APPENDIX D CASE STUDY 1

Transcription

1 APPENDIX D CASE STUDY 1 1. Although a number of Native Title applications have been filed and discontinued previously on behalf of the Claim Group (A) since February 2001, the current application was filed in The land and waters claimed by the claim group contain a high level of mining activity as well as construction and operation of mining related infrastructure. The extant Applicant had been involved in negotiations around future acts and was in a position to administer cultural heritage clearance and monitoring associated with mining and other activities. 3. Dr B was commissioned by QSNTS, to carry out research on behalf of the Claim Group A. The Court Order made in December 2010, required that the applicant was to provide a copy of the completed Connection Report to the State by June Dr B completed the report in June 2011, and an applicant meeting was held, at which Dr B presented the report to the applicants. Dr B s report in summary, amongst other things, recommended that the claim group description required amendment as the named apical, E, should be deleted from the claim group description because E was not a Claim Group A person. In other words; those people claiming a connection to Claim Group A, solely through their descent from E, (i.e. those people not entitled to claim a Claim Group A connection through other descent lines) would not be entitled to be a member of the Claim Group A people. QSNTS provided a copy of the report to the State pursuant to the Court orders. 4. The recommended refinement of the claim group description meant that some persons who were part of the applicant (registered native title claimant) would (were the recommendation be accepted by the claim group) no longer be part of the claim group and by virtue of s61(1) could no longer be part of the applicant. 5. Following the applicants meeting, the applicants instructed Lawyer X to be their legal representative and QSNTS was served with a letter signed by the all of the extant applicants advising that QSNTS were no longer instructed in this matter. 6. The matter was next mentioned before the court in September Orders were made adjourning to a date in November Lawyer X for the Claim Group A applicants was to file any further affidavit material and to serve a copy of Dr B s report on any party requesting a copy.

2 7. Following a petition delivered to QSNTS by in excess of 130 Claim Group A members requesting assistance from QSNTS. QSNTS accepted that request and agreed to hold an Authorisation Meeting which was advertised to take place on a specific date in October 2011 at a suburban Brisbane location. Following the newspaper advertising publishing the holding on a Claim Group A meeting, correspondence was received from Lawyer X, advising that an authorisation meeting would be held by Lawyer X on the same date at a town some 350 kilometres from Brisbane. 8. The purpose of the QSNTS meeting being advertised was to receive a briefing from Dr B as to the research outcomes and to consider amending the claim group description and to consider the ongoing authorisation of the applicant. 9. The meeting arranged by X was notified as being amongst other things to receive a report on Dr B s report and to receive further anthropological advice from Z. Dr B was not in attendance at that meeting. 10. Following the holding of the contemporaneous meetings, interlocutory applications were filed by QSNTS, dated 26 October 2011, seeking the replacement of the applicant under section 66B of the NTA, authorised by the QSNTS Authorisation meeting. Amendment of the claim group description was also sought to remove the apical ancestor (E). 11. The interlocutory application was mentioned on 18 November Lawyer X advised the court that there had not been compliance with the previous orders (file affidavits and serve copies of report) and sought further time to file and serve material in reply to the application of QSNTS (Section 66B and change of claim group description). By this time X had proffered Z as an expert anthropologist and had advised the court that Z was preparing a report to support the retention of ancestor (E) and that the report would be filed and relied upon. 12. The matter was adjourned for hearing in February Because X had still not complied with the orders, the matter was further adjourned to April Mediation was ordered and parties requested to exchange reports for conference of experts. At that time Z s report had not been produced. 14. The matter was mentioned in April, Orders required the parties to exchange documents in an attempt to determine a proposed question for separate question to be decided around the composition

