Waanyi People v State of Queensland [2009] FCA 1179 (24 August 2009)

Last Updated: 16 October 2009

FEDERAL COURT OF AUSTRALIA

Waanyi People v State of Queensland [2009] FCA 1179

ADA WALDEN AND OTHERS ON BEHALF OF THE WAANYI PEOPLE v STATE OF QUEENSLAND AND OTHERS
QUD 6022 of 1999

DOWSETT J
24 AUGUST 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6022 of 1999

BETWEEN:	ADA WALDEN AND OTHERS ON BEHALF OF THE WAANYI PEOPLE Applicant
AND:	STATE OF QUEENSLAND AND OTHERS Respondent

JUDGE:	DOWSETT J
DATE:	24 AUGUST 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I am presently dealing with proceedings arising in connection with an application for a Native Title determination. The particular issue with which I am presently concerned is whether or not the descendents of a possible apical ancestor known as Minnie are, in fact, members of the existing claim group in the sense that they satisfy the description as it appears in the existing application. A meeting of the claim group was held on 12 September 2007 under the auspices of the National Native Title Tribunal. The meeting was conducted over two days and considered claims by two families to be entitled to inclusion in the claim group, Minnie’s family, and the family of another potential apical ancestor, Opal. In the end, Opal’s descendents were included, but Minnie’s were not.
2. The proceedings were conducted in a somewhat unusual way. Parts of it were said to constitute a claim group meeting attended only by people already recognised as being members of the claim group. Other parts were conducted as a meeting of the kind contemplated by s 136A(1) of the Native Title Act 1993 (Cth) (the “Native Title Act’) between parties in dispute, namely those espousing the cause of Minnie’s descendents and the accepted members of the claim group. Pursuant to s 136A(4), proceedings of the latter kind are privileged in the sense that the section provides that evidence may not be given of such proceedings and statements made thereat, without the agreement of the parties. Such agreement has not been forthcoming. However counsel for Minnie’s family seeks to lead evidence of what happened at that meeting upon the basis that a non-member of Minnie’s family (Mr Hookey) who is a member of the claim group, was cross-examined upon proceedings at the meeting so that there may possibly be confusion or a misleading effect concerning positions taken by unidentified persons in attendance.
3. It is submitted that such evidence may be received pursuant to s 131(2)(g) of the Evidence Act 1995 (Cth) (the “Evidence Act”). Section 131 is primarily concerned with protecting without prejudice discussions in the sense in which that term is generally used, that is, exchanges designed to bring about settlement of litigation. Evidence of such exchanges may be adduced if other evidence is likely to mislead the court unless evidence of the “without prejudice” communications or documents is adduced.
4. There is, as far as I can see, no cogent argument for implying the terms of s 131 into s 136A of the Native Title Act so as to qualify the general prohibition in the absence of the agreement contemplated by s 136A(4). For that reason alone, I am inclined to think that the evidence may not be received. However there is another reason for refusing to receive it. The situation contemplated by s 131(2)(g) of the Evidence Act simply does not arise in the present case. Counsel for the Minnie family asserts that a relatively short passage in the cross-examination may be misleading in the absence of such evidence. The transcript refers to “a lot of talk about the Minnie family,” and “more talk about the Minnie family” occurring at the meeting. This evidence seems not to have differentiated between statements which were subject to s 136A(4) and statements which were not. Indeed, it is unlikely that such distinction would have been of any significance to the witness. However, following that cross-examination, counsel for the applicant referred to deliberations at the meeting concerning a proposed resolution addressing acceptance of the Minnie family into the claim group and the way in which that was dealt with. Counsel asserted that neither the witness, Mr Hookey, nor anybody else, had spoken up in favour of the Minnie family at that time. However consideration of that resolution must have occurred during a meeting of the claim group rather than at a meeting to which s 131 applied. It seems to me that counsel, in cross-examining Mr Hookey, made it as clear as was reasonably practicable, that he was asking about the events which occurred in the claim group meeting.
5. I see no basis for any inference from the cross-examination that during the parts of the meeting to which s 131 applies, nobody took the Minnie family’s part. It was obviously a meeting between proponents of the Minnie family’s claim and those who opposed it. I cannot see any risk that the court will be misled by the way in which the cross-examination was conducted. One might infer that there was no support for the Minnie family at the claim group meeting because it was clear from what had occurred in the privileged parts of the proceedings that there was a clear majority against acceptance of them into the group so that there was no point in taking the matter further. That does not exclude the possibility that people spoke in favour of the Minnie family. Indeed, it is almost inevitable that somebody must have done, given that the meeting was presumably held because somebody (perhaps the family members) were advancing a different case. Other evidence, particular that of Professor Trigger, suggests that the Minnie family claim has been a matter about which members of the claim group have differed. I will not permit evidence of the s 131 discussions be led in evidence.
   

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 15 October 2009

Counsel for the Applicant:	Mr G Hiley QC and Ms H Bowskill
Solicitor for the Applicant:	Chalk & Fitzgerald Lawyers & Consultants
Counsel for Gregory Phillips:	Mr T McAvoy
Solicitor for Gregory Phillips:	Blackshield & Co

Date of Hearing:	24 August 2009
Date of Judgment:	24 August 2009