Sir Grappler Truth Teller OAM
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https://www.msn.com/en-au/news/australia/a-ministerial-direction-a-court-warning..."A ministerial direction, a court warning, and a cloud over native title
It was a Tuesday in late February, and Natural Resources and Mines Minister Dale Last had lobbed a doozy into the sensitive legal world he oversees.
In a direction to department head Graham Fraine, Last said the state should be contesting native title applications – a major shift from longstanding practice.
This news, and related orders, were then filtered down to the Native Title and Indigenous Land Services, according to a Federal Court affidavit filed by the state.
On the Saturday, Last and Fraine jetted to South Korea and Japan on a trade mission, leaving a cloud over the scheme to return land to traditional owners in their wake.
Amid the chatter around the Circus tent from folks trying to parse what exactly was going on, Federal Court Chief Justice Debra Mortimer called a case management hearing in a major Cape York claim last week to, partially, try and figure that out herself.
Despite the state earlier indicating it had resolved issues of connection the Western Yalanji and Eastern Kuku Yalanji people had to some areas of the claim, this then shifted and the state wanted to “proceed to trial” instead, Mortimer wrote in orders setting last Thursday’s hearing.
This had all “put into a state of uncertainty what is happening in Queensland about native title claims,” Mortimer told Solicitor-General Gim Del Villar KC in the hearing, after lawyers in an earlier matter told her there was no change in the state’s approach.
While Del Villar conceded the direction from the minister was not specific to the case, he noted its effect on it – but revealed this was now “no longer the case”, except for one small area.
“The remaining issue in this proceeding, effectively, has gone back to the position that it was in before that direction was given,” Del Villar said.
He also insisted the state had not taken a “blanket position that matters are going to be taken to trial”. Whether this happened would depend on the particulars of a case.
Pressed by Mortimer on whether this was a change in the state’s broader approach to native title cases, Del Villar said he “can’t indicate if the state has changed its position”.
Dr Raelene Webb KC, appearing for the Commonwealth, said it welcomed news the state would continue discussions, but made pointed references to Commonwealth law’s native title and Federal Court focus on negotiations to avoid expensive litigation.
“The Commonwealth regards as paramount an adherence by all parties to the principle of resolving matters by mediation wherever possible,” Webb said.
The almost month-long hiccup means the state now isn’t sure if it can meet court-set dates for a determination on the case in early July, which Mortimer also described as “of considerable concern” given the length of time it had been set down in her “diabolic” diary.
While the direction’s result on the Cape York case appeared (relatively) cleared up, Mortimer told Del Villar the court remained concerned about “what may or may not be happening” in the state.
“I will be talking to the other judges who have those proceedings in their dockets, and to the two national coordinating judges, about whether any further steps – in an overarching sense, by way of calling people in to explain things – need to be taken,” she said.
What remains unclear is what, precisely, the direction from Last was, and if it has since been withdrawn or altered – either in language by Last, or interpretation by the department.
The latter refused to answer Circus’ questions on that matter, fobbing us off to Last, whose office did not respond to multiple requests. The minister’s office had earlier given a vague statement when asked if the state would take all native title matters to trial.
“The government has a responsibility to represent the interests of all Queenslanders and a duty to ensure the way the state participates in native title matters meets this expectation,” they said.
“The government believes Queensland should be open and available for all Queenslanders.”
It certainly doesn’t seem to take that same view of openness about the information around its actions in this space. Then again, this is a government whose first laws axed the state’s Path to Treaty.
While the government might be able to ignore the humble Circus, the Federal Court? Not so much."
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