sent to him." It will be appreciated that the task confronting Mr Andrew Chalk was an enormous one. 21 Mr Wyatt swore an affidavit on 30 May 2003 outlining the financial problem faced by the Wongatha applicants. Copies of that affidavit were served on all other parties. It was proper for the legal representatives of the Wongatha applicants to bring the looming problem to the notice of the Court and the other parties as soon as practicable. The last five paragraphs of Mr Wyatt's affidavit were as follows: "18. Since that time [21 May 2003], GLSC has been instructed to make and send copies of all court documents to Mr Chalk, including a copy of all transcripts, expert reports and documents filed by the parties in the proceedings. This task was completed by GLSC officers for despatch on Monday 26 May 2003. 19. Due to the large bulk of material that Mr Chalk is apparently intending to examine in order to advise ATSIC upon the GLSC's funding application, I am advised by the GLSC's financial officers, and verily believe, that by the time this is completed, and recommendations to ATSIC made and acted upon, the GLSC will have passed the point where it can commit any further funds for these proceedings. This is because it cannot continue to incur debt for these proceedings from funds that have not been provided. As shown by the quarterly figures, GLSC already has a substantial deficit. Also, its ordinary operational funds (staff wages, rent on its premises etc) are fully committed. 20. In light of the circumstances as set out above, I alert the court to the fact that GLSC may be financially incapable of continuing to represent its parties in these proceedings, unless an expeditious and positive response to its funding application is forthcoming from ATSIC. In this regard, I am advised by the GLSC's financial officers, and verily believe, that a response must be received within 14 days from the date of this affidavit [that is, by 13 June 2003]. 21. I am also aware from my personal knowledge of them, that the claimants for whom the GLSC acts would be unable to otherwise obtain legal representation for the claim, due to their limited financial circumstances, and the expense that is encountered in these types of proceedings. This means that if GLSC is forced to cease to represent them, there would be a real likelihood that they would be unrepresented for the balance of the proceedings. 22. I respectfully draw these matters to the attention of the court and the other parties, to assist in the future consideration of the conduct of these proceedings." 22 There was a directions hearing on 4 June 2003. At that time the Wongatha applicants had not filed their notice of motion seeking an adjournment. The funding issue was ventilated in that directions hearing and it was clear that the GLSC would have to take a decision following 13 June 2003. 23 On 11 June 2003 the GLSC wrote to ATSIC referring to the directions hearing on 4 June. The letter stated: "I cannot stress enough the seriousness of the position and the injustice that is likely to result to many indigenous people in the event that a decision about funding is not made within the next few days. We remain available to assist in any way, as does Mr Bryan Keon-Cohen QC and other counsel in respect of a briefing on the proceedings to date." 24 On 16 June 2003, the GLSC wrote to ATSIC advising that since clarity had not yet been obtained, the GLSC had advised the Court and the respondents of the position and was moving for a vacation of the hearing dates. The letter stated: "In the light of the fact that clarity has not yet been obtained in regard to the application to ATSIC for a special grant to continue with the Wongatha proceedings, GLSC has advised the Federal Court and respondent parties of the situation and requested that orders be vacated until further notice. We will keep ATSIC appraised of the outcome of the application lodged with the court. We trust ATSIC would soon be able to advise us of what the outcome of the funding application is. The fact that no response has been received to several of our letters is unfortunate and leaves the GLSC as representative body with no option but to bring the matter to the attention of the Court." 25 The GLSC filed its present notice of motion on 18 June 2003. 26 The supporting affidavit of Mr Sayers sworn 17 June 2003 included the following three paragraphs: "6. To the date of this affidavit GLSC has still not had any response from ATSIC. The result is that GLSC is simply not in a financial position to facilitate the GLSC's parties to comply with orders regarding the 'hot tub' session of expert witnesses scheduled for 23 June 2003 or for orders for the hearing of expert evidence, tenure evidence and related matters listed for August/September 2003. 7. As at 30 April 2003 GLSC had an accumulated over expenditure of $527,872 of grants funds in the Wongatha matter. ... The accumulated over-expenditure was incurred on the basis of a tacit understanding that a special litigation grant would be positively considered by ATSIC. Although GLSC has been able to redirect some of its operational resources to fund part of the over-expenditure, it cannot continue to do this without seriously jeopardizing the financial viability of the organization and its grant conditions. In my opinion, to incur further over-expenditure in the order that would be required by the current programming orders for the Wongatha proceedings, would risk GLSC not being able to meet its debts as and when they fall due, and cannot, from a financial and management point of view, be permitted. 