Paige & Ors on behalf of the Barngarla People v State of South Australia

[2018] HCATrans 216

[2018] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A16 of 2018

B e t w e e n -

ERIC PAIGE AND LORRAINE BRISCOE AND HARRY DARE AND JEANNE MILLER AND LINDA DARE ON BEHALF OF THE BARNGARLA PEOPLE

Applicant

and

STATE OF SOUTH AUSTRALIA

First Respondent

ANDREW STARKEY AND JOYLENE THOMAS ON BEHALF OF THE KOKATHA PEOPLE

Second Respondent

MICHAEL ANDERSON AND ANTHONY CLARK AND MARK McKENZIE SNR AND DEIDRE McKENZIE AND BEVERLY PATTERSON AND ANGELINA STUART ON BEHALF OF THE ADNYAMATHANHA PEOPLE

Third Respondent

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD

Fourth Respondent

KELARAY PTY LTD

Fifth Respondent

OZ EXPLORATION PTY LTD

Sixth Respondent

OZ MINERALS CARRAPATEENA PTY LTD

Seventh Respondent

OZM CARRAPATEENA PTY LTD

Eighth Respondent

DOUGLAS MAXWELL GREENFIELD

Ninth Respondent

Office of the Registry
  Adelaide  No A17 of 2018

B e t w e e n -

MICHAEL ANDERSON, ANTHONY CLARK, MARK McKENZIE SNR, DEIDRE McKENZIE, BEVERLY PATTERSON AND ANGELINA STUART ON BEHALF OF THE ADNYAMATHANHA PEOPLE

Applicant

and

STATE OF SOUTH AUSTRALIA

First Respondent

ANDREW STARKEY AND JOYLENE THOMAS ON BEHALF OF THE KOKATHA PEOPLE

Second Respondent

ERIC PAIGE, LORRAINE BRISCOE, HARRY DARE, JEANNE MILLER AND LINDA DARE ON BEHALF OF THE BARNGARLA PEOPLE

Third Respondent

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD

Fourth Respondent

KELARAY PTY LTD

Fifth Respondent

OZ EXPLORATION PTY LTD

Sixth Respondent

OZ MINERALS CARRAPATEENA PTY LTD

Seventh Respondent

OZM CARRAPATEENA PTY LTD

Eighth Respondent

DOUGLAS MAXWELL GREENFIELD

Ninth Respondent

Office of the Registry
  Adelaide  No A18 of 2018

B e t w e e n -

ANDREW STARKEY ON BEHALF OF THE KOKATHA PEOPLE

First Applicant

JOYLENE THOMAS ON BEHALF OF THE KOKATHA PEOPLE

Second Applicant

and

STATE OF SOUTH AUSTRALIA

First Respondent

MICHAEL ANDERSON, ANTHONY CLARK, MARK McKENZIE SNR, DEIDRE McKENZIE, BEVERLY PATTERSON AND ANGELINA STUART ON BEHALF OF THE ADNYAMATHANHA PEOPLE

Second Respondent

ERIC PAIGE, LORRAINE BRISCOE, HARRY DARE, JEANNE MILLER AND LINDA DARE ON BEHALF OF THE BARNGARLA PEOPLE

Third Respondent

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD

Fourth Respondent

KELARAY PTY LTD

Fifth Respondent

OZ EXPLORATION PTY LTD

Sixth Respondent

OZ MINERALS CARRAPATEENA PTY LTD

Seventh Respondent

OZM CARRAPATEENA PTY LRD

Eighth Respondent

DOUGLAS MAXWELL GREENFIELD

Ninth Respondent

Applications for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 19 OCTOBER 2018, AT 9.52 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   Your Honours, I appear with my learned friend, MR D.P. O’GORMAN, SC, for the applicants in the Barngarla application and for the third respondents with MR D. BILLINGTON in that application.  (instructed by Norman Waterhouse Lawyers and Johnston Withers Lawyers)

MR P.D. TONKIN:   May it please the Court, I appear with MR T.N. GOLDING for the first respondent in each matter.  (instructed by Crown Solicitor’s Office (SA))

MR B.W. WALKER, SC:   Your Honours, in the Adnyamathanha application, I appear with my learned friend, MR D. BILLINGTON, for the applicants.  I appear with my learned friend, MR D.P. O’GORMAN, SC, for the third respondents.  (instructed by Johnston Withers Lawyers and Norman Waterhouse Lawyers)

MR B.W. WALKER, SC:   Your Honours, in the Kokatha application, I appear with my learned friend, MR D.P. O’GORMAN, SC, for the second and third respondents.  (instructed by Norman Waterhouse Lawyers)

MR V.B. HUGHSTON SC:  May it please the Court, I appear with my learned friend, MS T.L. JOWETT, for the applicant in A18/2017, the Kokatha People’s matter.  I appear with my learned friend, MS T.L. JOWETT, for the second respondent, the Kokatha People, in each of the Barngarla and Adnyamathanha applications.  (instructed by South Australian Native Title Services Ltd)

GAGELER J:   The Court has been made aware of an extremely elaborate proposed order of addresses.  If we start with Mr Walker then move to Mr Hughston and then to Mr Tonkin can we reassess at the end of that?

MR WALKER:   Yes, entirely, your Honour. 

MR HUGHSTON:   Yes.

MR WALKER:   It did seem to be a rather elaborate saraband.  I am not quite sure it needs to be broken up as much as it was.  Can I try to attempt now some portmanteau submissions in that spirit?

GAGELER J:   Mr Walker, can I just raise one general concern.  All of the native title claimants are at the end of the day seeking a retrial.

MR WALKER:   Yes.

GAGELER J:   What is to stop the native title claimants simply commencing new proceedings?

GORDON J:   It involves the interaction, I think, between sections 13, 67 and 67(1)(a) and 68.

MR WALKER:   Yes, it does and probably consideration of maybe the attitudes of others, maybe the attitude of the Court with respect to being vexed twice under whatever rubric that might be raised.  Those statutory provisions do not supply an obvious answer to Justice Gageler’s question.  There is an evident purpose of ensuring that in certain circumstances, it is a once off. 

GORDON J:   Subject to section 13(1) and what section 13(1) says is that:

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

. . . 

(b)to revoke or vary an approved determination –

So where you, as here, have these three determinations which sit –if you put aside their status for the moment - as determining certain rights but you then have this fourth application, one would have expected as a matter of procedure it would have been open to each of them to reply to vary in effect the other determinations in order to make good the propositions they seek to make and there would be nothing stopping them doing that now, would there?

MR WALKER:   In relation to what I will call the pre‑existing or prior determinations, it is section 13(5) that is jurisdictional ‑ ‑ ‑

GORDON J:   Yes.

MR WALKER:   ‑ ‑ ‑ bearing in mind that otherwise determinations are as the name would suggest, of a very important statutory significance.

GORDON J:   Of course.

MR WALKER:   But with a special significance, sometimes loosely but evocatively called in rem.

GORDON J:   Yes.

MR WALKER:   It is governmental and at a very high level.  In that context when one looks at the two possibilities involved in subsection (5) it is not, as it were, a really what I will call liberal possibility of trying again.  In fact, it is really not simply trying again.  Events taking place since the determination is unlikely, we think, to ‑ ‑ ‑

GORDON J:   Subject to 68 - 68 talks about the fact you can only have one determination of native title, subject to this application or this idea that you could possibly apply “to revoke or vary”.

MR WALKER:   Yes.  Section 61, in the table set out in subsection (1), restricts the subsection 13(5) standing in such a way as not to give what I will call strangers, neighbours in reality, standing to revoke the prior existing determination.

