KOKATHA PEOPLE, ADNYAMATHANHA PEOPLE AND BARNGARLA PEOPLE v STATE OF SOUTH... [2015] FCA 1195 | Case summary

THE ISSUE 1 These three claims are being heard together as they are competing claims over the same area, namely Lake Torrens. At the commencement of the hearing 21 October 2015, the Court made orders limiting the persons who may hear or read the evidence which should be restricted to certain classes of men by reason of its particular character (restricted men's evidence). 2 One issue remains outstanding. 3 The first applicant on behalf of the Kokatha claim group proposes to adduce evidence as restricted men's evidence from Dr Willis, a consultant anthropologist. Although Dr Willis is not of indigenous extraction, he is a person who has had a very long association with the Kokatha claim group and more generally people from the Western Desert country and is an initiated Pitjantjatjara Yankunytjatjara law man. In that capacity, he has a great deal of knowledge of secret men's matters including of particular ceremonies and stories. It is described as secret because (as the parties accept) certain evidence about the ceremonies and stories of initiated Aboriginal men are not to be disclosed to women, and are to be restricted to initiated men of the particular claim group or perhaps of a wider cultural group. It is evidence which should be restricted men's evidence. It is not necessary to refer to the detail. 4 In July 2014, Dr Willis was engaged by the first applicant to provide anthropological evidence in relation to the Kokatha claim group's claim over Lake Torrens. He has provided advice and a report in accordance with that retainer. The first applicant proposes to rely upon his evidence. 5 The outstanding issue concerns the extent to which one senior counsel for the third applicant should be entitled to hear his evidence, and to cross-examine him. It arises because that counsel is himself an Aboriginal man and is not of the Kokatha claim group or of the wider Western Desert cultural group. 6 The evidence from the first applicant indicates that the traditional laws and customs of the Kokatha people mean that the restricted men's evidence from them concerning Lake Torrens and Andamooka Island should not be heard by, or tested by cross-examination by, an Aboriginal male from another group. 7 The issue has been resolved by agreement in respect of the proposed restricted men's evidence to be adduced by the first applicant through members of the Kokatha claim group by the orders made on 21 October 2015. Relevantly, those orders provided: Gender restricted evidence of the First Applicant: (1) This order applies to the First Applicant's Restricted Men's Evidence, being oral evidence, transcript, reports, submissions and other material in written or symbolic form that is identified by the Court as being the First Applicant's Restricted Men's Evidence. (2) The First Applicant's Restricted Men's Evidence must not be viewed or heard by any person other than: (a) any initiated man giving evidence on behalf of the First Applicant; (b) any non-Aboriginal male party; (c) any non-Aboriginal male expert engaged by a party for the purpose of providing advice about such matters for the purpose of these proceedings; (d) any non-Aboriginal male Counsel or non-Aboriginal male solicitor of a party; and (e) any Judge and those male Court staff or contractors as directed by the Judge. (3) Notwithstanding order 2(d) above, Mr McAvoy SC, Counsel for the Third Applicant is permitted to view any transcript, reports, submissions and other materials in written or symbolic form that is identified by the Court as being the First Applicant's Restricted Men's Evidence, but is not entitled to cross examine or be present when such evidence is provided (other than any expert evidence, which is subject to a separate direction). (4) The First Applicant's Restricted Men's Evidence as identified by these orders and the Court in accordance with these orders must not be disseminated during the course of this proceeding to any person at all and under any circumstance, save as to those who may view or hear such evidence, transcript, submissions, expert reports and other material in written or symbolic form as provided for in order 1 or order 3 above, and upon conclusion of this proceeding all such material will be destroyed and the destruction of such material will be attested to by affidavit. (5) There be liberty to apply to permit another person or persons to read or be informed about the evidence, or particular parts of the evidence, and to apply that the witness not be released and be available for further cross-examination. 8 These reasons for decision relate to the role or proposed role of that senior counsel for the third applicant when Dr Willis gives his evidence.

