Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People

[2019] FCAFC 177

FEDERAL COURT OF AUSTRALIA

Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177

Appeal from:

Warrie (formerly TJ) (on behalf of the Yindjibarni People) v State of Western Australia [2017] FCA 803

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299

File number:

WAD 611 of 2017

Judges:

JAGOT, ROBERTSON, GRIFFITHS, MORTIMER AND WHITE JJ

Date of judgment:

18 October 2019

Catchwords:

NATIVE TITLE – abuse of process – potential inconsistency between determinations of native title – where primary judge recognised exclusive native title rights and interests held by claim group over area comprising part of Yindjibarndi country – where earlier determination in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 recognised only non-exclusive native title rights and interests over another part of Yindjibarndi country – s 13 of the Native Title Act 1993 (Cth) (NTA) – no abuse of process

NATIVE TITLE – determination of exclusive native title rights – whether primary judge erred in relying on findings concerning adverse spiritual consequences for strangers entering onto the claim area without permission supported a determination of exclusive native title rights – whether the primary judge was correct to find that the Yindjibarndi had continued to observe the traditional law and custom concerning permission to enter country from sovereignty to the present day – whether Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391 and Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456 were correctly decided

NATIVE TITLE – the meaning of “occupy” in s 46B(1)(c) of the NTA – whether the primary judge erred in finding that at least one or more members of the claim group occupied two parts of the claim area at the time the application for determination of native title was lodged – appeal dismissed, with costs

Legislation:

Federal Court of Australia Act 1975 (Cth) ss 21 and 37M

Native Title Act 1993 (Cth) ss 3, 4, 10, 11, 13, 81, 86, 47A, 47B, 61, 86, 207A, 221, 223 and 225

Federal Court Rules 2011 (Cth) r 39.05

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Aboriginal Land Rights Act 1983 (NSW) s 36

Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) s 4

Cases cited:

AB v Western Australia (No 4) [2012] FCA 1268; 300 ALR 193

AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131; 244 FCR 328

Arnold v National Westminster Bank PLC [1991] 2 AC 93; 3 All ER 41

Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50

Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35; 359 ALR 256

Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256

BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8; 258 FCR 521

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424

Campbells Cash and Carry Pty Ltd v Fostif Pty Limited [2006] HCA 41; 229 CLR 386

Coffey v Secretary, Department of Social Security [1999] FCA 375; 86 FCR 434

Commissioner of Land Tax v Christie [1973] 2 NSWLR 526

Commonwealth v Yarmirr [2001] HCA 56; 208 CLR 1

Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493

Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1; [1959] AC 248

D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1

Dale v Western Australia [2011] FCAFC 46; 191 FCR 521

Danielv State of Western Australia [2003] FCA 666

Daniel v State of Western Australia [2005] FCA 536

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140

Devries v Australian National Railways Commission (1993) 177 CLR 472

Engineers’ Case [1920] HCA 54; 28 CLR 129

Fejo v Northern Territory [1998] HCA 58; 195 CLR 96

Fox v Percy [2003] HCA 22; 214 CLR 118

Ghosh v NineMSN Pty Ltd [2015] NSWCA 334; 90 NSWLR 595

Griffiths v Northern Territory [2006] FCA 903; 165 FCR 300

Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391

Gumanav Northern Territory of Australia [2005] FCA 50; 141 FCR 457

Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32

Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487

Henwood v Northern Territory of Australia [2017] FCAFC 182

Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75

Johnson v Gore Wood & Co [2002] 2 AC 1; 1 All ER 481

Lake Torrens Overlap Proceeding (No 3) [2016] FCA 899

Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422

Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; 237 CLR 285

Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133

Mosesv Western Australia [2007] FCAFC 78; 160 FCR 148

Munn v State of Queensland [2002] FCA 486

Narrier v State of Western Australia [2016] FCA 1519

Narrier v State of Western Australia (No 2) [2017] FCA 104

Neowarra v Western Australia [2003] FCA 1402

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232

North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595

Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442

Northern Territory of Australia v Griffiths [2008] HCATrans 123

Northern Territory v Griffiths [2019] HCA 7; 364 ALR 208

O’Toole v Charles David Pty Ltd [1990] HCA 44; (1991) 171 CLR 232

PNJ v The Queen [2009] HCA 6; 252 ALR 612

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589

Quall v Northern Territory of Australia [2009] FCA 18

R v Inhabitants of St Nicholas, Rochester (1833) 5 B & Ad 219; 110 ER 773

Ridgeway v The Queen [1995] HCA 66; 184 CLR 19

Riskv Northern Territory of Australia [2006] FCA 404

Rozenblit v Vainer [2018] HCA 23; 262 CLR 478

Rubibi Community v Western Australia (No 6) [2006] FCA 82; 226 ALR 676

Rubibi Community v State of Western Australia (No 7) [2006] FCA 459

Sac and Fox Tribe of Indians of Oklahoma v United States 383 F. 2d 991, (1967)

Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108; 254 FCR 107

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699

Starkey v South Australia [2018] FCAFC 36; 261 FCR 183

State Bank of New South Wales v Stenhouse (1997) Aust Torts Rep 81-423

State of Victoria v Commonwealth of Australia (the Pay-roll tax Case) [1971] HCA 16; 122 CLR 353

Tomlinsonv Ramsey Food Processing [2015] HCA 28; 256 CLR 507

Tyne v UBS AG (No 2) [2017] FCAFC 5; 250 FCR 341

UBS AG v Tyne [2018] HCA 45; 360 ALR 184

Walton v Gardiner [1993] HCA 77; 177 CLR 378

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; 365 ALR 624

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299; 366 ALR 467

Western Australia v Brown [2014] HCA 8; 253 CLR 507

Western Australia v Fazeldean (No 2) [2013] FCAFC 58; 211 FCR 150

Western Australia v Sebastian [2008] FCAFC 65; 173 FCR 1

Western Australia v Ward [2000] FCA 191; 99 FCR 316

Western Australia v Ward [2002] HCA 28; 213 CLR 1

Williams v Spautz [1992] HCA 34; 174 CLR 509

Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1

Wyman (on behalf of Bidjara People) v Queensland [2015] FCAFC 108; 235 FCR 464 at [170]-[173]

Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777

Yanner v Eaton [1999] HCA 53; 201 CLR 351

Date of hearing:

27-28 August 2018

Date of last submissions:

10 May 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

605

Counsel for the FMG:

Mr J Gleeson SC and Ms J Watson

Solicitor for the FMG:

Green Legal

Counsel for the Yindjibarndi People:

Mr V B Hughston SC and Ms T L Jowett

Solicitor for the Yindjibarndi People:

Yindjibarndi Ngurra Aboriginal Corporation RNTBC

Solicitor for the State of Western Australia:

The State of Western Australia submitted save as to costs

Solicitor for the Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd:

Robe River Mining Co Pty Ltd, Hamersley Iron Pty Ltd and Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd submitted save as to costs

Solicitor for the Georgina Hope Rinehart and Hancock Prospecting Pty Ltd:

Georgina Hope Rinehart and Hancock Prospecting Pty Ltd submitted save as to costs

Solicitor for the Yamatji Marlpa Aboriginal Corporation:

Yamatji Marlpa Aboriginal Corporation submitted to any order of the Court

Solicitor for Margaret Todd, Lindsay Todd and Phyllis Harris:

Margaret Todd, Lindsay Todd and Phyllis Harris submitted to any order of the Court

ORDERS

WAD 611 of 2017

BETWEEN:

FORTESCUE METALS GROUP LTD (ACN 002 594 872)

First Appellant

THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340)

Second Appellant

FMG PILBARA PTY LTD

Third Appellant

AND:

STANLEY WARRIE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE)

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

ROBE RIVER MINING CO PTY LTD, HAMERSLEY IRON PTY LTD AND HAMERSLEY EXPLORATION PTY LTD (and others named in the Schedule)

Third Respondent

JUDGES:	JAGOT, ROBERTSON, GRIFFITHS, MORTIMER AND WHITE JJ
DATE OF ORDER:	18 October 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs, subject to any party within 7 days filing and serving a notice that an order for costs is sought, in which event the parties are to confer and within a further 14 days thereafter are to file an agreed timetable for the making of written submissions relating to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

JAGOT AND MORTIMER JJ
The appeal	[1]
Ground 1 – abuse of process	[10]
The primary judge’s reasons	[11]
The appellant’s submissions	[68]
The Yindjibarndi’s submissions	[79]
Resolution of ground 1	[80]
Some key facts and chronological references	[82]
Daniel	[82]
The Warrie claim	[90]
What is the act constituting the abuse?	[94]
Some general points	[99]
Unjustifiable oppression	[115]
Disrepute	[123]
Section 37M	[125]
Relief	[128]
Other decisions	[130]
Western Australia v Fazeldean (No 2)	[131]
Wyman v State of Queensland	[141]
Dale v Western Australia	[142]
Conclusion	[149]
The Yindjibarndi’s Notice of Contention	[150]
Grounds 2 and 3 – Exclusive Possession	[151]
The primary judge’s orders	[159]
The primary judge’s findings	[165]
The appellant’s arguments in summary	[197]
The Yindjibarndi response in summary	[212]
Resolution of ground 2	[218]
Summary	[218]
Ward, Yarmirr and Brown	[224]
Ward (2002)	[225]
Yarmirr (2001)	[244]
Brown (2014)	[248]
Neowarra, Griffiths and Banjima	[253]
Neowarra (2003)	[254]
Griffiths (2007)	[265]
Banjima (2015)	[274]
The appellant’s reliance on the term “spiritual necessity” in ground 2	[293]
How the primary judge used this term	[293]
The use of “belief” by the primary judge	[300]
The evidence of the Yindjibarndi witnesses	[306]
Dr Palmer’s expert evidence	[328]
Responses to other submissions made by the appellant	[339]
The Schedule F point	[340]
Belief was not found to be “proof” of a right of exclusive possession	[344]
No default position	[345]
AB v Western Australia	[347]
How certain arguments were put to the primary judge	[350]
Resolution of ground 3	[357]
ROBERTSON AND GRIFFITHS JJ
Ground 1 and Notice of contention	[369]
Grounds 2 and 3	[397]
Ground 4	[398]
The primary judge’s reasons on the issues of “occupy” and “area”	[406]
(a) “Occupy” in s 47B(1)(c)	[406]
(b) Area	[423]
FMG’s submissions summarised	[429]
The first respondent’s submissions summarised	[435]
Analysis and determination	[442]
(a) Connection and “occupy”	[442]
(b) The meaning of “occupy” in s 47B(1)(c)	[451]
(i) Wagga Wagga Motor Registry Claim and Berrima Gaol	[453]
(ii) Current authority on “occupy” in s 47B(1)(c)	[465]
(c) Occupation by way of spiritual connection	[471]
(d) FMG’s submission that Alyawarr and Moses should be overruled	[482]
(e) The “area” referred to in s 47B(1)(c)	[485]
(f) Challenges to the primary judge’s conclusions that one or more members of the claim group occupied Area 2 and Area 3	[491]
(i) Principles	[496]
(ii) The primary judge’s findings of primary fact	[501]
Area 2	[505]
Area 3	[508]
(iii) The primary judge’s findings on occupation of Area 2 and Area 3	[509]
Area 2	[509]
Area 3	[511]
(iv) The parties’ submissions on the primary judge’s factual findings of occupation	[512]
Analysis and determination on factual findings	[516]
WHITE J
Factual setting	[531]
The reasons of the primary Judge	[540]
FMG’s submissions	[557]
The Yindjibarndi’s submission	[559]
Relevant principles	[560]
Principles concerning appellate review	[562]
Consideration	[563]
The significance attached to s 13(1)(b)	[564]
Identifying the inconsistency	[577]
Other matters	[591]

REASONS FOR JUDGMENT

JAGOT AND MORTIMER JJ:

THE APPEAL

1. These reasons for judgment explain why we have decided that the appeal against the determination of native title made by the primary judge should be dismissed as to grounds 1, 2 and 3. As to ground 4, we respectfully agree with the joint reasons of Robertson and Griffiths JJ.