GORDON J:   I know, but here you have these three - I mean this was sort of like scorched earth.  You have these three native title holders having determinations by consent or otherwise in respect of three areas seeking to maintain a claim over a fourth area in circumstances where, late in the trial, at least two of the groups suddenly make an application for shared country.

MR WALKER:   Well, I do not know that is suddenly but the facts ‑ ‑ ‑

GORDON J:   Well, towards the very end.

MR WALKER:   ‑ ‑ ‑ evolve so as to make that an appropriate way of dealing with the applications.

GORDON J:   At the end, after a lot of the evidence had already been adduced on a different factual basis.

MR WALKER:   Yes.

GORDON J:   In circumstances where it is at least open on the statute for there to have been a sort of application which would have made good factually the way in which they put their case, but they did not. 

MR WALKER:   No, but there could not have been then anything in the nature – there could not have been a 13(5) application.

GORDON J:   There could have been.  They could each have applied to vary their own determination in order to make good.

MR WALKER:   Barngarla was seeking a determination – the first time.

GORDON J:   In relation to that area but not in relation to the other two areas. 

MR WALKER:   No, that is right.  I do not know that one revokes a determination with respect to certain land by saying there is other land we are interested in as well.

GORDON J:   No, it is a question about seeking to deal with the three applications that are on foot.  One is an application.  You have consent determinations you have to deal with. 

MR WALKER:   Yes.  On 13(5), all I am saying, trying to answer Justice Gageler’s question, is no, I do not think 13(5) is the way in which the matter could have been raised and certainly does not relate to what I will call the shared country point.  The shared country point went off at first instance on an understanding of the limitations imposed by section 251B.

For the reasons that Justice Jagot has advanced, to which your Honours have seen our reference, that, in our submission, was a very difficult interpretation because it gives no weight whatever to the nature of proceedings, that is, they evolve and people adjust - the express words of section 251B, which involves the authority “to deal with matters in relation to” the application.  That means, of course, making such decisions, concessions or difference of argument as seems appropriate as evidence unfolds, which is what all courts expect of all litigants.

GAGELER J:   On any characterisation, the shared country problem was a procedural problem, was it not?

MR WALKER:   Not only.  There is a substantive question involved, that part of his Honour’s reasoning which said that you could only have shared country if you had a reconstitution of claimant groups so as to have only one group seeking native title rights and interests in the shared area.  For the reasons Justice Jagot points out, particularly with areas so sparsely populated and actually held, parts of it, relevantly to be uninhabitable, that is highly unlikely to be correct as a matter of law.

GORDON J:   Was there not an evidentiary problem as well?

MR WALKER:   Not for us in that regard, no.  I am trying to deal with Justice Gageler’s first question.

GAGELER J:   As I understand it, all that has happened is that the three claims have been dismissed.

MR WALKER:   That is right, your Honour.

GAGELER J:   So there is no negative determination.

MR WALKER:   No, there is no negative determination.

EDELMAN J:   Your concern, I take it, would be that even if you were able to commence afresh, you would still be stuck with at least a decision of a majority of the Full Court that can be understood as having said that you are precluded from not merely undermining the determination itself but the factual substratum of the determination.

MR WALKER:    That is right.  Now, I cannot say in this area, which is sui generis in important ways, I cannot say that is a simple application of res judicata or whatever, but it might be.  It certainly appears to be the kind of thing which the self‑protective powers of a court might be aroused by where somebody simply wants to put an argument that has already failed after fully contested litigation.

GORDON J:   Let us be blunt.  Is that still the position if there was an application made for shared country by the three groups or two of the groups?

MR WALKER:   I think it is only in our dreams that it would be three, but one might say it is a different – what one might say judged from its initiating or initial character that would be a different application, but of course ‑ ‑ ‑

GORDON J:   Because the evidence adduced would be different.  It may have some common elements.

MR WALKER:   Your Honours, I do not want to appear perverse in my reaction to your Honours’ questions.  If we could get a trial, that it was not a retrial would not matter to us obviously and we do just seek a retrial.  I am obviously concerned not to commit my clients to a course which would have them rapidly beached by arguments that say you are not able to put a case which is materially similar to one which has already been fully considered and dismissed. 

EDELMAN J:   They would have a further problem.  Even if they were not beached by those arguments, would they not have a further problem that they would then have to meet, assuming they could raise the argument, they would then have to meet the effect of the majority of the Full Court?

MR WALKER:   Certainly as a matter of authority and maybe more than that.

EDELMAN J:   In other words you would end up straight back here on the retrial or on the new trial.

MR WALKER:   Yes, your Honour.  We could not say this is a new application, do not worry about how similar or, to so some degree, identical arguments had been dealt with in the Full Court earlier.             As I say, certainly as a matter of authority - and stare decisis would dictate the outcome at first instance and probably on a first appeal.  But property goes beyond stare decisis.  It is probably some peculiar native title version of res judicata.

Now, I have to be careful in putting that because there are the provisions to which Justice Gordon has pointed which might be regarded, as it were, as a code concerning the finality of determinations and it goes both ways as your Honours have noted.  There is evident importance added – given to the idea that there are no inconsistencies (a) existing or (b) attempted in relation to determinations.  That seems to be a fundamental principle. 

But it is subject to the exception which goes through the gateway of varying or revocation with its limited standing and with its threshold requirements which include, of course, the very general one of interests of justice.  The interests of justice always include, of course, consideration of the merits of finality. 

GORDON J:   What do we make – I mean, I know I have asked this before, but I just want to make sure I am clear.  At the foot of paragraph 204 on page 329 - and as you know this analysis of the Full Court starts at 201 and goes through to 204. 

MR WALKER:    Yes.

GORDON J:   It would appear that the Court of Appeal of the Full Court, were concerned about the way in which the trial had been run as, in effect, precluding this sort of argument, which is the point I was trying to raise earlier.  In a sense, if one goes back and reads Justice Mansfield’s judgment, it is apparent that it was scorched earth.  I mean there were three – the evidence which was led was, this is me and me alone and no one else, and I am not going to entertain any concept or idea of the fact that somebody else had some other relationship or connection to this land. 

MR WALKER:   And there was a tempering of that position by some.

GORDON J:   At the end.

MR WALKER:   Before the end.

GORDON J:   Just before the end.

MR WALKER:   Better late than never if one is seeking to have arguments accord with the evidence.  There is no such thing as litigation where one can know in advance before the evidence is given what the most likely finding of fact will be on the basis of all the evidence.

GORDON J:   The problem is and the reason why it is important is because the evidence which is adduced to that point is evidence which is both examined and cross‑examined on a particular basis rather than the basis which is ultimately put.

MR WALKER:   I entirely accept that those are case‑specific considerations which will be deployed, perhaps in a different way, both at first instance and on an appeal at which they become material.  We do not seek to raise anything of that kind.  We say that there are anterior problems of principle in relation to an approach to the evidence.  To remind your Honours, in particular we say that everything has been mistakenly seen through a prism which appears to require evidence of physical use, physical occupation, in order for there to be, by the relevant law and custom, connection.

GAGELER J:   That would be an elementary error, would it not?

MR WALKER:   Yes.  Yet Justice Jagot, with respect, correctly points out that – as her Honour says - there is really no ambiguity about it; that was the approach that was taken ‑ page 369.

EDELMAN J:   The majority, though, construed the primary judge’s ‑ ‑ ‑ 

MR WALKER:   No, I understand that.  Your Honours, we lost in the Full Court and we urged the merit and cogency on a number of these issues of the dissent the judge we did persuade in the Full Court.  In our submission, it is very cogent, the material which is assembled and in summary form, of course, given what her Honour has already dealt with in her Honour’s paragraph 329. 

