Korewal People - Longbottom v NSW Minister for Land & Water Conservation

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 There is before the Court an application to amend an application for native title in matter No. NG6029/98. The applicants are Linda Longbottom and Dulcie Simms who say that they are bringing the claim for the benefit of the "Korewal Aboriginal People". 2 Certain difficulties about the original application have been foreshadowed. The claim appears to concern certain foreshore lands at Botany Bay as well as the waters of Botany Bay and for some of the distance the rivers or creeks that flow into Botany Bay. The claim may or may not include also the land under the waters of Botany Bay. Enlargement of areas claimed 3 The proposed amended application, in fact, seeks to enlarge the area of land and/or waters that have been claimed. This is contrary to s 64 of the Native Title Act 1993 ("the Act") which provides in ss (1): "An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application. " 4 This comes about through an unfortunate circumstance. As long ago as 1995, a document, in which one of the applicants in the principal proceedings Linda Longbottom, was named as the applicant, sought on behalf of the same alleged group of people to claim an area that, as best as one can understand the matter, corresponds with the area sought to be claimed by the presently intended amended application. However, although this document apparently found its way in some manner to the National Native Title Tribunal, it seems that this occurred informally and that that document never became an application in the sense that it was treated by the Tribunal or by the present applicants as an application. In 1996, they lodged what has been treated, subject to any question of its validity or sufficiency, as the foundational application in these proceedings. 5 There are two named applicants in that application, whose names I have mentioned. Ms Longbottom is by leave of the Court represented by her daughter, Ms Ava Longbottom, whose application today simply is that the Court refer the parties for mediation. I will return to that. I assume that that position is not intended, as an alternative, to deny support for the application pressed by Mr McAvoy, counsel for Ms Simms. 6 Upon the effect as to enlargement of the claim area by the proposed amended application becoming clear, a further oral application was made to amend the proposed amended application, so as to reduce the area claimed to that claimed by the 1996 application. However, the area of waters claimed in the 1996 application is delineated on a map, being attachment A6"E" to that 1996 application document. It uses a map of Botany Bay which does not show the location of the third runway of Kingsford Smith Airport. I suppose that, conceivably, some further application could be made to further amend the amended application, as sought to be amended. Embarrassment 7 There would, nevertheless be confusion and embarrassment. The description of the areas claimed confuse lands and waters and it is very difficult to know with any reasonable accuracy what is being claimed. Under the Act before its 1998 amendments, the sufficiency of descriptions had been considered in National Native Title Tribunal Application NC97/1, by the Honourable P.L. Seaman QC then a Presidential Member of that Tribunal. He said: "The Tribunal approaches the question of the adequacy of descriptions of claim areas in native title determination applications in a flexible and common-sense way. There must however be a description which is sufficiently precise to enable the process of the Act to be applied in the circumstance of the particular application." 8 Mr Seaman went on to point out that the description needed to be adequate to enable the Registrar to perform her obligation to give notice pursuant to s 66(2) of the Act, as it then stood. Applying that test, and erring indeed on the side of generosity, it seems to me that this claim needs recasting to clarify it, even in relation to such a basic matter as an adequate description of the lands and waters claimed. If that were all, then I would possibly be sympathetic to an amendment. 9 However, there is more. The application as a whole has been drafted, with a very great deal of work by a friend of the applicant's, Mr Illert, who informs the Court, and I do not doubt it, that he has put months of his own time and vast energy into assisting them. It is clear, from a number of proceedings before me, that Mr Illert feels passionately about the rights and claims of the claimants. While tertiary educated, he is not a lawyer and there is in the proposed amended application a confusion of rhetoric, statements of possible evidence and assertions of relevant fact as to the matters that should be in the application. The application as a whole, is, in my opinion, embarrassing and may have many other defects, about which I have not felt it necessary to hear Ms Phillips, who appears for the New South Wales Aboriginal Land Council, the representative body concerned. In these circumstances, a strong case appears in my opinion to deny the principal amendment sought to be made together with the further amendment to it which has been sought, and not to allow any further time for yet some other amendment. Prejudice to the applicants? 10 Nevertheless, I would not take this step if I thought that there was any real likelihood of irrevocable prejudice to the applicants and those standing behind them. In order to consider this matter, it is necessary to refer to some wider aspects. 11 There is another claim over broadly similar areas before the court listed for today and said to be brought on behalf of the "Dharawal Nation" by Messrs Greg Simms and Assan Timbery and others. There was apparently some conflict between the two groups as to who were the appropriate claimants in respect of some part or parts of the areas in which both groups are interested. At various times there appears to have been some bitterness between some representatives of the two groups. The New South Wales Aboriginal Land Council has sought to play its proper facilitatory role, but opinions differ as to the degree to which it has been successful or even helpful. There is apparently now some divergence of interest between Ms Linda Longbottom on the one hand and, on the other, the other named applicant in the principal application before me as well as other members of the same family to which both Ms Longbottom and Ms Dulcie Simms belong. That divergence of view is not unaccompanied by some feeling. 