2. On 13 November 2017, the primary judge made a determination of native title in favour of the Yindjibarndi, consequential on reasons for judgment published on 20 July and 13 November 2017: Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; 365 ALR 624 and Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2017] FCA 1299; 366 ALR 467. The determination includes an area of land defined as the Exclusive Area. By para 4 of the determination, in the Exclusive Area and subject to para 5, the “native title rights and interests confer the right to possession, occupation, use and enjoyment of that area to the exclusion of all others”. Paragraph 5 of the determination provides that the native title rights and interests, amongst other things, are not exclusive in relation to any water in any watercourse, wetland or underground water source and do not confer any rights in relation to minerals, petroleum, geothermal energy resources or water captured by the holders of Other Interests (as defined).

3. The appellant, Fortescue Metals Group Ltd (referred to as FMG by the primary judge and as the appellant in these reasons), initially appealed against the determination in two respects. The first respect concerned that part of the determination which confers on the Yindjibarndi a right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others. Grounds 1 to 4 in the notice of appeal concern this part of the determination.

4. The second respect concerns that part of the determination to the effect that s 47B of the Native Title Act 1993 (Cth) applied to certain parcels of unallocated Crown land. Ground 5 in the notice of appeal concerned this part of the determination. As we explain below, ultimately the appellant did not press ground 5.

5. Grounds 1 to 5 in the notice of appeal are in these terms:

   1        The primary judge erred in:

   (1)Holding that s 13 of the NTA is an exception to or displaces or modifies general law principles of res judicata, issue estoppel and abuse of process, so as to enable a claim group to seek a determination of their native title rights and interests that contradicts a previous extant determination and the findings on the traditional laws and customs acknowledged and observed by the group upon which the previous determination is based, which the primary judge accepted would otherwise constitute an abuse of process: Reasons [358]-[360], [374]-[375], [389].

   (2)Holding that the Appellant was unable to rely upon the findings made by Nicholson J in Daniel v Western Australia [2005] FCA 536 (Daniel) (on appeal Moses v Western Australia [2007] FCAFC 78; 160 FCR 148) that the claim group do not, under the traditional laws and customs acknowledged and observed by the group, possess rights to control the access to and use of their country and its resources other than a right to protect and care for sites of significance, as creating an issue estoppel in the proceeding below: Reasons [355]-[357].

   (3)Not holding that by reason of the determination and findings in Daniel the claim for determination of a native title right of exclusive possession over the determination area was an abuse of process, particularly in circumstances where the claim group tendered, and the primary judge acted upon, the evidence and findings from Daniel under s 86 of the NTA to establish that the group possess rights and interests in relation to the determination area under traditional laws and customs acknowledged and observed by the group: Reasons [37], [42], [45], [96], [110], [358].

   2        Alternatively, the primary judge erred in:

   (1)Finding that evidence of a belief held by the claim group, shared with neighbouring Aboriginal groups, that adverse spiritual consequences may result if strangers enter or use country without prior permission is proof of a right possessed under traditional laws and customs acknowledged and observed by the claim group to exclude any and everyone (Aboriginal and non-Aboriginal) from access to the determination area for any or no reason: Reasons [23], [54]-[56], [63], [85]-[90], [105]-[106], [111 ], [119], [142], [149]-[151], [381].

   (2)Holding that on the authority of Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391 and Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456, what the primary judge described as “the concept of spiritual necessity” gives rise to a native title right of exclusive possession to exclude any and everyone from access to country for any or no reason: Reasons [23], [44], [107], [380]-[382].

   (3)As a consequence of (1) and (2), not finding that the native title rights and interests of the claim group in relation to the determination area possessed under the traditional laws and customs acknowledged and observed by the group are those found in Daniel and do not include a right to exclude any and everyone from access to the determination area for any or no reason.

   3Alternatively, if Griffiths v Northern Territory and Banjima People v Western Australia hold that such a concept of spiritual necessity gives rise to a native title right of exclusive possession to exclude any and everyone from access to country for any or no reason, that authority is incorrect as being inconsistent with the reasoning of the High Court in Yarmirr v Commonwealth (2001) 208 CLR 1 at [11]-[15], [91]-[92], Western Australia v Ward (2002) 213 CLR 1 at [14], [51]-[52], [88]-[90], and Yorta Yorta v Victoria (2002) 214 CLR 422 at [82]-[87], and should no longer be followed.

   4Alternatively, the primary judge erred in finding that when the claimant application was made one or more members of the claim group occupied each of Area 2 and Area for the purposes of s 47B(1)(c) of the NTA by:

   (1)Holding that under s 47B(1)(c) the extent or range of occupation is commensurate with the country to which a native holding group has a spiritual connection by their traditional laws and customs so that an otherwise isolated visit by a member of the claim group to a place in, on the edge, or near Area 2 or 3 amounted to occupation of the whole of those wider areas: Reasons [265], [271 ]-[283], [292], [297].

   (2)Holding, as part of (1), that use of the word occupy in s 47B is to be understood on the (incorrect) basis that s 47B preserves and requires the recognition of pre-existing native title rights and interests, and therefore, as the primary judge reasoned on that incorrect premise, use of a place that reflects traditional connection means that the place, as well as the wider area to which the traditional connection extends, is to be treated as being occupied: Reasons [199], [272], [273], [277]-[280], [389].

   (3)Holding that in deciding whether s 47B applies to an area, the Court is not constrained to limit its consideration to whether the applicant establishes a claim over the area that it contends the section applies, and thereby departing from the contrary holding in Narrier v Western Australia (No 2) [2017] FCA 104, and when the claim group did not advance any claim to occupy a portion rather than the whole of Areas 1 to 4: Reasons [284]-[287].

   (4)Finding that one or more members of the claim group occupied Areas 2 and 3 when the claimant application was made in the absence of sufficient evidence of that fact or when that finding was contrary to the evidence: Reasons [292]-[296] (Area 2), [297]-[298] (Area 3).

   5Further, in the event this Court in proceeding WAD 218 of 2017 on appeal from Narrier v Western Australia [2016] FCA 1519 (at [1194]-[1208]) holds that an exploration licence under the Mining Act 1978 (WA) is a lease within s 47B(1)(b)(i) of the NTA, the Determination is erroneous in providing that s 47B applies to so much of Areas 1 and 2 within the Exclusive Area of the determination area covered by exploration licences E47/54, E47/473, E47/474, E47/475 and E47/585 when the claimant application was made: contra Reasons [194].

1. The first respondent filed a notice of contention to this effect:

   In considering whether the claim for a determination of a native title right of exclusive possession was an abuse of process, the primary judge could and should have taken into account the procedural and historical circumstances set out in the Reasons at [304]-[320] and see too at [371].

2. The reasons referred to in the notice of appeal and notice of contention are those in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; 365 ALR 624. All references below to the primary judge’s reasons are to [2017] FCA 803.

3. The appeal was to be heard in two parts. The first part, heard on 27 and 28 August 2018, concerned grounds 1 to 4. The hearing of appeal ground 5 (and a related interlocutory application for leave to raise ground 5 given that the issue was not raised before the primary judge) was postponed. That was because the issue raised by ground 5 was the subject of other proceedings. On 16 March 2018, after the primary judge had made the determination in the present case, the Full Court of the Federal Court published Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35; 359 ALR 256 in which it was held that petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the Petroleum Act), are “leases” for the purposes of s 47B(1)(b)(i) of the Native Title Act, so that s 47B does not apply to the land that is the subject of those permits. Ground 5 relied on the Full Court’s reasoning in Helicopter-Tjungarrayi.

4. The High Court granted special leave to appeal against the Full Court’s orders amending the determination in the Helicopter-Tjungarrayi case. As a result, orders were made deferring the hearing in the Full Court of ground 5 of the notice of appeal to enable the appeal to the High Court in Helicopter-Tjungarrayi to be heard and determined. The High Court heard the appeal in Helicopter-Tjungarrayi on 8 November 2018 and published its reasons for judgment on 17 April 2019. The High Court allowed the appeal from the Full Court’s decision in Helicopter-Tjungarrayi, and also allowed an appeal from the Full Court’s decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8; 258 FCR 521, which dealt with the same issue. As a result, on 10 May 2019, the appellants informed the Court that they do not press appeal ground 5 or the related interlocutory application. The Full Court made orders on 14 May 2019 granting the appellants leave to discontinue or withdraw ground 5 of the notice of appeal and to withdraw the interlocutory application.

   GROUND 1 – ABUSE OF PROCESS

5. We reach the same conclusion as Robertson and Griffiths JJ, and White J: namely that ground 1 should be dismissed. We do so for different reasons, although we express no disagreement with the reasons given by their Honours.

   The primary judge’s reasons

6. As the primary judge explained in his reasons:

   1The Yindjibarndi people inhabited an area of the Pilbara in north-western Western Australia since before British sovereignty or European settlement. They lived on Yindjibarndi country until around the middle of last century. On 9 July 2003, this claimant application was filed. In it the applicant claims, on behalf of the Yindjibarndi, that it is entitled to a determination of native title under s 225 of the Native Title Act 1993 (Cth) over a part of that area (the claimed area).

   2In Moses v Western Australia (2007) 160 FCR 148 [[2007] FCAFC 78], the Full Court of this Court made an amended determination of native title in respect of a large area of land to the north (the Moses land) of the claimed area (the 2007 determination). The Full Court amended the original determination that Nicholson J had made earlier on 2 May 2005 (Daniel v State of Western Australia) [2005] FCA 536) (the 2005 determination). His Honour ordered there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi’s native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J had published his substantive reasons for that determination on 3 July 2003 in which he held, relevantly, that the Yindjibarndi held non-exclusive native title rights over the Moses land: Daniel v State of Western Australia [2003] FCA 666.