It is an attempt to respond to Justice Gageler’s comment.  Justice Gageler’s comment raises the question:  surely not, surely the Full Court did not commit such an elementary error.  Occasionally elementary errors are committed.  This is an error about what the trial judge had done.  In our submission there is easily sufficient prospect that Justice Jagot is correct in 329 about the clarity with which one can perceive that error at first instance to make it appropriate, both in a visitorial sense and as a matter of principle ‑ ‑ ‑ 

GORDON J:   There is no debate about the principle.  Everyone agrees you do not have to have this physical connection.  The question is what did the primary judge do.  The principle is not in doubt.  It is the application of the principle to the facts and the way in which the primary judge’s reasons are interpreted.

MR WALKER:   I accept that.

GAGELER J:   We do not play in slips for intermediate courts of appeal on questions like that.

MR WALKER:   No, no and I am not asking you to and if that is where this remains for your Honours, of course that is not an appropriate special leave point unless something of such moment as to excite the visitorial approach is raised.  Now, we submit, that where something this important is coupled with the other error in this regard that we identify, namely, putting the cart before the horse, deciding that whatever there had been had gone by the relevant time, if you put them together then this is both at a level of principle and for the peoples we represent, a matter that does excite the visitorial jurisdiction because if this does not go further we will be stuck, in the sense that Justice Edelman has raised with me, we will be stuck with findings concerning what the material in question reveals and, we submit, that you must first find, and this is the point that was not determined in one of the cases, you must first find what the traditional laws and customs are according to the evidence because as ‑ ‑ ‑

GORDON J:   Is that the Kokatha ‑ ‑ ‑

MR WALKER:   No, not the Kokatha case, the Adnyamathanha case.

GORDON J:   I see.

MR WALKER:   ‑ ‑ ‑ because as paragraph 64 in Ward - I do not need to take your Honours to it - is a very important reminder that you do things in a proper order.  The connection is according to traditional law and custom.  That is one of the reasons why, for example, you cannot a priori restrict inquiry simply to physical use and occupation.  That is one of the reasons.  You first must find those, then ask the question about connection and then ask the question about what I will call maintenance or continuity. 

Unless you do it in that order, you are almost certain to err and in particular you will have closed your mind to possibilities about the way in which particular law and custom would throw up connection and unless you understand the way in which connection is thrown up, you will not understand how it may be understood to have been maintained or continued, particularly what I might call intermittent presence in country of this kind is something which is obviously of great factual significance in evaluating evidence of continuity or maintenance.

GAGELER J:   Mr Walker, is there in this respect any difference of legal principle between the majority and the minority in the Full Court?  Is it just about inference of error on the part of the trial judge?

MR WALKER:   No, in our submission - I think your Honour, I am sorry, may be misunderstanding.  Your Honour is asking me about this notion of first ascertain the law then ‑ ‑ ‑

GAGELER J:   No, I am going to the physical connection point.

MR WALKER:   The physical connection point.  There is no difference of principle.  The difference between them is that the majority acquitted the first instance judge of the charge we laid and her Honour said no, it is clear that he did make that error.

GAGELER J:   So, let us go to the other point, the effect of the existing Kokatha determination.  Is there any difference of legal principle between the majority and the minority in that respect?

MR WALKER:   What the first instance judge did was to preclude evidence on the basis that it threatened inconsistency with what I am going to call a deemed completeness, both temporally and spatially and in behavioural terms, of the Kokatha native title rights and interest with what I might call a ‑ therefore a kind of deemed exclusivity for all of the relevant time. 

EDELMAN J:   It is undermining the substratum rather than the determination itself. 

MR WALKER:   Well, there is an assumption about whether there is a substratum when there is, in particular, a consent determination.  That is one of the reasons why we say it is – that is an important point fit for a special leave, one of the reasons.

GORDON J:   Do you draw a distinction between consent determination and a determination by the court.  By the court, I mean by after trial and hearing. 

MR WALKER:   Trying to answer that question is a reason for special leave.  We are not sure it is critical in this case.  It invites anxious consideration of whether there is a distinction with a functional difference.  Yes, it does. 

GORDON J:   But the Act does not deal with it differently. 

MR WALKER:   No, and that is one of the reasons why I have said what I have said earlier about the nature of these determinations.  They are special acts in law.  They are not simply to be analogised with judgments and obviously a consent judgment and a judgment after a contest has diversion consequences in terms of issue estoppel and res judicata. 

It is not straightforward to apply that by analogy.  However, if only under the cloak of abuse, one would have thought that evidence which sought directly to challenge a basis which one can see, either by recorded agreement in a consent determination all after a consent that produced a determination, then that would be dealt with very differently from the kind of evidence that we rely upon. 

We were not trying to do anything to detract from the legal effect of the Kokatha determination.  We were trying to say that the determination could not, of its terms, preclude proof of ‑ I will just call it in neutral terms, resort to connection with land of a kind which supports an inference that proximate land that was in question in our application was the subject of requisite connection.

GORDON J:   The other way which, in effect, is the flip side of your argument, which I do not think helps you, is this.  The way in which the Act is set up is that there is to be one determination per area, put in rough terms.

MR WALKER:   That is right.

GORDON J:   And that because of the mechanisms in place in order to bring that - an application before it is determined either by consent or otherwise - to the public’s attention that the other claims groups, in effect, gave up their rights when they failed to take steps to either intervene in the earlier determination.

MR WALKER:   Yes, emphatically so, and that is why subsection 13(5) is there as a safety valve.

GORDON J:   Correct.  We are back to where we started.  I mean that is the ‑ ‑ ‑

MR WALKER:    As your Honour says, it does not necessarily help me, but ‑ ‑ ‑

GORDON J:   It does not help you.

MR WALKER:   ‑ ‑ ‑ my point is this, that, yes, the statutory scheme is very clear.  We are not to have overlapping in the sense of inimical determinations.  You can have overlap but that is because sections 223, 225 will require those things all to be spelled out.

GORDON J:   And 67 and 68.

MR WALKER:   Quite, but they will be recorded. 

EDELMAN J:   Except you say that the majority go further than that.

MR WALKER:    Yes..

EDELMAN J:   They do not just preclude you from having overlapping determinations, they preclude you from ‑ ‑ ‑

MR WALKER:   Giving evidence for our non‑overlapping applications.

EDELMAN J:   Which might, on one view, be inconsistent with a substratum - contested substratum for the consent determination. 

MR WALKER:   The short answer is yes. 

EDELMAN J:   I can see that that may come from 204 of the joint judgment.  Is that what Justice Jagot is saying at the final sentence of 291 or is she saying something different there?

MR WALKER:   Her Honour deals with it in a relatively extended way.  No, I do not think it is the last sentence of 291 that does it.  It is in her Honour’s 333 that this point comes to a landing.  That is page 371.  But yes, the last sentence of 291 does raise the question of what are:

the facts necessary to support each determination –

Of course there was a lively contest, and we would seek to continue that contest, which is a matter of principle, as to whether the facts of a consent determination do convey that others did not have connection, let alone the uninterrupted period of such unaltered conduct.  In other words, it is again, with respect, an elementary error to suppose that there was an undifferentiated, constant course of conduct of exactly the same character over a period which happens to include the critical date of settlement.

EDELMAN J:   But do you accept that you cannot undermine, not merely the determination itself but also whatever facts are necessary to support that determination?

MR WALKER:   Anything necessarily entailed in it we cannot - it is no business of the Court, in our application, to differ from.  The use we want of evidence will not produce the evident evil prevented by the Act of inconsistent determinations over the same area.

GORDON J:   Yes, but the problem is that 225 of the Native Title Act contains provisions which expressly recognise and require both the Court to recognise that where you have two groups who use the same land for different purposes ‑ ‑ ‑ 

MR WALKER:   Ought to be recorded.

