FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

JAGOT AND MORTIMER JJ:

THE APPEAL

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

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

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

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

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

1    The primary judge erred in:

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

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

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

2    Alternatively, the primary judge erred in:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GROUND 1 – ABUSE OF PROCESS

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

The primary judge’s reasons

11    As the primary judge explained in his reasons:

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

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

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

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

…

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

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

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

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

15    The map is reproduced below.

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

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

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

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

4.    The native title rights and interests:

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

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

…

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

…

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

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

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

(c)    a right to fish in the area;

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

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

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

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

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

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

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

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

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

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

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

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

…

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

21    The primary judge then said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

35    The primary judge recorded:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

44    His Honour continued at [351]:

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

The people of Australia intend:

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Original emphasis.)

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

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

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

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

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

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

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

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

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

(emphasis added.)

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

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

(bold emphasis added, italic emphasis in original).

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

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

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

The appellant’s submissions

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

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

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

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

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

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

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

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

74    Therefore, the appellant contended, the statutory scheme is also to be understood against the fact that it is a “…central and pervading tenet of the judicial system…” that a judicial determination is, subject to appeal, final: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34].

75    Of the submission for the Yindjibarndi to the contrary, the appellant contended it:

… does not seek to justify why a provision designed to allow, in special circumstances, the findings in one set of proceedings to be revisited, becomes transmuted into a provision which, without needing to be successfully invoked, becomes a vehicle for a re-litigation in a separate set of proceedings of matters closed in the earlier proceedings.

76    The appellant said that the fact:

… the primary judge went a considerable distance towards the speculative finding that he would uphold the s 13 application made in relation to the earlier proceedings (Reasons [389]), despite that matter not being joined in issue or argument or through proper parties in these proceedings – only compounds the legal problem rather than washing it away.

77    In respect of the notice of contention, the appellant submitted that as the abuse in the present case arises from the inconsistency of judgments bringing the administration of justice into disrepute, the procedural history on which the Yindjibarndi relied could not be material. In the alternative, the procedural history showed that the State was “appropriately cautious in raising the abuse of process issue, and did not do so until there was sufficient material properly to allege that there was a relevant identity of claimants and traditional laws and customs between Daniel and this proceeding”. Further, the appellant’s agreement to the primary judge’s suggestion that the abuse of process issue would be decided at the end of the hearing was a sensible course in the circumstances and could not be taken as consent to abandon the abuse of process issue if the findings on the substantive issues were determined against the appellant.

78    According to the appellant, the practical effect of the abuse of process is that “the determination of the trial judge must be varied to provide that the rights and interests of the Yindjibarndi people are not exclusive in character so as to avoid inconsistency with cl 4 of the Daniel/Moses determination”. In oral argument, however, the appellant accepted that another alternative would be to set aside the primary judge’s determination of native title to enable the revised native title determination application under s 13 in respect of the 2007 determination to be heard and resolved (either concurrently with or before the resolution of the present claimant application).

The Yindjibarndi’s submissions

79    The Yindjibarndi submitted that the primary judge’s reasoning could not be faulted and involved no misdirection. Further:

(a)    The purported requirement that the Yindjibarndi should first have gone and applied to vary the 2007 determination had never been drawn to the attention of the Yindjibarndi. Nor was the timing of that application in the control of the Yindjibarndi. The abuse of process issue was first raised on 31 July 2015 approximately five weeks before the hearing and after the Yindjibarndi’s evidence in chief had been filed.

(b)    A “broad, merits-based” approach (Johnson v Gore Wood at 31, cited with approval in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [68] and Dale v Western Australia [2011] FCAFC 46; 191 FCR 521 at [112]) would include consideration of the procedural history including the appellant’s inexplicable and unexplained delay in raising the abuse of process issue: see the unchallenged finding of the primary judge at [327].

(c)    The appellant and the State would have been aware of the fact that the claimants in this matter and Daniel/Moses were identical from no later than 14 July 2014 when the Yindjibarndi filed their statement of contentions.

(d)    If the abuse of process claim is upheld there would be unfairness to the Yindjibarndi in that “needless and very real stress would have been imposed on the many [indigenous] witnesses, for whom the ordeal of the public exposition of their personal connection to Yindjibarndi country could not be gainsaid”: see the reasons of the primary judge at [331].

(e)    If the abuse of process issue had been raised in a timely manner and upheld then “a lengthy, publicly expensive and for the Yindjibarndi, a stressful trial, on the issue of exclusive possession, could have been avoided”. As a result, the primary judge’s observation at [331]-[332] that if he had upheld the abuse of process the Yindjibarndi may well have been able to argue for an indemnity costs order was “entirely appropriate”.