7. In [4] of his reasons, the primary judge identified six issues, issues (1) and (4) of which were expressed in these terms:

   (1)Have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession, over so much of the claimed area in which no extinguishing, or partially extinguishing, act has occurred (the exclusive possession issue)?

   …

   (4)If yes to issue 1, are the Yindjibarndi precluded from obtaining a determination of native title that they have a right of such exclusive possession because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land (the abuse of process issue)?

8. His Honour answered question (1) in the affirmative at [151] and question (4) in the negative at [390].

9. In [10], the primary judge referred to a map which he described in these terms:

   Reproduced below is a map that enables an understanding of the physical locations of the claimed area (enclosed in red), the Moses land to its north (enclosed in purple), the land and waters in the Eastern Guruma consent determinations that the Court made in 2007 and 2012 (enclosed in light blue to the south, on the west of the claimed area) (Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365; Hughes on behalf of the Guruma People (No 2) v State of Western Australia [2012] FCA 1267), and the land and waters that the Court determined as those of Banjima people in 2014 (enclosed in light blue to the south, on the east of the claimed area) (Banjima People v State of Western Australia (No 3) [2014] FCA 201 per Barker J; Banjima People v State of Western Australia (2015) 231 FCR 456 [[2015] FCAFC 84] per Mansfield, Kenny, Rares, Jagot and Mortimer JJ).

10. The map is reproduced below.

11. The primary judge also described the 2005 and 2007 determinations, saying:

    11In the proceeding that resulted in the 2005 determination, Nicholson J heard three separate, overlapping claims, the first was a combined claim made by both the Ngarluma people and the Yindjibarndi people, the second was a claim, that his Honour described as the Yaburara Mardudhunera claim, in respect of land and waters to the north of the Moses land and that has no present relevance (Daniel [2003] FCA 666 at [99]-[103]), and the third was a claim made by a group that called itself the “Wong-Goo-TT-OO” (WGTO) applicant.

    12Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle. In the 2007 determination, the Full Court made some variations to the 2005 determination, which are not material for present purposes.

    13Relevantly, after the appeal, the 2007 determination, that the Full Court made, provided in pars 4 and 7:

    4.        The native title rights and interests:

    (a)do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and

    (b)are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

    …

    7.Subject to paragraphs 4 and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the [Moses land]:

    …

12. The primary judge recorded at [16] that all parties acknowledged that the Yindjibarndi had certain native title rights and interests on a non-exclusive basis, referred to as the non-contentious rights, being:

    (a)the right to access and move about the area (including to enter, travel over and remain);

    (b)the right to hunt in the area (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan, but not including dugong or sea turtle);

    (c)a right to fish in the area;

    (d)a right to camp upon and within the area, to build shelters there (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

    (e)a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

    (f)       a right to take black, yellow, white and red ochre; and

    (g)       a right to take water for drinking and domestic use.

13. The Yindjibarndi also claimed a right to control access to and exclude others from land within the claim area. As the primary judge recorded at [17], the active respondents denied the existence of these rights. The primary judge said at [17]:

    The opposition had two foundations, first, the 2007 determination had the legal effect of precluding the Yindjibarndi asserting an entitlement to, or obtaining, any determination that they had any native title rights and interests different to those decided in the contested trial and appeal that had produced the binding and conclusive judicial order being the 2007 determination, and, secondly, if the first foundation failed, the Yindjibarndi had to prove the existence of any additional rights.

14. At [18] the primary judge explained that the first ground of opposition “…is the nub of the abuse of process issue”, because “…if the Yindjibarndi are entitled to a determination that they have the right to control access to the claimed area, that will entitle them to a determination that they have a right equivalent to exclusive possession, which in turn will equate to the full rights of ownership of an estate in fee simple: Banjima 231 FCR [Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456] at 468-473 [27]-[40]; Ward 213 CLR [Western Australia v Ward [2002] HCA 28; 213 CLR 1] at 64-65 [14]”.

15. The primary judge identified the foundational findings of fact for the 2007 determination in these terms:

    19The key finding that, relevantly, Nicholson J made in determining the Yindjibarndi’s claim before him was, in respect of the right to control access, as follows (Daniel [2003] FCA 666 at [292]):

    Such evidence as there is as set out on this matter in Appendix B establishes only that within Yindjibarndi land and Ngarluma land some Yindjibarndi first [sic] applicants claim the right to control access to identified portions of Yindjibarndi land. My impression of the evidence was that while there is evidence of surviving practice to seek permission to enter land considered to be Ngarluma or Yindjibarndi land, when that occurs it is a matter of respect rather than in recognition of a right to control. There is no exercise presently of this aspect of right claimed. (emphasis added)

    20In Appendix B to his Honour’s reasons he said (Daniel [2003] FCA 666 at [1318], [1319]):

    1318Woodley King identified himself as Ngurrara for Millstream area (T 297). He said that only the right people can speak for Yindjibarndi country (T 288). He said that old people had said that ‘Aboriginal coming from other area’ must seek permission from the local Ngurrara. A non-Yindjibarndi person would need the permission of the Yindjibarndi Jindawurrina ‘mob’ to settle in that area (T 225) or to take part in ceremony under the control of the Yindjibarndi (T 165). Dora Solomon said that if the government wanted to build something at Buminji-na they would need to consult Woodley King. He would speak with the other Yindjibarndi people (T 1040-41).

    …

    1319Elsie Adams testified to needing Cheedy’s permission to enter and camp on Hooley (T 379). Cheedy Ned testified that he ‘speaks for’ Hooley, and would tell anyone asking about Millstream to talk to Woodley King (T 1231). Any Yindjibarndi person not from Hooley would need his permission to build a house or forage there (T 1233-1234). Pansy Cheedy said if the government wished to develop something on Hooley station they should speak to the person ‘who is closer to … belongs to, the land’. She named her sister Sylvia Cheedy, her father, Cheedy Ned. They in turn should talk to all the other Yindjibarndi people (T 1379-80). (emphasis added)

16. The primary judge then said:

    21In the time since Nicholson J characterised this evidence of a “practice” of seeking permission as “a matter of respect rather than in recognition of a right to control”, Full Courts have developed the law, commencing with the reasoning of French, Branson and Sundberg JJ in Griffiths v Northern Territory [[2007] FCAFC 178] (2007) 165 FCR 391 esp at 428-429 [127].

17. Thereafter, the primary judge explained why the evidence in the case supported the conclusion that “non-Yindjibarndi or a stranger, called a ‘manjangu’, needed permission to enter Yindjibarndi land. That explanation was consistent with the concept of spiritual necessity giving rise to a right of exclusive possession”: at [23]. This is the issue raised in grounds 2 and 3 of the notice of appeal. Based on these matters the primary judge held that the Yindjibarndi had established a right to exclusive possession of the claimed area: at [151].

18. It is apparent that, in so concluding, the evidence and the primary judge’s process of reasoning related to what was described as “Yindjibarndi country” which includes the claimed area and the land the subject of the 2007 determination: see, for example, [1], [40], [85], [86], [113], and [149]-[151]. This fact, it should be noted, is critical to the claimed abuse of process arising from inconsistency between the 2007 determination and the determination made by the primary judge. 

19. The primary judge dealt with the abuse of process issue at [303]-[390] of his reasons. In [303] he identified three inter-related issues – the abuse of process issue, the question whether s 86 of the Native Title Act should be construed so as to preclude the use of evidence or findings in Danielv State of Western Australia [2003] FCA 666, and the question whether the “claim that the Yindjibarndi have a right to exclude others from, or control access to, the claimed area is an abuse of process, or as FMG, but not the State, put is precluded by an issue estoppel arising from the findings in Daniel [2003] FCA 666”.

20. The primary judge then identified the procedural history relating to the abuse of process issue. As noted, in their notice of contention, the Yindjibarndi contend that in concluding that there was no abuse of process the primary judge should have taken into account the procedural and historical circumstances set out in [304]-[320] and at [371].

21. The procedural and historical circumstances which the primary judge identified included the following facts.

22. The Yindjibarndi filed their claimant application on 9 July 2003 in which they claimed the “right to possess, occupy, use and enjoy the area as against the world”: at [304].

23. Case management orders were made on 9 July 2014 requiring statements of contentions to be filed by the Yindjibarndi and the active respondents by 11 July and 30 August 2014 respectively, with an agreed statement of the issues in dispute to be filed by 29 September 2014: at [305].

24. The Yindjibarndi contended that “[u]nder traditional Yindjibarndi law and custom as presently acknowledged and observed, persons who do not belong to the country and cannot assert rights to it are identified by the use of the word ‘manjangu’. Such persons are strangers and should not access and use Yindjibarndi country, including the [claimed area], without the permission of appropriate Yindjibarndi persons who can speak for that country”: at [306].

25. The State admitted the facts in the first sentence of the contention of the Yindjibarndi but did not admit the second sentence and said “the [State] does not admit that the Yindjibarndi people possess any native title rights of exclusive possession in the [claimed area], including any right to grant or deny permission to access and use any part of that area”: at [307].

26. The appellant adopted the State’s position: at [308].

27. The parties filed the agreed statement of issues in dispute on 20 October 2014. The statement identified an issue as whether “as a matter of fact and law, the Applicant has any right to control access to the claim area”: at [309]. It also recorded, as the primary judge put it, that “the Yindjibarndi did not challenge in the appeal in Moses [v Western Australia [2007] FCAFC 78;] 160 FCR 148 the parts of the 2005 determination that reflected Nicholson J’s finding that they had only non-exclusive rights and interests in the Moses land”: at [312].

28. The Yindjibarndi filed an expert report by Dr Palmer, anthropologist, on 22 October 2014 which said that the system of rights to country “is ‘exclusive’ and that the Yindjibarndi possessed the right to exclude others who are not Yindjibarndi and are consequently identified as manjangu”: at [313].

29. On 31 July 2015, during an interlocutory hearing before the primary judge, the State said that it proposed to argue at the final hearing that “…the Yindjibarndi were estopped from seeking, or would be engaging in an abuse of process if they sought to claim, an exclusive right to control access to the claimed area”: at [314].

30. The primary judge recorded:

    315I questioned how that could occur, given that no such issue had been set out in the State’s contentions or the agreed issues which had merely not admitted the existence of the asserted native title right. That led to the State filing its interlocutory application that sought leave to amend its statement of contentions by, relevantly, adding the following to par 12 (set out in [307] above):

    The [State] contends further that if and to the extent these statements of Yindjibarndi law and custom are said to (a) reflect the same laws and customs as apply in the [Moses land], and (b) sustain native title rights of exclusive possession in the [claimed area], then these statements amount to an abuse of process by reason of re-litigation of issues decided against the Yindjibarndi people in Daniel (see also [22]-[27] below).