GORDON J:   Ought to be recorded.

MR WALKER:   Yes, I accept that, your Honour.

GORDON J:   Your clients did not put their hand up at the time of these consent determinations and say, “Hang on a minute, I actually have some rights here which I use and I exercise ‑ occupation in a very unusual way because we cannot physically occupy some of the land but we use it.”  They did not do that.  You are trying to ‑ ‑ ‑ 

MR WALKER:   Your Honour, but neither are we now trying to impinge upon the terms of the Kokatha determination.

GORDON J:   It is not that.  It is about whether or not they, at the time that they should have put their hand up, they did - and they did not.  There is a mechanism provided for in the Act for them to do it.

MR WALKER:   All of that is true, with respect, your Honour, but we are not trying to do something that we could have done had we put our hands up during the Kokatha proceedings.  We are not trying to affect the Kokatha determination.  We are trying to adduce evidence which will support inferences for our determination for other country – not country covered by the Kokatha determination.

GORDON J:   The proposition is that not intervening in that determination, at least on one view, would suggest that your clients – that is, those applicants – themselves did not recognise or seek to have recognised at that point whatever evidence they seek to adduce now.  That is the problem.

MR WALKER:   What her Honour in 333 tries to point out it is perfectly consistent - and this is hypothetical or theoretical because we were precluded from these arguments - for somebody to say “I want to say something about ancestral connection with land covered by the Kokatha determination.  I did not do it for the Kokatha determination and I do not seek and I cannot canvass the Kokatha determination”. 

The Kokatha determination does not record and could not and should not record what might be called a year by year, decade by decade, century by century description of what had been done with the country by various people.  It does not provide, as we say the majority taking up the first instance approach incorrectly, in effect, holds, namely, that it provides a

basis upon which as a matter of fact what we have called in our application the “rewriting of history” approach.  As a matter of fact there was no other conduct by anybody else. 

There is nothing inconsistent with saying we do not want and we did not want and we do not want to do anything to the Kokatha determination on the basis of that but we do wish to adduce it to show by the inferences that her Honour refers to in paragraph 333 that in neighbouring country it stands to reason and it adds to the probative value of other evidence that we had the kind of connection we need for our applications for that other land, given what we want to prove about our resort to the Kokatha land at various times and in various ways which does not have to be only physical use and occupation. 

So there was not the contradiction of the Kokatha determination that seems to have been the driving force in the first instance refusal to allow us to adduce this evidence.  Your Honours, I note the light.

GAGELER J:   If there is something you wish to add, please do.

MR WALKER:   I am sure your Honour does not mean that as a completely open blank cheque.

GAGELER J:   It is not an open‑ended invitation.  If there is some point that is unaddressed, please take the moment to do it.

MR WALKER:   May I just take a moment.  I think I may already have mentioned but may I just make sure it is clear there is more than just a visitorial question.  There is a question of principle involved.  In the holding that in order to have shared land, shared country, there must be the going back to the very beginning not only for authorisation but for the remaking of a group it being, in our submission, for the reasons explained by Justice Jagot a considerable error with huge ramifications in much of the kind of country left undetermined in this country, huge ramifications where plainly distinct groups nonetheless resort sometimes in different ways, sometimes in similar ways to the same land. 

As Justice Gordon pointed out in another context 223, 225, recognises those possibilities and it is for those reasons, in our submission, that is something which even if we are able to mount fresh proceedings stands in the way in a fashion that ought to be dealt with by this Court rather than, as it were, raised after a case rendered abortive by that holding has worked its way through the lower courts.  May it please the Court.

GAGELER J:   Thank you.  Mr Hughston.

MR HUGHSTON:   May it please the Court. Your Honour Justice Gageler, I am not sure from your Honour’s opening remarks whether your Honour wishes me to commence addressing on the Kokatha People special leave application or to respond to the applications that have been made by my friend Mr Walker’s clients.

GAGELER J:   It would be useful if you could do both. 

MR HUGHSTON:   If your Honour pleases.  Could I commence then just by saying very briefly ‑ ‑ ‑

GAGELER J:   In the reverse order.

MR HUGHSTON:   In reverse order, all right - dealing then with the Barngarla and the Adnyamathanha applications.  Your Honours asked why these groups could not simply make another claim over the same area.  There is Full Federal Court authority in Dale v Western Australia (2011) 191 FCR 521 which would indicate that to do that would be an abuse of process. That was a case where a claim group referred - describing themselves as the “Wong‑goo‑tt‑oo” people - had made an application for a determination of native title which was dismissed; there was no negative determination, in fact a different group succeeded. There were overlapping claims again but the Wong‑goo‑tt‑oo were dismissed.

Subsequently, the Wong‑goo–tt‑oo brought another application to another area of land, not the same area but that application was dismissed and the dismissal was upheld by the Full Court on the basis that it was an abuse of process because it had already been determined that the Wong‑goo‑tt‑oo did not possess native title, not just in the area that they had claimed.  The findings that had been made by the judge at first instance were to the effect that they did not acknowledge and observe traditional laws and customs.  They could not be characterised as a traditional society. 

So, the risk here for any of these three groups, if they were to make an application again, is that there would be an allegation of abuse of process and that could be either on the basis that the same parties are being bothered twice on the same issue - the State, pastoralists and others, miners, who have interest, are being vexed again on the same issue.

The Court is being vexed again on the same issue and also there is the risk that if a subsequent application was heard and determined positively, you would have two very different judgments made by the Federal Court dealing with exactly the same land and exactly the same claimant group, one court saying that the application should be dismissed, they had not proved they had native title and the second one saying they had proved their native title and native title has been established. 

Subsection 13(5) deals with applications to vary or revoke existing determinations.  Here there are no existing determinations so it would not apply but that is the risk that these groups would face if they were to bring another application.

GAGELER J:   So, not res judicata or issue estoppel.

MR HUGHSTON:   It is not res judicata, no.  The Full Court said that res judicata and issue estoppel were both inappropriate for native title determinations but abuse of process, as your Honours are aware, the categories of abuse of process are not closed and for the same party to bring an application for a determination which included proof of a fundamental fact that they had failed to prove in previous litigation was considered to be an abuse of process.

EDELMAN J:   Well, this Court said in no narrow terms this week that abuse of process should not be restricted.

MR HUGHSTON:   Yes, that is right, that is right.  Yes, your Honour.  My clients oppose the application for special leave in relation to grounds 1 to 3 of the Adnyamathanha and the Barngarla applications.  We say, firstly, that there is no sufficient doubt about the decision of the majority; and, secondly, there is no issue of public importance.

GAGELER J:   Do you say that there is a difference of legal principle between a majority and a minority?

MR HUGHSTON:   No, there is not.  Not in relation to the consent determinations, no, your Honour.  We set out at paragraph 12 of our special leave application what we say are the fact that all of their Honours determined, firstly, that from sovereignty to the date of determination the Kokatha people possessed native title rights and interests in the determination area under traditional laws and customs.  That was the effect of the determination.  Secondly, although at sovereignty other Aboriginal people may also possess native title rights and interests in that area, only the Kokatha people now possess those rights and interests.  That was consistent with the approach which the primary judge took. 

If I could take your Honours very briefly to the reasons of the primary judge, at about paragraph 180 or thereabouts - I am sorry, your Honours, if I could start first at paragraph 52.  This relates also to the third argument we have against special leave being granted, and that is that the distinction which is now sought to be drawn between the effect of the consent determination and a contested determination is not something that was raised before the primary judge. 