8. As a result of the precarious position that GLSC is in financially, its inability to sustain further extra expenditure and the unresponsiveness of ATSIC to repeated submissions and enquiries, it is respectfully requested that at this stage all programming orders for the Wongatha proceedings be vacated, and that the proceedings be adjourned until clarification of the funding situation is obtained from ATSIC." 27 The motion was part heard on Thursday, 19 June 2003, that is, last Thursday. Most respondents opposed the motion, although some simply took the stance that the matter was one for the Court. 28 The same day, Thursday 19 June 2003, the GLSC wrote again to ATSIC referring to the partial hearing of the motion earlier that day. The letter included the following: "We would therefore like to know as a matter of urgency - (i) When the outcome of the assessment is expected; (ii) How long ATSIC expects to take after having received the assessment to consider the application for funding; and (iii) When approximately ATSIC expects to make its decision known to the GLSC. We believe these are reasonable questions that would assist the Court and all parties to properly plan the programming of the remainder of proceedings. In light of the urgency that the Court attaches to the matter we would appreciate it if ATSIC could provide us with a response by not later than noon (WA standard time) on 20 June 2003." 29 As at the time of the partial hearing of the motion last Thursday, the next step to occur in preparation for the hearing was a conference of expert witnesses to take place in Perth the following Monday, 23 June 2003, to be attended also by a Deputy Registrar in the Western Australian Registry of the Court. Apparently following the hearing one of the Court's Native Title Registrars contacted ATSIC. ATSIC subsequently agreed with the GLSC to provide the limited funding necessary to enable attendance by the GLSC applicants' experts at the conference of expert witnesses. The conference took place. 30 The last event in this history of the background facts is a letter dated 20 June 2003 written by ATSIC to the GLSC as follows: "I write in response to your inquiry in relation to the examination of your application for additional funding for the Wongatha trial. As indicated in my letter to Mr Brian Wyatt of 21 May 2003, ATSIC engaged Mr Andrew Chalk of Chalk & Fitzgerald to assist with the assessment of your application. Mr Chalk has indicated that his assessment will be completed and a report presented by 18 July 2003. It is anticipated that a decision on your application will be made as soon as possible after the receipt of the report from Mr Chalk and at this stage we anticipate that a decision will be made by the end of July 2003. This anticipated date takes into account the expectation that there will need to be discussions with your organisation on the outcome of Mr Chalk's review and further submissions may be required on issues arising in the report. This advice is indicative only as there may be issues included in the report from Mr Chalk that may require the delegate to obtain additional legal advice and this may have an impact on the indicative date for a decision on the application. Your organisation will be advised of the delegate's decision immediately after it is made." 31 Accordingly, the current position is simply this: Mr Chalk has told ATSIC that his review and report on the application by the GLSC for further funds will be presented to ATSIC by 18 July 2003, and ATSIC estimates that its decision on the GLSC's request will be made "by the end of July 2003". The last day of July is a Thursday, and the hearing is due to resume in Perth the following Monday 4 August 2003. In other words, the GLSC applicants will have only one working day between finding out whether they are funded by ATSIC, and the resumption of the hearing.

reasoning 32 I understand that there are some 2000 individuals in the GLSC applicants' groups. What has happened has been none of their doing. In a case of this complexity, it is obviously important that they continue to have legal representation. If they become self-represented litigants, I presume that they will seek leave to be represented by one of their number in Perth. The unsatisfactoriness of that state of affairs is obvious, particularly in the light of the complexity of the proceedings. 33 In my opinion, however, the considerations pointing against an adjournment outweigh these to which I have referred. 34 First, there is no suggestion of alternative funding. The way in which the application for a vacation of the hearing dates is put is that the GLSC applicants depend upon funding from ATSIC otherwise they will remain unfunded. There is no suggestion that an alternative source of funding is likely to emerge if there is an adjournment for a short period. The motion is for an adjournment of indefinite duration. Apparently if and when funding becomes available at some unidentifiable time in the future, the GLSC applicants would apply for reinstatement of the six-week tranche of hearing dates. In the meanwhile, the GLSC applications would "hang over the heads" of all other parties, including the four respondent native title claim groups mentioned earlier at [7], which are not represented by the GLSC. Those other four applications, which I am hearing contemporaneously in respect of the overlap areas, would also be at a standstill. 35 It may seem odd at first blush, but if ATSIC decides at the end of July not to fund the GLSC applicants further, that is a strong reason why the case should proceed in August. The reason is that it would be clear that no useful purpose would be served by an adjournment. 