    316The State then set out contentions, in proposed new pars 22-27, as to what it asserted was an abuse of process by relitigation of the finding that Nicholson J had made in Daniel [2003] FCA 666 at [292]. It contended that the Yindjibarndi could not assert, whether by leading evidence or otherwise, that they held exclusive native title rights in the claimed area on the basis of the same laws and customs as those that exist in relation to the Moses land and that to do so would amount to an abuse of process by relitigating the exclusive possession issue that Nicholson J had determined against them.

    317On 11 August 2015, FMG filed its interlocutory application seeking leave to amend its contentions by adding nine new paragraphs that, in substance, contended that:

    Ÿthe findings in Daniel [2003] FCA 666 determined that the rights identified in (m), (n), (o), (p) and (q) in the schedule to the agreed issues were non-exclusive and applied to laws and customs observed by the Yindjibarndi on all Yindjibarndi country, including both the Moses land and the claimed area;

    Ÿthe applicant had given notice that the Yindjibarndi proposed to tender, pursuant to s 86(1)(a) of the Native Title Act, evidence given in the proceedings before Nicholson J at the then forthcoming hearing before me;

    Ÿthe Yindjibarndi had filed Dr Palmer’s expert report that opined that they had the right to exclude others from Yindjibarndi country based on, among other matters, evidence given on that issue in the proceedings before Nicholson J;

    Ÿthe applicant had filed evidence and advanced contentions in this proceeding that asserted that they had the right to exclude others from Yindjibarndi country, including the claimed area;

    Ÿs 86(1)(a) and (c) did not permit the Court to draw conclusions of fact or adopt findings from earlier proceedings, namely the hearing before Nicholson J and his Honour’s judgment in Daniel [2003] FCA 666, that were, or were intended to be used contrary to, or departed from, his Honour’s findings that the Yindjibarndi did not have the right to control access;

    Ÿalternatively, if s 86(1) did permit such a course, were the Yindjibarndi to do so, that conduct would be an abuse of process and hence they ought be precluded from being able to rely on the earlier findings and evidence for that purpose;

    Ÿthe effect of the Yindjibarndi’s statement of contentions and proposed evidence (as at 11 August 2015) in substance was to seek to have determined differently, by this proceeding, essentially the same issue, as to their having the right to exclude others from Yindjibarndi country, that Nicholson J decided adversely to the Yindjibarndi, and that conduct involved an abuse of process.

    318Kenneth Green, FMG’s solicitor, said, in his affidavit of 11 August 2015 in support its interlocutory application, that until 9 July 2015 he was unaware that “the applicant disputed that the issues in dispute in this proceeding include issues of potential abuse of process flowing from [the] effect of findings in Daniel v Western Australia [2003] FCA 666”. However, Mr Green did not identify where the agreed issues or contentions had raised “the issue[ ] in dispute [of] potential abuse of process”.

    319I am not satisfied that, prior to 9 July 2015, any suggestion of abuse of process or issue estoppel had been identified by any respondent as an actual or potential issue for resolution at the trial. I had understood during the directions and case management hearings held after 11 May 2015, when I first dealt with the proceeding after it entered my docket, until 31 July 2015, that the State’s non-admission in par 12 of its contentions, that FMG had adopted in par 5 of its contentions (see [307] and [308] above), was intended merely to put the Yindjibarndi to proof of the facts to establish their asserted exclusive right, and did not raise any issue of abuse of process or issue estoppel.

    320On 12 August 2015, when the State’s and FMG’s interlocutory applications to amend came before me, I suggested to the parties that those applications should be argued at the time of final address when the issues would be clear and that, by then, the evidence would be on and the uses to which the Yindjibarndi wished to put that evidence would be explained. The State and FMG did not suggest that they would suffer any prejudice or would have conducted this proceeding differently (other than that they and, as I have noted, all participating respondents, probably would have entered into a consent determination on the same terms as the 2007 determination). I made that suggestion because I considered that the interlocutory applications raised substantive issues and that it was not appropriate, less than a month before the on country hearing was to begin on 7 September 2015, to attempt to deal with and determine those issues. No party suggested that this course would lead to any prejudice. Indeed, the applicant, the State and FMG accepted that this was a convenient course.

1. There is no challenge to the primary judge’s conclusion in [319] that there had not been any suggestion of abuse of process or issue estoppel by any respondent before 9 July 2015.

2. There is also no challenge to the primary judge’s decision that the State and the appellant should be granted leave to amend their contentions to raise the abuse of process issue: see reasons at [325]-[332]. In so deciding, the primary judge said at [331] that:

   Had I found that there was an abuse of process in the Yindjibarndi claim for the exclusive right to control access, I would have asked for submissions as to why I ought not to have ordered each of the State and FMG to pay the Yindjibarndi’s costs of the preparation of all their evidence on that question, other than, perhaps, Dr Palmer’s initial version of his report that was filed on 22 October 2014, two days after the filing of the agreed statement of issues.

3. Further, there is no challenge to the primary judge’s rejection of the appellant’s argument that s 86(1) of the Native Title Act did not permit the Yindjibarndi to tender or rely on portions of the transcript of the hearing before Nicholson J in order to seek a finding contrary to his Honour’s adverse finding on the issue of their right to exclude others from, or control access to, the claimed area: see the reasons at [333]-[341].

4. Finally, there is no challenge to the primary judge’s rejection of the appellant’s issue estoppel contention on the basis that the appellant was not a party or privy of a party to the proceedings before Nicholson J.

5. The primary judge identified the arguments of the State and the appellant as to the existence of an abuse of process. The primary judge recorded this:

   342Both the State and FMG argued that the alleged abuse of process consisted in the Yindjibarndi seeking here inconsistent findings of their native title rights and interests, as to their right to exclude others from Yindjibarndi country, from those that Nicholson J had found and that the 2005 and 2007 determinations had concluded.  FMG adopted the State’s arguments and added further ones on this contention.

   343The State contended that the Yindjibarndi relied in this proceeding on the very same laws and customs on which they had relied before Nicholson J. Indeed, the State noted, the Yindjibarndi’s amended statement of contentions asserted, the subsequently admitted, facts that the Yindjibarndi consisted of a society that had continued to exist, since before sovereignty in 1829, as a body of persons united in and by its acknowledgment and observance of traditional laws and customs under which they possess native title rights and interests. The State argued that since Nicholson J had found, as reflected in the 2005 and 2007 determinations, that the Yindjibarndi did not have the right to exclude others, it must follow that under those laws and customs, the Yindjibarndi cannot now contend in this proceeding for an inconsistent finding, namely, that they do have the right, as I have found above, to exclude others from Yindjibarndi country. The State argued that the Yindjibarndi’s claim for a finding of the right to exclude amounts to the category of abuse of process in which the Court’s procedures are sought to be used in a way that would bring the administration of justice into disrepute, following Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 [[2006] HCA 27] at 267 [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ.

   344In essence, the State contended that the Yindjibarndi were seeking to relitigate the issue of exclusive possession that Nicholson J had determined against them. It argued that the Yindjibarndi were the same native title claim group in both proceedings and could not claim that their laws and customs were different, or operated differently, in this proceeding from the findings in Daniel [2003] FCA 666 and the 2005 and 2007 determinations, based on Walton v Gardiner [[1993] HCA 77] (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ and Tomlinson v Ramsey Food Processing Pty Ltd [[2015] HCA 28] (2015) 256 CLR 507 at 518-519 [25] per French CJ, Bell, Gageler and Keane JJ.

   345The State contended that, if Griffiths 165 FCR 391 had changed the law (a proposition which the State did not appear to accept had been the case), the Yindjibarndi had not applied, in the nine years since that decision, under s 13(1)(b) of the Native Title Act to vary the 2007 determination to recognise a right to exclude others in respect of the Moses land. The State noted that there was limited evidence put before Nicholson J as to the presence and effect of spirits on Yindjibarndi country, but, the State accepted, that evidence was not put as supporting a right to exclude, that the Full Court subsequently identified in Griffiths 165 FCR 391.

   346FMG argued that a determination of native title under s 225 of the Native Title Act operated as a decision in rem, as Drummond J had held in Wik Peoples v State of Queensland (1994) 49 FCR 1 at 8D-E (in respect of the provisions of the Act in their form before the Parliament enacted, in 1998, amendments to deal with, among other matters, issues arising from the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1). FMG relied on the preclusive effect of a judicial decision as preventing a person bound by it, in the position of the Yindjibarndi here, relitigating an issue of fact or law decided against the person in later proceedings, as explained in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, Butterworths, London, 1996) at [15]-[19]. (FMG did not explain how it could rely on a res judicata when it was not a party in Daniel [2003] FCA 666 and the claim the subject of this proceeding, namely that the Yindjibarndi had native title to the claimed area, could not have merged in the earlier judgments.)

   347Next, FMG relied on Dale v Western Australia [[2011] FCAFC 46] (2001) 191 FCR 521 at 554 [110]-[111] to support (in a more orthodox way) its contention that the Yindjibarndi’s claim to exclusive possession in this proceeding was an abuse of process because, by bringing that claim, they sought to relitigate the contrary findings in Daniel [2003] FCA 666.

   348FMG argued that Griffiths 165 FCR 391 did not effect a change in the law and that, even if it did, this was not a proceeding of a kind in which it would be appropriate to allow the Yindjibarndi to seek different findings of fact under ss 223 and 225 of the Native Title Act. FMG submitted that Nicholson J had considered aspects of the spirituality of both Ngarluma and Yindjibarndi land in Daniel [2003] FCA 666 at e.g. [1324], [1334], [1339], [1344], [1347], [1371], [1382], [1552], [1650] and [1667]. FMG argued that his Honour found that some recognition should be given in the 2005 determination about those matters, but not so as to reflect any right of the Yindjibarndi to exclude others from the Moses land. FMG submitted that the conclusion of Lord Keith of Kinkel, in Arnold v National Westminster Bank PLC [1991] 2 AC 93 at 110G-111C, that a change in the law, by a decision of the House of Lords, occurring after a decision that created an issue estoppel between parties on a rent review clause, enlivened an exception to the principle of finality of an issue estoppel, did not apply here because Nicholson J had made findings of fact not law. FMG noted that in O’Toole v Charles David Pty Ltd [[1991] HCA 14] (1990) 171 CLR 232 at 258, Brennan J had expressed doubts as to the reasoning of the English Court of Appeal, that the House of Lords subsequently upheld in Arnold [1991] 2 AC 93. FMG contended that, in any event, because Nicholson J had found that the Yindjibarndi’s traditional laws and customs, as a matter of fact, did not give them a right to exclude others from Yindjibarndi country, any change in the law wrought in Griffiths 165 FCR 391 was of no present consequence to that finding of fact.