There, the parties agreed that effectively the determinations, consent or otherwise, had determined that each of these three groups were traditional societies for the purposes of the Native Title Act and that they had continued substantially uninterrupted since sovereignty to acknowledge those traditional laws and customs under which they possess native title rights and interests in those areas.  At paragraph 52 of the primary judge’s reasons, at page 28 of volume 1 of the application book, his Honour notes:

It was common ground as between the parties, that no expert proposed to give evidence directly to attack any finding of fact which is fundamental to or underlies any existing determination –

I pause there, your Honours, to say that that is how the issue arose.  It was understood there was agreement about these consent determinations.  Then, when the expert reports were filed and tendered, the expert reports from the State, the Barngarla and the Adnyamathanha effectively provided opinions supportive of the Adnyamathanha and Barngarla claims which were premised upon the Kokatha not having native title, never having had native title, to the area of their consent determination. 

They were premised upon the fact that it was the Adnyamathanha, sometimes referred to as the Kuyani, and/or the Barngarla who had native title in that country on the western shoreline of the lake, and that the Kokatha, who the determination said did have that native title, had in fact country much further to the west and at some time post sovereignty they drifted in.  So, that is how the issue arose.  

Then his Honour says that it was common ground that there were objections then made by the Kokatha to those reports and to those opinions based on those premises.  Ultimately, his Honour did not reject the reports altogether.  He accepted them but he said that he would not allow them to be used for that particular purpose, that is, to demonstrate that the Kokatha people were not present in that area at sovereignty and – but his Honour accepted it may well have been that there were Adnyamathanha people there and Barngarla who had native title as well but they could not mount this argument based upon their expert’s evidence that the Kokatha did not have native title in that area at sovereignty because it was a necessary precondition that a court making the determination of native title, that the definition in section 223 had been satisfied, which is that the Kokatha People possessed rights and interests under traditional laws and customs and as this Court explained in Yorta Yorta by traditional in the context of this Act it means ‑ ‑ ‑

GORDON J:   It means continuity.

MR HUGHSTON:   It means continuity from sovereignty.  The traditional laws and customs are those laws and customs which exist to that sovereignty and which have continued substantially uninterrupted to be acknowledged and observed up to the present time. 

EDELMAN J:   Your submission is essentially then that the majority of the Full Court were therefore right to say that it was not permissible in subsequent contested determination over different land to adduce any evidence that will undermine not the final determination itself but anything that is necessary to reach that final determination.

MR HUGHSTON:   Yes, that fundamental finding of fact which underlies that determination and that is what the parties agreed upon and paragraph 52 his Honour said that it was common ground:

that no expert proposed to give evidence directly to attack any finding of fact which is fundamental to or underlies any existing determination –

So, it is not just the present situation that the Kokatha have native title.  It is the underlying facts which are fundamental to that determination.

GORDON J:   Is it any more than that the expert opinions adduced were premised on a premise which was not open and that is that the Kokatha did not have continued connection to the land and did not, therefore, have native title rights and interests?

MR HUGHSTON:   Yes, their premise was that the Kokatha effectively were migrants who had moved into the area immediately to the west of Lake Torrens which is where the claim area commences on the western side but they had moved in well and truly after sovereignty and that only the Barngarla and the Adnyamathanha, also called the Kuyani, had native title at that time but the reason the Barngarla and the Kuyani had native title from those experts’ point of view was because the Kokatha did not.  They were migrants, they had come later.  Effectively, the facts underlying the Kokatha determination were being challenged.  His Honour goes on to say at 52:

That is, as the Court expressed it in the course of the hearing, the parties accepted the primary findings of fact necessary to support the three determinations on the areas of land surrounding Lake Torrens –

Then, if I could take your Honours to paragraph 167 where his Honour, based on the parties’ acknowledgements of what the issues were, sets out at 167 what the issues were - that is at page 61 of volume 1 and there his Honour says:

It is not disputed that each of these native title claim groups satisfy the statutory test laid down in s 223(1) of the NTA.  That is, each group acknowledges and observes a body of traditional laws and customs under which that group possesses rights and interests in and had a connection with, an area of land and waters.  That has been the subject of the three determinations referred to earlier in these reasons.

So, that was the issue.  Everyone accepted that these three groups had established native title under their traditional laws and customs to the adjoining land.  I should add that the Kokatha expert evidence was prepared on the basis of those assumptions.  It was only the evidence of the Barngarla, the State and the Adnyamathanha that sought to take things further.  So the Kokatha were placed in the very difficult situation in that their expert had not even looked at this possibility of challenging the other determinations.

EDELMAN J:   But if your principle is right, it would be a challenge, an impermissible challenge, not merely to have said that the Kokatha have no connection to the land – the west land - but also to say that anyone else has any connection, even accepting that the Kokatha have connection.

MR HUGHSTON:  They have no present connection and we accepted that it may well have been the case that at sovereignty other groups may have had native title rights and interests in the area but they had ‑ whatever rights and interests they had, had been lost over time and the Kokatha were the only ones left.  If I could take your Honour to ‑ ‑ ‑

EDELMAN J:   Evidence to that effect cannot be led for the purposes of another claim.

MR HUGHSTON:   The evidence – his Honour the primary judge said he would allow the expert evidence on that basis.  If I could take your Honour to ‑ ‑ ‑

EDELMAN J:   Allow it, but give it no weight.

MR HUGHSTON:   No, he would give it weight insofar as it was – provided it accepted that the Kokatha people also had native title rights and interests. 

GORDON J:   So provided it was not inconsistent with the factual premise that underpinned it.

MR HUGHSTON:   Yes.  The factual premise was that the Kokatha had native title rights and interests.  That is not inconsistent with its sovereignty, the Barngarla or Adnyamathanha also having native title rights and interests.

GORDON J:   And consistent with the other claim groups not putting their hand up at the time at which the Kokatha people made application for their determination.

MR HUGHSTON:   Yes.  Your Honour, the primary judge sets out fairly early on the procedural history starting at about paragraph 32.  Effectively, there were originally three overlapping claims over Lake Torrens:  one by the Barngarla, one by the Kokatha and one by a group called the Kuyani.  Now, the Kuyani is a name of a subgroup of the Adnyamathanha. 

There was mediation.  Ultimately the competition was resolved and a new Kokatha claim, which is the present Kokatha claim, came into being called the Kokatha Uwankara claim which included, among claim group members, a number of Barngarla people who had Kokatha associations, and a number of Adnyamathanha people who had Kokatha associations. 

So we had within the Kokatha claim group a number of people who are Barngarla and who are Kuyani.  Unfortunately, just before a consent determination was to be reached over the whole of the Kokatha Uwankara claim, including Lake Torrens, that agreement broke down and the Adnyamathanha put a claim in over Lake Torrens and subsequently also the Barngarla, very late in the day in 2015, put a claim over.  So that is the procedural history.

At the time the consent determination was made in the west, just before it was made the Adnyamathanha were still parties to the Kokatha Uwankara claim but they withdrew as parties and the consent determination went through without them as parties.  The Barngarla at that stage had not reinstituted a claim at all and were not respondent parties but clearly they were well aware of Lake Torrens because they had had a claim over it previously. 

Now, if I could take your Honours to paragraph – about paragraph 180 of the primary judge’s reasons to see how this problem with the expert evidence played out.  Actually, if I could take your Honours to perhaps 186, this is repeating what I have said to your Honours that where the primary judge said that in his view:

having regard to the approach of the Court in Banjima FC, a finding that at sovereignty more than one group, and particularly more than one of the Applicant groups, might have held some rights and interests in the land which has now been determined to be the land of the Kokatha, Adnyamathanha or Barngarla People respectively would not necessarily be inconsistent with the determinations in Kokatha Part A, Adnyamathanha No 1 or Barngarla. 