(f)    All of these considerations should be taken into account and, when this is done, the conclusion that should be reached is that a conclusion of abuse of process in all of the circumstances would have the potential to erode public confidence in the administration of justice.

RESOLUTION OF GROUND 1

80    The reasoning of the primary judge at [349]-[354] about the nature of a determination of native title as a recognition of the content of a set of existing rights, over a specific area of land and waters, is critical to the conclusion we have reached. As his Honour also observes at [357] (albeit in the context of discussing issue estoppel), different land and waters are involved in the Warrie proceeding from those in Daniel and Moses.

81    In particular, how Yindjibarndi law and custom operates to give rise to rights and interests is likely to vary because it is different land and waters: different people within the claim group may have a right to speak for it, the law which is present and to be observed on that land and waters might manifest itself differently (in terms of what can be or should be done, where and when). What needs to be protected, in terms of sites, will be specific to that land and waters. How and where within the claim area individuals or families or groups acquire rights to speak and protect particular areas under traditional law and custom will be specific to the land and waters involved. We do not see why it is necessarily beyond argument that the actual nature and content of the rights which might arise under traditional law and custom may not be different. Taking an example which is hypothetical, but not uncommon in Australian native title litigation, there may be areas of land and waters over which rights and interests are found to be shared with other groups, or where rights and interests may not be as readily seen exclusive because the area abuts the country of people with a different set of traditional laws and customs. In such an area, perhaps there might not be any right or interest which equates to an exclusive right, or the evidence might be more opaque, even though there is but one overarching source of traditional law and custom. However, in country centrally and firmly connected to one group, and recognised by other groups to be so, rights equating to exclusive rights may be clearly apparent. All will depend on the evidence. There are not necessarily any hard boundary lines, or prohibitions on how rights and interests might be articulated, and many nuances in terms of the nature and content of rights in land and waters are possible.

Some key facts and chronological references

Daniel

82    The original Yindjibarndi application in Daniel was lodged in June 1994. There were, following a series of joinder orders, three sets of applicants; the first applicants were the Ngarluma and Yindjibarndi Peoples, the second applicants were the Yaburara and Mardudhunera Peoples and the third applicants were identified as the “Wong-Goo-TT-OO group”, which Nicholson J described as essentially comprising the members of three family groups. There was also a respondent group (identified as “Respondents 19D”, the Kariyarra People), who claimed native title in areas overlapping with the first applicants’ claim area.

83    The first applicants’ claim area in Daniel included coastal areas and waters, and, amongst others, the towns of Roebourne and Karratha. The trial commenced at Karratha on 20 September 1999 and final oral submissions were heard in December 2000. No decision was delivered, and the Court (apparently with the consent of the parties) awaited the High Court’s decisions in Commonwealth v Yarmirr [2001] HCA 56; 208 CLR 1 and Ward. There were further delays so submissions could also be made about the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, handed down in December 2002. Further closing submissions in Daniel were heard in February 2003, and judgment was delivered on 3 July 2003.

84    After interlocutory orders made by the Court in September 2002, the Daniel claim was brought by the following Yindjibarndi people constituting the first applicant (and omitting the names of those members of the first applicant representing the Ngarluma People): Bruce Monadee, Woodley King, Kenny Jerrolf (sic), Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert.

85    Justice Nicholson found the Yaburara and Mardudhunera Peoples did not hold native title rights and interests in the determination area, and nor did the Wong-Goo-TT-OO group. His Honour also found Respondents 19D (the Kariyarra People) did not hold native title rights and interests in the determination Area. Only the Ngarluma and Yindjibarndi Peoples were found to hold native title rights and interests in the determination area.

86    The Daniel determination (Daniel v State of Western Australia [2005] FCA 536) covered two areas in one determination: one defined as the “Ngarluma Native Title Area”, and the other defined as the “Yindjibarndi Native Title Area”. Each area was subject to a separate determination of the nature and content of the native title rights and interests being recognised, and there were at least minor differences between the two. As the primary judge in the current proceeding pointed out at [12]:

Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle.

87    What consequence the presence of several groups claiming rights over the same land and waters might have had for how Nicholson J approached his fact-finding in Daniel would require a close analysis of his Honour’s reasons, but it seems to us this fact may have affected Nicholson J’s finding of non-exclusivity.

88    In the Daniel determination, no apical ancestors were identified. Instead, and consistently with how the claim in Daniel had been formulated, the holders of native title were identified by recognition of their membership of one of two language groups, and defined (in the third schedule of the determination) as follows:

‘Ngarluma People’ are Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma People as, members of the Ngarluma language group.

‘Yindjibarndi People’ are Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.

