McLennan on behalf of the Jangga People v State of Queensland

REASONS FOR JUDGMENT 1 This is a motion seeking an extension of the time for the Jangga People, the applicant, to provide proper particulars of how they propose to establish the matters required by s 223 of the Native Title Act 1993 (Cth). 2 I heard the motion on 5 March 2009 and made an order vacating orders 2 and 3 made on 7 March 2008. Those orders required the Jangga People to provide the particulars by 9 March 2009 and in default of compliance the proceedings would be dismissed. I also made on order extending the time for the provision of those particulars with a number of related orders and gave ex tempore reasons. However, I ordered that the parties have the opportunity to make submissions on the final form of orders which I would make. These reasons are largely a revision of the ex tempore reasons I gave on 5 March 2009, but they also take account of the parties' suggested revisions and the amendments which I have made to the final form of the orders in light of those suggestions. I have also given the reasons (which I made apparent during the course of argument) for the costs orders that I have made.

Background 3 The Jangga People have been persistently in default of providing anthropological or other connection material in these proceedings over many years. The proceedings were commenced in 1998 but, to date, no proper particulars, anthropological evidence or connection material has been served on any of the respondents or filed in court. Since the matter came before me for the first time as the docket judge, on 26 September 2006, I have made directions on a number of occasions with a view to providing a timetable for the eliciting of that material. 4 Finally, on 7 March 2008, the State of Queensland sought an order bringing this lamentable state of affairs to a head. During the course of that hearing, the Jangga People were represented by the principal solicitor of the Central Queensland Land Council. But because the Commonwealth Government had proposed the merger of that land council's responsibilities with the Northern Queensland Land Council's responsibilities, the principal solicitor of the Northern Queensland Land Council was present as an amicus curiae by telephone. During the course of that hearing, the State applied for an order that relevant connection material be served within one year. The State had sought that period of 12 months as a reasonable period in which to obtain, essentially, detailed particulars of the way in which the Jangga People put their case for the purposes of establishing their claim to native title having regard to s 223 of the Act. There was then discussion about the transition between the land councils that was proposed to take place on 1 July 2008. Because it was anticipated that the Northern Queensland Land Council might experience unexpected difficulties, when it had a chance to assess the nature of the claim and the efforts which were then underway to meet the orders proposed, the principal solicitor for that land council asked that the orders make provision for the matter to be reported on if need be towards late August or early September 2008. This had regard to the fact that that land council was taking over about 19 active claims and that each of them would require individual assessment. 5 Ultimately, I made orders that the Jangga People prepare and provide to the State, and any respondent who so requested, historical and anthropological material on which they sought to rely in support of their claim for a determination of native title by 9 March 2009 (order 2) and that if they did not comply with that order the matter would stand dismissed unless the Court otherwise ordered (order 3). Order 4 made on 7 March 2008 provided that the Jangga People file and serve an affidavit on or before 30 September 2008 as to their ability to comply with order 2 and, if they considered that they were likely not to comply, to cause the matter to be relisted. The orders made clear that the material to be provided by 9 March 2009 need not be in the form of expert evidence but, nonetheless, had to articulate the essence of the Jangga People's claim to establish native title. 6 On 29 September 2008, Mr van der Eyk, a solicitor for the Northern Queensland Land Council, swore an affidavit in which he expressed the view that, based on advice by a consultant anthropologist, it was not likely that the Jangga People would be able to comply with order 2 made on 7 March 2008. When the matter came before me on 17 October 2008 I made an order that if the Jangga People wished to vary orders 2 and 3 made on 7 March they should file and serve a notice of motion and any affidavits in support. 7 On 17 February 2009 the Jangga People filed a motion seeking a variation of orders 2 and 3 made on 7 March 2008 to have the time for compliance extended to 26 June 2009. Mr van der Eyk swore affidavits on that day, and 4 March 2009, identifying difficulties that had occurred in the transition period before the North Queensland Land Council assumed responsibility for the matter. Those problems included that the solicitors with carriage of the matter in the Central Queensland Land Council and its anthropologist all ceased their employment there in about April 2008 and that the relevant files were not received by Mr van der Eyk or the Northern Queensland Land Council until about 21 July 2008. He noted that, having reviewed the anthropological materials collected by the Central Queensland Land Council, all of those materials were properly characterised as internal working reports and that they had not been drafted for submission to other parties in the contested litigation. He also pointed to difficulties in, first, engaging anthropologists who were available to undertake work in native title claims and, secondly, in having them comply with timeframes set by court orders. 8 Mr van der Eyk deposed that from October 2008 the North Queensland Land Council expedited its search for a consultant anthropologist who was prepared to agree to review and co-ordinate the existing evidence and to conduct the necessary additional research to be in a position to report within a deadline of February 2009. He said that, ultimately, Dr John Taylor was identified as a senior experienced anthropologist consultant who would be available in early January 2009. In November 2008 Mr van der Eyk met with Dr Taylor who, finally, signed a contract to provide a report by 28 February 2009. 9 As revealed in Mr van der Eyk's affidavits the land council, however, did not require the report to be made in respect of all of the matters necessary to comply with order 2 made on 7 March 2008. Rather, the report was required, first, to focus on whether there was evidence of a pre-sovereignty normative society which could be identified, secondly, to examine the situation of named apical ancestors in the claim at the time of the assertion of sovereignty and, thirdly, to detail specific genealogies. Significantly, Dr Taylor had not been required by his contract at that time or, as I understand the position, to date to report in detail as to the continuity of connection. But he has indicated that he is available to undertake that task. 10 The application for an extension of time was listed on 5 March 2009. Mr van der Eyk gave oral evidence that during an adjournment of that hearing he contacted Dr Taylor to ask him when he would be in a position to deliver the report the subject of his current contract. Dr Taylor told Mr van der Eyk that that will be done by 23 March 2009. Mr van der Eyk said that the Jangga People propose that the contents of that report be considered and discussed internally by the Jangga People and the land council so that it can be submitted to the State by 27 March 2009. Mr van der Eyk also said that Dr Taylor had committed himself to Mr van der Eyk that morning, to report by 31 July 2009 on the balance of the material required to satisfy the orders I made on 7 March 2008. Thereafter, Mr van der Eyk proposed, on behalf of the Jangga People, that they meet and approve that further material, together with any other material necessary to satisfy the order, so that it all be filed by no later than 17 August 2009. 11 The position is that the Jangga People are seeking a further indulgence, extending the time in which to put on anthropological material. When the matter was before me on 17 October 2008 the parties who have been described as the AgForce pastoral respondents, filed a written submission detailing the history from December 2002 of the attempts by the Jangga People to put on anthropological material and evidence. On 3 December 2002 the Court was advised that an anthropologist had been engaged, but would take about three years for the research to be completed. In February 2004 at a case management conference before a Deputy District Registrar, the Jangga People then suggested that a full connection report and anthropological material was at least 12 to 18 months away, but thereafter, a summary of a report was provided in June 2004. Later, a number of directions hearings occurred before Dowsett J, in which his Honour was advised that an anthropologist had been commissioned, but his report had not been completed. On 12 March 2007 I was informed by the solicitor for the Jangga People that Dr Paul Gorecki had been engaged to prepare a report and would be undertaking fieldwork. Subsequently, in August 2007, Dr Gorecki advised the Central Queensland Land Council that he was no longer available. In November 2007 other anthropologists were engaged. They were no longer available by early 2008. 12 It was in that context last March that the State applied to have made, in effect, a guillotine-type order to bring the proceedings to some form of finality. And, after discussion with the parties, with a view to setting a timetable that could be met and was fair, I made the orders I have described on 7 March 2008.