Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981

FEDERAL COURT OF AUSTRALIA

Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 JOHNSON & ORS ON BEHALF OF THE BARKANDJI (PAAKANTYI) PEOPLE v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS NG 6075 OF 1998 THOMAS & ORS ON BEHALF OF THE BARKANDJI (PAAKANTYI) PEOPLE v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS NG 6082 OF 1998 STONE J 17 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 6075 OF 1998

BETWEEN: NOEL JOHNSON & ORS

APPLICANTS

AND: MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS

RESPONDENTS

NG 6082 OF 1998 BETWEEN: PEGGY THOMAS & ORS

APPLICANTS

AND: MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS

RESPONDENTS

JUDGE: STONE J

DATE OF ORDER: 12 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicants, in writing, jointly nominate a legally qualified representative to represent them in the proceedings by filing the appropriate Court document in the Federal Court Registry by no later than 1 October 2003. 2. The applicants, the State of New South Wales and New South Wales Native Title Services Limited, in conjunction and consultation with the National Native Title Tribunal, prepare a program for the negotiation and mediation of the application over a period of 12 months commencing 30 October 2003. The program is to set out: i. A timetable for the exchange of information between the parties where this has not occurred; ii. specific issues to be negotiated; iii. a detailed timetable including proposed meeting dates and venues; and iv. an outline of the negotiation protocol to be adopted by the parties. 3. A copy of the program is to be lodged with the Court by 30 October 2003 by the National Native Title Tribunal. 4. A copy of the program is to be made available to any party on request to the National Native Title Tribunal. 5. In the event that either: i. No such program can be agreed by 30 October 2003; or ii. no nomination is received pursuant to Order 1 by 1 October 2003; the applicants and other interested parties are required to show cause at the next directions hearing why the application should not be dismissed. 6. There be liberty to apply. 7. To the extent that it has not been dealt with today the notice of motion is adjourned for hearing at 10.15 am on 2 December 2003. 8. Any party who wishes to place any material before the Court in relation to the notice of motion is to file and serve any such material by 13 November 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 6075 OF 1998