89    These distinct determination areas as between Ngarluma and Yindjibarndi, and the description of the relevant native title holders by language identification, were maintained by the Full Court in its amended determination in Moses.

The Warrie claim

90    What is now called the Warrie claim, by reference to the first member of the applicant at the time of trial, was commenced with a different individual named as the first member of the applicant: Mr Ned Cheedy. The application was filed on 9 July 2003, shortly after Nicholson J handed down his reasons on the substantive trial issues in Daniel, and well before any determination of native title was made in Daniel (which was not until 2 May 2005). The original members of the applicant were: Ned Cheedy (Jidinha), Guinness Gilby (Walgarrinbangu, Bulabulha), Mavis Pat, Aileen Sandy, Edie Whalebone (Yitimanara), Kenny Jerrold (Pitjin), Thomas Jacob (Long Tom), Sylvia Allen, Alum Cheedy and Michael Woodley.

91    Later in these reasons we return to the chronology of the Warrie claim, and note that it was not until 2014 that the claim appears to have been actively case managed towards trial. The abuse of process issue was raised by interlocutory application in Warrie in early August 2015, approximately one month before the on country hearing. We return to this aspect of the chronology below.

92    By a document dated 28 August 2015, the parties had agreed the following issue was in dispute (this being an amended agreed statement of the issues in dispute):

Whether the Yindjibarndi people hold any native title rights and interests in the Yindjibarndi Claim Area which are additional to or different from those that were the subject of the judgment of the Full Court in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 and the orders made by Moore, North and Mansfield JJ in WAD 114 of 2005 on 27 August 2007 as particularised in the Schedule and in particular, whether they have what the common law will recognise as a right of exclusive possession.

93    Despite the interlocutory applications about abuse of process having been filed by this stage, there was still no issue identified about abuse of process. At that stage, the parties were also in dispute (see issue 2(d) of the same document) about whether “the description of the native title holders in the determination which the Court will make should include reference to a list of apical ancestors or not”. There was, in the original Form 1, amended Form 1 and the further amended Form 1, a list of apical ancestors (see Attachment A), and there was an ongoing debate between the applicant and the State about how the claim group should be described. We include that to illustrate that there were other (substantive) ways in which the Daniel/Moses claim and determination differed from the Warrie claim.

What is the act constituting the abuse?

94    In July 2003, Schedule E of the Form 1 in the Warrie proceeding relevantly claimed:

The native title rights and interests in relation to Area A comprise:

(1) The right to possess, occupy, use and enjoy the area as against the world;

95    Schedule H stated there had not been any other claims made over the area of land and waters covered by the Warrie claim. That fact has not been challenged.

96    In many abuse of process cases, it is the commencement of another proceeding, the way a claim is framed, and/or alternatively the relief sought in the originating process which are identified as the conduct abusing the processes of the Court.

97    That, in our respectful opinion, is the appropriate approach to the appellant’s allegations about the Warrie claim: if it is the substance of the determination in Daniel/Moses which binds the Yindjibarndi People in a way that precludes them from contending they have native title rights and interests of an exclusive nature in part of the Warrie land and waters, then the abuse of process occurred at the time of making the application in Warrie, by the claim for recognition of rights in the nature of exclusive possession in Area A. That occurred in July 2003, when the Form 1 was filed. At the very least, on this approach, the abuse of process was in continuing to press for recognition of rights in the nature of exclusive possession after the determination of the appeal in Moses on 7 June 2007.

98    Although the appellant put its argument on the basis that the abuse of process arises from the inconsistency of judgments (or, more specifically, the inconsistency of determinations of native title), we do not agree. The primary judge’s exercise of judicial power in making a determination under s 225 should not be identified as an abuse of the processes of this Court. Rather, if there is an abuse of process, it must be located in the conduct of a party in relying on a cause of action, or the conduct of a party during a proceeding. That conduct, and not an exercise of judicial power, is what might be identified as abusing the Court’s processes. Here, the impugned conduct should be the filing of a claim in July 2003 seeking a determination recognising native title of an exclusive nature over parts of Area A, or the continuation of a claim of that nature after the Moses appeal was determined in June 2007. If that is correct, then the issues of unjustifiable oppression, and bringing the administration of justice into disrepute, should be assessed through that prism, and the chronology of what has occurred since July 2003, alternatively June 2007.

Some general points

99    The primary judge observed at [370], by reference to Batistatos at [9] and [14], (Gleeson CJ, Gummow, Hayne and Crennan JJ), citing Gaudron J in Ridgeway at 74-75, that a Court’s determination whether a proceeding, or a claim in a proceeding, involves an abuse of process requires the Court to consider notions of justice and injustice, public confidence in the administration of justice, “contemporary values” and the particular circumstances of the case.