6. The primary judge acknowledged at [359] that the inconsistency between the non-exclusive rights in the 2007 determination and his conclusion that the Yindjibarndi had proved a right to control access to or exclude others from parts of the claimed area “raises a prima facie conflict between two judicial determinations of the native title rights and interests of the Yindjibarndi people over Yindjibarndi country” as:

   That country comprises the Moses land, where the Yindjibarndi’s rights are non-exclusive, and the parts of the claimed area where their rights include the right to exclude others. In ordinary circumstances, an inconsistency of that nature would be decisive in attracting a conclusion that a determination in this proceeding, that the Yindjibarndi have that exclusive right, would constitute an abuse of process on the basis that the subsequent determination, if made, “would … bring the administration of justice into disrepute among right-thinking people”: Walton [[1993] HCA 77] 177 CLR at 393 per Mason CJ, Deane and Dawson JJ citing from Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536C-D.

7. The primary judge, however, reasoned that no abuse of process arose in the circumstances of the present case. It is apparent that eight key considerations led to his Honour’s conclusion.

8. First, the primary judge started from the foundational fact that a determination of native title under s 225 of the Native Title Act is essentially declaratory of what the Court has found to be the factual and legal position as to what interests exist in the determination area, and that neither an application under s 13(1) nor a determination under s 225 “…initiate a process to create or extinguish native title or other rights or interests”: at [349]. Rather, as the primary judge said at [350]:

   Any native title rights and interests that exist are rights and interests that the processes under the Act will cause to be recognised in a determination under s 225. That is because ss 4(1), 10 and 11(1) provide that, first, the Native Title Act recognises and protects native title and, secondly, native title cannot be extinguished contrary to the Act: Yorta Yorta 214 CLR [Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422] at 453 [75]-[76] per Gleeson CJ, Gummow and Hayne JJ, McHugh J agreeing at 467 [127]-[128], 468 [134].

9. His Honour continued at [351]:

   …a determination of native title under s 225 is a statutory form of declaratory order that has the purpose of identifying the rights and interests of all persons that exist in land and waters in the determination area. A claimant application that is made to the Court under ss 13(1) and 61(1) of the Act seeks a determination of native title under s 225 in accordance with the Act. The determination under s 225 that the Court makes in resolving the controversy raised in a claimant application involves, and is confined strictly to, what Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ held, in Precision Data Holdings Ltd v Wills [[1991] HCA 58] (1991) 173 CLR 167 at 188, was “a classical instance of the exercise of judicial power”, namely:

   the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct.

10. Second, his Honour considered the character of a determination of native title to be relevant. At [354] he said:

    Moreover, an order making a determination of native title “has an indefinite character which distinguishes it from a declaration of legal right as ordinarily understood”: Ward 213 CLR at 71-72 [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. They explained that this “indefinite character reflects the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of ‘native title’ in s 223(1) of the [Native Title Act]”.

11. At [360] he expanded on the “indefinite character” of a determination of native title, referring to the fact that such a determination may be revoked or varied under s 13(1)(b) of the Native Title Act “not only because of the occurrence of subsequent events that have caused the original determination no longer to be correct (s 13(5)(a)), but also because, critically, on the ground in s 13(5)(b) that ‘the interests of justice require the variation or revocation of the determination’”. The primary judge continued at [360]:

    The ground for variation or revocation in s 13(5)(b) is both protean in nature and substantive. It is available as an alternative to, and its use is not conditional on, the occurrence of subsequent events. Of course, in assessing the interests of justice, the Court is exercising a judicial discretion and must therefore act judicially. But the subject matter, scope and purpose of the criterion of “the interests of justice” must be considered in light of the whole of the Act and the facts, matters and circumstances that the Court has before it in considering the proposed variation or revocation: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [[1979] HCA 62] (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.

12. Third, the primary judge considered that the nature of the litigation was relevant. He said this at [361]:

    … as Allsop CJ, Marshall and Mansfield JJ noted in Western Australia v Fazeldean (No 2) [[2013] FCAFC 58] (2013) 211 FCR 150 at 156 [34] “litigation under the Native Title Act is not ordinary private inter partes litigation”. They explained that the issues in litigation under the Act involve the public interests of both the Government(s) of the jurisdiction(s) in which the land and waters are claimed in the proceeding, as well as of the native title claim group which seeks to vindicate “rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia”. And, their Honours noted that the result could affect not only the present but past and future members of the claim group. Of course, the private rights of other persons with, or with a claim to, interests in land and waters for which a determination under s 225 is sought, will often also be involved (211 FCR at 156-157 [34]-[35]).

13. Fourth, the primary judge referred to the fact that native title was first recognised in this country only 25 years ago and the law has continued to develop subsequently. He said at [362] and [363]:

    It has been only 25 years since the High Court decided, in Mabo v Queensland [No 2] [[1992] HCA 23]; (1992) 175 CLR 1, that the radical title that the Crown acquired when it claimed sovereignty over parts of Australia did not extinguish native title. That decision led to the enactment of the Native Title Act and amendments to it have now brought about the position that the law will recognise the native title rights and interests of persons or a claim group who, by a normative system based on their traditional laws and customs, had and continue to have particular rights and interests in land and waters: cf. Yorta Yorta 214 CLR at 440-441 [33]-[38] per Gleeson CJ, Gummow and Hayne JJ, McHugh J agreeing at 467 [126]-[128].

    …

    Over the course of the last 25 years, the Courts have developed a body of law as to what native title rights and interests in land or waters are recognised by the common law of Australia, in accordance with s 223(1) of the Native Title Act, and what factors are relevant to prove that, by the traditional laws acknowledged and the traditional customs observed by a claim group, they have or do not have a connection with the land or waters or a legal entitlement to the recognition and enforcement of any native title where it exists.

14. Fifth, the primary judge considered the function of a determination of native title to be relevant. He noted that because “…a determination under s 225 expresses a conclusion about rights and interests that exist over particular land and waters, but does not express any necessarily binding conclusion about the general rights and interests (including native title) of any persons with particular rights and interests in land and waters other than those the subject of the determination”: at [366]. The primary judge expressed the same conclusion in this way at [366]:

    The function of a determination under s 225 is to express a legal conclusion about the actual rights and interests of all persons concerned, including, but not limited to, any native title that exists in only land and waters the subject of the determination.

15. The primary judge gave an example of this as follows at [364]:

    Experience has shown that it is not unusual for a claim group of an indigenous people to make a claimant application for a determination of native title in respect of only part of their traditional land or waters and later to bring another claimant application for different part, or the balance, of the land or waters. As in this case, the evidence and, sometimes, the nature of the claimed rights and interests in the two proceedings may be different.

16. If a claim is made in respect of land the subject only of the grant of a pastoral lease, “a determination under s 225 that native title existed over those lands and waters necessarily could only recognise the existence of non-exclusive native title rights and interests”: at [364]. This, however, “could not create a reason, in separate proceedings, to preclude the claim group from asserting, or the Court determining under s 225, that exclusive native title rights and interests existed over neighbouring land and waters, if it were established that no other inconsistent right or interest had been interposed since sovereignty between those native title rights and interests and the Crown’s radical title”: at [365].

17. The primary judge identified in [367] that various provisions of the Native Title Act reinforced the fact that a determination of native title operates only in relation to the particular land the subject of the determination, saying:

    Indeed, the provisions of Div 6 of Pt 2 of the Native Title Act, and in particular ss 55-57, evince the legislative purpose that once a determination is, or is about to be, made that native title exists, namely an approved determination of native title, the Court must also determine how and by whom the native title is held, namely by a new legal person, being a prescribed body corporate, as trustee, or by the claim group as common law holders of the native title. But, the determinations under ss 55, 56, 57 and 225 do not identify, for example, any traditional laws or customs of the claim group. Rather, those determinations express what the native title rights and interests are that the common law, as affected by the Act, recognises to exist in the particular land and waters. Native title rights and interests may continue to exist over other land, even though they cannot be recognised by the common law in accordance with the Act, because they are inconsistent with an intervening governmental act that extinguished native title in respect of particular land and waters.

18. His Honour also noted in [368] that the fact that a determination of native title related to specific land and such land might be subject to different kinds of extinguishment depending on the grants affecting it means that the Native Title Act itself contemplates apparently inconsistent determinations in respect of the one claim group. As the primary judge put it in [368]:

    … there would be no necessary inconsistency between two determinations of native title over different land and waters where the same claim group had exclusive rights over one determination area, but only non-exclusive ones over another. The inconsistency, in such a case, would arise not because of a difference in the claim group’s acknowledgment and observance of their traditional laws and customs by which they had a connection with the land or waters in the two separate determination areas, but because of the governmental acts creating partial or complete extinguishment of native title in one of the areas but not in the other.

1. His Honour gave another example at [369] in these terms:

   It is also not difficult to envisage a situation where an earlier determination of native title recognised that the claim group had exclusive native title rights and interests but a new party, with an interest in land or waters, only in the second claimant application determination area, succeeds in proving that the claim group did not have any exclusive native title rights or interests that were possessed under the traditional laws acknowledged or customs observed by them. Such a situation might arise where the rights or interests found in the first proceeding are found, in the second proceeding, either not to have existed or to have ceased to be exercised …

2. Sixth, the primary judge identified the Preamble to the Native Title Act as an important part of the statutory context, particularly when read with the terms of ss 13(1)(b), (4), (5) and 86(1) of the Native Title Act: at [372]. The Preamble identifies that:

   The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

   They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

   As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

   …

   The people of Australia intend:

   (a)to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

   (b)to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

   The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.

   Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

   It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

   A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

   …

3. Section 13(1)(b) enables an application to be made to the Federal Court “to revoke or vary an approved determination of native title on the grounds set out in subsection (5)”.

4. Section 13(4) provides that if “…an approved determination of native title is varied or revoked on the grounds set out in subsection (5)” then the determination as varied becomes an approved determination of native title in place of the original or, in the case of a revocation, the determination is no longer an approved determination of native title.

5. Section 13(5) provides that the grounds for variation or revocation of an approved determination of native title are “that events have taken place since the determination was made that have caused the determination no longer to be correct” or “that the interests of justice require the variation or revocation of the determination”. The primary judge made these points about s 13(5):

   374The interests of justice can be engaged because a subsequent proceeding for a determination, using, in part, evidence or findings from earlier proceedings pursuant to s 86(1)(a) and or (c), show that the earlier determination was not correct when it was made. After all, that must be a consequence that the express words of s 13(5)(b) contemplate. That follows because that provision empowers the Court to make an order revoking or varying the earlier determination even though nothing, within the meaning of s 13(5)(a), has occurred subsequently to cause it to be incorrect.

   375It follows that s 13(1)(b) is a statutory exception to the general law principles of res judicata, issue estoppel and abuse of process. Ordinarily, a final order cannot be revoked or varied except on appeal or, in the case of other Federal Courts, by the High Court under s 75(v) of the Constitution, even if a superior court of record made the order without jurisdiction: Burrell v The Queen [[2008] HCA 34] (2008) 238 CLR 218 at 224-225 [19]-[22] per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.

   376Absent a statutory provision, once a court makes a final order (leaving aside situations in which the slip rule applies to accidental slips or omissions), it has no power to reopen that order. Yet, that power is expressly conferred on this Court under s 13(1)(b) of the Native Title Act in respect of approved determinations of native title, which include determinations by the High Court (s 13(7)).