His Honour accepted that if that is what the evidence was establishing, well and good.  His Honour notes at 187 that in their closing submissions the Kokatha accepted that the Kuyani and the Barngarla People “along with” – that is the important bit:

along with Kokatha People, may have been present in some parts of the area west of the western shoreline of Lake Torrens prior to European settlement but that subsequently the Barngarla and Kuyani left those lands and ceased to have any continuing connection with that area.

So that the Kokatha were content provided that there was an acceptance that they were sharing those rights and interests with the Kokatha consistent with the common understanding upon which this trial had been conducted.

GORDON J:   So, just to jump forward to the Full Court, is that what is reflected or - being the reference in the last sentence in paragraph 204 that I took Mr Walker to on page 329 of the application book where the Full Court says “I have also based” – or Justice Reeves does, which is ultimately picked up.  This is dealing with the prior determination question, in other words ‑ ‑ ‑

MR HUGHSTON:   Yes, that is very important and what his Honour is saying – what his Honour Justice Reeves says in his reasons is that the primary judge did accept that this could be done, that he could recognise that the Adnyamathanha and Barngarla shared native title at sovereignty and for a time thereafter with Kokatha people.  But that was not the case of the Adnyamathanha and the Barngarla.  Their case was there was no sharing with the Kokatha.  Their case was that only the Adnyamathanha and/or only the Barngarla had those native title rights and interests.  That is what his Honour says at paragraph 189 on page 66 where he says:

However, I accept the contention of the First Applicant that certain aspects of the expert anthropological evidence referred to does not merely assert that there were shared rights as between the Kokatha and the Kuyani at sovereignty, but rather it asserts that native title rights and interests in the area immediately to the west of Lake Torrens at the time of sovereignty were held by only the Kuyani or the Barngarla, and it also says that at sovereignty most, if not all, Kokatha People resided or were widely thought to be associated in some way with country further to the west, and not with areas immediately to the west of Lake Torrens.  From that premise, it is said that it is unlikely that the eastern border of Kokatha country extended west into Lake Torrens at the time of sovereignty . . . In my view, such a premise is not consistent with the decision in Kokatha Part A.

GAGELER J:   Mr Hughston, would it be convenient to move to your application?

MR HUGHSTON:   It would, if your Honour pleases.  Your Honours, at paragraph 771 of the primary judge’s reasons he summarises the reasons why the Kokatha claim failed.  He said:

Clearly, the very strong evidence concerning their mythology in relation to [Lake Torrens] . . . is now of great significance –

to them, but he was not prepared to infer that this had been the case at sovereignty, because he was:

not satisfied that it is other than of relatively recent origin –

If one reads that statement in conjunction with what his Honour had to say at paragraphs 724 and 726, it is apparent that when he says that it was other than of relatively recent origin he meant some time after the 1980s.  So his Honour found that the Kokatha had a strong mythological connection to this claim area but he was not satisfied that it was other than post the 1980s.  In saying that he said that he accepted that the witnesses all believed that this had been the case since time immemorial; they were all credible, honest witnesses. 

But his Honour was concerned that in the 1980s when there were various researches being carried out for about the first time in this area, that he said in paragraph 724 there was not any material advanced to support a Kokatha association with Lake Torrens.  That is at 724.  There was not any, when he would expect that to be the case, but in fact there was ethnographic evidence in the 1980s which did associate the Kokatha people with Lake Torrens.

There was a report by Fitzpatrick and Gara in 1984 where they had found that there was a Seven Sisters dreaming story, or Tjukurpa, as it is known to the Kokatha people, who travelled from Port Augusta to Lake Torrens.  The report said it has secret women’s sides and secret men’s sides, and the closer to Lake Torrens that it gets the more important it becomes, and that Lake Torrens itself is of major significance to the Kokatha people.

GAGELER J:   What did the majority in the Full Court say about this?

MR HUGHSTON:   The majority said that it was a Fox v Percy question.  It was the advantage of the trial judge.  This was a long trial, many days out on country.  His Honour had seen and heard all the evidence and, in particular, much of the evidence that was given by the Kokatha in particular, was restricted evidence.

GORDON J:   So, when you analyse the primary judge’s reasons for judgment, they are structured in a particular way and structured in a way where the lay evidence is summarised initially.  His Honour then says, listen, it is not exhaustive because (a) it is restricted or some of it is restricted so the reasons to select what appears to him to be some of the more appropriate or important or principal matters derived and then so on and so on.

MR HUGHSTON:   Yes.

GORDON J:   So it is apparent on its face that his Honour made an exhaustive analysis of what had gone before him and it starts at paragraph 401 and goes all the way through to the 620s or 630s.

MR HUGHSTON:   The difficulty is, as Justice Jagot points out in her dissenting judgment, his Honour does not even mention important evidence of connection that was given by the Kokatha people and clearly overlooks that evidence.

GORDON J:   But was that right?  It has to be read, does it not, in the context of what exists at paragraphs 401 and following.  I mean, there is a structure to them.  One cannot just sort of pick up sentences and say well, that is the end of it.  I mean, he says at 601 on page 147, this summary is not exhaustive:

These reasons for judgment select what appears to be some of the principal matters derived from the evidence called -

and I am going to then look at that evidence in the context of the wider issues that I am faced with.

MR HUGHSTON:   Your Honour, the difficulty is this, that of course in a trial there is an obligation on the part of a trial judge to deal with and consider important evidence in the reasons.  That does not mean the trial judge has to refer to everything that is in the evidence but important evidence, particularly evidence that is important in a party’s case has to be considered and as Justice Jagot points out, he clearly missed a lot of important evidence and they are set out in their special leave application. 

Now, for example, he says at 609 of his reasons that three Kokatha Tjukurpa, the Angkarta, Wanambi and the Urumbulla, were only mentioned by one witness, Michael Starkey, and that there was no evidence as to how they were associated with the claimed area.  That is three Tjukurpa and Justice Reeves, who wrote the decision with which Justice White agreed, agrees that yes, there is no mention but that is what he says and there is no other mention in his reasons of evidence about those three dreamings.

But, again as Justice Reeves acknowledges, there was evidence given by both Michael Starkey and Robert Starkey about those three dreamings.  Robert Starkey in particular identified the Wanambi dreaming as Crombie Ridge which is on Andamooka Island in Lake Torrens.  He referred to the journey of the Angkarta and the Kalta travelling across the causeway on the lake to Andamooka Island.  He pointed out the two hills that represented the Angkarta and the Kalta. 

He gave evidence also about the Urumbulla travelling very close to the western shoreline of the lake, albeit on the west of the lake.  Michael Starkey did give evidence associating the Wanambi with the claim area.  He also identified Crombie Ridge on Andamooka Island as being a Wanambi.  There was evidence given by another witness, another Starkey ‑ ‑ ‑

GAGELER J:   We are aware of the list.

MR HUGHSTON:   Yes. 

GAGELER J:   But this is really a visitation point.

MR HUGHSTON:   It is not really because it indicates that his Honour has not considered important evidence.  He has overlooked it.  Again, a native title claimant has this problem, that they can never provide direct evidence going back to sovereignty or anywhere near close to it, to establish that the laws and customs which they currently acknowledge and observe existed at sovereignty. 

The only way they can really do that is by presenting a strong case as to the nature of their contemporary laws and customs, that they have a strong mythology and that they have as with the Kokatha people, that they had stories, sacred objects and ceremonies which are associated with this claim area, all of which they did. 

From that strong body of evidence, we would ask the Court to infer back to sovereignty.  This must be the case particularly where, as here, his Honour said “I accept the honesty of your witnesses”.  So the difficulty

is when his Honour misses out important evidence of Tjukurpa connections to the land, including the fact that one of these Tjukurpa that he says was not mentioned other than in passing, and no one said how it was associated with the claim area, is in fact the huge sand ridge from the ridge on Andamooka Island.  That is where the dreaming is. 

