Federal Court of Australia The Nyamal Palyku Proceeding (No 6) [2022] FCA 666 File numbers: WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 483 of 2018 Judgment of: COLVIN J Date of judgment: 8 June 2022 Legislation: Evidence Act 1995 (Cth) s 73(1)(d) Cases cited: Browne v Dunn (1893) 6 R 67 Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 18 Date of hearing: Determined on the papers Solicitor for the Nyamal Applicant: Mr T Keely SC with Mr J Edwards of Arma Legal Solicitor for the Palyku Applicants: Mr V Hughston SC with Ms T Jowett of Cross Country Native Title Services Solicitor for the Respondent: Mr G Ranson of the State Solicitor's Office ORDERS WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 483 of 2018 BETWEEN: KEVIN CHARLES ALLEN AND OTHERS Nyamal #1 Applicant TAMMY O'CONNOR AND OTHERS Palyku Applicant KEVIN STREAM AND OTHERS Palyku #2 Applicant AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents order made by: COLVIN J DATE OF ORDER: 8 june 2022 THE COURT DIRECTS THAT: 1. The description of exhibit 53 be amended to read 'Affidavit of Mr John Marquis Edwards dated 7 May 2022 excluding paragraphs 6 (as to second and third sentences), 8 (as to the words 'he said he got from Lindsay Hardcase'), 11, 13 and 14.' Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 Overlapping native title claims have been made by the Nyamal peoples and Palyku peoples in respect of land in the vicinity of the town of Nullagine in Western Australia. Orders have been made in each of the relevant proceedings for claims in respect of an area described in the orders as the Nyamal Palyku Proceeding Area to be heard together. Those orders also provide for the question of the identity of the persons holding native title in the area (save for any question of extinguishment of native title) to be determined as a separate question. 2 In the course of the hearing of the separate question, the applicant for the Nyamal peoples has sought to rely on an affidavit of Mr John Edwards, a lawyer acting for the Nyamal applicant in the native title claims. The affidavit concerns certain of the circumstances in which cultural objects previously held by the Manchester Museum have been dealt with after their return to country. 3 The affidavit was received into evidence subject to objections to be notified by the Palyku applicant. Objections have been notified. These are my reasons in respect of the objections. Overall objection on the grounds of relevance 4 The Palyku applicant objects to the whole of the affidavit on the basis of relevance. The material is said to lack relevance on the basis that Mr Lindsay Hardcase, whose actions are one of the subjects of the affidavit, is not a member of the Palyku peoples claim group. Amongst other things the affidavit produces a report of the circumstances that resulted in the return of the cultural objects that was published by the Australian Institute of Aboriginal and Torres Strait Islander Studies. It is entitled 'Return of Nyamal artefacts to Country'. It also describes certain events that occurred after the artefacts were returned. 5 The fact that Mr Hardcase is not a member of the claim group does not, of itself, make the matters in the affidavit irrelevant. The circumstances of the removal and return of the cultural objects are one of many matters relied upon by the Nyamal peoples to support their claim. Therefore, I am not prepared to uphold the objection on the basis of relevance at this point. In accordance with my general approach in the course of the hearing, submissions concerning the relevance of particular evidence can be advanced at the close of the hearing. Overall procedural objection 6 The Palyku applicant submits that there has been a failure to comply with the rule in Browne v Dunn because the matters stated in the affidavit were not put to Mr Hardcase when he gave men's restricted evidence. It is also submitted that no notice of intention to cross-examine Mr Hardcase about such matters was given before the Palyku applicant notified that Mr Hardcase would not be giving evidence in the unrestricted sessions of the hearing. 7 The Palyku applicant gave notice of intention to call Mr Hardcase to give open testimony and provided a statement of his evidence. There was no agreement that he would not be required for cross-examination. He was scheduled to do so. A decision was made not to call him to give open testimony. In those circumstances, it could not be said that there was a failure to comply with the rule in Browne v Dunn. Hearsay objections 8 The Palyku applicant raises a number of hearsay objections. Annexure JME-1 9 The affidavit produces a letter dated 26 April 2022 from the lawyers for the Nyamal applicant to Mr Hardcase. It describes certain events and asks Mr Hardcase whether he is willing to help the Nyamal men obtain the box of cultural objects (being those retrieved by the Museum) so that they can be produced in the course of the proceedings. It also produces an email response from a lawyer setting out a response from Mr Hardcase. It is to the effect that senior lawmen together have to decide what is to be done with the objects. The fact of the request and the response are matters relevant to issues in the case concerning the nature of the cultural objects. I will receive the annexure on the basis that it is not truth of its contents but is evidence of the fact that the communications were sent and the terms in which they were sent. Paragraph 6 10 Paragraph 6 comprises 3 sentences. The objection to sentences 2 and 3 is conceded. As to the first sentence, it is not hearsay in form. It deposes to an inquiry that Mr Edwards made of Mr Tony Taylor. The objection to that sentence is not upheld. Paragraph 8 11 An objection to the words 'he said he got from Lindsay Hardcase' is accepted. Paragraph 9 12 There is an objection to the last two sentences of paragraph 9. They follow a list of the names of people who were on a bus. The sentences objected to are: 'I know the names of the men because Tony, Willy and Kimmy told me after they left. They told me that most of the men were Martu'. In substance, the evidence is an account of what Mr Edwards was told at the time. I will receive the evidence on that basis. I do not accept the submission that the evidence is admissible under s 73(1)(d) of the Evidence Act 1995 (Cth) as evidence of family history or relationship. Paragraph 10 13 There is a hearsay objection to the whole of paragraph 10 save for the last two sentences. The evidence is not hearsay in character. It is an account of what Mr Edwards saw and heard. The objection is not upheld. Paragraph 11 14 The objection is conceded. Paragraph 12 15 There is a hearsay objection to the whole of the paragraph. The evidence is not hearsay in character. It is an account of what Mr Edwards saw and heard. The objection is not upheld. Paragraph 13 16 The objection is conceded. Paragraph 14 17 The paragraph sets out the alleged contents of emails said to have been exchanged between the lawyers. The emails are not produced. The hearsay objection is upheld. The emails should be produced if they are sought to be relied upon. Conclusion 18 The affidavit will be received on the basis that the following parts of the affidavit do not form part of the exhibit: paragraphs 6 (as to second and third sentences), 8 (as to the words 'he said he got from Lindsay Hardcase'), 11, 13 and 14. The description of the exhibit shall be amended accordingly. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 8 June 2022