3 of the claim group and specifically the affiliation of ancestor E. X filed a report by Z titled An Anthropological Assessment of E. QSNTS filed the Report of Dr B. 15. In April, 2012 this matter was adjourned to June X foreshadowed the completion of a comprehensive report by Z. Orders were made that the reports to be relied on be filed. 16. On the June 2012 hearing date Z s report was still not complete and the matter was adjourned to July, An Order was made that Z s Report be filed. 17. At the July, 2012 hearing Z s report had still not been filed and the matter was adjourned to a date to be fixed. The time for X s client s compliance with the previous orders was extended to August The matter was mentioned on November 2012 and adjourned generally. The applicant (Lawyer X s client) was ordered to file an application to amend the Form 1 and provide supporting affidavits by a date in March X then produced a draft report by Z and what purported to be a peer review by Dr Q that was heavily critical of Z s work. Z tendered correspondence passing between X and Z in which Z purported to terminate Z s contract and confirming that Dr Y had been approached to provide a report. Elements of the correspondence was highly suggestive that X had been critiquing Z s report as elements of it was received and suggesting ways in which it could be improved. 20. Z then produced a report that: a. Confirmed that ancestor E was not part of the claim group but was known to be part of a neighbouring group; b. Suggested that the claim boundary be reconfigured in such a way as to include land and waters that were both unclaimed in part and in part claimed by other registered NTDAs. Coincidentally parts of the additional country was subject to significant future act activity; c. Suggested the addition of apical ancestors who are asserted by others to be part of neighbouring claim groups and at least one of which is a descriptor on a neighbouring claim and one of which is a son-in-law of E (that is, not an apical but a nodal ); d. Adopted an anthropological theory and model that had not previously been applied to the particular area or claim. 21. X (presumably on instructions) then ran two authorisation meetings seeking to get approval/authorisation of matters arising out of Z s report.

4 22. Following a particular approach taken by another judge in relation to the determination of separate questions, the docket judge abandoned the notion of hearing the separate question and dealt with the specific applications that were before the court. 23. This issue has been the subject of four authorisation meetings, a number of inconclusive court dates (which were inconclusive because X and X s clients failed to comply with orders relating to the better articulation of their claim and the provision of Z s report. 24. Z does not hold a PhD in anthropology and arguably would not stand scrutiny as an expert (although, unfortunately, that issue was not able to be tested Z s work has been the subject of adverse judicial comment in at least one other matter). 25. The delay in compliance with orders simply maintained the position of the extant applicant (some of whom are not members of the native title claim group) and allowed the applicant to engage in future act negotiations. 26. This interlocutory application was filed in October 2011 and a hearing in July There were 11 separate Court appearances not including conference of experts and the preparation and filing of submissions involving the instructing of Senior and Junior Counsel, costing QSNTS considerable resources and by inference a similar amount by the other parties. CASE STUDY 2 1. Following a meeting of the Claim Group Z in 2006, 10 named persons were jointly authorised to make a native title determination application on behalf of the biological descendants of nominated apical ancestors. The application was filed by QSNTS on behalf of the Claim Group Z in QSNTS subsequently commissioned Dr X to undertake anthropological research into the claim group, which included writing a connection report. 3. Dr X s research identified the possibility of adding Apical Y to the list of apical ancestors in the claim group description. In 2011, Dr X met with members of the applicant group to discuss this possibility. The applicant group resolved to hold an authorisation meeting of the claim group to discuss Dr X s findings and, more specifically, to consider a recommendation to add Apical Y as an apical ancestor in the claim group description.

5 4. QSNTS subsequently advertised that the authorisation meeting would be held in T on a date in early September Those present voted to include Apical Y in the claim group description. It was also resolved that a further authorisation meeting would be held in October 2011 to consider authorising a new applicant. Because an Applicant must be authorised by all of the native title claim group, authorising a new Applicant becomes necessary if there is an addition to the claim group description. 5. The October meeting was attended by descendants of each of the four original apical ancestors, as well as descendants of Apical Y. The meeting passed resolutions: a. Removing the authorisation of the existing applicant; b. authorising a group of 10 members ( Applicant M ) to be the replacement applicant for the native title application; and c. authorising the replacement applicant to apply under s 66B of the Native Title Act 1993 (Cth) ( NTA ) to be the applicant in these proceedings. 6. An interlocutory application was filed with the Federal Court in November Shortly after the October meeting, disaffected members of the original applicant sought legal representation from Lawyer C and advertised that an authorisation meeting would be held for the purposes of s 66B of the NTA in November That meeting, in effect, resolved to revoke the decisions made the September and October meetings and appoint an applicant ( Applicant L ) to make an application under s 66B. An interlocutory application was filed in late November Separate Question 8. In September 2012, and after several court dates a Federal Court Judge ordered that the Court would determine a separate question in order to determine the competing s 66B applications. The separate question was in the following terms: Does the Claim Group Z native title claim group comprise: a. the descendants of the four apical ancestors named in Schedule A to the Form 1 for the Claim Group Z application, or b. the descendants of those four named apical ancestors together with the descendants of Apical Y? Expert Evidence 9. Applicant M continued to retain Dr X and the Applicant L, through Lawyer C, retained Anthropologist Z.