   377…The Native Title Act itself is structured on the basis that, by reason of the power to revoke or vary an approved determination of native title, such a determination is not necessarily final, even though, ordinarily, it will be.

6. Section 86(1) provides that the Federal Court may receive into evidence the transcript of any proceedings before (amongst others) the Court and “draw any conclusions of fact from that transcript that it thinks proper” and “adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of” ss 86(1)(a)(i) to (iv).

7. Seventh, the primary judge noted that the 2007 determination in Moses was made on 27 August 2007, nearly three months before the Full Court decided Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391. His Honour said this at [378]:

   The State and FMG did not suggest that any evidence that the Yindjibarndi led in the proceedings before Nicholson J was inconsistent with, or contradictory of, the additional evidence that that they adduced at the trial in this proceeding. Rather, the evidence and argument before Nicholson J proceeded on an understanding of the facts and law that did not address the Full Court’s development or exposition of the law in Griffiths 165 FCR at 428-429 [127]-[128]. There French, Branson and Sundberg JJ said (at 429 [127]):

   It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive … It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. (emphasis added.)

8. The primary judge also noted that Nicholson J’s crucial finding in Daniel at [292] reflected an understanding that the claimed right to control access and evidence of seeking permission to access the land “…is a matter of respect rather than in recognition of a right to control”. Griffiths at [127], however, recognised that spiritual necessity could found a right of exclusive possession and Nicholson J’s finding “did not negate or deny the existence of a spiritual or gatekeeper dimension to the assertion of an exclusive right: indeed, that dimension was not in issue or articulated before Nicholson J in the way in which Griffiths 165 FCR 391 subsequently identified would support a determination of, effectively, a native title right and interest equivalent to exclusive possession”: at [380]. In the primary judge’s view at [382]:

   … had his Honour been invited, as Griffiths 165 FCR 391 subsequently established, to consider that, what he termed, the ‘surviving practice’ of ‘respect’ reflected the importance that that those indigenous people who showed that ‘respect’ attached to the ability of the Yindjibarndi to open the spiritual gates, it is possible, indeed probable, that his Honour would have come to the same findings” as the primary judge.

9. Eighth, at [389] the primary judge identified the relevance of the revised native title determination application filed by the Yindjibarndi Aboriginal Corporation RNTBC (YAC) on 15 May 2017 in respect of the 2007 determination. As his Honour said at [29]:

   On 15 May 2017, after I had reserved my decision on 14 September 2016, YAC filed a revised native title determination application in respect of the 2007 determination under s 61(1) of the Act in proceeding WAD 215 of 2017. There, YAC seeks orders that, in effect, would give it exclusive, rather than non-exclusive, native title over the Moses land.

   (Original emphasis.)

10. Further, as noted by the primary judge at [339], the Yindjibarndi could not make this application. As his Honour said at [339]:

    … there is now a registered native title body corporate that holds the Moses land on trust, namely YAC, and only it, as statutory trustee for the Yindjibarndi, can make that application on their behalf. YAC is not a party to this proceeding but has now filed an application under ss 13(1)(b) and 61(1) for a revised determination in respect of the Moses land.

11. The primary judge identified the applicable principles concerning abuse of process in uncontentious terms including:

    (a)The categories of abuse of process are not closed: at [370] citing Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [9] and [14].

    (b)The issue is to be resolved recognising that “notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case”: at [370] citing Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at 74-75, as referred to in Batistatos at [14].

    (c)Because considerations of both public policy (to ensure that the administration of justice is not brought into disrepute) and private rights (to ensure no party is unfairly oppressed by the conduct of another party) underlie the doctrine, what is required is a “…broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court”: at [387] citing speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31; 1 All ER 481.

12. The primary judge also referred to Arnold v National Westminster Bank PLC [1991] 2 AC 93; 3 All ER 41 in which, as his Honour put it:

    383Often a subsequent change in the general, or statute, law will not permit the reopening of past judicial decisions because of the importance of the common law principle of finality. In Arnold [1991] 2 AC 93, the House of Lords considered whether the doctrines of res judicata, issue estoppel or abuse of process should preclude parties reopening a final decision of Walton J as to the construction of a rent review clause in a lease with a term of many years that provided for regular rent reviews, where subsequent decisions, including appellate ones, endorsed a different construction (see [1991] 2 AC 102B-103D). Lord Keith (with whom Lords Griffiths, Oliver of Aylmerton, Jauncey of Tullichettle and Lowry agreed) said (at 110D-E) that:

    I consider that anyone not possessed of a strictly legalistic turn of mind would think it most unjust that a tenant should be faced with a succession of rent reviews over a period of over 20 years all proceeding upon a construction of his lease which is highly unfavourable to him and is generally regarded as erroneous.

    (emphasis added.)

    384His Lordship said that, were the tenant held to the erroneous construction of the clause in the subsequent rent reviews, “abuse of process would be favoured rather than prevented by refusing the plaintiffs permission to reopen the disputed issue” (at 110G). He endorsed the reasons of Sir Nicolas Browne-Wilkinson V-C (the trial judge in Arnold v Nat-West Bank plc [1989] Ch 63) when he said ([1989] Ch at 70-71):

    In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case.

    (bold emphasis added, italic emphasis in original).

13. At [385] the primary judge acknowledged that in O’Toole v Charles David Pty Ltd [1990] HCA 44; (1991) 171 CLR 232 at 258 Brennan J said that this reasoning rested on “an uncertain foundation” but noted that the “general law power (or, more accurately, lack of power) of a court subsequently to reopen a point decided by a final judicial order binding the parties or their privies in respect of their legal rights” is a different situation from “that which obtains under the Native Title Act by reason of the statutory power to revoke or vary an approved determination under s 13(1)(b) on a ground in s 13(5), particularly s 13(5)(b)”.

14. The primary judge expressed his ultimate conclusion about the abuse of process issue at [389] in these terms:

    … in all of the circumstances, including YAC’s revised native title determination application, together with the statutory scheme of the Native Title Act, including the Preamble and the power under s 13(1)(b) to revoke or vary an approved determination of native title, I am of opinion that the Yindjibarndi are not engaged in an abuse of process in seeking to vindicate in this proceeding their right to control access that I have found. For these reasons I will allow the Yindjibarndi to rely on their unextinguished native title right to control access despite its potential inconsistency with Nicholson J’s finding in Daniel [2003] FCA 666 at [292] and the 2007 determination, particularly since that inconsistency can be cured by the new proceeding under s 13(1)(b) in respect of the earlier findings and the 2007 determination.

    The appellant’s submissions

15. The appellant submitted that it is apparent from the primary judge’s reasons that there is a “…single relationship between the claimant group and the whole of Yindjibarndi country as defined…” and it is this relationship which was held not to found a right to exclusive possession in the 2007 determination and to found a right to exclusive possession in the determination the primary judge made.

16. According to the appellant, the primary judge was in error to attribute so much significance to s 13 of the Native Title Act. The effect of s 13 is limited to an application made in accordance with the section. The section is thus a confined exception to the rule that judicial orders are final, and outside of those boundaries a determination of native title is a “final adjudication of the matters in dispute”: Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108; 254 FCR 107 at [38]. Section 13 is the same kind of provision as r 39.05 of the Federal Court Rules 2011 (Cth) which permits orders to be set aside after they have been entered in certain circumstances. Accordingly, s 13 “does not ‘cure’ what is otherwise an abuse of process in maintaining inconsistent proceedings or in bringing successive applications in respect of the same controversy outside the parameters of s 13 and in a way which generates inconsistent determinations”.

17. The appellant also submitted that the “indefinite character” of native title as referred to in Ward at [32] explained why a provision such as s 13 is necessary. The continued existence of native title depends on the continued acknowledgement of the traditional laws and customs from which the rights spring. This does not mean, the appellant submitted, that native title rights and interests are of an indefinite character outside of the scope of the making of an application under s 13.

18. According to the appellant the presence of s 13 in the Native Title Act, contrary to the primary judge’s approach, was a reason not to permit the Yindjibarndi to pursue their claim for exclusive possession. This is because s 13 is a “…precise mechanism by which claimant groups can seek to vary or revoke a native title determination and the precise remedy for any injustice that might otherwise be occasioned by the finality of native title determinations”. Section 13, however, also “…prescribes how such an application can be made, who can make it and the grounds on which it can be made”. It follows that:

    If a claimant group seeks to be liberated from the strictures of a particular determination, the appropriate course is for them to first seek a variation or revocation under s 13, not to re-litigate the issue in another proceeding.

19. The appellant submitted s 13 thus indicates that Parliament has sought to guard against inconsistent determinations, with the result that “…a s 13 application was the means, and the only means, by which the claimants should have been permitted to re-agitate the question of exclusive possession”.

20. The appellant submitted there are other indications in the statutory context which support this conclusion:

    It has frequently been observed that a native title determination can be treated as having an in rem effect under the statute [Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36 at [198]; Kokatha People v State of South Australia [2007] FCA 1057 at [33] referring to Wik Peoples v The State of Queensland [1994] FCA 113; (1994) 49 FCR 1 at [368]–[369]. See also Dale v State of Western Australia [2011] FCAFC; 46 (2011) 191 FCR 521 at [92] ... There is a strong statutory presumption that there should not be multiple successive proceedings determining the same ultimate question, let alone proceedings that are intended to produce inconsistent determinations. The liberality evident in s 13(5) operates within a larger statutory framework in which multiple proceedings over the same issue and inconsistent determinations are not tolerated.

1. The principles relating to abuses of process of this kind are well known and can be summarised briefly:

   (i)generally speaking, it is an abuse of process for a litigant to seek to re-litigate an issue decided adversely to it in earlier proceedings.  In Tomlinson v RamseyFood Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, at [25]-26] the plurality said:

   Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel.  Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.  Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

   (Citations omitted)

   (ii)however, the principle is not absolute.  Much may depend on the circumstances of the two proceedings, and on a precise identification of the issues in those proceedings.  In State Bank of New South Wales v Stenhouse (1997) Aust Torts Rep 81-423 Giles CJ CommD said at 64,089, in a passage which has been frequently cited, that the matters to which regard may be had include:

   Ÿthe importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

   Ÿthe opportunity available and taken to fully litigate the issue;

   Ÿthe terms and finality of the finding as to the issue;

   Ÿthe identity between the relevant issues in the two proceedings;

   Ÿany plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

   Ÿthe extent of the oppression and unfairness to the other party if the issue is re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

   Ÿan overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

   (iii)Accordingly, a Court may, despite being satisfied of the potential for inconsistency in judgments, determine that it is not appropriate to stay proceedings as an abuse of process on that account.  Notions of justice and injustice, public confidence in the administration of justice, contemporary values and the circumstances of the case generally may indicate that no abuse of process is involved:  Batistatos v Roads and Traffic Authority (NSW) at [14] approving the statement of Gaudron J in Ridgeway v The Queen at 74-5.

