Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5)
[2016] FCA 752
•29 June 2016
FEDERAL COURT OF AUSTRALIA
Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752
File numbers: WAD 297 of 2008
WAD 498 of 2011
WAD 303 of 2013Judge: MCKERRACHER J Date of judgment: 29 June 2016 Catchwords: NATIVE TITLE – identification of persons who hold the rights and interests comprising the particular native title claimed – native title rights arising from connection between a person or persons and country – multiple pathways to connection – relationship between different categories of native title rights holders
NATIVE TITLE – whether native title rights and interests can be possessed on an individual or group basis – whether inferences can be drawn regarding entire claim group where native title rights and interests are possessed on an individual or group basis
NATIVE TITLE – persons who hold the rights and interests comprising the particular native title claimed – bases for possessing native title rights – multiple pathways to connection – requirement for claim group membership not limited to descent from particular ancestors – requirement of recognition by others of relevant connection event – whether there needs to be a clear mechanism for recognition – whether exclusion from native title claim group constitutes lack of recognition under traditional laws and customs
NATIVE TITLE – overlapping native title claims – whether two native title claims can be successful over substantially the same land – where possession of native title rights and interests is on an individual or group basis – whether two native title claim groups over the same area can both said to be authorised under s 61 of the Native Title Act 1993 (Cth)
NATIVE TITLE – previous native title claim over the same area which was unsuccessful and has been appealed – whether the Court should adopt findings or evidence from separate but similar proceedings – whether expert witnesses can rely on evidence and material from separate but similar proceedings – whether similarities with previous unsuccessful native title claim is relevant to whether a native title claim has been made out
NATIVE TITLE – identification of the relevant society – traditional laws and customs – informing principles – acknowledgement and observance of those traditional laws and customs – connection with land and waters by traditional laws and customs – laws and customs relating to the possession of rights – other laws and customs which show continuing existence of a normative system – whether historical changes in circumstances including migration since sovereignty impede inferences of continuity of acknowledgement and observance of law and custom
NATIVE TITLE – identification of the native title rights and interests possessed under traditional laws and customs – distinction between existence of a right and manner of exercise of a right – distinction between non-existence of a right and rules governing exercise of a right – manner of exercise of rights and concomitant responsibilities is provided for under laws and customs
NATIVE TITLE – extinguishment – what non-native title rights and interests exist – whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests – whether extinguishment required to be disregarded
NATIVE TITLE – extinguishment – extinguishment by roads – whether roads constitute public works – whether roads can be created at common law over reserves for the use and benefit of Aboriginal people – whether extinguishment by roads as public works is to be disregarded under s 47A of the Native Title Act 1993 (Cth)
NATIVE TITLE – application to re-open case to adduce further evidence – primary consideration is interests of justice – considerable duration of the proceedings a relevant consideration – where prejudice suffered is minimised by order as to costs
NATIVE TITLE – application for summary dismissal of native title claims – application for summary dismissal adjourned and heard in closing submissions – impact of any delay in filing abuse of process application – proceedings the subject of the abuse application where two of the three claims not referred to in the abuse of process application – burden of establishing an abuse of process
NATIVE TITLE – claim area substantially overlapped area of land the subject of previous decision of the Court – contention that certain central families in the claimant groups in the present proceedings were all represented in the previous proceedings – contention that the rights and interests claimed in the present proceedings are indistinguishable from those claimed in the previous proceedings – contention that the laws and customs claimed in the present proceedings are indistinguishable from those claimed in the previous proceedings – whether the claims in the present proceedings and an appeal from the previous judgment are fundamentally different – same applicant in the present proceedings and in an appeal from the previous proceedings – no fresh field work undertaken specifically for the purpose of the present proceedings
NATIVE TITLE – Power of the Court to prevent abuses of process in native title proceedings – overarching principles guiding the exercise of the power of the Court to prevent abuses of process – non-exhaustive list of factors relevant to the determination of whether there is an abuse of process in connection with an issue to be litigated in a second proceeding – whether previous judgment involved the effective and final determination of critical factual issues on the merits – whether the subject matter and issues in the claims could reasonably have been agitated in the earlier claims – whether there was finality and a determination on the merits where the Court determined that it did not have jurisdiction in the previous judgment – the applicants in the previous proceedings were not authorised to make the native title applications – absence of a determination of no native title in previous proceedings – significant advances in jurisprudence concerning proof, formulation and extinguishment of native title rights since the previous proceedings – whether a departure from the ratio in the previous decision of the Court is required to permit the present applications to proceed
NATIVE TITLE – Legal principles relevant to a res judicata claim – whether res judicata operates in the context of the present claims
NATIVE TITLE – Legal principles relevant to an issue estoppel claim – whether the doctrine of issue estoppel has any operation in applications for native title determination
NATIVE TITLE – Legal principles relevant to Anshun estoppel – whether the present claims are so relevant to the subject matter of the first action that it is unreasonable not to have relied on it – whether there is unreasonable conduct on the part of the applicants in the present proceedings
Legislation: Aboriginal Affairs Planning Authority Act 1972 (WA) ss 6, 24, 25, 26, 27, 31
Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 8
Aborigines Act 1905 (WA) ss 8, 9, 10, 12, 13, 14, 15
Aborigines Act Amendment Act 1936 (WA) s 35
Acts Amendment (Land Administration) Act 1997 (WA) s 45
Evidence Act 1995 (Cth) s 63, 79
Federal Court of Australia Act 1976 (Cth) ss 22, 37M, 43, Pt VB
Goldfields Act 1886 (WA) s 10
Goldfields Act Amendment Act 1894 (WA) s 3
Interpretation Act 1918 (WA) ss 15, 16
Land Act 1898 (WA) ss 3, 4, 13, 39, 40, 42, 45, 92, 94, 97, 102
Land Act 1933 (WA) ss 3, 4, 7, 10, 13, 29, 30, 31, 33, 36, 37, 91, 92, 95, 114, 117, Sch 1
Land Regulations 1887 (WA) regs 46, 47
Local Government Act 1960 (WA) ss 6, 282, 283, 286, 288, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315
Main Roads Act 1925 (WA) ss 4, 13, 14, 15, 16, 17, 21, 25
Main Roads Act 1930 (WA) ss 3, 4, 15, 24
Main Roads Act Amendment Act 1972 (WA) s 3
Mining Act 1904 (WA) ss 26, 42, 45, 48, 50, 51, 53, 67, 68, 115, 117, 276, 277, 278, 297, 297A
Mining Act 1978 (WA) s 9
Mining Act Amendment Act 1920 (WA) ss 4, 6, 7
Mining Act Amendment Act 1937 (WA) s 2
Mining Act Amendment Act 1957 (WA) s 6
Mining Regulations 1925 (WA) regs 50, 55
Native Administration Act 1905-1936 (WA) s 10
Native Administration Act 1905-1941 (WA) s 11
Native Administration Act 1905-1947 (WA) s 11
Native Title Act 1993 (Cth) ss 3. 11, 13, 14, 15, 19, 20, 22B, 22F, 23B, 23C, 23D, 23DA, 23E, 23F, 23G, 23I, 47, 47A, 47B, 61, 61A, 62, 64, 67, 82, 84, 84C, 84D, 85A, 86, 94A, 190, 212, 223, 225, 227, 228, 229, 230, 231, 232, 232A, 232B, 232C, 232D, 232E, 237A, 238, 245, 248, 248B, 251D, 253
Native Welfare Act 1963 (WA) ss 3, 18, 20
Permanent Reserves Act 1899 (WA) ss 2, 3
Petroleum Act 1936 (WA) ss 9, 11
Public Works Act 1902 (WA) ss 2, 17, 18, 84, 85, 86
Racial Discrimination Act 1975 (Cth) s 10
Rights in Water and Irrigation Act 1914 (WA) ss 2, 5A, 6, 26B, 26C, 26D, 28
Road Districts Act 1919 (WA) ss 5, 144, 145, 147, 148, 149, 152, 153, 158, 160, 184, 203, 204
Road Districts Act Amendment Act 1932 (WA) s 2
Roads Act 1911 (WA) ss 5, 137, 144, 145, 163, 166
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 5, 6, 7, 8, 9, 12A, 12E, 12I, 12J, 12K, 12M
Town Planning and Development Act 1928 (WA) s 27
Weights and Measures Act 1915 (WA) s 16, Sch B
Western Australia Constitution Act 1890 (UK) s 3
Cases cited: AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209
Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 204 FCR 1
Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539
Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399
Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Anderson v Wilson (2000) 97 FCR 453
Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625
Ashwin v Western Australia (No 2) (2010) 191 FCR 549
Attorney-General (NT) v Minister for Aboriginal Affairs (1988) 16 ALD 318
Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536
Banjima People v Western Australia (No 2) (2013) 305 ALR 1
Bennell v Western Australia (2006) 153 FCR 120
Birri-Gubba (Cape Upstart) People v Queensland [2008] FCA 659
Blair v Curran (1939) 62 CLR 464
Blank v Commissioner of Taxation (No 2) [2014] FCA 517
Bodney v Bennell (2008) 167 FCR 84
BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715
Browne v Dunn (1893) 6 R 67
Brown v Petranker (1991) 22 NSWLR 717
Brown (on behalf of the Ngarla People) v Western Australia (2012) 208 FCR 505