6 10. C then retained the services of a different consultant anthropologist, Dr V, to write a report to address the separate question. 11. Pursuant to court orders, the expert anthropologists retained by each s 66B applicant (Dr X and Dr V) attended a conference of experts convened by the Deputy Registrar in November 2012 and a joint report on the outcomes was produced. 12. This report states that the experts agreed that the four apical ancestors named in the original application, together with the descendants of Apical Y had a right to identify with parts of the claim area as identified in the report. 13. Dr V prepared a report that accepted that apical Y was right for an area of the extant claim but asserted that the particular area of the claim could not, without further research, be properly accepted as part of the claim area. This assertion was based on an anthropological model with which Dr V is closely associated but whilst having application in some areas of Australia is not accepted as having universal application as a means of identifying land holding areas. 14. As with case study 1 the position asserted by the intervening group (same lawyer, different senior anthropologist, and same tactic) had the effect of maintaining the status quo whilst the interlocutory matters were before the court. Frequency before the Court 15. Throughout 2010, the native title claim Z was before the Federal Court five times. 16. Since the November meeting in 2011, the Claim Group Z matter has been before the Court 27 times for directions, interlocutory hearings, case management conferences and administrative listings. 17. In 2012 the matter was before the Court on 12 separate occasions and in 2013 has been before the Court 15 times. Use of Corporation Finances to Fund Private Lawyers 18. In the filed affidavit of Ms T (a member of the Applicant and a director of the corporation), Ms T deposes to the fact that the board of directors for Claim Group Z s primary corporation (the function

7 of which is to act as trustee of a charitable trust) voted on two occasions for funds ($100,000 and $200,000) held by the Claim Group Z corporation to be transferred to the trust account of Lawyer C. 19. Ms T explains that the first $100,000 was apparently transferred and used to stop QSNTS holding the meeting in Toowoomba and that the funds were referred to as the Claim Group Z Fighting Fund. 20. Furthermore, Ms T asserts that the transfer of $200,000 to Lawyer C was approved at a meeting of the board of directors, but that the directors that represent the W family were not notified of the meeting and therefore were not in attendance. 21. A minute of a board meeting exhibited to the affidavit disclosed that claim group funds had been committed to funds lawyer C s firm to investigate and support a claim by persons other than the registered claim group over the area which Dr V advised might be excluded from the claim area. 22. That exclusion would have the effect of removing proposed apical Y from the claim and maintaining the position of the persons who caused C to run the alternate meeting. CASE STUDY 3 1. In late 2008 QSNTS commenced to act for this claim which had been previously handled by another Native Title Representative Body. The solicitor for the claim group in the previous NTRB (Solicitor A) was not employed by QSNTS after the amalgamation and that lawyer commenced work with a private law firm. 2. That private firm then had solicitor A handling the native title claim at that firm. The Community Relations Officer of the previous NTRB obtained employment with QSNTS but was not allocated to this particular claim. This particular claim group had extremely large sums of money held in Trust on its behalf. Upon the transfer of the matter from the previous NTRB to QSNTS the Principal Legal Officer for QSNTS then became the solicitor on the record for the claim (Solicitor B). 3. QSNTS scheduled a meeting of the claim group to put issues to the whole claim group as soon as was possible. The Applicants then purported to dismiss QSNTS as their legal representatives and appoint new legal representatives. After an exchange of legal opinions the Applicants intended lawyers conceded that it was necessary to obtain unanimity of Applicants before a change could occur.