CONSIDERATION 9 It is accepted that the Court has power under s 17(4) and s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) to order that evidence be taken in the presence of a limited number of persons. Section 82(2) of the Native Title Act 1993 (Cth) specifically provides that cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders may be taken into account in native title cases, with the result that, if it be necessary to ensure that justice be done and be seen to be done, the Court has power to prevent a particular counsel or solicitor appearing for a party to participate in a part of the hearing: see Western Australia v Ward (1997) 76 FCR 492 at 499 per Hill and Sundberg JJ. As their Honours indicate, it is necessary to have regard to the respective interests of the parties, balancing the cultural and customary concerns of the Aboriginal people in question against the right of a party to have a counsel of that party's choosing. 10 I proceed on the basis that Dr Willis has real and genuine concerns that it would be contrary to Western Desert law for him to give that part of his evidence which concerns culturally restricted men's evidence in the presence of that senior counsel for the third applicant in the circumstances. 11 It is a little difficult to assess the extent of his concern. It is expressed only in the annexure to an affidavit of the solicitor for the first applicant of 3 September 2015; the annexure is a copy of the affidavit of Dr Willis in a matter in the Environment Resources and Development Court of South Australia in which the following judgment was given: Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (2011) LGERA 151). His affidavit was filed in respect of an application seeking orders, in that matter, that would limit those who could hear and deal with Kokatha restricted men's evidence. That affidavit is not specific to the present circumstances. 12 Paragraphs [23]-[26] of the affidavit of Dr Willis identify the Kokatha people as part of the Western Desert cultural and social block of Aboriginal society, bound by the same or by a substantially similar body of law and custom, including as to cultural restrictions on traditional knowledge. It exposes that Dr Willis in 1996-1997 did particular consultancy work in relation to the area between Port Augusta and Olympic Dam in South Australia, including in part concerning the Kokatha people's claim area in this proceeding. Part of the outcome of his work was a report of 23 September 2006 entitled "Lake Torrens South - Confidential Men's Report". The affidavit also refers in general terms to other material relating to the Kokatha people's involvement with Lake Torrens. 13 Dr Willis says that by giving evidence of a culturally restricted character in the presence of an Aboriginal man of another group, he would be branded untrustworthy by Aboriginal people all over Australia, so his professional and personal reputation would be damaged. He would lose important friendships. He refers to the risk of a range of significant adverse physical sanctions which might be inflicted on him. Reading his affidavit carefully, he does not say that such sanctions are any longer likely, or that he specifically fears them. However, I accept that he would not give the evidence he might otherwise give in support of the Kokatha claim group claim if he is required to give culturally restricted men's evidence in the presence of the particular senior counsel for the third applicant. 14 I am informed that Dr Willis proposes to give evidence of two general types. The first is of his actual experience of, and knowledge of, Western Desert cultural practices, along with other members of the Kokatha claim group. Although he is not a member of the claim group, that evidence will be "lay" evidence of the same general character as that given by members of the claim group. The second is to be given as an expert anthropologist. 15 As to the former, there is no evidence to indicate that the sort of evidence which Dr Willis proposes to give is available only from Dr Willis. More importantly, to the extent that Dr Willis is to give admissible evidence of factual matters relating to restricted men's evidence (as distinct from expert anthropological evidence), that can be accommodated by separating his respective roles as a witness of fact and as an expert witness to different sets of evidence. If that causes some difficulty to the first applicant in drawing the line between those two roles, I do not think the difficulty warrants any special order. If he were to give that evidence, without providing any expert opinion in relation to it at the same time, he would be able to do so under the protection of the orders made on 21 October 2015. 16 Accordingly, I will direct that his evidence, except as an expert anthropologist, be given separately from the occasion when he gives any expert evidence. 17 The remaining focus is upon his proposed expert evidence. As he is the proposed expert anthropologist for the first applicant, clearly his evidence is, or may be, very significant. Part of that evidence (as with all the expert anthropological evidence) can be given without restriction. Senior counsel for the first applicant acknowledged that. To the extent that that can occur, it should occur. That will include, as presently planned, the giving of evidence jointly by the several experts for the parties. I do not propose to make any order which will prevent that from occurring. 