Brown (on behalf of the Ngarla People) v Western Australia (No 2) [2013] FCAFC 18
CG (deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204
Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245
Chasemore v Richards (1859) 7 HLC 349
Cheedy v Western Australia (No 2) (2011) 199 FCR 23
Commonwealth v Clifton (2007) 164 FCR 355
Commonwealth v Yarmirr (2001) 208 CLR 1
Co-Ownership Land Development v Queensland Estates Pty Ltd (1973) 47 ALJR 519
Council of the City of Shoalhaven v Director General National Parks & Wildlife Service [2004] NSWCA 163
Dale v Moses [2007] FCAFC 82
Dale v Western Australia [2009] FCA 1201
Dale v Western Australia (2011) 1914 FCR 521
Daniel v Western Australia [2003] FCA 666
Daniel v Western Australia [2005] FCA 536
Daniel v Western Australia (2004) 138 FCR 254
Davison v Fesl (No 2) [2005] FCAFC 274
De Rose v South Australia [2002] FCA 1342
De Rose v South Australia (2003) 133 FCR 325
De Rose v South Australia (No 2) (2005) 145 FCR 290
Dymond v Pearce [1972] 1 QB 496
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510
Embrey v Owen (1851) 6 Exh 353
Erubam Le (Darnley Islanders) (No 1) v Queensland (2003) 134 FCR 155
Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia [2012] FCA 1163
Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96
Folkestone Corporation v Brockman [1914] AC 338
Fourmile v Selpam Pty Limited (1998) 80 FCR 151
Gibbs v Kinna [1999] 2 VR 19
Graham on behalf of the Ngadju People v Western Australia [2014] FCA 516
Griffiths v Northern Territory (2006) 165 FCR 300
Gumana v Northern Territory (2005) 141 FCR 457
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Hammerton v Honey (1876) 24 WR 603
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) [2003] FCA 218
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1
Hayes v Northern Territory (1999) 97 FCR 32
Henderson v Henderson (1843) 67 ER 313
Henning v Lynch [1974] 2 NSWLR 254
Hunter v Chief Constable of the West Midland Police [1982] AC 529
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Jackson v Goldsmith (1950) 81 CLR 446
James v Western Australia (2010) 184 FCR 582
Jango v Northern Territory (No 2) [2004] FCA 1004
Jango v Northern Territory (2006) 152 FCR 150
Jones v Dunkel (1959) 101 CLR 298
Levinge on behalf of the Gold Coast Native Title Group v Queensland [2013] FCA 634
Mabo v Queensland (No 2) (1992) 175 CLR 1
Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523
McKenzie v South Australia [2006] FCA 891
Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Mervyn on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831
Moses v Western Australia (2007) 160 FCR 148
Murray v Figge (1974) 4 ALR 612
MWJ v R (2005) 222 ALR 436
Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443
Neowarra v Western Australia [2003] FCA 1402
Neowarra v Western Australia [2004] FCA 1092
Newington v Windeyer (1985) 3 NSWLR 555
Ngalakan People v Northern Territory (2001) 112 FCR 148
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442
Permanent Trustee Co of New South Wales v Campbelltown Municipal Council (1960) 105 CLR 401
Pollnow v Armstrong [2000] NSWCA 245
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355
Quall v Northern Territory (2009) 180 FCR 528
Quall v Northern Territory (2011) 286 ALR 374
R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232
Ridgeway v The Queen (1995) 184 CLR 19
Risk v Northern Territory [2006] FCA 404
Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536
Rubibi Community v Western Australia (No 7) [2006] FCA 459
Sampi v Western Australia [2003] FCA 463
Sampi v Western Australia [2005] FCA 777
Sampi v Western Australia (2010) 266 ALR 537
Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310
Smith v New South Wales Bar Association (1992) 176 CLR 256
Solak v Registrar of Titles (2011) 33 VR 40
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232
Starkey v South Australia (2011) 193 FCR 450
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423
TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576
Triantafillidis v National Australia Bank [1995] V ConvR 54-536
Tullock v Western Australia [2010] FCA 351
Turner v Walsh (1881) 6 App Cas 636
Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471
Walton v Gardiner (1993) 177 CLR 378
Ward v Western Australia (1998) 159 ALR 483
Watson v Lee (1979) 144 CLR 374
Western Australia v Brown (2014) 253 CLR 507
Western Australia v Commonwealth (1995) 183 CLR 373
Western Australia v Fazeldean (No 2) (2013) 211 FCR 150
Western Australia v Graham on behalf of the Ngadju People (2013) 305 ALR 452
Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47
Western Australia v Sebastian (2008) 173 FCR 1
Western Australia v Ward (2000) 99 FCR 316
Western Australia v Ward (2002) 213 CLR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Willis on behalf of the Pilki People v Western Australia [2014] FCA 714
Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98
Wilson v Anderson (2002) 190 ALR 313
Woosup on behalf of the Northern Cape York Group #1 v Queensland [2014] FCA 910
Wyman on behalf of the Bidjara People v Queensland (No 4) [2014] FCA 93
Yanner v Eaton (1999) 201 CLR 351
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581
Dates of hearing: 20 - 21 October 2011, 31 October 2011 - 11 November 2011, 5 - 6 December 2011, 24 - 25 June 2013,
9 - 12 September 2013, 10 - 13 December 2013, 13 March 2014, 29 - 31 July 2014 and 8 April 2015Date of last submissions: 22 September 2015 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 2480 WAD 297 of 2008 (Yilka No 1) WAD 303 of 2013 (Yilka No 2) and
WAD 498 of 2011 (Sullivan)Counsel for the Yilka Applicant in WAD 297 of 2008 and WAD 303 of 2013/Respondent in WAD 498 of 2011: Mr R Blowes SC, Mr Keely (now Mr Keely SC), Mr M O’Dell, Ms S Hanrahan and Ms G Wheeler-Carver Solicitor for the Yilka Applicant in WAD 297 of 2008 and WAD 303 of 2013/Respondent in WAD 498 of 2011: Central Desert Native Title Services Counsel for the Sullivan Applicant in WAD 498 of 2011/Respondent in WAD 297 of 2008 and WAD 303 of 2013: Mr PJ Vincent with Mr AM Cummins Solicitor for the Sullivan Applicant in WAD 498 of 2011/Respondent in WAD 297 of 2008 and WAD 303 of 2013: Cross Country Native Title Services Pty Ltd Counsel for the State of Western Australia: Mr J Waters with Mr C Evans and Mr T Creewel Solicitor for the State of Western Australia: State Solicitors Office WAD 297 of 2008 (Yilka No 1) Counsel for the Second, Fourth, and Fifth Respondents: The Second, Fourth, and Fifth Respondents did not appear Counsel for the Third Respondents: The Third Respondents (other than the Sullivan Respondent) did not appear WAD 498 of 2011 (Sullivan) Counsel for the Second, Fourth, Fifth and Sixth Respondents: The Second, Fourth, Fifth and Sixth Respondents did not appear Counsel for the Third Respondents: The Third Respondents (other than the Yilka Respondent) did not appear
ORDERS WAD 297 of 2008
BETWEEN: HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS
ApplicantAND: STATE OF WESTERN AUSTRALIA
First RespondentSHIRE OF LAVERTON
Second RespondentCORINA BENNELL, LISA BENNELL, MATTHEW BENNELL, CENTRAL DESERT NATIVE TITLE SERVICES LTD, COSMO NEWBERRY (ABORIGINAL CORPORATION), BRETT DIMER, HILDA DIMER, JARED DIMER, SHAUN DIMER, SHONDELLE DIMER/GARLETT, GS & ORS ON BEHALF OF THE SULLIVAN FAMILY, RON HARRINGTON-SMITH, ALISON TUCKER (NEE BARNES), DANIEL TUCKER, FABIAN TUCKER, KATHY TUCKER, MICHAEL TUCKER AND QUINTON TUCKER
Third RespondentsELECKRA MINES LTD AND URANEX NL
Fourth RespondentsTELSTRA CORPORATION LIMITED
Fifth Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JUNE 2016
THE COURT ORDERS THAT:
1.With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2.By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3.There be liberty to apply to vary these orders.
4.Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
WAD 498 of 2011
BETWEEN: GS (DECEASED), PATRICK EDWARDS AND MERVYN SULLIVAN
ApplicantAND: STATE OF WESTERN AUSTRALIA
First RespondentSHIRE OF LAVERTON
Second RespondentCORINA BENNELL, LISA BENNELL, MATTHEW BENNELL, CENTRAL DESERT NATIVE TITLE SERVICES LTD, COSMO NEWBERRY (ABORIGINAL CORPORATION), BRETT DIMER, HILDA DIMER, JARED DIMER, SHAUN DIMER, SHONDELLE DIMER/GARLETT, RON HARRINGTON-SMITH, HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS, ALISON TUCKER (NEE BARNES), DANIEL TUCKER, FABIAN TUCKER, KATHY TUCKER, MICHAEL TUCKER AND QUINTON TUCKER
Third RespondentsELECKRA MINES LTD AND SASAK RESOURCES AUSTRALIA PTY LTD AND URANEX NL
Fourth RespondentsTELSTRA CORPORATION LIMITED
Fifth RespondentGOLD ROAD RESOURCES LIMITED
Sixth Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JUNE 2016
THE COURT ORDERS THAT:
1.With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2.By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3.There be liberty to apply to vary these orders.
4.Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 303 of 2013
BETWEEN: HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS
ApplicantAND: STATE OF WESTERN AUSTRALIA
First RespondentPATRICK EDWARDS AND MERVYN SULLIVAN
Second Respondents
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JUNE 2016
THE COURT ORDERS THAT:
1.With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2.By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3.There be liberty to apply to vary these orders.
4.Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
TABLE OF CONTENTS
CHAPTER 1 – CONNECTION – YILKA CLAIM
[1]
1 INTRODUCTION
[1]
1.1 NTA and legal principles
[15]
1.1.1 Generally
[15]
1.1.2 Issues of proof
[18]
1.1.3 NTA s 223 and s 225
[41]
1.1.4 Traditional laws and customs
[49]
1.1.5 Society
[52]
1.1.6 ‘Continuity’
[56]
1.1.7 Connection
[62]
1.1.8 Communal, group or individual rights
[67]
1.1.9 Claim group identification and membership
[76]
1.2 The Yilka claim
[83]
1.3 The Yilka claim group
[92]
1.4 The Yilka claim area
[106]
1.5 The hearing
[108]
1.6 Structure of these reasons
[112]
2 MATTERS IN ISSUE
[114]
2.1 Pleadings
[119]
2.2 Conference of experts
[124]
3 THE EVIDENCE – PRINCIPLES AND OVERVIEW
[129]
3.1 ‘Primary’ evidence
[141]
3.1.1 Mrs Murray
[150]
3.1.2 Jayden Smith (deceased)
[151]
3.1.3 Mr M
[152]
3.1.4 Mr Smythe
[153]
3.1.5 Mr Rhys Winter
[154]
3.1.6 Mr Gerald Terrence West (Westside)
[156]
3.1.7 Ms Ross (deceased)
[157]