BETWEEN: NOEL JOHNSON & ORS

APPLICANTS

AND: MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS

RESPONDENTS

NG 6082 OF 1998 BETWEEN: PEGGY THOMAS & ORS

APPLICANTS

AND: MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS

RESPONDENTS

JUDGE: STONE J

DATE: 17 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 12 September 2003, at a directions hearing, I made orders in relation to the further conduct of these proceedings, including the following: 1. The applicants, in writing, jointly nominate a legally qualified representative to represent them in the proceedings by filing the appropriate Court document in the Federal Court Registry by no later than 1 October 2003. 2. The applicants, the State of New South Wales and New South Wales Native Title Services Limited, in conjunction and consultation with the National Native Title Tribunal, prepare a program for the negotiation and mediation of the application over a period of 12 months commencing 30 October 2003. The program is to set out: i. A timetable for the exchange of information between the parties where this has not occurred; ii. specific issues to be negotiated; iii. a detailed timetable including proposed meeting dates and venues; and iv. an outline of the negotiation protocol to be adopted by the parties. 1. A copy of the program is to be lodged with the Court by 30 October 2003 by the National Native Title Tribunal. 2. A copy of the program is to be made available to any party on request to the National Native Title Tribunal. 3. In the event that either: i. No such program can be agreed by 30 October 2003; or ii. no nomination is received pursuant to Order 1 by 1 October 2003; the applicants and other interested parties are required to show cause at the next directions hearing why the application should not be dismissed. 2 These interlocutory orders were made over the objection of the applicants' representative, Mr Mark Dengate. Mr Dengate indicated that the applicants would seek leave to appeal from them. That being so I promised to provide reasons for those orders and I do so now. 3 The proceedings concern applications made under the Native Title Act 1993 (Cth) ('Act') for native title determinations in New South Wales. These applications, NG 6075 of 1998 and NG 6082 of 1998, are known respectively as Barkandji (Paakantyi) People #6 and Barkandji (Paakantyi) People #7. The claim area in Barkandji (Paakantyi) People #6 includes parts of the Murray and Darling rivers, the Great Darling Anabranch and Tucker's Creek within the Central Darling and Wentworth Council areas. The claim area in Barkandji (Paakantyi) People #7 is located entirely within the Shire of Wentworth. 4 In accordance with the then provisions of the Act, the applications were initially made to the Registrar of the National Native Title Tribunal ('NNTT') in 1997. They were transferred to this Court in anticipation of amendments to the Act that commenced on 30 September 1998. At the time of their transfer they were at the pre-acceptance stage. The Court was advised that Mr Mark Dengate represented the applicants. Subsequently, on 24 November 1999, Matthews J gave Mr Dengate leave to appear for the applicants in both matters pursuant to s 85 of the Act. Appearances for the respondent in each matter were filed on 28 April 1999. The applicants in Barkandji (Paakantyi) People #6 are Ms Dorothy Lawson, Mr Noel Johnson, Ms Sheila Kirby and Ms Peggy Thomas. Together with Mr Philip Lawson they are also the applicants in Barkandji (Paakantyi) People #7. 5 On 18 August 1999 a delegate of the Native Title Registrar decided under s 190A of the Act that, on procedural grounds, the applications should not be accepted. As yet, the applications have not been amended so as to cure the defects identified by the delegate. 6 The fate of these applications has been tied, albeit informally, to that of other applications before this Court that have the same or overlapping claimant groups. All of these matters (to which I shall refer with less than complete accuracy as the Barkandji matters) have been characterised by disputes within and between the applicants and the claimant group resulting in some cases in the applicants seeking to have separate representation before the Court. There have been numerous attempts to settle these disputes involving mediation as well as, in the matter known as Pooncarie Barkandji (Paakantyi) People #8 (NG 6084 of 1998), applications under s 66B of the Act to replace applicants. There have also been problems caused by a lack of resources and difficulties in contacting some of the applicants. 7 At a directions hearing on 22 March 2001 I ordered that these two proceedings (among others) be stood over pending the outcome of the application under s 66B made in Pooncarie Barkandji (Paakantyi) People #8. The original applicants in that matter were Dorothy Lawson and Philip Lawson, who were represented by Mr Dengate. That application was unsuccessful; see [2001] FCA 894 at [27]. This was largely because those seeking to remove Dorothy and Philip Lawson as applicants had not demonstrated that the proper processes for authorising such action had been followed within the claimant group. I was, however, satisfied that the Lawsons had lost the confidence of some very important members of the claimant group. This conclusion is pertinent to the present proceedings which involve some of the same applicants and claimant groups which, at the very least, overlap. For the sake of completeness I note that in Pooncarie Barkandji (Paakantyi) People #8 a later application under s 66B was successful and that on 9 December 2002 Dorothy and Philip Lawson were replaced by the present applicants in that matter. The result is that New South Wales Native Title Services Limited ('NSW NTS') now represents the applicants in that matter. 8 The history of Pooncarie Barkandji (Paakantyi) People #8 shows that there have been persistent problems in the relations between Dorothy and Philip Lawson and other applicants. In the proceedings presently under consideration there have been attempts to have the applicants separately represented; that is to have Mr Dengate represent the Lawsons with the other applicants represented by someone else. These attempts reveal a fundamental misunderstanding of the role of applicants in native title determination applications. Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable. 9 On 25 July 2001 I referred these two matters (among others) to the NNTT for mediation, under s 86B of the Act, with a request that the mediation concentrate initially only on the resolution of disputes within the claimant group. The NNTT was requested to provide a report on the mediation within four months. The NNTT submitted a report on 4 December 2001 in which it recommended that mediation continue for a further four months for the same limited purpose. That recommendation was accepted on 10 December 2001 and a further report was provided on 3 April 2002. 