100    In the present circumstances, those considerations must be assessed in light of the particular legislative scheme which is the Native Title Act. They weigh in favour of the conclusion that there was no abuse of the processes of this Court under the Native Title Act in the Yindjibarndi People’s claim over Area A. As the primary judge noted at [364], if one were to look at the range of determinations that have been made across Australia since 1992, one would see many situations where the same group of common law holders is recognised as having native title over areas of land and waters that are subject to separate determinations. There may be any number of reasons for this: funding of the claims; resolution of overlapping claims and disputes about boundaries; the operation of s 47A and s 47B of the Native Title Act on claims; and the realities of negotiating outcomes with other proprietary interest holders such as pastoral lessees. Findings of fact may well differ about the nature and content of the rights and interests in particular land and waters arising under traditional law and custom, even though the same overall normative system is involved.

101    The following passages illustrate the Court’s fact-finding task is very much specific to the land and waters over which recognition is sought, and is a nuanced exercise. In Yarmirr at [15], the plurality identified the principal task of the Court in considering an application for recognition of native title under s 61 of the Act:

The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?

(Emphasis added.)

102    In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 at [88] and [93], the Full Court described what is involved in the concept of “connection” in s 223:

From the preceding it can be seen that “connection” is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. There is inescapably an element of continuity involved which derives from the necessary character of the relevant laws and customs as “traditional”. The acknowledgment and observance, and thereby the connection, is not transient but continuing.

…

The word “connection” should not be taken as qualifying or limiting the range of rights and interests arising under traditional law and custom which are native title rights and interests for the purposes of the NT Act. The existence of connection, in the sense explained, is a condition of their existence for the purposes of the NT Act. It does not limit their content. Their content is limited by the requirement that they be rights and interests “in relation to land or waters”. The words “in relation to” are words of wide import. The content of native title rights and interests may also be limited by the requirement, imposed by s 223(1)(c) that they “are recognised by the common law of native title”.

(Emphasis added.)

103    In Yorta Yorta at [39] the plurality said:

To speak of an intersection of two sets of norms, or of two normative systems, does not identify the nature or content of either. Nor may it be immediately evident that a reference to “traditional laws acknowledged, and the traditional customs observed” is, in fact, a reference to a body of norms or normative system. Indeed, reference to a normative “system” of traditional laws and customs may itself be distracting if undue attention is given to the word “system”, particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws.

(Footnote omitted.)

104    The plurality continued at [40]-[41], and by reference to the decision in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1, to emphasise that there must be evidence the laws and customs of the claim group can give rise to, and in fact have given rise to, rights and interests in relation to the land or waters claimed. But the plurality added:

It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener.

…

A search for parallels between traditional law and traditional customs on the one hand and Austin’s conception of a system of laws, as a body of commands or general orders backed by threats which are issued by a sovereign or subordinate in obedience to the sovereign, may or may not be fruitful. Likewise, to search in traditional law and traditional customs for an identified, even an identifiable, rule of recognition which would distinguish between law on the one hand, and moral obligation or mere habitual behaviour on the other, may or may not be productive.

(Footnotes omitted.)

105    Contrary to these observations, the approach of the appellant in its abuse of process argument encourages a rigidity of focus on how a normative rule might manifest itself, or might be proven, across a group or community of people who acknowledge the same traditional law and custom, but assert native title rights and interests in different areas of land and waters. It imposes some rigidity in how the content of traditional law and custom must be described and recognised, in relation to all land and waters over which a group or community of people asserts native title. We do not consider that the text, context and purpose of s 223 and s 225 require any such rigidity, or inflexibility, as in our respectful opinion the reasons of the plurality in Yorta Yorta make clear. Where a rule, or practice or behaviour in relation to the identified land and waters arises from traditional law, and has normative content, then it can be capable of satisfying para (a) of s 223(1): see Yorta Yorta at [42]. There is no suggestion in these authorities that traditional law must be seen in the singular way the appellant’s argument suggests. For the reasons we have explained at [81], the way law manifests itself in rights and interests in particular areas may vary across the country of a claim group.

106    A further aspect of s 223, fundamental to the Native Title Act and to the decision in Mabo (No 2), should be recalled. At [77], the plurality in Yorta Yorta relevantly expressed it thus:

The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.