One of the two objects – his Honour was shown sacred objects.  He said they were very important sacred objects.  They represent the law for country, but none of them related to the lake specifically or generally.  As Justice Jagot points out, two of those objects did.  One was described as the Tjukurpa man for the lake ‑ the dreaming man for the lake.  The other one was associated with the Wanambi. 

As her Honour notes, evidence was given about how that object is used in sacred ceremonies on the lake.  So again it is the Wanambi.  There is an object associated with it as well.  That has been disregarded.  But all of that is being excused by the majority on the basis that his Honour has made general pronouncements in the judgment that even though he has not included details of the restricted evidence he has carefully and fully considered it.

GAGELER J:   Mr Hughston, I think we understand the nature of the appeal you wish to bring.

MR HUGHSTON:   If your Honour pleases. 

GAGELER J:   Thank you.  Mr Golding.

MR GOLDING:   May it please the Court.  I will start, if it is convenient, by dealing with the Kokatha application for special leave, which the State resists.  In summary, what has already fallen from your Honour Justice Gageler, the State’s position is that no special leave point arises here simply because it is a question of the visitation jurisdiction of this Court and there is no actual point of principle.  The complaint that is made is really the same complaint perhaps…..below in the Full Federal Court.  The difference between the majority and the dissent of Justice Jagot is really one of fact and degree or a matter of persuasion, as opposed to any principle. 

If I could take your Honours to the following.  The high point, in my submission, of the Kokatha’s claim with respect to a special leave point is that contained in their reply at 2.  The first respondents state at paragraph 4 ‑ ‑ ‑

GAGELER J:   Sorry, what page is that?

MR GOLDING:   Page 620.  I think I said paragraph 4, I meant paragraph 3:

The question is whether the restricted nature of the evidence can excuse the failure on the part of a trial judge to consider or record or correctly record, the effect of, important evidence in a native title party’s case.

Paragraph 4 goes on to say that well settled law has been departed from.  In the State’s submission that simply is not the case that the trial judge has failed to record or failed to consider the evidence and if I could take your Honours to paragraph 408 of the trial judgment which is at page 116 of the first volume. 

Now, what your Honours will see there is that at paragraph 408 his Honour is very alive to the problem that arises when you are dealing with confidential evidence and much of the evidence that we are dealing with here in relation to the Kokatha claim was, in fact, confidential evidence.  What his Honour makes clear is that:

There is, however, little point in appending a confidential and restricted summary –

that it is otherwise in the transcript and that transcript is available for those who need to review it.  Now, the Full Court and specifically Justice Reeves did – refers to this statement by the trial judge and what is clear is that notwithstanding that there was no confidential summary attached that the Full Court clearly undertook the real review in a Fox v Percy sense that it was required to do. 

So, if I take your Honours to, firstly, paragraph 100 on page 294 of the decision of Justice Reeves what you will see is Justice Reeves picking up paragraph 408 of the trial judge’s reasons and noting that non‑reference to something should not – that confidential should not be taken to mean that it has not been considered.  But what his Honour goes on to do, if you look over at page 295 and specifically paragraph 102 and commencing at line 17, I think, it says:

The transcript of the restricted evidence shows that the topic was addressed by the Starkey brothers, particular Andrew Starkey and Robert Starkey, with differing levels of detail . . . It is clear from a fair reading of the paragraphs of the Reasons referred to above that his Honour was well aware of that evidence.

So what is clear here is that nothing has miscarried, even if the Court were to be minded to grant special leave on the basis of the visitation jurisdiction, because the trial judge has clearly set out an appropriate basis for dealing with evidence of a confidential nature.  The Full Court, in conducting the real review, as it was required to do, had regard to the relevant evidence, as is clear there from paragraph 102.

GAGELER J:   Mr Golding, we would be assisted at this point if you could move to address the other two applications.

MR GOLDING:   Thank you.  In relation to the other applications, if I could start by referring to what my learned friend Mr Hughston for the Kokatha had to say in reply, I agree with the reference to Dale v Western Australia that the issue is one of an abuse of process.

Now, the question has arisen as to whether or not the claimants could simply file another claim again.  Whilst the short answer to that is yes, they could file another claim, the more difficult question is it would depend on the nature of that claim.  That is a question of fact and degree in the individual circumstances as to whether or not it may suffer from a viable application on the other side that it is an abuse of process.

Whilst it is the case, absent a negative determination, that a claim can be brought again, the powers of the court to control its own processes through the doctrines associated and the categories of abuse of process will work to temper what would otherwise effectively potentially be simply a rerunning of the same application.  But of course it may not be the same application, as has already fallen from your Honour Justice Gordon.  Clearly, along the way there was some kind of movement, certainly concerning the Adnyamathanha and the Barngarla, and a coming together of their positions which had not been the way the matter had been proceeded upon.

In the event that the Adnyamathanha and Barngarla were to subsequently launch new proceedings in the form of a joint claim, it would really depend on the content of that claim as to how the doctrine associated with abuse of process would then play out in terms of whether that claim would be permissible in the circumstances. 

Certainly, any such claim would probably, at trial, have to deal with what may well end up being prior inconsistent statements that were put in the initial – what your Honour Justice Gordon calls the scorched‑earth approach.  That would be something that those claimants would have to live with and deal with in the event that they brought a further application.

In relation to a question that came from your Honour Justice Gordon about during the consent determination process concerning the Kokatha people, where were the Barngarla and Adnyamathanha in respect of asserting their rights at that time, I do draw to your Honour’s attention that the Adnyamathanha were actually a party to that claim but that they withdrew from the process.

GORDON J:   I think that is what is set out at paragraph 32, is it not, of the primary judgment.

MR GOLDING:   Paragraph 35, I think it is, your Honour, on page 24, that the Adnyamathanha actually withdrew from that process.

GORDON J:   I see.  Thank you.

MR GOLDING:   Moving to the actual substantive applications themselves, the position of the State is this, that there is no distinction to be drawn between a consent determination and a contested determination after trial in the sense of what is the effect of the orders that then follow. 

What is not clear and this is a reason why this is not a suitable vehicle for any special leave is if there is a difference between the consent determination – the effect of a consent determination and the effect of an order that arises out of a contested determination then it is really not clear on the applicant’s applications for special leave as to precisely what that difference is other than that there is a generalised assertion that a consent determination is somehow worth less or stands for something less than one that arises out of a contested dispute. 

Now, in my submission, there are some difficulties with that.  Firstly, there is nothing in the actual Native Title Act itself that supports that conclusion but secondly there is an issue with respect to this jurisdiction and the question of public policy which is that it would certainly operate as a disincentive to settlement through consent determination if native title holders who hold a judgment by that process are somehow holding less or something inferior to what would be the case if it had been contested.  Secondly, there is a certain perversity about it in that what it would mean is that the stronger the native title claim, the less strong the determination would be and I say that for these reasons that the stronger the ‑ ‑ ‑

GAGELER J:   Your primary position is that this is an inappropriate vehicle in which to undertake that sort of assessment, is it not?

MR GOLDING:   Yes.  On that point with respect to why this is an inappropriate vehicle separate from the policy points that I was just making, if I could refer your Honours specifically to the judgment of Justice Reeves for the majority at paragraphs 201 through to 204.  This is where – really commencing at paragraph 201 - Justice Reeves is dealing with the issue of the prior determinations and what is important here are two things that arise and why this is not an inappropriate vehicle.  If your Honours go to paragraph 203 and the sentence commencing at line 20:

In this respect, it is important to recall that at trial, and in these appeals the Adnyamathanha appellants have maintained that they had traditional rights and interests in the Kokatha Part A determination area and that they did not share those rights and interests with the Kokatha People.