3.1.8 Mr Jake Westlake
[158]
3.1.9 Ms Westlake
[159]
3.1.10 HM
[160]
3.1.11 HJ
[161]
3.1.12 Mr Warwick Simms
[162]
3.1.13 Mr Matthew Frank Grey (Mathew Grey)
[163]
3.1.14 ME
[164]
3.1.15 Junior
[165]
3.1.16 Mr Victor Fraser
[166]
3.2 ‘Expert’ evidence
[167]
3.2.1 Anthropologists
[176]
3.2.1.1 Dr Sackett
[176]
3.2.1.2 Dr Cane
[187]
3.2.1.3 Professor Trigger
[191]
3.2.1.4 Dr Vachon
[193]
3.2.1.5 Extent of agreement and difference between anthropological experts
[195]
3.2.2 Linguists
[199]
3.2.2.1 Dr Mark Clendon
[200]
3.2.2.2 Dr Henderson
[202]
3.2.3 Historian
[204]
3.2.3.1 Ms Vikki Plant
[204]
3.3 Documentary evidence and s 86 evidence
[287]
3.3.1 Connection
[304]
3.3.2 The nature of the claim group
[308]
3.3.3 Aggregation of individual ‘my country’ areas
[309]
3.3.4 Rights and interests
[310]
3.3.5 Laws and customs
[312]
3.3.6 Yilka applicant’s submissions regarding these findings in Wongatha
[317]
4 ‘SOCIETY’
[320]
4.1 The Yilka claim area as within the ‘Western Desert’
[322]
4.2 The Yilka claimants as members of the society
[327]
4.3 The situation at and since ‘sovereignty’
[337]
5 LAWS AND CUSTOMS
[338]
5.1 NTA requirements
[338]
5.2 Context and informing principles
[339]
5.2.1 Harsh environment and practical necessities of survival
[344]
5.2.2 Shared similar technology and dispersed population
[349]
5.2.3 Concept of Tjukurrpa
[351]
6 LAWS AND CUSTOMS RELATING TO THE POSSESSION OF RIGHTS
[367]
6.1 Bases for possessing rights
[368]
6.1.1 Birth and descent from a person born in the Yilka applicant claim area
[384]
6.1.2 Long association and descent from a person with long association
[391]
6.1.3 Senior ritual authority
[401]
6.1.4 Recognition under WDCB laws and customs
[407]
6.1.4.1 Identity of the adjudicator of recognition
[416]
6.1.4.2 Criteria for the adjudication of recognition
[426]
6.1.4.3 Absence of any intramural mechanism
[428]
6.1.4.4 Recognition of the rights of the wati
[429]
6.2 Content of the rights and responsibilities
[433]
6.2.1 Rights based on birth or long association in relation to sacred places
[447]
6.2.2 Rights based on birth or long association in relation to non-sacred places
[449]
6.2.3 Rights of wati in relation to sacred places
[451]
6.2.4 Rights of wati in relation to non-sacred places
[453]
6.3 Classification of the rights
[455]
6.3.1 Communal group or individual rights based on descent or long association
[482]
6.3.2 Communal, group or individual rights of wati
[485]
6.4 Areas and rights
[492]
6.4.1 Areas associated with birth and long association – ngurra
[496]
6.4.2 Areas associated with ritual authority
[503]
6.5 Authority and the exercise of rights
[504]
6.6 Qualifications on access – owners, visitors and strangers
[510]
7 OTHER LAWS AND CUSTOMS
[527]
7.1 Tjukurrpa
[532]
7.2 Kinship
[540]
7.3 Sections, alternate generation levels and marriage rules
[550]
7.4 Male secret ritual
[556]
7.5 Death and funerary rites
[564]
7.6 Language
[571]
7.7 Wartulku
[575]
7.8 Dealing with kangaroo meat
[579]
7.9 Personal Dreamings
[587]
7.10 Names and naming
[593]
7.11 Adoption
[597]
7.12 Restricting and transmitting knowledge
[600]
7.13 Respect for senior people
[602]
7.14 Laws and customs generally
[608]
8 THE LAWS AND CUSTOMS AS NORMATIVE RULES
[609]
9 THE LAWS AND CUSTOMS AS ‘TRADITIONAL’
[623]
9.1 Evidence – today and since ‘sovereignty’
[624]
9.2 Evidence – at ‘sovereignty’
[630]
9.3 Relevant continuity – adaptations and change
[632]
10 ACKNOWLEDGMENT AND OBSERVANCE OF THE LAWS AND CUSTOMS
[639]
11 RIGHTS AND INTERESTS POSSESSED UNDER THE LAWS AND CUSTOMS
[643]
11.1 Ownership – the right to speak for country
[647]
11.2 Control of access and use by others
[658]
11.2.1 Control of access and use by other members of Western Desert
[677]
11.2.2 Control and access and continuity
[679]
11.3 Access
[683]
11.4 Resources
[687]
11.5 Protection
[691]
11.6 Exclusive possession
[692]
12 PEOPLE WHO POSSESS THOSE RIGHTS AND INTERESTS
[700]
12.1 Rights in ngurra (my country) areas
[703]
12.1.1 Marnupa and descendants
[706]
12.1.2 Waltila and Nanuma and descendants
[707]
12.1.3 Billy Kurlu and descendants
[709]
12.1.4 Sandy Grey and descendants
[710]
12.1.5 Skipper Elliot and descendants
[711]
12.1.6 Charlie Winter and descendants
[712]
12.1.7 Mr Harris and descendants
[713]
12.1.8 Jayden Smith and descendants
[714]
12.1.9 Paul Simms and descendants
[715]
12.1.10 Mr Watson and descendants
[716]
12.1.11 Victor Fraser and descendants
[717]
12.2 Rights in areas of sacred and ritual significance
[718]
13 CONNECTION TO THE CLAIM AREA BY THE LAWS AND CUSTOMS
[724]
14 AUTHORISATION
[731]
15 A DRAFT DETERMINATION
[742]
CHAPTER 2 – CONNECTION - SULLIVAN CLAIM
[745]
1. INTRODUCTION
[745]
1.1 NTA provisions
[745]
1.2 The Sullivan claim
[746]
1.3 The claim group
[754]
1.4 The Sullivan claim area
[763]
1.5 The hearing
[765]
1.6 The structure of the submissions
[770]
2 MATTERS IN ISSUE
[771]
3 THE EVIDENCE – PRINCIPLES AND OVERVIEW
[804]
3.1 ‘Primary’ evidence
[804]
3.1.1 Mervyn Sullivan
[808]
3.1.2 Patrick Edwards
[831]
3.1.3 Celia Sullivan
[847]
3.1.4 Irwin Sullivan
[855]
3.1.5 Glen Cooke
[856]
3.1.6 Doreen Harris
[859]
3.1.7 Comments on the primary evidence
[866]
3.2 ‘Expert’ evidence
[871]
3.2.1 Dr Daniel Vachon
[872]
3.2.2 Extent of agreement between anthropological experts
[880]
3.2.3 Historian
[890]
3.3 Documentary evidence
[891]
3.4 Section 86 evidence
[893]
4 ‘SOCIETY’
[900]
4.1 NTA requirements
[901]
4.2 The Sullivan claim area as within the ‘Western Desert’
[903]
4.3 The Sullivan claimants as members of the society
[904]
4.4 The situation at and since ‘sovereignty’
[906]
5 LAWS AND CUSTOMS
[909]
6 LAWS AND CUSTOMS RELATING TO THE POSSESSION OF RIGHTS
[911]
6.1 Bases for possessing rights
[911]
6.1.1 Birth, long association and descent
[915]
6.1.2 Senior ritual authority
[923]
6.1.3 Recognition
[926]
6.2 Content of the rights and responsibilities
[927]
6.3 Nature of rights
[928]
6.4 Areas and rights
[931]
6.5 Authority and the exercise of rights
[944]
6.6 Qualifications on access – owners, visitors and strangers
[949]
7 OTHER LAWS AND CUSTOMS
[951]
7.1 Tjukurrpa
[959]
7.2 Kinship
[968]
7.3 Male secret ritual
[973]
7.4 Death and funerary rites
[976]
7.5 Language
[978]
7.6 Dealing with kangaroo meat
[980]
7.7 Personal dreamings
[983]
7.8 Adoption
[984]
7.9 Restricting and transmitting knowledge
[986]
7.10 Respect for senior people
[993]
7.11 Other laws and customs
[994]
7.11.1 Looking after country
[996]
7.11.2 Koordi (spirits)
[997]
7.11.3 Yayiyarr
[997]
7.11.4 Punishment
[997]
8 THE LAWS AND CUSTOMS AS NORMATIVE RULES
[997]
9 THE LAWS AND CUSTOMS AS ‘TRADITIONAL’
[1006]
10 ACKNOWLEDGEMENT AND OBSERVANCE OF THE LAWS AND CUSTOMS
[1014]
11 RIGHTS AND INTERESTS POSSESSED UNDER THE LAWS AND CUSTOMS
[1015]
12 PEOPLE WHO POSSESS THOSE RIGHTS AND INTERESTS
[1029]
12.1 Sullivan Edwards Sites Evidence Summary and Sullivan site map
[1035]
12.2 Past claims by the Sullivan and Edwards families
[1038]
12.3 Birth and long association of Kitty Nganyi
[1044]
12.3.1 Kitty’s birthplace – Aboriginal witnesses
[1047]
12.3.2 Kitty’s birthplace – Dr Vachon
[1048]
12.3.3 Kitty – long association
[1069]
12.3.4 Yilka applicant submissions in relation to Kitty
[1079]
12.3.5 Conclusion
[1097]
12.4 Birth and long association of Mrs Sullivan
[1106]
12.5 Birth and long association of Mrs Wingrove
[1124]
12.6 Living members of the Sullivan Edwards families
[1138]
12.7 Rights in areas of sacred and ritual significance
[1152]
13 RECOGNITION
[1153]
13.1 Evidence of recognition of the Sullivan Edwards families
[1158]
13.2 The Murray family
[1186]
13.3 CDNTS and the authorisation process of the Yilka claim
[1208]
14 CONNECTION TO THE CLAIM AREA BY THE LAWS AND CUSTOMS
[1230]
15 AUTHORISATION
[1234]
16 CONCLUSION
[1235]
CHAPTER 3 – EXTINGUISHMENT IN BOTH CLAIMS
[1236]
1. INTRODUCTION AND SUMMARY OF CONCLUSION
[1236]
1.1 The tenure evidence
[1243]
1.2 Overview of the parties’ positions
[1260]
1.3 Extinguishing effect of tenure types
[1273]
2 GENERAL PRINCIPLES OF EXTINGUISHMENT
[1280]
2.1 Overview of the NTA regime
[1298]
2.2 Past Acts - Pt 2 Div 2 NTA
[1304]
2.2.1 Category A past acts – extinguishment of all native title
[1308]
2.2.2 Category B past acts – partial extinguishment of native title
[1312]
2.2.3 Category C and Category D past acts
[1314]
2.3 Intermediate period acts - Pt 2 Div 2A NTA
[1315]
2.4 Confirmation of extinguishment – Pt 2 Div 2B NTA
[1317]
2.4.1 Previous exclusive possession acts
[1323]
2.4.2 Previous non-exclusive possession acts
[1331]
2.5 Common law extinguishment
[1334]
2.6 Onus of proof
[1346]
2.7 Summary
[1350]
3 THE CLAIM AREA, THE RIGHTS CLAIMED AND THE TENURE GRANTED
[1355]
3.1 The claim areas
[1355]
3.1.1 Yilka No 1 claim area
[1355]
3.1.2 Yilka No 2 claim area
[1364]
3.1.3 Sullivan claim area
[1369]
3.2 The rights claimed
[1372]
3.2.1 Rights in water
[1376]
3.2.2 Rights in minerals and petroleum
[1406]
3.3 General outline of the tenure granted in the Claim Area
[1409]
4 ACTS WHICH WHOLLY EXTINGUISH NATIVE TITLE
[1413]
4.1 Roads
[1413]
4.1.1 Road Districts Act
[1420]
4.1.2 Common law roads
[1428]
4.1.3 Validity and effect on native title
[1435]
4.1.4 Extinguishment by roads as ‘public works’
[1441]
4.1.5 Extinguishment by operation of the Public Works Act 1902
[1458]
4.1.6 Common law extinguishment
[1461]
4.1.7 State’s reply submissions on extinguishment
[1463]
4.2 Vested reserves
[1478]
4.3 Gold mining leases
[1483]
4.4 Mineral leases
[1507]
4.5 Public works
[1517]
5 ACTS WHICH PARTIALLY EXTINGUISH NATIVE TITLE
[1524]
5.1 Mineral claims
[1526]
5.2 Pastoral leases
[1539]
5.2.1 Validity
[1542]
5.2.1.1 Leases granted under the Land Act 1898
[1544]
5.2.1.2 Leases signed before the application approved
[1549]
5.2.1.3 Leases granted under the Land Act 1933
[1554]
5.2.2 Extinguishing effect
[1557]
5.2.3 NTA and TVA extinguishment categories
[1559]
5.3 Pastoral improvements
[1563]
5.4 Petroleum interests
[1566]
5.5 Reserves
[1578]
5.6 Temporary reserves
[1592]
6 ACTS WHICH HAVE NO EXTINGUISHING EFFECT
[1605]
6.1 Mining tenements
[1616]
6.2 Reserves
[1617]
6.3 Water interests
[1625]
6.4 Petroleum interests
[1629]
7 AREAS WHERE EXTINGUISHMENT IS TO BE DISREGARDED
[1631]
7.1 ‘Occupation’ and ‘area’
[1645]
7.1.1 Statutory requirements
[1645]
7.1.2 The occupation evidence in relation to the Yilka claim area
[1654]
7.1.2.1 Occupation evidence: Yilka claim generally