8 Accordingly the attempt to dismiss QSNTS and retain the lawyers (with whom Solicitor A was employed) ended. 4. In about April 2010 QSNTS called a meeting of the claim group. The Applicants who had been in place for about 4 years had been receiving significant sums of money as sitting fees to attend meetings with mining companies over that period (estimated at least at $20,000 per annum). They were aware that there was a likelihood that the claim group would seek to remove them and replace them with new Applicants and that subsequently they would then cease to receive the sitting fees. On advice (believed to be from Solicitor A) the Applicants organised for their families to not attend the meeting. Accordingly, attendance at the meeting was ruled insufficient representation to be able to make decisions. Therefore there was no change of Applicant at that time. 5. QSNTS continued to progress the matter to the point where it became clear that the claim group description had to be amended by expanding the claim group to include the descendants of additional apical ancestors. Once this became known to the court, the court made an order that the claim group was to be amended by a certain date, failing which the claim would be automatically dismissed. QSNTS therefore conducted the meeting on 23 July It was clear that the Applicants were advised again that if they could prevent the decision being made they would keep their remunerative positions. However on this occasion in view of the court order it was clear that they could not use the boycott technique again. Consequently they endeavoured to disrupt the meeting to the extent that the meeting would be closed down. There were a number of acts of violence conducted on the day. The most serious act of violence was a physical assault upon the Chairperson. However the Chairperson stood his ground and refused to close down the meeting. The meeting eventually proceeded to conduct an election and new Applicants were elected. It is understood from members of the claim group that the dissident Applicants were in contact by mobile phone obtaining advice as the meeting progressed. Whilst there was no proof it is quite likely that the advice was coming from Solicitor A and the former Community Relations Officer from the previous Land Council. 6. As required under the Native Title Act QSNTS filed an interlocutory application to amend the claim group description and to remove and replace the Applicants. There was of course supporting affidavit material. A private solicitor (B) then represented the dissident Applicants in opposing the Interlocutory Application. Because of a potential conflict of interest in having previously been the solicitor on the record for the whole claim group and now seeking to act for a section of that same claim group solicitor B tried to distance himself by using the services of one of his employed solicitors (Solicitor C). In addition Solicitor B also engaged in an arrangement with another solicitor (Solicitor D) under which D was ostensibly representing the dissident group but in reality was acting as a post box for B.

9 7. The arrangement between Solicitor B and Solicitor D was that Solicitor D would be the solicitor on the record in the court proceedings and retain Solicitor B as his town agent. B assigned an employee C (a former representative body employee) to have carriage of the matter. Solicitor D later informed QSNTS that he simply agreed to have his name used but did not actually do any of the work nor received any monies through his trust account. As there were a large number of affidavits prepared and executed in various country locations it is clear that those affidavits were not prepared by Solicitor D although the affidavits do indicate that he prepared them. Again there is a suggestion that Solicitor A and the former Community Relations Officer were the people who had actually prepared the affidavits. Solicitor D confirmed to QSNTS that he had not prepared any of the affidavits. Generally speaking the circumstances suggest that it is most likely that Solicitor A and the Community Relations Officer prepared the affidavits. However by that time Solicitor A was no longer a solicitor holding a practising certificate but operating as a consultant and therefore not legally permitted to be drawing legal documents and giving legal advice. 8. The meeting on 23 July 2011 was videotaped. The video shows the level of violence and in particular the assault on the Chairperson. This was clearly an endeavour to attempt to close down the meeting so that the Applicants could keep their positions and keep receiving sitting fees from the mining companies. Solicitor C viewed the videotape at the office of QSNTS. Accordingly it is submitted that having viewed the videotape C ought to have known that the client could not succeed in opposing the application because any basis for such an argument depended upon the consequences of violent actions of elements of that client. It is submitted that it would be improper conduct for a Solicitor knowing that there was no prospect of success to continue such an action. 9. This was compounded by a demand on behalf of Solicitor B for QSNTS to abandon the s66b application and reconvene the meeting to resubmit the whole process again. QSNTS considered that was an unreasonable demand in the shadow of the baseless opposition to the interlocutory application. 10. QSNTS indicated to the dissident Applicants that upon a completion of the hearing QSNTS would be asking for an order for costs against the dissident Applicants and their legal representatives personally. QSNTS did indicate that if it was that the dissident Applicants had paid for their legal representation out of their own personal funds then QSNTS would only ask for the order against the lawyers and not against the Applicants themselves. The Applicants remained silent with respect to that proposition from which it might be inferred that opposition to the s66b application was not funded privately but drew upon claim group resources. That is, the costs of the dissident Applicants were paid from a corporation holding funds to the benefit of the claim group as a whole and under rules which prevented the corporation paying private legal fees for individuals such as the dissident