It is the issue of exclusivity that is critical here.  Now, where that is a reference to the Adnyamathanha people, the same is actually true for the Barngarla people, but I simply refer to it here.

EDELMAN J:   But as a matter of principle, the exclusivity point does not matter because the determination was a determination only that – or that the Kokatha people were the only people who had native title over the west area.

MR GOLDING:   Well, that is correct but the corollary of that must be that if they were the only people then, of course, the position being put by the Adnyamathanha here, but also the Barngarla, is that it was not tenable and was not viable where there had already been the termination made for the Kokatha as the only people.

But the second point is one about, and this is also why this is not an appropriate vehicle, is that regardless of the use to which the Kokatha determination was, or may be put, is that his Honour was nevertheless simply not satisfied that there was the sufficient continuity on the facts and on the evidence. 

So, if your Honours then continue to read paragraph 203, what Justice Reeves is there referring to when he talks about traditional rights and interests with the “traditional” being in italics, is the point is that they are traditional rights and interests that do not rise as high as being actual native title rights and interests within the meaning of the Act. 

If…..that high as being recognised native title rights and interests within the meaning of the Act, then ultimately they become immaterial for the purpose for which that evidence was sought to be led, namely the drawing of the inference back over Lake Torrens. 

GAGELER J:   Mr Golding, what do you have to say about the shared country issue, which I think is the last major issue raised by Mr Walker? 

MR GOLDING:   On the shared country ‑ ‑ ‑

GORDON J:   Do you need to say anything more than what you have said before and that is you have – the three points you have just raised in relation to the prior determination question?

MR GOLDING:   No.  I do not except there is just one point that I would make and that is that majority do not actually deal with this issue, only Justice Jagot does.  What is critical about that is because it only becomes an issue if, as Justice Jagot did, you get to the point where you are effectively satisfied on the basis of the evidence, so it really is a conditional question that is a long way down the path and the problem here is that these two applicants fall over at the initial evidentiary hurdle.

GAGELER J:   Yes, thank you, Mr Golding.  Mr Walker.

MR WALKER:   Your Honours, most issues, with respect, have been canvassed.  Your Honours, as paragraph 52 of the trial reasons, page 28 records – you have been taken to it – we did not engage in the impossible task of trying to have our cake and eat it; that is, by accepting a consent determination for what it is and seeking then to canvass matters necessarily entailed in it. 

Paragraph 52 records our agreement in accordance with principle.  That meant in particular in relation to the matters that I have otherwise sufficiently addressed – in particular the evidence concerning what I will call connection in that land, that we accepted that whatever it was, it was no longer capable of being recognised (a) by reason of the consent determination and (b) we accepted that the native title rights and interests of the Kokatha thereby determined were held exclusively by them in that area. 

Now, that is the difference between the parties.  In our submission, that is a matter of principle.  It rises above the very detailed and not particularly straightforward forensic course in these three cases, but it is one which, in our submission, is in the nature of things likely to arise, particularly as claim areas are going to be proximate to or even abut other areas. 

As your Honours know, areas have to be defined by lines, and lines do not necessarily accord with what I am going to call the evidence and the inferences to be drawn from evidence back to the time of sovereignty to which my learned friend Mr Hughston has referred.  It is for those reasons, in our submission, that that is a point apt for special leave.

Your Honours, the other matter I wanted to draw to attention in relation to the matters put against us by Mr Hughston is related to that.  It is most conveniently done by going to page 522, our paragraph 33, which refers to the trial judge’s paragraph 52.  We certainly did not challenge –

that is, we, though our legal representation at trial – that which was entailed and thereby protected by the Kokatha consent determination. 

It is true – my learned friend I think must have been referring to this at least in part – that some of our lay evidence did say that the Kokatha had not had the necessary connection, but we did not make any argument on that basis at all.  We accepted the principal position.  That distinction is, with respect, an important matter because it removes that evidence upon which we did not rely from the status of rendering our case an inappropriate vehicle on that point.  Otherwise, may it please your Honours, we rely upon what we have written.

GAGELER J:   Thank you, Mr Walker.  Mr Hughston, do you have anything in reply?

MR HUGHSTON:   Just very briefly, your Honours, in relation to it not being a point of public importance, because it is simply a question of whether a judge has given adequate reasons or not.  The difficulty that we point to is that native title trials are being treated differently here. 

Justice Jagot demonstrates quite clearly in her reasons that one can describe in general terms what the restricted evidence is, and she has done so, sufficient for anyone to see why we may have won a case or lost a case.  But what the Full Court majority did is that in those cases where the primary judge does not mention those matters that are mentioned by Justice Jagot, the primary judge says “This judge has assured us that he has considered all the restricted evidence”.

Now, that will be the test which will be applied in future in all native title claims where people who have to establish what this Court in Western Australia v Ward described as essentially a spiritual religious relationship with land and hence, have to reveal secret sacred knowledge ‑ ‑ ‑

GAGELER J:   I think what is put against you, particularly by Mr Golding, is that if you analyse Justice Reeves’ judgment it is clear that he did not only accept the trial judge’s assurance at face value.  He looked for himself at the material.

MR HUGHSTON:   Well, your Honours, he looked himself at the material but he then said, the judge has not mentioned this but I am not prepared to conclude that he did not consider it.

GORDON J:   He goes one step further though, does not Justice Reeves?  Not only does he do that, he also says, but having regard to all of the preceding paragraphs that precede it and as I said, I think in course of argument, they are very structured reasons, the primary judge ‑ ‑ ‑

MR HUGHSTON:   Yes.

GORDON J:   He was not satisfied that there was error, that is, he was satisfied that the trial judge (a) looked at it, (b) had taken it into account and (c) drawn a proper conclusion.

MR HUGHSTON:   His Honour Justice Reeves accepts that there have been omissions to mention important evidence and the Angkarta, Urumballa is one example, the sacred objects another.  The 1984 Gara report is another.  He accepts that but he says that his Honour must have considered it because his Honour has said that I have carefully considered all of the evidence.  So, his Honour Justice Reeves accepts that there have been these omissions but he simply accepts the assurances of the trial judge that he has considered everything.  He does not say “and I have considered it myself and I would have come to the same conclusion”.

He was looking to see whether there was a Fox v Percy point, whether there was an error of that kind and he was not prepared to find that there was an error of that kind even though he accepted that there was an omission to mention important and significant evidence simply because he accepted the assurance of the trial judge that he had carefully and fully considered all of that evidence. 

Now, that is the test that will be applied in future native title claims when people give what is commonplace in native title claims this restricted evidence, that a judge will simply have to say, “I am not mentioning what this evidence is or I may have made some mistakes as to what it is, but I have carefully and fully considered it and that will be the end of it”.

But Justice Jagot demonstrates it is quite able for a judge to say what that evidence is in general terms and indeed this judge at paragraph 309 did exactly that when dealing with confidential material in the Hagen report.  He said what the general evidence was but with everything else, he has left it out completely, has not mentioned it.  If your Honours please.

GAGELER J:   Thank you. 

The shifting positions of the parties at trial was such that the matter fails to raise in a sufficiently precise way any issue of principle that is appropriate for the consideration of this Court.  Nor are we persuaded that the refusal of the majority of the Full Court to discern error in the conclusion of the trial judge on the facts of the case is attended by any error of appellate principle or is attended by sufficient doubt to make a grant of special leave to appeal necessary in the interests of justice.  Each application for special leave to appeal is refused.  There will be no order as to costs.

MR WALKER:   May it please the Court.

MR GOLDING:   May it please the Court.

GAGELER J:   The Court will now adjourn to Tuesday, 6 November at 10.00 am in Canberra.

AT 11.25 AM THE MATTERS WERE CONCLUDED