[1661]
7.1.2.2 Occupation evidence: Yilka claim s 47A
[1662]
7.1.2.3 Occupation evidence: Yilka claim s 47B
[1664]
7.2 Extinguishment to be disregarded
[1665]
7.3 Areas to which s 47A applies in the Yilka claim
[1675]
7.4 Areas to which s 47B applies in the Yilka claim
[1678]
7.5 Application of s 47A to the Sullivan claim area
[1687]
7.5.1 Reserve 20396
[1698]
7.5.2 Reserve 22032
[1703]
7.5.3 Reserve 25050
[1706]
7.5.4 Reserve 25051
[1709]
7.6 Application of s 47B to the Sullivan claim area
[1712]
7.7 The State’s response on occupation evidence
[1716]
8 AREA BY AREA ANALYSIS
[1723]
8.1 Areas 1–5 – Water Reserves 18594, 18595, 18596, 18597 & 18714
[1724]
8.2 Area 6 Reserve 20396
[1728]
8.2.1 Area tenure analysis
[1728]
8.2.2 Occupation when Yilka claim made
[1734]
8.2.3 Conclusion
[1735]
8.3 Area 7 – Reserve 22032 (Use and Benefit of Aborigines)
[1738]
8.3.1 Area tenure analysis
[1738]
8.3.2 Occupation when Yilka claim made
[1742]
8.3.3 Conclusion
[1743]
8.4 Area 8 - Reserve 24980 (Warburton Range Stock Route)
[1746]
8.4.1 Area tenure analysis
[1746]
8.4.2 Conclusion
[1751]
8.5 Area 9 Reserve 25050
[1753]
8.5.1 Area tenure analysis
[1753]
8.5.2 Occupation when Yilka claim made
[1758]
8.5.3 Conclusion
[1759]
8.6 Area 10 Reserve 25051
[1762]
8.6.1 Area tenure analysis
[1762]
8.6.2 Occupation when Yilka claim made
[1768]
8.6.3 Conclusion
[1769]
8.7 Area 11 - Pastoral Lease 3114/854 (Yamarna)
[1772]
8.7.1 Area tenure analysis
[1772]
8.7.2 Conclusion
[1777]
8.8 Area 12 - UCL 1
[1779]
8.8.1 Area tenure analysis
[1779]
8.8.2 Occupation when Yilka claim made
[1785]
8.8.3 Conclusion
[1786]
8.9 Area 13 - UCL 2
[1788]
8.9.1 Area tenure analysis
[1788]
8.9.2 Occupation when Yilka claim made
[1793]
8.9.3 Conclusion
[1794]
8.10 Area 14 - UCL 3
[1795]
8.10.1 Area tenure analysis
[1795]
8.10.2 Occupation when Yilka claim made
[1799]
8.10.3 Conclusion
[1800]
8.11 Areas 15 and 16 - UCL 4 and UCL 5
[1801]
8.11.1 Area tenure analysis
[1801]
8.11.2 Occupation when Yilka claim made
[1806]
8.11.3 Conclusion
[1808]
8.12 Area 17 - UCL 6
[1809]
8.12.1 Area tenure analysis
[1809]
8.12.2 Occupation when the Yilka claim made
[1817]
8.12.3 Conclusion
[1819]
8.13 Road 1 (Rd No. 9462)
[1822]
8.13.1 Area tenure analysis
[1822]
8.13.2 Conclusion
[1829]
8.14 Road 2 (Rd No. 9463)
[1830]
8.14.1 Area tenure analysis
[1830]
8.14.2 Conclusion
[1842]
8.15 Conclusion
[1847]
9 THE STATE’S INTERLOCUTORY APPLICATION TO RE-OPEN ON ROADS
[1848]
9.1 ‘First Respondent’s Submissions in Support of the Interlocutory Application Filed 20 July 2014’ filed 15 July 2014
[1850]
9.2 The Applicants’ submissions dated 16 July 2014 on the State's interlocutory application
[1864]
9.2.1 Order 5: ‘liberty to apply’
[1865]
9.2.2 The Yilka and Sullivan applications
[1868]
9.2.3 The State's position on roads
[1870]
9.2.4 Evidence (so far) of roads
[1879]
9.2.5 The scope of the issue and potential prejudice to the applicants
[1881]
9.2.6 Costs
[1886]
9.3 ‘First Respondent’s Further Submissions on Roads’ dated 29 August 2014
[1887]
9.3.1 State’s contentions should leave to re-open be granted
[1888]
9.3.2 Description of roads for the purpose of any native title determination
[1894]
9.4 Applicants’ submissions dated 1 October 2014 on the State’s interlocutory application
[1901]
9.4.1 Principles regarding the grant of leave to re-open case
[1902]
9.4.2 Whether the State’s application fell within any of the recognised classes of cases
[1909]
9.4.3 The interests of justice
[1913]
9.4.4 The alleged inadequacy of the evidence in support of the State’s application
[1921]
9.4.5 The State’s submissions including that roads are excluded from the claims
[1922]
9.4.6 Summary of the Yilka applicant’s position in relation to the State’s interlocutory application
[1930]
9.4.7 Costs
[1931]
9.5 State’s submissions in reply on roads dated 16 October 2014
[1940]
9.6 Ruling
[1944]
10 STATE’S SUBMISSIONS ON ROADS FOLLOWING INTERLOCUTORY APPLICATION
[1950]
10.1 Context
[1952]
10.2 The issues
[1954]
10.3 Relevant evidence
[1959]
10.4 Roads and their creation
[1969]
10.4.1 Common law roads
[1973]
10.4.2 Public Works Act 1902
[1980]
10.4.3 Roads Act 1911
[1985]
10.4.4 Road Districts Act
[1988]
10.4.5 Town Planning and Development Act 1928 (WA)
[1998]
10.4.6 Main Roads Act 1925 (WA) and Main Roads Act 1930 (WA)
[1999]
10.4.7 Local Government Act 1960
[2004]
10.5 Principles of extinguishment relevant to roads
[2014]
10.5.1 Extinguishment by statute or executive act or at common law
[2017]
10.5.2 Roads within the outer limits of Reserve 20396
[2019]
10.5.3 Roads within the outer limits of Reserve 22032
[2021]
10.5.4 Roads within the outer limits of Reserve 25050
[2026]
10.5.5 Roads within the outer limits of Reserve 25051
[2029]
10.5.6 Roads as ‘public works’ within s 253 NTA
[2030]
10.5.6.1 Great Central Road (R87)
[2033]
10.5.6.2 White Cliffs-Yamarna Road (R53)
[2033]
10.5.6.3 Neale Junction Road (aka Anne Beadell Highway) (R21)
[2034]
10.6 Occupation for the purposes of s 47A NTA
[2034]
10.7 Response to the applicants’ Extinguishment Submissions
[2038]
10.8 Description of roads for the purposes of any determination
[2040]
11 THE SULLIVAN APPLICANT’S FINAL SUBMISSIONS ON ROADS
[2042]
11.1 State’s general proposition regarding extinguishment by roads
[2043]
11.2 Dedicated roads
[2050]
11.3 Naming and marking of roads on plans
[2056]
11.4 Common law roads
[2058]
11.5 Roads as public works within s 253 NTA
[2063]
11.6 Aboriginal reserve status and restriction of entry provisions
[2071]
11.7 Description of roads for purposes of any determination
[2078]
12 YILKA APPLICANT’S FINAL SUBMISSIONS IN RELATION TO ROADS
[2082]
12.1 General observations
[2085]
12.1.1 Relative sparseness and recency of development in the Claim Area
[2085]
12.1.2 The State’s 11 roads and potential for confusion
[2090]
12.1.3 Mr Hill
[2096]
12.1.4 Mr Deckert
[2100]
12.2 The inter-relationship between the reserves and roads
[2102]
12.2.1 The legal regimes applicable to the reserves
[2102]
12.2.2 Section 3 of the Permanent Reserves Act 1899 and s 31(4) of the Land Act 1933
[2111]
12.2.3 Permission to enter
[2115]
12.2.4 The Yilka applicant’s response to the State’s submission
[2118]
12.3 Relevant statutes, the common law and other legal issues
[2128]
12.4 Other matters arising on the evidence
[2141]
12.4.1 Evidence about works and public expenditure
[2141]
12.4.2 Road alignments and deviations
[2144]
12.5 The Great Central Road
[2145]
12.6 Additional comments about other roads
[2152]
12.6.1 Road 1 and Road 2
[2153]
12.6.2 Neale Junction Road
[2156]
12.7 Occupation
[2158]
13 STATE’S FINAL SUBMISSIONS IN RELATION TO ROADS
[2159]
13.1 Summary of the roads said to have extinguished native title
[2161]
13.1.1 Road 1
[2162]
13.1.2 White Cliffs-Yamarna Road (Road 2)
[2165]
13.1.3 Great Central Road
[2170]
13.1.4 Anne Beadell Highway
[2176]
13.2 Extinguishment of native title by the roads listed above
[2181]
13.2.1 Road No.1 and the White Cliffs-Yamarna Road
[2182]
13.2.1.1 Public Works and the Road Districts Act
[2182]
13.2.1.2 Extinguishment by operation of the Public Works Act 1902
[2191]
13.2.2 Great Central Road and the Anne Beadell Highway
[2193]
13.3 The inter-relationship between the reserves and the roads
[2201]
13.4 Application or otherwise of s 47A NTA
[2202]
13.5 Remaining roads: other interests
[2205]
CHAPTER 4 – ABUSE OF PROCESS
[2206]
1. INTRODUCTION
[2206]
1.1 Delay in filing abuse of process interlocutory application
[2219]
1.2 Proceedings the subject of the State’s abuse arguments
[2228]
1.3 Relevant evidence
[2231]
2 RELEVANT GENERAL LEGAL PRINCIPLES
[2232]
2.1 Abuse of process – principles
[2234]
2.2 Res judicata – principles
[2242]
2.3 Issue estoppel – principles
[2248]
2.4 Anshun estoppel – principles
[2257]
3 THE COSMO PROCEEDINGS
[2263]
3.1 The applicant’s case in the Cosmo proceedings
[2263]
3.2 The Cosmo applicant
[2267]
3.3 The Cosmo claimant group
[2268]
3.4 The area that is the subject of the Cosmo proceedings
[2271]
3.5 The rights and interests claimed in the Cosmo claim
[2272]
3.6 The laws and customs relied upon in the Cosmo proceedings
[2276]
3.7 Adverse findings
[2279]
3.8 The dismissal of the Cosmo claim
[2285]
4 THE WONGATHA PROCEEDINGS
[2294]
4.1 The applicant’s case in the Wongatha proceedings
[2294]
4.2 The Wongatha applicant
[2299]
4.3 The Wongatha claimant group
[2300]
4.4 The area that is the subject of the Wongatha proceedings
[2308]
4.5 The rights and interests claimed in the Wongatha proceedings
[2311]
4.6 The laws and customs relied upon in the Wongatha proceedings
[2314]
4.7 Adverse findings
[2315]
4.8 The dismissal of the Wongatha claim
[2317]
5 ABSENCE OF A NEGATIVE DETERMINATION IN WONGATHA
[2322]
6 THE COSMO APPEAL
[2337]
7 THE YILKA CLAIM
[2343]
7.1 The Yilka applicant
[2346]
7.2 The Yilka claim group
[2349]
7.3 The area that is the subject of the Yilka proceedings
[2352]
7.4 The rights and interests claimed in the Yilka proceedings
[2356]
7.5 The laws and customs relied upon in the Yilka proceedings
[2364]
8 THE SULLIVAN CLAIM
[2365]
8.1 The Sullivan applicant
[2369]
8.2 The Sullivan claim group
[2370]
8.3 The area the subject of the Sullivan proceeding
[2373]
8.4 The rights and interests claimed in the Sullivan proceeding
[2375]
8.5 Laws and customs relied upon in the Sullivan proceeding
[2376]
9 YILKA – CURRENT AND PREVIOUS CLAIMS
[2378]
9.1 The nature of the claim group
[2386]
9.2 Additional persons
[2397]
9.3 Persons with ritual knowledge
[2405]
9.4 Evidence in relation to Minnie Creek
[2408]
9.5 Exclusive adjudicator
[2414]
10 SULLIVAN – CURRENT AND PREVIOUS CLAIMS
[2424]
11 ABUSE OF PROCESS: CONSIDERATION
[2425]
12 RES JUDICATA:CONSIDERATION
[2444]
13 ISSUE ESTOPPEL: CONSIDERATION
[2451]
14 ANSHUN ESTOPPEL: CONSIDERATION
[2462]
15 CONCLUSION ON THE ABUSE ARGUMENTS GENERALLY
[2474]
CHAPTER 5 – FINAL CONCLUSION
[2478]
ANNEXURE 1 – YILKA POC
ANNEXURE 2 – YILKA DETERMINATION SOUGHT
ANNEXURE 3 – PROPOSITIONS AND EXPERT OPINION SUMMARY
ANNEXURE 4 – YILKA SITE MAP (EXH A1A)
ANNEXURE 5 – SULLIVAN DETERMINATION SOUGHT
ANNEXURE 6 – SULLIVAN EXTERNAL BOUNDARY DESCRIPTION
ANNEXURE 7 – SULLIVAN CLAIM AREA MAP
ANNEXURE 8 – SULLIVAN EDWARDS SITES EVIDENCE SUMMARY
ANNEXURE 9 – YILKA TENURE MAP
ANNEXURE 10 – SCHEDULES TO THE STATE EXTINGUISHMENT SUBMISSIONS
ANNEXURE 11 – STATE ROADS MAP
CHAPTER 1 – CONNECTION – YILKA CLAIM
1.