10 At a directions hearing on 19 June 2003 the progress of a number of Barkandji matters was considered. The Court was advised that in a number of matters (including the present proceedings) a working party, consisting of representatives of the applicants and NSW NTS, had met with representatives of the New South Wales State Government in an attempt to assess the impact on the various claims of the High Court's decision in Wilson v Anderson (2002) 190 ALR 313. The aim, as I understand it, was to identify the individual parcels of land within the claim areas in which native title may have survived. The Court was also advised that attempts had been made to solve some of the representation disputes within the claim group. A meeting of the working party was scheduled for July 2003. Orders were made that NSW NTS would provide a report to the Court concerning the outcome of that meeting. Mr Dengate expressed concern that he should be invited to that meeting and appropriate assurances were given that he would be permitted to attend. 11 On 19 August 2003 NSW NTS filed a report annexing the notes of a consultation meeting with members of the native title claim groups in a number of the Barkandji matters, including the present proceedings, held at Dareton on 28 July 2003. Seventeen people attended the meeting, including Noel Johnson, Sheila Kirby and Peggy Thomas. Dorothy Lawson, Philip Lawson and Mr Dengate did not attend. Following the general business each of several claims was specifically discussed, including those with which these reasons are concerned. 12 The meeting notes record that the attendees discussed the problems concerning the applicants and their representation. They concluded that it was unlikely that the applicants will be able to agree on common representation. The meeting agreed that the claims are crippled by the lack of appropriate representation for the claimant group. Mr Paul Hayes, a solicitor with NWS NTS, explained the processes involved in removing and replacing applicants. After considerable discussion, and noting that the claim could be re-lodged in the future, the general consensus was that the claim should be struck out. If the Court declined to strike it out, it was agreed that it should be asked to make 'tight orders to move the matter forward', failure to comply with which would result in the claim being dismissed. The vote that NSW NTS seek such orders was carried ten to nil. 13 On 19 August 2003 NSW NTS filed notices of motion in these proceedings in accordance with the wishes expressed at the meeting with members of the native title claim group held on 28 July 2003. The motions seek dismissal of the applications or, in the alternative, orders along the lines of those made by French J in Frazer and Others v State of Western Australia [2003] FCA 351 ('Frazer'). At the hearing on 9 September Mr Dengate indicated that he had only just received the notices of motion and was not in a position to deal with the applications for dismissal of the proceedings. For that reason I was not prepared to consider dismissing the applications at that time. I was, however, prepared to consider the other orders sought in the notices of motion, particularly as they had been raised at a directions hearing on 19 June 2003, at which time I had, at Mr Dengate's request, refrained from making them pending the outcome of the July meeting. 14 Mr Dengate did not seek to oppose any of the orders set out in [1], except the first to which he objected strenuously. He stated that the meeting of 28 July 2003 had been overtaken by a later meeting of the claimant group at which, according to Mr Dengate, all applicants expressed their satisfaction with his representation. I did not allow Mr Dengate to develop this line of argument since, for reasons that are explained below, I have formed the opinion that, irrespective of the wishes of the applicants, legal representation is essential if this matter is to progress. I do not believe that Mr Dengate is capable of providing the Court with any assistance, notwithstanding his obviously good intentions. 15 The outline of the history of these matters shows that in the five years since they were commenced in the NNTT there has been very little progress. Financial constraints have clearly created difficulties for the applicants, not least of which has been the regular inability of Mr Dengate to attend Court other than by way of telephone or video link. At times he has only been able to attend directions hearings by mobile telephone. Those occasions invariably have been marked by difficulties with reception or with the phone battery, or both. 16 Another difficulty has been the inability of Mr Dengate to have regular contact with all the applicants or to attend meetings of the claimant group. All of these difficulties have been exacerbated by Mr Dengate's unfamiliarity with Court procedure and by his unbridled enthusiasm for the case he wishes to present. Examination of transcripts at various directions hearings shows the difficulty the Court has in persuading Mr Dengate to confine himself to relevant issues and to listen as well as speak. He appears to be unable to detach his argument from his very emotional identification with the claimants' interests. Without in any way impugning Mr Dengate's good intentions, I am of the opinion that the whole of the claimant group, and the Court, would benefit from the appointment of a legally qualified person to represent the applicants in these proceedings. Indeed, I am convinced that unless the applicants have professional representation it will be impossible to resolve the many procedural difficulties that beset the applications and that it will be impossible for the substantive issues to be resolved. 17 The claimant group will be also be advantaged by the focussing of all the parties' minds by means of the programming orders I propose to make, which will facilitate the exchange of information and mediation between the parties. I have previously made orders along those lines in NG 6018 of 1998, which is known as Barkandji People #1. For the same reasons French J expressed in Frazer, at [32], namely that the 'Court is concerned that there be a more systematic and focussed approach to the progression of native title claims than has occurred up to this point' I am prepared to make the alternative orders sought by NSW NTS in these proceedings. 18 I am not prepared to dismiss the applications at this stage as I believe that the alternative orders proposed have the capacity to give clear direction to the claims for the first time since their inception. These matters are listed to come before me again on 2 December 2003, at which time I am hopeful that the parties will have availed themselves of this final opportunity to take constructive steps towards the determination of the claims. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 17 September 2003

Representative for the applicants: Mr Mark Dengate

Counsel for the State of New South Wales: Mr Booth

Solicitor for the State of New South Wales: New South Wales Crown Solicitor

Counsel for New South Wales Native Title Services Limited: Ms S Philips

Solicitor for New South Wales Native Title Services Limited: Mr P Hayes

Counsel for the New South Wales Farmers Association: Mr R Grczya

Solicitor for the New South Wales Farmers Association: Bruce & Stewart

Counsel for Wentworth Shire Council: Ms L Byrne

Counsel for Wentworth Shire Council: Buckworth Keady Lawyers

Counsel for Telstra Corporation Limited: Ms Flynn

Solicitor for Telstra Corporation Limited: Blake Dawson Waldron

Date of Hearing: 12 September 2003

Date of Judgment: 12 September 2003