36 If, on the other hand, ATSIC decides to provide funding, the position may be more complex. The reason is that apparently the GLSC will not have been in a position to prepare down to the end of July. If funding suddenly becomes available at the end of July, there may have to be some accommodation in the early part of the forthcoming hearing period for the legal representatives of the GLSC applicants to bring themselves up to date. On the other hand, the GLSC may be able to undertake preparation to some extent during July out of its ordinary budget. The present point is that there may be a stronger case for the making of some special accommodation if ATSIC's decision at the end of July is to grant the further funding than if it is to refuse it. 37 The second major consideration is the great difficulty in obtaining hearing dates to bring this proceeding to a conclusion. Last January when dates available to all of the many legal representatives involved and the Court were being sought, the earliest time when a period of six weeks could be obtained was the period commencing on 4 August. It seems reasonable to expect that if that period were now lost, a further six weeks of hearing dates would not be found within less than eight months, possibly longer. And the period would run, not as from August 2003, but as from any presently unidentifiable later time when funding became available. 38 When one adds to that kind of delay, the further gap between the conclusion of the evidence and the making of submissions and then the period during which judgment is reserved, it seems clear that there would be no decision before 2005. It is not in anyone's interest that any piece of litigation, least of all one in which so many people's rights and liabilities are at stake, should linger on in that way. 39 The third consideration is that the longer it takes to bring the case to finality the greater the risk that witnesses will cease to be available. I am aware of one instance of that problem which has already occurred in this case. Professor Kenneth Maddock, who was the anthropologist retained by the State of Western Australia, died recently. Professor Maddock had provided a report and had presumably been intended to give evidence. The State has now been left without the benefit of the anthropologist chosen by it. If it had been possible for the fourth and final tranche of the hearing to take place earlier, Professor Maddock would have been able to testify. The longer this case drifts on, the greater the chance that a witness will die or otherwise cease to be available to testify. 40 The fourth consideration is that there are other native title applications in respect of land in the Western Australian goldfields which are dependent upon the ones I am hearing being concluded. They cannot advance while the Wongatha application is not progressing. 41 The fifth consideration, partly related to the fourth, is the problem of "uncertainty". The problem is expressed as follows in the written submission of the Group 5A respondents referred to earlier (a footnote and footnote reference are omitted): "14. If a determination is not made in the present proceeding: a) the present uncertainty will remain as to: i) whether native title does exist in any part of the claim area; ii) where it exists; iii) the content of the native title; and iv) who holds the native title; b) those Aboriginal people who do have native title rights and interests will not know who has what rights, and therefore will not be able to ensure that they, and only they receive appropriate recognition of those rights and such privileges and other benefits as are due to them, for example under the Native Title Act (including the right to negotiate regime); c) the numerous people (including claimants) with interests in, or people desirous of obtaining interests in, any part of the claim area will need to continue to follow the time consuming and expensive, but possibly unnecessary, future act processes in order to ensure the validity of their interests; d) the "precedential" value of such a determination will not facilitate the resolution, in whole or even in part, of other claims including those: i) which overlap (in part) with the present claim - namely the Koara, Wutha, Mantjintjarra Ngalia, Maduwongga, and Ngalia Kutjungkatja (No 1) and Ngalia Kutjungkatja (No 2); ii) in the Goldfields area; iii) in the "Western Desert" area. 15. Further to 14(d) above, the same kinds of uncertainty will remain in those areas as will remain in the Wongatha claim area, and they are unlikely to be resolved until one or more of those claims is heard and determined. If ATSIC declines to fund any of those claims, and if the Court is minded not to progress those claims either, they may never be disposed of. Alternatively, if any of those claims does proceed, the parties to those claims … may well have to start from scratch and invest large amounts of resources commensurate with those already devoted to the Wongatha claim. This would impose additional costs burdens on such parties, which might be avoided if a determination was made in this proceeding. 16. In other words, the adjournment of this proceeding is likely to have ramifications extending far beyond the land and interests of the present proceeding." 42 For the above reasons I do not think that the next tranche of hearing dates should be vacated. However, it will be important that, within proper bounds, the Court does whatever it can to ensure that the GLSC applicants are protected in the event that they are in fact not represented in August-September. On any reckoning, their position will be less than satisfactory and they will be disadvantaged throughout the six-week period, but the extent of the disadvantage will vary as between various elements of the hearing. 