18 I accept that, at certain points, Dr Willis may decline to respond to particular issues (as indeed may other expert anthropologists) in the public hearing because that evidence may require explicit discussion of culturally restricted men's evidence. That would be likely to occur in relation to part of, or all of, the detailed explanation for a particular conclusion rather than the conclusion itself. It may therefore be necessary for the evidence of the expert anthropologists (either taken singly or jointly) in part to be in closed session. At that point, I also accept that Dr Willis may not be prepared to respond fully to certain questions addressed to him by the Court, by counsel (other than senior counsel for the third applicant), by the particular senior counsel for the third applicant, or in an exchange of views between the expert anthropologists, whilst senior counsel for the third applicant is present for the reasons already referred to. 19 At that point, and only at that point, does the present issue actually reach the need for the balancing which s 82(2) of the Native Title Act 1993 (Cth) requires. 20 In balancing the respective interests of the parties, I take into account the status of Dr Willis as the primary anthropological expert for the first applicant. I take into account his prior experience and that Dr Willis was engaged by the first applicant in this matter at a point in time (July 2014) when the third applicant had not instituted the claim of the Barngarla people over the Lake Torrens area. An earlier claim on behalf of the Barngarla people over that area had been withdrawn. Even though it may be accepted that in July 2014 it was generally known that the particular senior counsel for the Barngarla people had acted for them in a separate claim for an area on the western side of the Yorke Peninsula extending northwards to the part of land running up to the south-eastern section of Lake Torrens, there was no reason to anticipate any problem with engaging Dr Willis of the character that has now arisen because there was no Barngarla claim over Lake Torrens at the time. The problem, in that sense, is the making of the third applicant. It was not a party to the application by the first applicant which, at the time, included Lake Torrens (and the area west of Lake Torrens which is already the subject of a determination): see Starkey v South Australia (2014) 319 ALR 231. The third applicant left its present application to a very late point in time, June 2015, despite knowing of the present application by the Kokatha people, including over Lake Torrens, for a considerable period of time. 21 In my view, those considerations are significant in addressing the present issue. Dr Willis' proposed expert evidence is clearly important to the case of the first applicant. Whilst I accept that the particular senior counsel has a long exposure to the claims (in a general sense) of the Barngarla people, the hearing of this matter thus far has shown that the difficulty confronting them by his Aboriginal status can be accommodated. During the restricted men's evidence of some Kokatha men to date, the third applicant has been represented by other senior counsel. There is nothing to indicate that a similar arrangement cannot be made both for further "lay" evidence of the same general character as that already given, when it is given by Dr Willis. Nor is there any apparent reason why, when Dr Willis participates in the proposed joint evidence with other anthropologists giving expert evidence and if a closed session of such joint evidence becomes necessary, such an arrangement cannot be made. In that way, Dr Willis may give such expert evidence as he may properly give, and the third applicant be properly represented. I note also the very experienced solicitor for the third applicant has had a long and detailed knowledge of the claims of the Barngarla people, having acted for them in the Barngarla claim referred to. If necessary, there is no apparent reason why he could not attend that part of any closed session and attend to the interests of the third applicant. 22 I accordingly direct that: (1) Dr Willis should give his "lay" evidence separately from, and prior to, his evidence as an expert witness, and to the extent that such evidence should be restricted men's evidence, the giving of that evidence will be in accordance with the orders made on 21 October 2015; and (2) In the event that, in the course of the hearing of expert evidence, either separately or jointly, it is necessary for that evidence to be given in a restricted men's evidence session, there will be a further restriction on those persons who may be present for that evidence, to exclude the particular senior counsel for the third applicant from being entitled to be present during that session of evidence. 23 The Court notes that Dr Willis is not among the proposed witnesses to give evidence during the current session of "lay" evidence, but arrangements can be made for his "lay" evidence to be given at an appropriate time. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

KOKATHA PEOPLE, ADNYAMATHANHA PEOPLE AND BARNGARLA PEOPLE v STATE OF SOUTH AUSTRALIA, KELARAY PTY LTD AND STRAITS EXPLORATION

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