107    The “processes of the new legal order” are the processes established by the Native Title Act. Those processes are structured around a claim over a specifically identified area of land and waters, and proof of native title “in relation to” that land and waters. Putting matters such as continuity of observance to one side, while, as Yorta Yorta emphasises, a claim group must establish that the traditional law and custom which gives rise to their rights and interests in that land and waters stems from rules that have a normative character, there is no further gloss or overarching requirement, and no further rigidity. The Native Title Act in terms does not require establishment of some overarching “society” that can only be described in one way and with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title. Neither Yorta Yorta, nor any other decision binding on this Court, requires such an approach. The use to which the majority (and especially the plurality) put the concept of “society” in Yorta Yorta must be borne in mind: it was to emphasise the fact that, as the plurality observed at [49] referring to Professor Julius Stone’s words, laws and customs are “socially derivative and non-autonomous”. See also Alyawarr at [78].

108    Nor is there any rule or requirement in the scheme created by the Native Title Act that those who hold native title rights and interests and seek to have them recognised in relation to particular land and waters must bring forward all of their claims, over all land and waters, at once, and have them all determined on the same evidence. The realities of making and establishing claims under this legislative scheme, resolving intra-Indigenous claims over the same, or overlapping, country, and the experience of this Court over the last 20 years, makes it clear no such approach has been taken, nor is it required.

109    The uniqueness of the process for which the Native Title Act provides should inform the resolution of an allegation of abuse of process. In the joint judgment in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595 at 614-615 the High Court said the Act must be “read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title”. This observation was endorsed in Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [24].

110    Finally, in Northern Territory v Griffiths [2019] HCA 7; 364 ALR 208 at [26]-[27], the plurality described the context and purpose of the Native Title Act in the following way:

As the Preamble to the Native Title Act records, Aboriginal peoples and Torres Strait Islanders have been progressively dispossessed of their lands, largely without compensation, and the enactment of the Native Title Act was intended to rectify the consequences of past injustices. The provisions of the Native Title Act are intended to secure the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders and to ensure that they receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. The Preamble goes on to state: “[j]ustice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms … must be provided to the holders of the native title”.

The system established by the Native Title Act to address, in a practical way, the consequences of acts impacting native title rights and interests is complex. That complexity arises because the Act seeks to deal with concepts and ideas which are both ancient and new; developed but also developing; retrospective but also prospective. It arises because the Native Title Act requires the just and proper ascertainment and recognition of native title rights and interests; that certain acts that extinguish native title rights and interests are to be validated or allowed; that, where appropriate, native title should not be extinguished, but should be revived after a validated act ceases; and that, where native title rights and interests are extinguished, compensation on just terms is to be provided.

(Footnote omitted.)

111    The “considerations of finality and fairness” which inform the common law doctrine of estoppel in relation to judicial determinations (see Tomlinson v Ramsey Food Processing [2015] HCA 28; 256 CLR 507 at [21]) and are also at work in the wider and more flexible concept of abuse of process (see Tomlinson at [25]) will need to be applied rather differently in the context of the Native Title Act. That is the point made by the Full Court in Dale at [90]-[93].

112    The exercise of judicial power in Daniel/Moses created, to use the language in Tomlinson at [20], a “new charter by reference to which [the question of native title in the Daniel/Moses land and waters] is in future to be decided as between” those who were parties to that claim, and a new charter in rem, in relation to that land and waters. That included a wide range of existing proprietary interest holders, as the Moses and Daniel determinations demonstrate, whose proprietary rights and interests were either adjusted, or preserved, upon the recognition of the Yindjibarndi People’s and the Ngarluma People’s native title in the Daniel/Moses land and waters. It also included a range of future proprietary interest holders who would be required to recognise the native title of the Yindjibarndi and Ngarluma Peoples, to the extent set out in the determination. However the “charter” was as to that land and waters, and as to all existing and future interest holders in that land and waters. In terms of then existing proprietary interest holders, this did not include the appellant. The Daniel/Moses determinations “quelled” the controversy about native title in relation to that land and waters. A determination under s 225 could not reach beyond the land and waters which were the subject of the claim, and any non-native title proprietary interests in that land and waters. Again, we do not accept this outcome has any automatic or inevitable impact on the claim to the Warrie land and waters, or on the myriad of (different) sets of persons who have, or may have in the future, proprietary interests in the Warrie claim area.

113    Although abuse of process as a concept may be broader and more flexible than estoppel (see Tomlinson at [25]), the two touchstones for abuse of process to which the High Court in Tomlinson referred were that the use of the Court’s procedures:

(a)    would be unjustifiably oppressive to a party; or

(b)    would bring the administration of justice into disrepute.

114    That formulation was repeated and endorsed by the plurality in UBS AG v Tyne [2018] HCA 45; 360 ALR 184 at [1]. In the context of the observations we have made to this point, we do not accept those two touchstones give rise to any abuse of process by the Yindjibarndi in the Warrie claim, and we turn to explain why we have reached that conclusion.