10 Applicants in pursuing their private interests to keep their position as Applicants and to maintain a personal benefit. 11. QSNTS is of the view that the conduct of the lawyers individually and collectively was improper in that: a. Solicitor B clearly had a conflict of interest having been the solicitor for the whole claim group and then attempting to act for a section of that group to oppose the majority. b. There was an apparent encouragement to members of the group to prevent the meeting making decisions and thereby commit a contempt of court. c. The demand that the meeting be held again with the threat of continued expensive litigation. d. Encouraging the dissident Applicants to engage in litigation which they knew they could not win. e. Creating a fictional principal/agent arrangement with Solicitor D for the purpose of concealing the conflict of interest in acting for the group and receiving funds from a corporation ultra vires the rules of that corporation. f. From August 2011 until 27 February 2012 the Native Title claim could not progress in the Federal Court because Applicants were not in a position of authority to give instructions to the client. g. The discontinuance of the objections in exchange for an undertaking by QSNTS not to seek costs order against the Applicants and the lawyers resulted in the court being informed in the morning of a 3 week trial that the objectors were withdrawing and consequently the court wasted three weeks of time booked for this hearing. h. QSNTS understands that the dissident Applicants used approximately $80,000 in funds from the communities corporation when such fees were private fees and not permissible to be paid from that fund. i. An order to resist the objections of the dissident Applicants QSNTS supported the legal representatives for the new elected Applicants and itself represented the claim group thereby incurring a total of $140,000 approximately in legal expenses. CASE STUDY 4 1. In another case involving Solicitor A, the same community relations officer, Solicitor B and Solicitor D, Solicitor A was able to secure the instructions of a majority of the Applicants in a particular claim (the claim W).

11 2. Again the Solicitor A and the community relations officer had been acting for this group prior to the amalgamation of the representative bodies and were aware of substantial monies being held in trust funds for the group. They were then able to access the trust funds to expend on legal fees for the group. 3. In that instance Solicitor B had been previously the solicitor on record for the claim group as Principal Legal Officer and upon termination as Principal Legal Officer utilised the services of Solicitor A and the Community Relations Officer to secure instructions from the group to represent them privately using the funds from the mining company. 4. They represented to the group that they would be able to obtain a consent determination for the group despite there being an overlap with another group which clearly prevents them from proceeding until such time as the overlap with the other group is mediated. Therefore it was effectively a false representation. CASE STUDY 5 1. For some time commercial operations have been in existence providing ancillary services to Traditional Owners. These services include: a. Meeting logistics; b. Cultural heritage co-ordination services; c. Project management. 2. Those commercial operations have, until the relatively recent past, had a narrow focus and provided a limit range of focussed services. 3. In the last two years businesses have emerged that appear to be holding themselves out as quasi NTSPs. 4. These businesses currently embody all of the issues identified as issues with private agents in a single organisation. The offer made by these organisations typically includes; cultural heritage expertise, provision of research, preparation of NTDAs, provision of legal services and prosecution of claims. 5. One of these businesses has adopted a persona that appears to deliberately replicate the structure of a NTSP.

12 6. There is no overarching regulation of businesses such as these; a. The lawyers employed by, or who associate with, these businesses must hold appropriate practising rights and are therefore subject to that minimal level of oversight. However, experience suggests that some of these lawyers blur the line when considering whether their duties lie with the client or the business. Put another way, there is a question as to whether the client is the business of the Traditional Owner group with a consequent issue as to where the lawyers duty lies. b. These businesses also appear to favour anthropologists who will provide material to achieve a purpose (e.g. get a claim registered, or define a claim group in a particular way) without a comprehensive consideration of the totality of the evidence and the suitability of the claim to be placed in contest. 7. Because there are no checks and balances on the way these businesses operate there is a very real risk that these businesses will fail to deliver hard messages to NTCGs so as to minimise the prospect of losing a customer and consequential income.