   (iv)the power to stay proceedings permanently on the ground that they are an abuse of process is exercised with caution:  Walton v Gardiner at 392;

   (v)the onus of satisfying the Court that there is an abuse of process lies upon the party alleging it, and the onus is a heavy one:  Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529.

   Principles concerning appellate review

2. It is accepted that appellate review of a first instance judgment concerning abuse of process attracts the same principles which apply to appellate review of discretionary judgments – see Tyne v UBS AG (No 2) [2017] FCAFC 5, (2017) 250 FCR 341 at [54]-[55], citing Ghosh v NineMSN Pty Ltd [2015] NSWCA 334, (2015) 90 NSWLR 595 at [37] and Walton v Gardiner at 398-9. See also Henwood v Northern Territory of Australia [2017] FCAFC 182 at [26].

   Consideration

3. The focus of FMG’s submissions on the appeal was on the significance which the Judge attached to s 13 of the NT Act and to the variation application lodged by YAC on 15 May 2017 (during the period in which judgment was reserved). Although s 13 was not the only matter on which the Judge relied, it was a prominent part of his consideration and it is understandable that FMG’s critique of the Judge’s reasoning focused on this aspect of the matter.

   The significance attached to s 13(1)(b)

4. In my respectful opinion, FMG is correct in its contention that the Judge attached a significance to s 13 which was not warranted by its place in the statutory scheme established under the NT Act.

5. Section 13 of the NT Act provides (relevantly):

   Applications to Federal Court

   (1)An application may be made to the Federal Court under Part 3:

   (a)for a determination of native title in relation to an area for which there is no approved determination of native title; or

   (b)to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

   …

   (3)Subject to subsection (4), each of the following is an approved determination of native title:

   (a)a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

   (b)an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

   Variation or revocation of determinations

   (4)If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

   (a)the Federal Court, in determining an application under Part 3; or

   (b)a recognised State/Territory body in an order, judgment or other decision;

   then:

   (c)in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and

   (d)in the case of a revocation—the determination is no longer an approved determination of native title.

   Grounds for variation or revocation

   (5)For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

   (a)that events have taken place since the determination was made that have caused the determination no longer to be correct; or

   (b)that the interests of justice require the variation or revocation of the determination.

   Review or appeal

   (6)      If:

   (a)       a determination of the Federal Court; or

   (b)an order, judgment or other decision of a recognised State/Territory body;

   is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

   High Court determinations

   (7)A determination of native title by the High Court is an approved determination of native title.

6. The term “determination of native title” is defined in s 225 of the NT Act:

   225  Determination of native title

   A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

   (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

   (b)the nature and extent of the native title rights and interests in relation to the determination area; and

   (c)the nature and extent of any other interests in relation to the determination area; and

   (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

   (e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

   Note:The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

7. The term “determination” used in ss 13 and 225 is not defined but its meaning may be inferred from the word itself (“the decision arrived at or pronounced” – Macquarie Dictionary) and from other provisions in the NT Act. Save for the limited circumstances for which s 207A of the NT Act makes provision, “approved determinations of native title” for the purposes of s 13 may be made only by this Court or by the High Court (s 13(7) and s 81). Further, there can be only one approved determination of native title as, when an approved determination is varied, it is the determination as varied which is the approved determination in place of the original: s 13(4). Further still, when the determination is subject to appeal, it is the determination when finally determined which is the approved determination to which s 13 applies.

8. An application for the determination of native title may be made only by the persons identified in s 61 and the making of the application is circumscribed by the provisions in Div 1 of Pt 3. Part 4 contains detailed provisions concerning the manner in which this Court is to deal with proceedings seeking a determination of native title.

9. Taken together, these aspects of the NT Act indicate that a determination of native title is an authoritative decision by a superior court of the question of whether native title rights and interests exist in relation to a given area and, if so, the nature of those rights and interests and the identity of the persons who have those rights and interests.  This understanding of the effect of a determination was stated by Beaumont and von Doussa JJ in State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316:

   [176] Subsection 13(5) provides that the grounds for variation or revocation of an approved determination of native title are that events have taken place since the determination was made that have caused it to no longer be correct, or that the interests of justice require the variation or revocation. Section 13 of the old Act, when read with s 225 of the old Act, indicate that a determination of native title in respect of an area of land, once made, was intended to determine the rights and interests both of the claimants and any other persons holding an interest in the land. That intention has been made even clearer by amendments incorporated into the new Act. Section 61A(1) of the new Act provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title, and s 68 says that if there is an approved determination of native title in relation to a particular area, the Federal Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area except on an application for revocation or variation of the first determination under s 13(1) or on a review or appeal of the first determination.

   …

   [190] The scheme of the NTA was and is to have before the Court in a matter that requires curial determination, all parties who hold or wish to assert a claim or interest in respect of the defined area of land. This process is to bring about a decision which finally determines the existence and nature of native title rights in the determination area, and which also identifies other rights and interests held by others in respect of that area. As the determination is to be declaratory of the rights and interests of all parties holding rights or interests in the area, the determination operates as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland (1994) 49 FCR 1.

   …

   [209]   A determination, once made, is intended to declare the existence of native title, both for the past and for the future. …

   (Emphasis added)

10. Other authorities have also emphasised that determinations of native title under the NT Act are final resolutions of the existence, nature and extent of the native title rights and interests in relation to the land to which the determination relates:  Munn v State of Queensland [2002] FCA 486 at [8]; Gumanav Northern Territory of Australia [2005] FCA 50, (2005) 141 FCR 457 at [130].

11. The common law developed the principle of finality in the context of private civil litigation between adversarial parties and in the context of criminal proceedings.  It was articulated in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] as being “[a] central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”.

12. It may well be that the principle does not have the same operation in the context of the NT Act, especially having regard to the public interest which it serves and the intention of the Act as stated in its Preamble.  That intention includes the rectification of “the consequences of past injustices” and that “Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture fully entitle them to aspire”.

13. In any event, s 13(1)(b) provides for one qualification to the application to the principle of finality to determinations of native title because, in the limited circumstances to which it refers, it permits this Court to revoke or vary an approved determination of native title. As the Judge noted at [360], it is this feature which gives determinations the “indefinite character” to which the plurality referred in Western Australia v Ward. This distinguishes a determination of native title under the NT Act from a declaration of right of the kind made under s 21 of the Federal Court of Australia Act 1976 (Cth) as such declarations are of a permanent character.

14. However, while s 13(1)(b) permits in limited circumstances an approved determination of native title to be revoked or varied, it does not otherwise alter the character of a determination. Unless and until revoked or varied under s 13(1)(b), a determination of native title stands as a final adjudication of the matters in dispute, and is no less final than any other court order: Sandy (on behalf of the Yugara People) v State of Queensland [2017] FCAFC 108; [2017] 254 FCR 107 at [38]. In particular, a determination of native title is not to be regarded as provisional, contingent, subject to some form of condition subsequent, or as being in some way akin to an interlocutory judgment.

15. When a contention is made that the making of an application for the determination of native title constitutes an abuse of the Court’s process by reason that it seeks a judgment which is inconsistent with an earlier determination, that contention is to be resolved by reference to the existing determination as it stands.  The “indefinite character” of the determination does not alter that position.  Nor does the fact that an application for revocation or variation has actually been lodged (although the Court may, depending on the circumstances, think it appropriate to list both for hearing and determination at the one time).

16. That means that I respectfully disagree with the Judge’s conclusion that s 13(1)(b) is “a statutory exception to the general law principles of res judicata, issue estoppel and abuse of process”. It also means that, in my view, the power of variation in s 13(1)(b) and, for that matter, the variation application lodged by YAC on 15 May 2017 did not have the relevance which the Judge attached to them. Those circumstances were not material.

    Identifying the inconsistency

17. In any case in which the issue is whether a litigant is abusing, or has abused, the Court’s process by seeking to litigate anew an issue previously determined adversely to it with the prospect of there being inconsistent judgments, it is necessary to identify with precision the conduct of the litigant said to constitute the abuse.  Courts do not abuse their own process. 

18. FMG’s articulation of the alleged abuse underwent some development from the time it was first raised but, ultimately, its complaint was that the abuse of process by the Yindjibarndi lay only in it seeking inconsistent judgments.

19. The first articulation by FMG of the abuse it alleged was contained in its interlocutory application of 11 August 2015.  By that application, FMG sought leave to amend its response to the Yindjibarndi’s Statement of Contention to contend that it was an abuse of process for the Yindjibarndi to seek to have their claimed right to exclude others from “Yindjibarndi country” determined differently in the current proceedings.  I will return to the expression “Yindjibarndi country”.

20. The Judge identified the issue raised by FMG as being whether the Yindjibarndi were precluded from obtaining a determination of exclusive possession because of the Daniel and Moses Determinations that they had only a right of non-exclusive possession over the Moses land, at [4(4)].  It was not suggested that the Judge’s identification of the issue had been inappropriate.

21. In Ground 1(3) of its Notice of Appeal, FMG asserted that the primary Judge had erred by not holding that, by reason of the determination and findings in Daniel, “the claim for determination of a native title right of exclusive possession over the determination area” was an abuse of process. This was said to be particularly so because the Yindjibarndi had, pursuant to s 86 of the NT Act, relied on evidence and findings from Daniel to support its present claim. In Ground 1(1), FMG asserted that the Judge had erred in holding that s 13 of the NT Act is an exception to, or displaces or modifies, the general law principles of res judicata, issue estoppel and abuse of process so as to enable a claim “to seek” a determination of native title rights and interests which “contradicts” a previous extant determination and the findings on the traditional laws and customs acknowledged and observed by the group upon which the previous determination was based.

22. As previously mentioned, at the appeal hearing FMG submitted that the Yindjibarndi’s “attempting to relitigate” an issue “decided against it in previous proceedings” was an abuse of process “because conflicting judgments threaten the integrity of the administration of justice”.  Later, FMG submitted that “the abuse of process is no later than pursuing to judgment and … obtaining the determination that says exclusive in respect to country where the Court has currently said non-exclusive”.

23. In none of these articulations did FMG contend that the very commencement of the application for the determination of native title by the Yindjibarndi on 9 July 2003 constituted an abuse of the Court’s process.  Rather, the abuse was said to lie in the Yindjibarndi seeking, in its pursuit of the application, a determination of exclusive possession because this was inconsistent with the Court’s previous finding.  Further, FMG did not contend that the abuse lay in it being forced to relitigate an issue already determined adversely to the Yindjibarndi, that is, by it being unduly vexed or oppressed by the Yindjibarndi relitigating an issue.  A submission to that effect would have faced a number of difficulties, not least that FMG had not been a party to the proceedings in Daniel, and because FMG had not even raised the claimed abuse for some 12 years after the commencement of the application and then only one month before the commencement of the hearing.