Unjustifiable oppression

115    The appellant was not a party to the Daniel/Moses determination and did not maintain it had any proprietary interests in the Daniel/Moses land and waters. The recognition of any native title rights, whether exclusive or non-exclusive, did not affect its own proprietary interests. There is no oppression to it, in terms of being differently or inconsistently affected, or “vexed”, by the Daniel/Moses determination, and as a party to the Warrie claim.

116    Any possibility of the appellant’s proprietary interests in Area A of the Warrie claim area being affected by the exclusive possession claim should have been apparent to the appellant from the Form 1 application in July 2003 and the nature of the claim made over Area A, including the unallocated Crown land within that area, and areas to which ss 47A and 47B were said to apply. It had a full opportunity, which it exercised, to rebut the propositions that the nature of the Yindjibarndi native title in Area A of the Warrie land and waters was of an exclusive kind. It fully tested that claim, but was unsuccessful. There is no oppression, let alone unjustifiable oppression, in the appellant being bound by the outcome in Warrie in those circumstances, subject to correction on appeal of any substantive error by the trial judge in how his Honour reached that conclusion. The only challenge made in the appeal to the primary judge’s fact-finding on exclusive possession arises in grounds 2 and 3, which this Court has dismissed.

117    It is worth examining the High Court’s description in Tyne at [32]-[33] of Dowsett J’s reasoning in the Full Court below, which the High Court ultimately upheld, and Dowsett J’s description, in the circumstances of that case, of why there was an abuse of process. The plurality relevantly stated his Honour held that:

(a)    any asserted “right” of a litigant to “discontinue and later commence fresh proceedings is out of keeping with the conduct of modern litigation, consistently with the overarching purpose stated in s 37M(1) of the [Federal Court of Australia Act 1976 (Cth)]”;

(b)    Mr Tyne had “identified some forensic advantage to himself and/or the Trust in discontinuing the [Supreme Court of New South Wales] proceedings”;

(c)    the effect of identifying such a forensic advantage, and discontinuing the Supreme Court proceedings, was to “delay the resolution of the dispute between the Trust and UBS in circumstances in which all of the claims arising out of the allegations as to UBS’s conduct could have been resolved in 2013”; and

(d)    to allow the Trust’s claims to “go forward” would result in UBS suffering unfairness, manifested by further significant delay in resolving the dispute, increased costs and “the inconvenience of having to deal with the matter again after lengthy litigation”.

118    Justice Dowsett also found the factors in (d) would themselves be likely to bring the administration of justice into disrepute, “particularly if the conduct of the Trust’s claims were thought to bespeak a general attitude of tolerance by the courts”.

119    None of those kinds of factors apply here. There was no discontinuance and recommencement. There was no forensic advantage sought by conducting one set of proceedings in a particular way. There was no delay, increased cost or inconvenience from the filing of the Warrie claim in July 2003. The appellant and the State had been preparing for trial in the ordinary course, and only raised the abuse of process issue five weeks out from the on country trial, on 31 July 2015, formalised by interlocutory applications filed in August 2015. Abuse of process was not mentioned in the agreed statement of issues in dispute filed by the parties in October 2014: see [309] of the primary judge’s reasons. Instead, as the primary judge set out at [307], what was said by the State (and adopted by the appellant) was:

As to paragraph 16, the [State] admits the first sentence but does not admit the second sentence. In particular, the [State] does not admit that the Yindjibarndi people possess any native title rights of exclusive possession in the [claimed area], including any right to grant or deny permission to access and use any part of that area.

120    The appellant and the State had known since 22 October 2014 that it was Dr Palmer’s opinion that the Yindjibarndi People possessed rights and interests in the Warrie land and waters of an exclusive kind: see [313] of the primary judge’s reasons. Yet the claim of abuse of process was not raised until after all the Yindjibarndi evidence in chief was filed: see [327] of the primary judge’s reasons. The matter had been actively prepared for trial since at least July 2014: see [305] of the primary judge’s reasons.