INTRODUCTION
The Yilka applicant and the Sullivan Edwards applicant (Sullivan applicant) claim native title. The first respondent (State) opposes the claim. In these reasons, in four chapters, I have, for the most part, addressed issues raised by the parties in the same or similar order as an agreed list of issues that I directed the parties file and which their submissions, most helpfully, have addressed.
The Yilka No 1 claim (WAD 297 of 2008) was lodged on 15 December 2008. The Court and parties, including a not insignificant entourage first set foot (in this application) in the Claim Area on 31 October 2011 and extensive site evidence was heard in the course of hearing the Yilka applicant’s case. The Yilka No 2 claim (WAD 303 of 2013) was lodged on 1 August 2013, as a formality in order to attract the operation of s 47B of the Native Title Act 1993 (Cth) (NTA), and partially overlaps the Yilka No 1 claim. As per Court orders dated 29 August 2013, the Yilka No 1 and Yilka No 2 claims were ordered to be heard together, so that pleadings and evidence in both matters stand as pleadings and evidence in the other proceeding. The Yilka No 1 and Yilka No 2 claims are referred to collectively as the Yilka claim, unless specified otherwise. Similarly, the terms Yilka applicant and Yilka claim area, being the area the subject of the Yilka claim refer to those entities in relation to both claims.
The Sullivan applicant did not join in the hearing until relatively late in the piece. The Sullivan Edwards claim (Sullivan claim) (WAD 498 of 2011) was lodged on 7 December 2011. The area the subject of the Sullivan claim is referred to as the Sullivan claim area. On 1 March 2012, I ordered that both the Yilka and Sullivan claims be heard together pursuant to s 67 NTA. The parties were subsequently joined as respondents in each other’s claim, as per orders of 26 April 2012. Prior to that time, the Sullivan applicant did not participate in the evidence called on behalf of the Yilka applicant.
The three claims are referred to collectively as the proceedings (and sometimes as these proceedings or the present proceedings) and the totality of the areas of the Yilka claim area and the Sullivan claim area is referred to as the Claim Area. The term Yilka claim group means the persons on whose behalf the Yilka claim is made, and its members are also referred to as Yilka claimants. Similarly, Sullivan claim group mans the persons on whose behalf the Sullivan claim is made, and its members are referred to as Sullivan claimants.
For the Yilka applicant, evidence was given by some 16 lay witnesses, together with seven witnesses who only gave evidence during site visits. Many others attended the site visits voluntarily. There were also many people who participated in a demonstration of the preparation of bush tucker at the second last open site visit location at Yilurn. The site visits were followed by many days of more formal evidence with the tender of affidavits, the leading of oral evidence where necessary, and the tender of statements of various deceased persons who were regarded as possessing right in the Claim Area.
The Yilka applicant named its native title claim after a significant place on the Claim Area. It includes the area of the Cosmo Newberry Aboriginal Community (Cosmo Newberry Community), a number of large reserves for the use and benefit of Aboriginal people, some small reserves of other kinds, some small areas of unallocated Crown land (UCL), and a pastoral lease.
The Sullivan applicant claims a similar area, but shortly prior to closing submissions, amended the claim to reduce it by excising a small portion of its original claim area.
As explained by senior counsel for the Yilka applicant, Mr Blowes SC, there are a number of distinct features of this claim. The first of those is that it is a contested claim involving people of the Western Desert and the laws and customs of the Western Desert, which poses some special considerations for the application of the NTA. The Yilka applicant argues that these issues are not insurmountable. Secondly, and again, unusually, it is a claim that follows previous claims involving, to some extent, similar people and, to some extent, a similar area. This has created special considerations, not only by reason of detailed abuse of process submissions advanced by the State, but also because all of the parties have relied to some extent on the evidence and/or reasons in the very substantial judgment of Justice Lindgren in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1. As such, more than a passing familiarity with the evidence and reasoning in Wongatha has been necessary for the parties and the Court. A third feature of the claim is that not all claimants are resident in the Claim Area. The Yilka applicant argues this is not unusual; indeed, many claims have been determined where there are no residents in the claim area.
Since evidence was first given in the proceedings, two of the witnesses have passed away. Those two witnesses were Lincoln (Jayden) Smith (deceased), referred to as Jayden Smith, who was born near a location known as Minnie Creek, about which much evidence was given, on 30 June 1953, and the late Yinga Estelle Ross, referred to as Ms Ross whose mother was also born in that area in 1915.
There are two main lines of disputation in regards to the existence of native title, which are canvassed in this and the following chapter.
In respect of both the Yilka and the Sullivan claims, the State puts the applicants to proof and contends they have not come up to their pleaded cases. The State’s primary focus, however, has been on the contention that it is not open to advance either of the claims concerned due to findings in Wongatha. As will be seen, I do not consider that these arguments should be upheld. This is largely because I consider that these claims are entirely different claims from those argued and dealt with in Wongatha.
The other major dispute is between the Yilka applicant and the Sullivan applicant. Whereas, on the one hand, the Sullivan applicant simply says that the Sullivan claimants should have been included in the Yilka claim and has not objected to the Yilka claimants being included in its claim, the Yilka applicant strenuously maintains its position that the Sullivan claimants are not entitled to be within the Yilka claim. I have rejected that contention. The Yilka claim has been on foot for longer than the Sullivan claim and its presentation has been more detailed but, in substance, I have concluded that there is no reason why the Yilka claim should ever have excluded the Sullivan claimants. This is a conclusion which substantially accords with the views reached by the expert anthropologists in the case. While the Yilka applicant’s written submissions catalogue endless criticisms of and weaknesses in the Sullivan applicant’s evidence, to my mind, had such a microscopic analysis been taken to the Yilka case, similar problems would have arisen.
As a subsidiary issue, I can understand the State being confused as to exactly how the Yilka applicant was putting its case initially and, indeed, for some time. I do not think it has been as clear cut as the Yilka applicant’s indignation on that topic suggests. There has certainly been a significant argument over the issue of whether the claim simply constitutes an aggregation of individual claims, rather than a group claim.
This chapter deals with the existence of native title in respect of the Yilka claim. As such, while much of the discussion which follows is equally applicable to the Sullivan claim, the focus here is on the arguments put forward by the State in relation to the Yilka claim, and on the arguments made by the Yilka applicant in support of its claim.
1.1 NTA and legal principles
1.1.1Generally
An application for a determination of native title under the NTA is for rights defined by s 223(1) NTA. It is the NTA which governs consideration of the claim.
Section 223 NTA provides as follows:
223 Native title
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3)Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Subsection (3) does not apply to statutory access rights
(3A)Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).
Case not covered by subsection (3)
(4)To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a)in a pastoral lease granted before 1 January 1994; or
(b)in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.
In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the majority of the High Court said (at [37]-[38]) (footnotes omitted):
37 First, it follows from Mabo (No 2) that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.
38 When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty. Thus, to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms. That intersection is sometimes expressed by saying that the radical title of the Crown was "burdened" by native title rights but, as was pointed out in Commonwealth v Yarmirr, undue emphasis should not be given to this form of expression. Radical title is a useful tool of legal analysis but it is not to be given some controlling role.
1.1.2Issues of proof
The applicants carry both an evidential onus and an ultimate onus, or a burden of proof, to the civil standard, namely, on the balance of probabilities. As noted in Yorta Yorta, there are challenges in the forensic task of proving facts back to historical and pre-historical times. The majority said (at [80]):
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the [NTA].
Recently, in AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193, Justice Bennett collected the case law helpfully where her Honour discussed the principles involved in drawing inferences in native title determination applications (at [106]-[108]):
106 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ accepted that demonstrating the content of traditional law and custom may well present difficult problems of proof and that the court may be invited to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. They recognised that it may be especially difficult to demonstrate the content of traditional laws and customs in cases where it is recognised that the laws and customs have been adapted in response to European settlement. It was not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn (Yorta Yorta at [80] and [82]).
107 Justice Kirby in Mason v Tritton (1994) 34 NSWLR 572 concluded that inferences can be drawn in native title cases that a situation that exists at a particular time also existed at an earlier time. However, whether such an inference can be drawn depends upon whether the probabilities of the case favour the inference and whether intervening circumstances have occurred which would bring the situation to an end. His Honour noted that in more traditional Aboriginal communities the inference will be more easily drawn (at 887–889).
108 Similarly, in Gumana v Northern Territory of Australia (2005) 141 FCR 457 (Gumana (2005)), Selway J held at [198]–[201] that there was no “obvious reason” in that case why evidentiary inference (of the kind discussed in Mason v Tritton) was not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and the existence of rights and interests arising under that tradition or custom. However, Selway J continued to state that “[t]his does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement”. See also the application of Mason v Tritton in De Rose v South Australia [2002] FCA 1342 at [503]–[505] and [570].
These matters are not in dispute. However, the State makes a number of submissions in relation to issues of proof.
First, the State seeks to emphasise the unique nature of those particular claims, making it clear that the proceedings here have much in common with the proceedings in Wongatha, in particular, proceedings WAD 144 of 1998 (Cosmo claim) and proceedings WAD 6005 of 1998 (Wongatha claim), two of the eight overlapping claims in Wongatha. The State draws attention to the fact that Harvey Murray (HM), who is the named Yilka applicant, in his capacity then as a Cosmo claimant, has lodged an appeal from Wongatha and that the present proceedings raise many questions which it says are, if not the same as the matters considered in Wongatha, not materially distinguishable. The State says, therefore, that it is not surprising that the considerations given by Justice Lindgren in Wongatha to comparable conditions will often provide potential guidance on questions arising in these proceedings. It is suggested that decisions made by Justice Lindgren on questions of law, questions of mixed law and fact, and questions concerning the application of principles should be followed unless plainly wrong.