12 Nevertheless, I have been told by the representatives of all parties in both cases that, at least in principle, everybody agrees that a unified claim should go ahead and there has been talk and apparently progress towards what has been seen as a "merger" of the two claims. The amendment originally sought to the application now before me and the intended reversion to the area referred to in the 1995 document that I mentioned, was apparently intended by the present applicants, but not by others concerned as to the two claims, to further that merger process. For reasons indicated, however, this application cannot be the vehicle of such an enlargement. 13 I cannot see that there is any added hardship for the applicants in bringing a new application rather than causing this one to fully comply with the Act. For the reasons that I gave in Eora People - Brown v NSW Minister for Land & Water Conservation [2000] FCA 1238last week, no leave to amend should be given except on terms that would make the amended application comply with the new Act, and indeed the amendment sought to be made was an attempt to have the application comply with the Act, as amended. The amended Act of course is rather more rigorous in its requirements than the pre-1998 version of the Act. 14 It is pointed out that some, at least, of those for whose benefit these proceedings have been brought are advancing in years and there are questions of preservation of their evidence, maintenance of their enthusiasm for the vindication of their claimed rights and so forth. Again, I do not see that their position will be worse if they should be forced to come again than if they are permitted to make wholesale amendments which really amount to the filing of a new application in the guise of an amendment. Long ago, I drew the attention of all claimants in native title cases in my docket to the need for the preservation of the evidence of frail and elderly people. 15 It was also suggested that there are other Aboriginal interests in the La Perouse area whose views, as to those who ought to have control of or a legitimate influence in the use of the land and waters concerned, are antithetical to those of the claimants here and in the other related matter. Some fears were expressed that those other interests may be in a position, with the assistance of the New South Wales government, to bring about the extinguishment of any native title that may exist in relation to part or all of the areas with which these claims are concerned. However, assuming that it would be legitimate to take such matters into consideration, nobody has been able to explain to me how there would be any worsening of the applicants' position by their being required to come again if they wish to pursue their claims, rather than allowing them to make yet further amendments of the application. 16 Finally, the matters have been before me for a long time. I have done what I could to encourage conciliation, mediation, agreement, a common approach. Much indulgence by the standards of ordinary litigation, has been given to the applicants. 17 I should refer to one other matter for the future. The applicants are presently represented through the kindness of Mr McAvoy of counsel, who has lately represented them on a pro bono basis. Mr Illert informs the court, and nobody could blame him, that he will be likely unable to devote further large parts of his own time to assisting the applicants. Considerations of public financial stringency, and perhaps other considerations too, have resulted in the formulation of a general policy by the New South Wales Aboriginal Land Council of prioritising native title claims in NSW, so far as the Council's provision of funds for legal aid is concerned. The aim is to try to advance the interests of Aboriginal claimants generally, that is to say, to attempt to pick test cases with good prospects of success to run first. With respect, this is very understandable, perhaps even commendable as a general policy. However, there must be exceptions. 18 If the result of my rejection of this application to amend, as a practical matter, is (as I apprehend it may be) that the applicants need to depend upon their original, unamended application, and there is an application for the Land Council to strike it out for want of compliance with the legal requirements of the Act, then, unless the Dharawal application can stand, there may be a gap. One part of Sydney, which everybody in Sydney considers to be within, as it were, an Aboriginal sphere of influence, to speak of the matter merely culturally and not legally, is at least as to the land areas, apparently to be the subject of this or another claim. It would be a great pity if there should be a vacuum as to a suitable vehicle for the determination of the question whether any native title exists and in whom, in relation to those lands and, if a claim is made to them, the adjacent waters. Those in a position to influence or to fund the Land Council might, in my opinion, properly take this into account. These claims have not been brought frivolously. They have not been brought to assert some interest other than in relation to native title. The legal requirements of the Act, which can appear to legally unrepresented people like a minefield, have defeated them. It would be a shame if that position were to be perpetuated because of want of legal aid for an appropriate group. Application to refer to mediation 19 I return now to consider Ms Ava Longbottom's application on behalf of her mother the second claimant Linda Longbottom, that I should, instead of making the orders that I have just indicated I would do, refer the matter for further mediation. The short answer to this is that the time for that long ago ran out. Disposition 20 The application to amend the original application and the application to amend that amended application will be dismissed. No application is made as to costs and there will be no application for costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.