121    We do not accept there is any oppression to the appellant in the Yindjibarndi asserting rights of an exclusive nature in the Warrie land and waters, when the history of the conduct of the proceeding, and the appellant’s conduct in the proceeding, is considered, and where the parties had been preparing for a contested hearing for more than a year. There is no parallel at all with the kinds of considerations described in Tyne, in terms of oppression, or “unjustifiable” oppression. We note the State does not join the appellant in persisting with any argument of abuse of process in this proceeding, even though it was a party to Daniel/Moses, and is directly affected by the Warrie determination, because the exclusive possession area contains unallocated Crown land. Yet it must also be the case that any “oppression” must apply in fact to the State as well. The appellant (and the State) had incurred all their legal costs, and deployed their resources, on the basis they would contest the exclusive possession claim in respect of Area A. There was no element of surprise: the agreed issues in dispute made it clear they intended to contest that in light of all parties knowing what had been decided in Daniel/Moses. The trial would have proceeded in any event. The Yindjibarndi People’s claim to native title of an exclusive kind in Area A was not the only matter in dispute. There was a debate concerning how the native title holding group should be identified, and whether it should be by the inclusion of a list of apical ancestors forming part of the description of the native title holders: see [518] of the primary judge’s reasons. There were also contested issues of extinguishment, and occupation, for the purposes of ss 47A and 47B of the Native Title Act, including the effect of a miscellaneous licence and six exploration licences. There was a debate about whether there was sufficient proof of occupation, as ground 4 of this appeal reveals. There was the question of the rights and interests of the Todd claimants. The evidence does not suggest there was some disproportionate or inordinate amount of time to be occupied by evidence relating only to the exclusive nature of the native title rights and interests: rather, it was bound up with the rest of the lay and expert evidence, which also went to ss 47A and 47B. As the primary judge noted at [378], at trial, the State and the appellant did not suggest that any evidence that the Yindjibarndi led in Daniel was inconsistent with, or contradictory of, the additional evidence that they adduced at the trial in this proceeding. Plainly, it was also not identical evidence, whether lay or expert.

122    If unjustifiable delay, additional cost and inconvenience flow from anything, it is from the late raising of the abuse of process argument by the State and the appellant, not the other way around.

Disrepute

123    Once the structure and purposes of the Native Title Act are taken into account, we do not consider it brings the administration of justice into disrepute for the Yindjibarndi People to seek recognition of rights in the nature of exclusive possession over Area A in Warrie, having exposed their lay and expert evidence to testing and contradiction, and with the findings of Nicholson J in relation to the Daniel land and waters being available to all parties and to the Court.

124    What might bring the administration of justice into disrepute is to fix a group of Indigenous people, who are making a claim over different land and waters, with a factual finding made a decade earlier in respect of other land and waters, without allowing them the usual ability to adduce evidence, have it tested, and have a Court, in an exercise of judicial power, make findings based on that evidence, as it relates to their claimed rights and interests in the land and waters then under consideration.

Section 37M

125    There is much discussion in Tyne about s 37M of the Federal Court of Australia Act 1975 (Cth). We accept the purpose of that provision is likely to be relevant to an abuse of process allegation and particularly to the second consideration of bringing the administration of justice into disrepute. However, consideration of the role and purpose of s 37M does not advance the contentions of the appellant on this appeal. Rather, the raising shortly before trial in 2015 of an argument that the exclusive native title rights claimed over Area A, from 2003, was an abuse of process, and the consequences the appellant submitted should follow if such an argument was to be accepted, are themselves inimical to the objectives of s 37M. It is the conduct of those parties raising the abuse of process contention in the manner and at the time they did, which precludes the Court resolving the claim over the Warrie land and waters as quickly, inexpensively and efficiently as possible. For the reasons we have already outlined, the primary judge was in a position to resolve that dispute according to law, on the evidence and argument before him, including by reference to the evidence and argument in Daniel if the parties chose, but – as the Native Title Act requires – by a fact-finding exercise centred on the claimed relationship of the Yindjibarndi People, as identified in Warrie, under traditional law and custom to the Warrie land and waters.

126    It is common ground the Yindjibarndi People had the option, which they ultimately exercised through the YAC, of making a s 13 application to amend the determination over the Daniel/Moses land and waters to include recognition of native title rights and interests of an exclusive nature. It can be inferred that, given the opinions of Dr Palmer and the findings by the primary judge about the claimants’ evidence in Warrie, such an application might be said to have some prospects. Yet, it would necessitate further expert and lay evidence, and a trial would be many years away, if one were to look at the pace of native title hearings, for reasons associated with complexity, funding and the like. Then whatever findings were made (if favourable to the Yindjibarndi People) would (on at least one of the appellant’s scenarios) have to be applied to Area A of the Warrie land and waters, and it would be interesting to see if parties like the appellant would ultimately concede that any favourable findings must inevitably be applied to the Warrie land and waters, or not. Then there might be appeals, as there have been in this case. That entire process would leave the Warrie claim – made over different land and waters – unresolved for a further lengthy period of time. That set of circumstances is not at all consistent with s 37M and it is quite possible, some might say likely, that further critical Yindjibarndi lay witnesses would by that time have passed away.

127    Consideration of the role and purpose of s 37M does not, in the circumstances of this case, tend to suggest that the exclusive possession claim in Warrie has the capacity to bring the administration of justice into disrepute.