The State makes the point that this difficulty is compounded by the reliance placed by the Yilka applicant’s expert and lay witnesses, including anthropologists, Dr Scott Cane and Dr Lee Sackett, on evidence given before Justice Lindgren in the Cosmo claim, the Court’s summaries of that evidence, the use and interpretation of that evidence and the findings in relation to that evidence, as if it were part of the process of information gathering or preparation for the present claim. The State submits that such an approach places this Court at a disadvantage to Justice Lindgren in that, whereas Justice Lindgren had before him a body of direct evidence as well as ethnographic and other documentary evidence, some parts of the evidence which was direct evidence before Justice Lindgren is now before the Court in the present proceeding in the form of a lifeless record of those proceedings. There is other evidence not before this Court at all. Significantly, the State says, a portion of the evidence received and summarised by Justice Lindgren has been considered without the advantage enjoyed by Justice Lindgren and used by expert and lay witnesses for the applicants as if it were ‘research’ or ‘advice’ for the purpose of providing a foundation of evidence in the present proceedings.
While there certainly are similarities between the Yilka claim and the Cosmo claim, that is a matter primarily for consideration in relation to the abuse of process argument which the State advances. The Yilka claim is pleaded differently and advanced with evidence directed to the pleaded claim. There is the further complication in relation to the Cosmo claim that Justice Lindgren ruled that he did not have jurisdiction (in the absence of authorisation) to consider the Cosmo claim. Nevertheless, for completeness and in light of the fact that the evidence had been adduced, his Honour did go on to consider the evidence. There is no doubt that, to the extent his Honour made findings (on the assumption that he was wrong about lack of jurisdiction), those were findings reached on the basis of the facts before his Honour, in turn moulded by the pleadings and arguments developed in that case. While the abuse of process arguments will be considered in due course, it should not be readily assumed that whatever findings that were reached by his Honour on the evidence, arguments and pleadings in Wongatha should be adopted in these proceedings.
The process of evidence taking in the Yilka claim involved visiting and hearing evidence at different sites in the Claim Area, including the significant area of Minnie Creek. Evidence adduced by witnesses in the Yilka claim has been of a quite different nature to that adduced in the Cosmo claim, directed, as it were, to the pleadings in the Yilka claim, which, as will be seen, were cast in a distinctly different way from the pleading in the Cosmo claim.
I would also discount the suggestion that the evidence from Dr Sackett and Dr Cane, as anthropologists, was significantly influenced by the material relied upon in the Cosmo claim. Although the expert anthropologists had access to material from the Cosmo claim when preparing their draft reports, the final reports were prepared with access to the first tranche of the claimants’ evidence, which Dr Sackett attended in full, from 31 October 2011 to 11 November 2011, after HM gave evidence on 5-6 December 2011; and following two expert conferences, the first on 22 July 2011, and the second across 24 July and 16 August 2012. Before they gave their evidence in September 2013, the expert anthropologists had attended and/or had access to the transcript of the entirety of the evidence advanced for the Yilka applicant in regards to the existence of native title.
Secondly, the State submits that the manner in which the applicants’ cases are put, being principally based on the claims of individuals, has a bearing upon the extent to which it is open to the Court to draw inferences relating to an entire population of a claim group from the evidence of individuals. The State submits that inclusion of particular individuals in a claimant group is not a sufficient basis to permit the drawing of inferences concerning one individual from attributes of some other individuals in that group. The State argues that if this were the case, then mere assertion that individuals constitute a group would amount to proof of the existence of the group and the attributes of all who are said to be included.
In this regard, the State emphasises that the Yilka claim group is said to comprise approximately 400 to 500 people whilst the evidence suggests it may be well over 1000 people, excluding any Sullivan claimants. There is, the State contends, a very large number and proportion of people about whom very little is known. The State complains that the number and proportion of witnesses whom have not been heard and whose circumstances are mostly unexplained is far greater than in the Cosmo proceedings where 15 from a total of 128 group members gave evidence.
Although the topic will be examined more fully, it is not clear that there is support for the State’s submission that if a claim is, as it describes it, an ‘individual claim’, evidence by an individual will not be capable of giving rise to inferences about any other person. The evidence in this case, as in many others, of individual witnesses includes direct evidence about many other persons, including deceased persons. There is no reason why inferences should not be drawn in relation to such evidence, whether the inference pertains to other individuals or the existence of groups.
Although the State’s submission does draw on a figure of well over 1000 people within the Yilka claim group, and therefore submits that the number of witnesses called to give evidence was insufficient, it is doubtful whether the number of persons within the claim group itself would be that high. The number of claimants referred to in the various genealogies adduced in evidence is less than 500. Given the detailed analysis in the genealogies, I consider that this would be a more reliable figure than an apparently un-researched estimate in oral evidence.
The Yilka applicant points to the fact that in Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 204 FCR 1, Finn J found no difficulty in reaching conclusions in favour of the claim group extending to tens of thousands of people (at [27] referring to some 53,000 Torres Straight Islanders of whom 3,806 presently resided in the relevant islands of the Torres Straight) on the basis of the evidence of 26 witnesses, which included between one to four witnesses from each of the 13 island communities in question: Akiba (at [96]-[97]). The Yilka claim is in respect of a much smaller claim group. If only one or two witnesses had been called, then there would be some force in the complaint raised, but the proportion of witnesses and participants in relation to the number of claimants, as discussed above, was significantly higher than the State submission might suggest.
Finally, as to the question of drawing inferences, as discussed by Bennett J in Ngarla, the State submits that the applicants have failed to discharge the onus of establishing continuity in the acknowledgement and observance of law and custom which would lead to the drawing of the requisite inference. In relation to Gumana v Northern Territory (2005) 141 FCR 457, to which Bennett J referred to in Ngarla, Selway J (at [194]-[200]) considered whether evidence of witnesses which, on its face, may establish that the witnesses and relevant elders believed there was a long standing custom that predated them, could establish customs going back to an earlier time or time immemorial. In that instance, the custom under consideration was belief that the Law came from the land and the sea. Selway J referred to a number of common law cases and set out an extract from Hammerton v Honey (1876) 24 WR 603 (at 604) to the effect that the usual course taken is that where persons of middle or old age state that in their time, usually at least half a century, the usage has always prevailed, that is considered, in the absence of countervailing evidence, to show that the usage has prevailed from all time. The State emphasises that usual practice is expressed to be dependent on there being evidence that certain conduct ‘has always prevailed’ and perhaps, more importantly, in the absence of ‘countervailing evidence’. Selway J observed (at [201]):
There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom: see Lester G “Aboriginal Land Rights: the territorial rights of the Inuit of the Canadian Northwest Territories; a legal argument (1985) Repub vol 2, pp 884-906. Although no such inference would seem to have been relied upon in Millirrpum (see at ALR 110, 119-21; FLR 184, 197-8) Australian cases thereafter would seem to have relied upon such inferences, although without expressly acknowledging the common law authorities which plainly supported doing so: see, for example, Mason v Tritton (1994) 34 NSWLR 572 at 588; Yarmirr (FC) at [66]; De Rose at [259]; Lardil at [116] ff. This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast [Yorta Yorta]. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. That was not the case in [Yorta Yorta]. It is the case here.
The State argues that the problem in transposing this reasoning into the present claims is that in key respects, such as the formation of intermediate groups such as the Yilka and Sullivan claim groups, the evidence is that the practices or laws and customs have, in fact, not always prevailed. The State also submits that in other respects, the conditions that have existed so lack constancy and stability as to leave doubts about whether conditions could reasonably be expected or assumed to have been sufficiently stable to permit the continuity which the applicant is asking the Court to infer. The impact of settlements and the consequential option of living in groupings larger than those that were viable in pre-sovereignty times was an example given by the State of dynamic rather than static conditions. Not only is there an absence of evidence of important customs or traditions always prevailing, but there is affirmative evidence, it is submitted, by the State that they have not always prevailed. The State refers to Griffiths v Northern Territory (2006) 165 FCR 300 in which Weinberg J found that it was reasonable to infer continuity of acknowledgement and observation of laws and customs, as there was nothing to suggest that the ritual and ceremonial practices observed since the middle of the nineteenth century, in a largely unbroken pattern, were suddenly created or radically transformed from what had immediately gone before (at [577]). Weinberg J noted the limits of the process of inference in relation to ancestral occupation (at [583]):
I accept that there will be some cases where the need to go back 30 or 40 years beyond the earliest extant genealogy would render the process too speculative to permit an inference of continuity or connection to be drawn. However, in the present case, the position seems to me to be different. It is known that indigenous people occupied the Timber Creek region at least as far back as the time of the earliest explorers. It is also known that inhabitants of that area adopted laws and customs that were, ethnographically, very similar to the laws and customs that indigenous people in other parts of Australia followed. A number of the ritual practices that are documented at least as far back as the latter part of the nineteenth century are, in significant respects, similar to those followed by Aboriginal people since well before European settlement in this country. It would be wrong, in my view, to approach the issue of connection by turning a blind eye to these historical realities.
Similarly, the State cites Jango v Northern Territory (2006) 152 FCR 150, where Sackville J (at [504]) observed:
If the indigenous evidence consistently favoured a particular set of laws and customs, an inference might well be available that the laws and customs described by the witnesses have remained substantially intact since sovereignty, or at least that any changes have been of a kind contemplated by presovereignty norms. The evidence is not, however, consistent. Accordingly, the force of any inference that might otherwise be available is much reduced. Indeed, the fact that in modern times people apparently have adhered to such different versions of law and custom rather suggests that the changes that have occurred since sovereignty are not mere “adaptations”.
Also, in Bennell v Western Australia (2006) 153 FCR 120 (at [457]) Wilcox J noted the following matters:
457 In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the Larrakia case). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and [Gumana] at [195] – [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604:
It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.
However, the findings of continuity of the community, as opposed to the continuity of observance of law and custom, was subsequently found on appeal to have been erroneous: Bodney v Bennell (2008) 167 FCR 84 (at [70]-[78]) where the Full Court (Finn, Sundberg and Mansfield JJ) said:
70 The appellants contended that the questions the primary judge posed (quoted at [49]) are the wrong questions. The Commonwealth submitted that the correct question is whether acknowledgment and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. It is to be answered by ascertaining whether, for each generation of the relevant society since sovereignty, those laws and customs constituted a normative system giving rise to rights and interests in land, and in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land and waters.
71 Since [Yorta Yorta] the approach propounded by the Commonwealth has been adopted in relation to the continuity issue. There at [87] the majority said:
acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.
(Emphasis in original.)
72 In Risk v Northern Territory [2006] FCA 404 at [97](c) (Risk TJ) Mansfield J said that applicants for native title must establish, amongst other things, that:
the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour's summary of the requirements for establishing native title: Risk v Northern Territory (2007) 240 ALR 74 at [78]-[79]. The Full Court regarded the whole of his Honour's summary, including that quoted above, as an accurate statement of the effect of the cases, including [Yorta Yorta]: see at [78]-[98].
73 As appears from [49], the primary judge did not pose the continuity question in the form propounded by [Yorta Yorta]. Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, he asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land.
74 The [Yorta Yorta] formulation concentrates on continued acknowledgment and observance of laws and customs because the rights and interests the subject of a determination of native title (s 225) are the product of the laws and customs of the society. It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society's normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.
75 Consistently with the primary judge’s formulation at [49], his Honour’s conclusion quoted at [67] is cast in terms of continuation of a society.
76 The primary judge’s focus on the continuity of a society rather than continued acknowledgement and observance of laws and customs is seen in his treatment of the change from an essentially patrilineal system of descent to a mixed patrilineal/matrilineal system.