1. Contrary to some of the articulations by FMG of the alleged abuse, the Yindjibarndi were not seeking inconsistent determinations.  Neither of the Daniel or Moses Determinations concerned “Yindjibarndi country” generally.  Each referred instead to “the Determination Area” and (relevantly) to the “Yindjibarndi Area”.  These terms were defined, in the manner in which determinations of native title are conventionally expressed, in the First Schedule to the determination.  Those areas were in turn the areas which had been the subject of the claim by the Yindjibarndi.

2. Nicholson J did use the term “Yindjibarndi country” but, with possibly one or two exceptions, as a reference only to the claim area then under consideration.  The term is used only once in the reasons in Moses but as a reference to the claim area.  It does not seem that either Nicholson J or the Full Court were making findings or expressing conclusions with respect to Yindjibarndi country more generally.

3. The application for determination of native title filed by the Yindjibarndi on 9 July 2003 did not seek a determination over “Yindjibarndi country”.  It did not use the term “Yindjibarndi country” or an equivalent.  Instead, the Yindjibarndi made a claim in respect of an area comprising three parts, identified as Areas A, B and C respectively.   

4. However, in its Statement of Contentions filed on 14 July 2014, the Yindjibarndi did use the term “Yindjibarndi country” and did so in a way which indicated that it encompassed a more extensive area than the claim area itself:

   [11]     The Yindjibarndi People have continued, substantially uninterrupted since sovereignty, to acknowledge and observe a body of traditional laws and customs under which they possess as a group rights and interests in relation to their traditional lands and waters and by those laws and customs, have a connection with those lands and waters (Yindjibarndi country).

   [12]     Yindjibarndi country includes the whole of the Yindjibarndi Claim Area.

   …

   [16]     Under traditional Yindjibarndi law and custom as presently acknowledged and observed, persons who do not belong to the country and cannot assert rights to it are identified by the use of the word “manjangu”.  Such persons are strangers and should not access and use Yindjibarndi country, including the Yindjibarndi Claim Area, without the permission of appropriate Yindjibarndi persons who can speak for that country.

   [17]     Strangers who are ignorant of country may fall foul of spiritual danger of which they are ignorant.  In granting permission, a Yindjibarndi person who can speak for the country affords a stranger some protection against this danger by instruction and ritual introduction.    

   (Bold emphasis in the original, other emphasis added)

5. Those contentions indicated that the Yindjibarndi would seek to establish that their native title rights and interests in the claim area were exclusive by adducing evidence of their traditional laws and customs applicable to Yindjibarndi country generally, and without claiming that there were particular laws and customs relating specifically to the claim area. That is the manner in which the Yindjibarndi presented their evidence in the proceeding. This was reflected in turn in the reasons of the primary Judge, as his Honour also used the term “Yindjibarndi country” to refer to the traditional lands and waters of the Yindjibarndi, noting that these included the claim area as well as the land subject to the Moses Determination, at [40].

6. However, the manner in which the Yindjibarndi expressed their Statement of Contentions did not indicate that they would seek an inconsistent determination.  That is because each of the Moses Determination and the determination sought by the Yindjibarndi self-evidently related to different claim areas.  The Judge referred to this at [366]:

   [A] determination under s 225 expresses a conclusion about rights and interests that exist over particular land and waters, but does not express any necessarily binding conclusion about the general rights and interests (including native title) of any persons with particular rights and interests in land and waters other than those the subject of the determination … The function of a determination under s 225 is to express a legal conclusion about the actual rights and interests of all persons concerned, including, but not limited to, any native title that exists in only land and waters the subject of the determination.  

   (Emphasis added)

7. That being so, there could be no direct inconsistency between the two determinations.  The inconsistency on which FMG relies instead lies in the intermediate finding concerning the nature of the native title rights and interests.  In my opinion, the fact that the inconsistency is of this character militates against a conclusion that the conduct of the Yindjibarndi in seeking the determination constituted an abuse of process.

   Other matters

8. In my opinion, a number of other considerations indicate that the primary Judge was correct to find that the Yindjibarndi were not abusing the Court’s process.

9. I commence by noting that the issue raised by the Yindjibarndi’s Statement of Contentions and the manner in which it conducted the claim did not have to be resolved by reference to the principles concerning abuse of process.  Instead, the issue could have been addressed as a matter of admissibility and use of evidence.

10. Evidence which is inconsistent with a previous determination is not admissible in some circumstances in the trial of an application for the determination of native title.  In Lake Torrens Overlap Proceeding (No 3) [2016] FCA 899, Mansfield J said that evidence could not be used to undermine an existing determination of native title relating to areas adjacent to the claim area so that, unless the evidence had some other use, it would not be admitted, at [54], [190], [192]. For the same reason, Mansfield J held that evidence would not be received to contradict the findings underpinning an earlier determination, at [57], [171], [364].

11. These conclusions were upheld on appeal:  Starkey v South Australia [2018] FCAFC 36; (2018) 261 FCR 183 at [201]-[204] by Reeves J, with whose reasons I agreed, as well as [279]-[280], [289]-[291] in the dissenting judgment of Jagot J. They indicate that a party may not, in later proceedings, seek to contradict a determination of native title or the findings which were essential to that determination.

12. As is apparent, the rulings in Lake Torrens Overlap Proceedings concerned the admissibility and use of evidence, and not abuse of process.  That may be a better course when issues of the present kind arise because it directs focus on the use to which the evidence is to be put.  Rulings about matters of evidence are not generally made under the rubric of the principles concerning abuse of process.

13. The question of whether the evidence on which the Yindjibarndi relied for the claim that its native title rights and interests are exclusive may not have been admissible to the extent that it undermined the findings of Nicholson J in Daniel, or used for that purpose, was not debated before this Court.  It appears also not to have been debated at first instance:  it does not seem that the Judge was referred to the passages in the judgment of Mansfield J in Lake Torrens Overlap Proceedings to which I have just referred.  Had the Judge been so referred, it is possible that the focus at the trial may have been different.  In particular, it may well have been that the Yindjibarndi would have acknowledged that they sought to use the evidence for the purpose of supporting findings as to the nature of their native title rights and interests with respect to the claim area only, and not with respect to “Yindjibarndi country” more generally.  Accordingly, the Judge may also have considered it appropriate to confine his findings to the claim area.

14. Whatever be the merit of those speculations, one thing is plain, namely that it was not necessary for the primary Judge to make findings about the native title rights and interests in Yindjibarndi country generally in order to determine the Yindjibarndi’s present claim.  To my mind, the fact that there were available permissible means by which the Yindjibarndi could have deployed the same evidence and have sought the same findings in relation to the claim area points against the conclusion that they were abusing the Court’s process.

15. I have already referred to the public interest nature of native title litigation and to its remedial purpose.  Those matters also point against it being an abuse of the Court’s process for a claimant group to seek, in respect of a different claim area, a determination of the full extent of the native title rights and interests it holds.  It is also pertinent, as the primary Judge noted, that a determination is a recognition of existing rights and interests and not the grant of new rights and interests.

16. This Court was not taken to all the evidence relied on in Daniel for the claim of exclusivity.  There is, however, a suggestion in the phrase used by Nicholson J in [292] of Daniel (“Such evidence as there is”) that the evidence on this issue may not have been extensive.  As the principles in State Bank v Stenhouse indicate, the extent to which an issue was fully litigated in previous proceedings is an important consideration.  That is especially so in a case like the present in which there was much more detailed evidence and consideration of the issue.

17. This is not a case in which the Yindjibarndi’s pursuit of its claim involved the undue vexing or oppression of FMG or, for that matter, the State.  As already noted, FMG did not make any submission to that effect.  It was content for the Judge to hear and determine its application concerning the asserted abuse at the same time that he determined the Yindjibarndi’s substantive application.  In those circumstances, it is particularly pertinent that the Judge was satisfied that the native title rights and interests claimed by the Yindjibarndi were exclusive.  In that context, far from it being an abuse of process, there would have been, at the least, some curiosity had the Judge refrained from making a determination as to the extent of the claimed native title rights and interests he found established because different evidence in earlier proceedings concerning different land had not satisfied the Court that the claimed native title rights and interests were exclusive.

18. Like the Judge, I attach particular significance to the development in the understanding of the matters which may evidence the exclusive nature of native title interests, as stated in Griffiths and affirmed in Badjima.  There is nothing new in Courts changing their position following a more developed understanding of the law in question.  A well-known example is the explanation by Windeyer J in The State of Victoria v The Commonwealth of Australia (the Pay-roll tax Case) (1971) 122 CLR 353 at 396 of the effect of the Engineers’ Case [1920] HCA 54, (1920) 28 CLR 129:

    I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers’ Case as the correction of antecedent errors or as the uprooting of heresy…[T]hat is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily accepted. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.

    (Citations omitted)

19. In my opinion, the development in Griffiths in the understanding of the notion of exclusive possession means that the present claim of the Yindjibarndi should not be likened to cases in which litigants seek to re-litigate a claim on which they have previously failed.  It does not involve the elements typically seen in cases of that kind, and in particular, a desire by a disappointed litigant to obtain a different result with respect to the very same subject matter.  The fact that the Yindjibarndi’s present application relates to a different claim area is in itself an indication of this.  I add that there was no suggestion of any untoward conduct by the Yindjibarndi in not bringing the current application as part of the claim determined in Daniel.

20. Finally, like the Judge, I consider it instructive to consider the converse position, that is, the position had it been determined in the Daniel and Moses Determinations that the claimed native title rights and interests were exclusive.  As FMG was not a party to that litigation it would have been open to it to contest the claim in the current proceedings that the native title rights and interests were exclusive.  That being so, it would be curious if it was not also open to the Yindjibarndi to contend in relation to the different claim area that, in light of the evidence presented at trial and the current understanding of the provisions of the NT Act, its native title rights and interests are exclusive.

21. Accordingly, I consider that the conclusion of the Judge that the Yindjibarndi were not abusing the process of the Court has not been shown to be incorrect.  I would reject Ground 1.

22. As I agree with the reasons of other members of the Court on the remaining grounds of the appeal, I would dismiss the appeal.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:       18 October 2019

SCHEDULE OF PARTIES

WAD 611 of 2017
On behalf of the Yindjibarndi People:	STANLEY WARRIE
KEVIN GUINESS
JEAN NORMAN
ANGUS MACK
JUDITH COPPIN
JOYCE HUBERT
MICHAEL WOODLEY
PANSY SAMBO
MAISIE INGIE
ESTHER PAT
ThirdRespondent:	ROBE RIVER MINING CO PTY LTD
HAMERSLEY EXPLORATION PTY LTD
HAMERSLEY IRON PTY LTD
Fourth Respondent:	GEORGINA HOPE RINEHART
HANCOCK PROSPECTING PTY LTD
Fifth Respondent:	YAMATJI MARLPA ABORIGINAL CORPORATION
Sixth Respondent:	LINDSAY TODD
MARGARET TODD
PHYLLIS HARRIS (TODD)