43 The State will tender voluminous tenure documents and its officers will explain the various tenures concerned. The disadvantage suffered by the Wongatha applicants by reason of the absence of legal representation during that part of the hearing should be small: no doubt most of the study of those documents will be undertaken by lawyers for all parties outside the court-room before or after the August-September hearing. If the GLSC applicants again come to be represented at some time after the hearing, their lawyers will be able to inspect the tenure documents, and no doubt the State's officers will be willing to give any necessary explanations in relation to them if asked. 44 Another element in the August-September hearing will be conclusion of the cross-examination of three indigenous witnesses who were previously called by the GLSC applicants. Although it is not an ideal situation, the GLSC applicants will not be greatly disadvantaged if they are lacking legal representation while that cross-examination is concluded. Admittedly, however, that cross-examination will account for only a very small part of the six week period. 45 Pursuant to directions previously given, expert testimony will be given according to the "hot tub" method. I do not know whether ATSIC will fund the attendance of the GLSC applicants' experts to testify. It is of the greatest importance that those experts participate. A sizeable part of the final tranche of the hearing will be occupied with the evidence of the various parties' expert witnesses. As noted above, ATSIC funded the GLSC applicants' experts to attend the recent conference of expert witnesses in readiness for the hearing. I find it difficult to believe that ATSIC will decline to fund their attendance at the hearing itself. 46 If it be the case that the GLSC applicants are left without legal representation, at least having regard to the method by which expert testimony will be given, the experts retained on behalf of the GLSC applicants will, I think, still be able to participate usefully in the hearing. 47 When one comes to the witnesses who are to testify on the issue of extinguishment of native title (mainly or exclusively pastoralists), the GLSC applicants may face a greater problem. Effective cross-examination of those witnesses by a person not legally qualified may not be possible. At the moment I can see no easy way of overcoming that difficulty entirely. I will seek to ensure that the significance of the testimony in question is clear, but that is no substitute for a prepared cross-examination. For all I know, it may be possible for a barrister or solicitor to be retained at the expense of ATSIC for that part of the hearing. 48 The next tranche of hearing dates promises to be difficult. The disadvantage to the GLSC applicants will be reduced to some extent by my taking a more interventionist role than I would ordinarily do, but it cannot be entirely overcome. Nonetheless, I think it a more just solution that the hearing proceed and problems be dealt with as they arise, rather than that there be a vacation of the hearing dates with no present prospect of this native title claim ever being resumed. 49 Before I make the formal orders of the Court dismissing the motion I return to something which I last mentioned at greater length a very long while ago in this proceeding: the question of mediation. I had intended to raise this matter this afternoon in any event, but it happens to accord with a sentiment recently expressed in the Western Australian Parliament by the Deputy Premier of Western Australia, which Mr Vincent, counsel for the Wongatha applicants, tendered in evidence at the beginning of today's hearing. I do not regard the statement, or, for that matter, what I am now saying, as relevant to the issues raised by the motion, but it is appropriate for the Court once again to draw to the parties' attention the desirability that mediation be fully explored.

CONCLUSION 50 The motion brought by notice of motion filed 18 June 2003 will be dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Counsel for the Applicants: B A Keon-Cohen QC and P Vincent Solicitors for the Applicants: Goldfields Land and Sea Council Counsel for the Group 1 Respondent V Hughston SC and J Waters (State of Western Australia): Solicitors for the Group 1 Respondent Crown Solicitor's Office (State of Western Australia): Counsel for the Group 2 Respondent R Webb (Commonwealth of Australia): Solicitors for the Group 2 Respondent Australian Government Solicitor (Commonwealth of Australia): Solicitors for the Group 3 Respondents F van der Kooy of Minter Ellison (Local Government Interests): Counsel for the Maduwongga People: G McIntyre SC Solicitors for the Maduwongga People: Corsers Counsel for the Group 4B and 4C Respondents D Parsons SC (Cosmo Newberry Native Title Claimant Group): Solicitors for the Group 4B and 4C Respondents Ngaanyatjarra Council (Cosmo Newberry Native Title Claimant Group): Solicitor for Cranston and Donna Edwards: T Masson of Mallesons Stephen Jaques Counsel for the Group 5A Respondents G Hiley QC (WMC Resources Ltd Group of Companies): Solicitor for the Group 5A Respondents J Macpherson of WMC Resources Ltd (WMC Resources Ltd Group of Companies): Solicitors for the Group 5B and M McKenna and K White of Group 5F Respondents (Barrick Gold Group of Hunt & Humphry Companies and AMEC Group of Companies): Solicitor for the Group 5D Respondents C Piper of Freehills (Placer Granny Smith): Counsel for the Group 6A Respondents G Donaldson and J Thompson (Members of the Pastoralists and Graziers Association): Solicitors for the Group 6A Respondents Blake Dawson Waldron (Members of the Pastoralists and Graziers Association): Solicitor for the Group 16 Respondent L Flynn of Blake Dawson Waldron (Telstra Corporation Ltd): Dates of Hearing: 19 June 2003 and 26 June 2003 Date of Judgment: 26 June 2003