77 His Honour did not engage in the [Yorta Yorta] and Risk TJ 240 ALR 74 enquiry as to whether the laws and customs relating to descent had continued to be observed by each generation from sovereignty to the present. He made no findings about that. Rather he seems to have proceeded on the basis that provided the pre sovereignty society continued to exist, its members would have continued to acknowledge and observe those laws and customs. At [777] he said:
The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the previous-settlement community and the continued acknowledgement and observance of its laws and customs.
78 The primary judge adopted a similar approach to the breakdown of the estate system. At [784]-[785] he said:
counsel [for the State] rightly say the claims made by the witnesses in these cases do not distinguish between “home areas’, inhabited by estate groups, and “runs”, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission.
It seems to me that “home areas” have effectively disappeared. Today’s boodjas are similar in concept to - although probably larger in area than - the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the “bands” or “tribes”, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the “home area” element of the pre settlement normative system was lost.
The State extracts from Jones v Dunkel (1959) 101 CLR 298 per Kitto J (at 305) the observation that one does not pass from the realm of conjecture into the realm of inference until some factors are found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.
In relation to the State submission that key aspects of the Yilka claim include ‘the formation of intermediate groups’, which the State contends is a law or custom that has not always prevailed, the Yilka applicant submits that this premise, which apparently lies at the heart of the State case, ‘rests on persistent refusal to accept the plain statements of the Yilka applicant about the way the case is put’. The Yilka applicant refers to the explanatory paragraph in the document entitled ‘Yilka Applicant’s fourth amended Points of Claim’ (Yilka POC) at [4]):
Any reference in the Form 1 and [Yilka POC] to the persons on whose behalf the Applicant has made the Yilka claim as a ‘group’ or ‘claim group’:
(a)except where the context requires otherwise – is no more than the adoption of a term used in Item (1) in the Table of Applications in s 61 of the [NTA];
(b)is not intended as a statement that they constitute an enduring social entity constituted under laws and customs of the WDCB;
(c)is intended to convey that they are the several persons and several groups of persons who have in common that they are the present possessors under traditional laws and customs of the WDCB of rights and interests in all of [sic] part of the claim area;
(d)it is not intended to convey, in relation to the exercise of rights by those persons, that rights are not exercisable to an extent individually and to an extent communally with other holder of rights; or that in any event rights are not exercised in a broader social context among people who share in the acknowledgement and observance of the same laws and customs.
In addressing the factors identified by French J (set out above in Pt 2.1), the Sullivan applicant submits (footnotes omitted), and I accept:
a.The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue
The ultimate issues between Wongatha and the [Sullivan claimants] are different as the Wongatha Applicant sought aggregated group native title rights and interests on behalf of the Wongatha people. The [Sullivan claimants] seek rights and interests on an unaggregated basis where each claimant asserts native title rights and interests to the whole claim area.
b. The opportunity available and taken to fully litigate the issue
The Wongatha trial was not fully litigated and determined as the Court found that it did not have jurisdiction. Thus the [Sullivan claimants] have not had the opportunity to fully litigate to a resolution the issues of their native title rights and interests over the claim area. Further, and importantly, as the Wongatha proceedings went off on a jurisdictional issue, there was no real opportunity for the Wongatha Applicant, let alone the [Sullivan claimants], to appeal the merits "findings". The [Sullivan claimants] therefore had no opportunity to fully litigate their claim to native title rights and interests otherwise than through the within application.
c. The terms and finality of the finding as to the issue
As the Wongatha matter was decided on a jurisdictional issue there was no finality of issues in terms described in (b) above. It is submitted that his Honour Lindgren J recognised this in specifically referring to the potential for the bringing of new claims on another basis.
d. The identity between the relevant issues in the two proceedings
There are patent differences between the Wongatha claim and the [Sullivan claim], some of which have already been referred to. Differences include:
i.Different parties. Each has a single applicant (s61(2)(c) [NTA]) and they are different.
ii.The areas of claim are different geographically, and in size (as mentioned above, the Wongatha area is much larger).
iii.The claim groups are different - and very different in size (the Wongatha claim group had some 820 members, the [Sullivan claim] has a small family based membership). The fact that members of the Sullivan Edwards family were members of the Wongatha claim group is of no moment.
iv.The nature of the claims is different. The Wongatha claim sought aggregated group rights for the Wongatha people … The [Sullivan claim] seeks rights and interests for their family members over all of their claim area.
v.There are differences in the basis of claim (although [WDCB] law and custom is looked to in both claims).
vi.Rights and interests claimed are expressed differently.
e.Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings
Although there is no plea for fresh evidence, it can be recognized that the current proceedings have given the Sullivan [applicant] the opportunity to fully canvass the evidence relating to their particular claim as a family for native title rights and interests to this area. The Wongatha proceedings were held in the context of evidence directed to showing aggregated group rights for a large body of persons to a much larger area, and so was not similarly focussed.
f.The extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice
There is no risk to the principle of finality of judicial determination, as the Wongatha decision was as to jurisdiction and not on the merits. In relation to public confidence in the administration of justice, [the State] received some implied criticism from Justice Lindgren in the Wongatha judgment at [1263] - [1264] for not bringing an early strike out application for lack of authorization. This had added to the length and expense of the Wongatha proceedings. Thus it does not lie in the mouth of the [State] to criticize the Sullivan [applicant] for the extended process of the earlier proceedings.
g. In fact if the [Sullivan proceedings] are determined, rather than stayed or struck out, as sought by the [State], this will bring finality of litigation, as no further application for native title over the [Sullivan claim area] will be able to be brought (s61A(1) [NTA]).
h.An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
The [Sullivan claim] is within the description of fresh claims as referred to by Lindgren J. We repeat what was said by the Full Court in Dale and quoted above. The application by the Sullivan Edwards family is not only an application for themselves, but for future generations. Although they were members within a claim group of approximately 820 people in the Wongatha claim, they were not the Applicant and hence did not have the carriage of the claim. It is submitted that it would not be just for them to now be barred from having their claim determined based on the actions / inactions of the Wongatha Applicant given that the Wongatha Applicant was found by Lindgren J not to be authorized.
A minor qualification on my acceptance of this passage of the Yilka applicant’s arguments arises from the submission at [501] in the cited portion. While the timing of the expenditure is correct, the State did seek to raise these arguments at an earlier stage of the proceedings.
As previously noted in Pt 2, in Dale FC, the Full Court upheld the first instance dismissal of a claim as an abuse of process in circumstances where the claim:
(a)was brought by the same claim group on the same basis;
(b)had been dismissed wholly and only on the merits on a basis that made it impossible for that claim group to satisfy the definition of native title, including on the basis that the society asserted by the claim group did not exist;
(c)had been dismissed in the context of the making of an approved determination of native title in favour of competing claimants on a claim with which the proceeding in question was directly inconsistent and the three claims had been heard together. (Thus they were bound by the judgment in rem); and
(d)followed the hearing and dismissal of an appeal by the claim group from the dismissal of its previous claim.
All of the factors in the present case are very different from those in Dale FC (a) to (d) above.
The two other authorities relied upon by the State can also be distinguished. In the decision of Quall v Northern Territory (2011) 286 ALR 374, which was after Dale FC, Reeves J (at [88]-[89]) dismissed the Quall application on the ground of an abuse of process stating it was unnecessary for him to consider the alternative issue estoppel ground. The abuse was manifest. In that case, the court proceeding was amongst more than 20 native title determinations pursued by Quall, most of those applications having already been dismissed by earlier judgments. Eleven of Quall’s claims had been heard along with a Larrakia People’s claim and were dismissed by Mansfield J in Risk. These cases are fundamentally different in nature. Fazeldean (No 2), which was also relied upon by the State and which was subsequent to the Full Court decision in Dale FC, involved a native title determination application commenced after an earlier consent determination. In that case, the State framed its application for summary dismissal under s 190F(6) NTA and as an abuse of process. The abuse of process argument was not successful in that context (see Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia [2012] FCA 1163 per Barker J at [98]).
12. RES JUDICATA: CONSIDERATION
In Jackson v Goldsmith, Fullagar J held (at 467) that, in relation to a defence of res judicata, ‘only the actual record is relevant’. Although there has subsequently been some confusion about this point, the better view is that a court should not have regard to the previous court’s reasons when determining whether or not a defence of res judicata has been established’: see Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510 per Northrop and Lee JJ (at 513); Pollnow v Armstrong [2000] NSWCA 245 per Meagher JA (at [9], [13])) Priestley and Sheller JJA agreeing; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 per Pullin JA (at [27]-[28]), with whom Wheeler JA (at [1]) and Miller JA (at [68]) agreed. On this basis, the State’s task of establishing the defence of res judicata appears even more difficult.
The State does contend that the principle of res judicata prevents the applications from proceeding. The identification of the Cosmo proceedings by a different name, Yilka, is not a difference of substance it says. The State argues that the identical applicant, the substantially identical groups (whether they were characterised as a collection of individual claims or otherwise), the identical area, the identical society on whose laws and customs the claims are propounded, the substantially identical rights claimed and the determination of Justice Lindgren of the earlier proceedings lead to the application of res judicata principle.
The Yilka applicant relies upon Northern Territory v Alyawarr (at [63]) per Wilcox, French and Weinberg JJ in support of its contention that the State’s reliance on res judicata is driven by an intention to impermissibly avoid a hearing on the merits, contrary to the statutory purpose of the NTA:
The preamble declares the moral foundation upon which the NT Act rests. It makes explicit the legislative intention to recognise, support and protect native title. That moral foundation and that intention stand despite the inclusion in the NT Act of substantive provisions, which are adverse to native title rights and interests and provide for their extinguishment, permanent and temporary, for the validation of past acts and for the authorisation of future acts affecting native title. The first of the main objects of the NT Act set out in s 3(a) is:
to provide for the recognition and protection of native title;
The overview of the NT Act, in s 4(1) states:
This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.
The State’s submission, again, does not address the fact that the earlier proceedings failed on jurisdictional grounds. Fullagar J (dissenting) said in Jackson v Goldsmith, which was approved in Anshun, that res judicata is a broad rule of public policy at large, but rather is a rule that it is based on two maxims. The first, interest reipublicae ut sit finis litium means that it concerns the state that there be an end to lawsuits or that it is for the general welfare that an end be put to litigation. The second maxim, nemo debet bis vexari pro eadem causa, means that no one should be twice harassed for the same cause.
While the State’s submission contends that the principle of res judicata prevents the Yilka application from proceeding, it makes no attempt to identify the rights or the cause of action that is said to have merged with Justice Lindgren’s dismissal of the Cosmo claim. The State focusses on the fact that various matters are common between the two cases.
The Sullivan applicant stresses, and I accept, that the Wongatha judgment was a dismissal on the grounds of lack of jurisdiction. The current application is an entirely different proceeding and the merits of the Sullivan claim and the question of jurisdiction of this Court in regards to it have not merged into the Wongatha judgment.
The State’s contention that res judicata operates in respect of either the Yilka claim or the Sullivan claim cannot succeed.
13. ISSUE ESTOPPEL: CONSIDERATION
It would be inappropriate to treat the ‘real doubt’ expressed by the Full Court in Dale FC as anything other than persuasive and well-founded. I also note that another matter, although not referred to in Dale FC, that tells against the applicability of the doctrine of issue estoppel in native title cases is the fact that an approved determination of native title may be varied or revoked in certain circumstances by virtue of provisions of the NTA: see s 13(1) and (5) and s 61(1). The grounds in s 13(5) contemplate that post-determination changes (for example, to the native title holders or the native title rights) may occur and that the original determination may have contained errors or omissions.
I would proceed on the basis that issue estoppel does not apply to native title cases. However, if that is wrong, it would be necessary, and I will (out of an abundance of caution), consider the circumstances in which the doctrine might apply and whether or not those circumstances present themselves in these claims.
In Ashwin v Western Australia (No 2) (2010) 191 FCR 549 Siopis J cited (at [14]) the following passage from Spender Bower and Handley, Res Judicata (4th ed, Butterworths Common Law Series, 2009(at p 113) in relation to issue estoppel:
These cases illustrate the principle that a decision in favour of a defendant does not bar proceedings ‘founded on any new or altered state of circumstances’, and the statement by Dixon J that an issue estoppel created by a dismissal is limited to “the actual ground upon which the existence of the right was negatived.”
(Footnotes omitted.)Although the State asserts that issue estoppel deals with an issue or fact, it is important to recall that there must be issues indispensable to a prior decision that found an estoppel. The only issue indispensable to the decision of Justice Lindgren in relation to the Cosmo claim, was the issue of authorisation dealt with at [2893.1]. That decision has not been held to be wrong and remains in force.
At [2893.2-8] of Wongatha, his Honour set out his reasons why the Cosmo claim would fail if his Honour was wrong on authorisation. Those reasons were in the alternative or supplementary and related to evidentiary facts, not ultimate facts. For example, findings that:
1.the Cosmo Claim Area is not an area that is ultimately defined by reference to the Tjukurr (dreaming) sites or tracks; and
2.the present Cosmo claim group has resided at Cosmo only since 1989 and as a group its connection to the Claim Area dates only from that time.
In Quall FC in the Full Court, the applicant was precluded from pursuing a further claim because to do so would have been inconsistent with findings by Mansfield J in relation to an issue about the relevant society at sovereignty and the substantial interruption to the acknowledgement and observance of traditional laws and customs. The Wong-Goo-TT-OO group was precluded in Dale FC from pursuing a further claim because it would have been inconsistent with the findings of Nicholson J in Daniel in relation to issues about whether the Wong-Goo-TT-OO constituted a relevant society for any native title purpose, not just the earlier claim. Those matters were indispensable elements of native title proof.
The State has not identified indispensable findings of Justice Lindgren in relation to issues of society, substantial interruption, the existence of native title or other issues of ultimate fact. The fact that the State has identified various matters that are in common between the two cases does not satisfy the requirement of pinpointing indispensable findings in issue.
I have characterised the finding of Justice Lindgren on a number of occasions, but, while it was final in respect of the claim before his Honour on the basis of lack of authorisation and lack of jurisdiction, even if there was finality about the other matters in which views were expressed, it was finality only as against the claim group in relation to a group area by those particular applicants.
In summary:
(a)no issue is fatal to the Yilka application being heard and determined;
(b)while the dismissal of the Cosmo claim by Justice Lindgren might be relevant in a ‘final’ sense, it must be regarded as limited to the question of whether he had jurisdiction to determine, namely, authorisation; and
(c)the Yilka claim group is not the same as the Cosmo claim group. The Yilka applicant does not argue that the ‘same parties’ requirement is not satisfied merely because the parties in the Cosmo claim are different in some respects from the parties in the Yilka claim. What is necessary is that the relevant parties (or their privies) are common to both sets of proceedings.
In my view, issue estoppel does not arise in the circumstances of the present proceedings. As noted, it is now most doubtful whether the principles apply to native title proceedings, but particularly in the present circumstances. The earlier proceedings failed on jurisdictional grounds, but, in any event, to the extent there were provisional findings made in Wongatha or Cosmo, they are not findings which establish an issue estoppel.
For similar reasons, issue estoppel does not arise in connection with the Sullivan claim. In particular, I accept the submission for the Sullivan applicant that findings in Wongatha relating to the merits of any claims were not essential to the Wongatha decision by reason of the purposed basis leading to dismissal being lack of jurisdiction. That is, there is no ‘matter necessarily decided by the prior judgment, decree or order’ in the language of Dixon J, as his Honour then was, in Blair v Curran (at 532).
14. ANSHUN ESTOPPEL: CONSIDERATION
It is the State's submission that the assertions of the Yilka applicant in the Yilka proceedings are so relevant to the subject matter of the first action (the Cosmo proceedings) that it can only be found that it was unreasonable for the applicant not to have relied on those matters (if indeed the Yilka applicant did not do so).
The State submits that the issues sought to be raised by the applicant in the Yilka claim (if they weren't already raised in the Cosmo application), were plainly open to be agitated in the earlier Cosmo proceedings.
There is no application for the principle of Anshun estoppel in the present proceedings. It requires identification of matters that were not raised, but which reasonably should have been raised in prior proceedings. It presupposes that the same persons are parties to at least two proceedings and calls for examination of the unreasonable conduct of one or more of those parties in the earlier proceedings. There can be no unreasonableness in circumstances where the earlier proceedings were dismissed because of a lack of jurisdiction arising from a failure to prove authorisation.
Furthermore, after the Cosmo claim, the Cosmo applicant had an unadjudicated cause of action (its claim to the existence of native title was dismissed, but not determined). The Yilka applicant brings a fresh (and different) proceeding where the circumstances in which the case have been conducted, the issues and facts relied on are different.
The State has not pointed to unreasonableness in the context of the authorities which deal with Anshun estoppel. There is nothing so obvious that it should have been put forward in the Cosmo claim and is now put forward in the Yilka claim.
To succeed on Anshun estoppel the emphasis is on unreasonable conduct. Such conduct is not readily established.
The burden is on the State to establish unreasonableness so far as it relies on it. The State does not identify any relevant unreasonableness or explain why the Cosmo applicant ‘should have’ put forward the Cosmo claim with all that is part of the Yilka claim, beyond that it (technically) ‘could have’. A finding of unreasonableness is not to be made lightly. In R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232, Bryson AJ said (at [23]):
In my opinion a finding that it was unreasonable not to bring a claim in some earlier litigation is not a finding to be made lightly. In this context unreasonableness is a severe test, to be distinguished from a test of inconvenience, even severe inconvenience. Consideration starts at the point that there is free access to courts and that it is not compulsory to bring forward all claims on related subjects at the same time. This is well illustrated by the outcome in Cromwell v County of Sac (1876) 94 US 351 cited in Anshun at 599.
(emphasis added)
Helpfully, the observation of Warren CJ in Solak v Registrar of Titles (2011) 33 VR 40 (at [74]) was that the risk of inconsistent or conflicting judgments is the most important factor going to the existence of Anshun estoppel. There is no risk of a conflicting judgment in the present circumstance where the earlier native title case has not been the subject of a native title determination. There has been no determination of rights in relation to the area of land and waters in question, positive or negative.
It is misleading to refer to the Sullivan claim group as the ‘successor’ to the Wongatha claim. The two claims are entirely different in terms of, amongst other things, area and composition. The Wongatha claim was over some 159,048.165 square kilometres and comprised a large claim group of 820 members (Wongatha (at [2] and [127])). The Sullivan claim, much like the Yilka claim, is a family-based claim over a much smaller area comprising part only of the Wongatha claim area.
It was not unreasonable, given the uncertain landscape of native title at the time, for the Sullivan applicant to have proceeded by seeking native title within the Wongatha claim, which was prosecuted as a combined claim on their behalf and on behalf of numerous other claimants, albeit unauthorised, by the regional native title representative body
Furthermore, s 61 NTA is a beneficial provision for the protection of members of the claim group. Hence, even though the Sullivan claimants were members of the Wongatha claim, it would be inappropriate to sheet home to them in any punitive manner the conduct of the Wongatha applicant in the Wongatha proceedings, given that the Court found the Wongatha applicant was not authorised to make the application (including by the claimants themselves).
There is no Anshun estoppel that operates in respect of these claims.
15. CONCLUSION ON THE ABUSE ARGUMENTS GENERALLY
In summary and conclusion, neither the specific doctrines, nor the general notion of abuse of process can operate in relation to persons who are not parties to previous litigation. Such parties cannot be precluded from seeking to have their native title rights and interests recognised in accordance with the provisions of the NTA. Thus, any of the doctrines on which the State relies cannot have operation in respect of any of the following persons who were neither part of the Wongatha nor the Cosmo native title claim groups:
(a) Mr Watson and his descendants;
(b) the late Jayden Smith and his descendants;
(c) Victor Fraser and his descendants;
(d) the late Paul Simms and his descendants; and
(e) non-traditional owners, that is, regional senior wati.
Neither can the doctrines have any application to the Yilka claim in relation to the following persons who were not part of the Cosmo native title claim group, even though they were part of the Wongatha native title claim group:
(a) Mr Harris and his descendants;
(b) Charlie Winter and descendants;
(c) the deceased sister of Dulkie Rundle and descendants;
(d) Dulkie Rundle and descendants; and
(e) Barron Bonney and descendants.
These observations are additional to the primary conclusion that none of the defences or strike out grounds raised by the State are available. In particular, in relation to abuse of process, regard should be had to the heavy onus of proof resting with a party alleging abuse of process. In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA (with whom Giles and Campbell JJA agreed) said (at [78]-[79]):
78The term “abuse of the process of the Court” (of which Anshun estoppel, the third principle referred to in Dow Jones, forms part) is used in many senses. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ. While accepting this proposition, in PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that many cases of abuse of process exhibited at least one of three characteristics:
(a)the invoking of a court’s processes for an illegitimate or collateral purpose;
(b)the use of the court’s procedures would be unjustifiably oppressive to a party; or
(c)the use of the court’s procedures would bring the administration of justice into disrepute.
79The power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution (Moore v Inglis (1976) 50 ALJR 589 (at 593) (upheld on appeal (1976) 51 ALJR 207) per Mason J (as his Honour then was)) and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 392) per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal’s formulation of the test in Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, it is “a heavy one”: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ.
In relation to both the Yilka applicant and the Sullivan applicant, the defences raised by the State in this chapter cannot succeed. In my view, in the present case, no departure from the ratio in Wongatha is required in permitting the Yilka claim and the Sullivan claim to proceed and be determined on its substantive merits. There is no risk of conflicting judgments and there being no suggestion of usage of the judicial process for an improper purpose, there would be manifest unfairness in the merits of the claim not being determined.
CHAPTER 5 – FINAL CONCLUSION
In my opinion both the Yilka applicant and the Sullivan applicant have made out their respective claims. It follows that they would be entitled to hold native title together. Subject to confirming there is certain extinguishment as set out in the reasons, I propose to determine that native title exists in relation to the determination area claimed by each applicant.
Rather than say more at this stage about the form of any determination or determinations, I will allow the parties a reasonable opportunity to consider those matters in light of the findings I have made.
The Court orders that:
1.With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2.By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3.There be liberty to apply to vary these orders.
4.Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
I certify that the preceding two thousand four hundred and eighty (2480) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 29 June 2016
ANNEXURE 1 – YILKA POC
ANNEXURE 2 – YILKA DETERMINATION SOUGHT
ANNEXURE 3 – PROPOSITIONS AND EXPERT OPINION SUMMARY
ANNEXURE 4 – YILKA SITE MAP (EXH A1A)
ANNEXURE 5 – SULLIVAN DETERMINATION SOUGHT
ANNEXURE 6 – SULLIVAN EXTERNAL BOUNDARY DESCRIPTION
ANNEXURE 7 – SULLIVAN CLAIM AREA MAP
ANNEXURE 8 – SULLIVAN EDWARDS SITES EVIDENCE SUMMARY
ANNEXURE 9 – YILKA TENURE MAP
ANNEXURE 10 – SCHEDULES TO THE STATE EXTINGUISHMENT SUBMISSIONS
ANNEXURE 11 – STATE ROADS MAP
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