Relief

128    Another way to test the appellant’s approach is to examine the relief the appellant submits is appropriate in respect of the abuse of process claim. As we note above, the appellant’s principal submission is that the primary judge’s orders must be varied to determine that the native title rights and interests in the Warrie determination area are non-exclusive. That is not by reference to any factual findings on this appeal, but by reference to Nicholson J’s factual findings in Daniel, and the Full Court’s decision in Moses, in respect of different land and waters, and different lay and expert evidence. That has the same effect as upholding an issue estoppel claim, which the primary judge correctly held was not available, his Honour’s finding ultimately not being challenged under ground 1. The appellant would secure an outcome binding the Yindjibarndi People to what Nicholson J found in Daniel in respect of all land and waters over which they seek native title although the appellant was not a party to that proceeding.

129    The alternative relief raised by the appellant during oral argument, which we also note above, is to set aside the primary judge’s orders, so as to enable the hearing and determination of a s 13 application about the Daniel/Moses determination area, and leave the Warrie claim undetermined. As we have noted above, the process of the s 13 application in Daniel/Moses is likely to take several years, and result in significant expenditure of money and resources, as well as unfairness to members of the Warrie claim group, especially older claimants. It places all those with proprietary interests in the Warrie claim area back into an uncertain position. This approach also sets at nought all of the primary judge’s fact-finding about the nature of the native title rights in the Warrie claim area, although the appellant and the State agreed to him engaging in that task, and tested all the evidence according to forensic decisions they made. If there is unjustifiable oppression, and if the administration of justice is brought into disrepute, then that occurs in the working out of the consequences of upholding the appellant’s argument, and not letting the primary judge’s findings of fact on exclusive possession stand, especially when they are not challenged on their merits other than in the limited way set out in appeal grounds 2 and 3.

Other decisions

130    The following decisions are relevant to the disposition of the abuse of process claim and, for reasons we explain, are not inconsistent with the approach we have taken and the conclusion we have reached.

Western Australia v Fazeldean (No 2)

131    This case, and the Full Court’s reasons, are instructive, and in our opinion support the approach we have taken. In Western Australia v Fazeldean (No 2) [2013] FCAFC 58; 211 FCR 150, there was a second application under s 61 of the Native Title Act over land which had been the subject of an earlier s 61 claim and a consent determination some two years prior. Part of the claim area in the first claim (referred to by the Full Court as “Thalanyji No 1”) was agreed to be excluded from the consent determination, and the native title application was dismissed in respect of that part: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487. As the Full Court explained at [4], there were three different categories of land and waters within this excluded area: an area which overlapped with another existing claim (by a different group); a north-eastern portion; and the land (that is, islands) and waters seaward of the mean low water mark.

132    The second application (called “Thalanyji No 2”) was directed to, and claimed native title over, what is referred to above as the “north-eastern portion”. In an interlocutory application (which was dismissed and was then the subject of an application for leave to appeal to the Full Court) the State contended Thalanyji No 2 should be dismissed as an abuse of process, because the Thalanyji No 2 claim was over land the subject of the order for dismissal in the Hayes/Thalanyji No 1 consent determination.

133    There was a joint submission before judge who heard the State’s interlocutory application concerning the abuse of process claim, which indicated, but not decisively so, that the north-eastern portion was “most likely” the country of another group, the Nhuwala People, and it was contemplated they may wish to make a claim over that area at some stage in the future. The primary judge held there was a basis for the State to believe the Thalanyji People had abandoned their right to pursue further native title claims in the excluded area (including the north-eastern portion), but also noted that the exclusion of the north-eastern portion from the determination was a result of confidential negotiations, and not a contested trial.

134    At [15]-[16], the Full Court summarised the primary judge’s conclusion in the following way:

At [45], his Honour considered that he could not form the view that the Court in Hayes made the consent determination on the basis that the claimant group had abandoned its claim to the relevant excluded area. The primary judge noted that the position he had arrived at involved “a difficult judgment call”. Critically, his Honour said:

… if the parties had come to a clear agreement that the terms of the consent determination, including the dismissal of the balance of the Thalanyji (No 1) claim, was intended to completely shut out the same claim group from ever proceeding with a subsequent claim in respect of the area excluded from the consent determination, then it should have been clearly spelled out. In my view, it was not.

His Honour concluded at [46] that he did not consider that Thalanyji No 2 should be dismissed for abuse of process.

135    The Full Court noted (at [20]) that the State’s argument was founded on res judicata, not issue estoppel or Anshun estoppel. Focussing on the principles about that doctrine, the Full Court said at [25] (and without reference to s 13 of the Native Title Act):

Where an action has been brought and judgment entered on the action, no other proceeding may be maintained on the same cause of action. If the cause of action was recognised to exist in the judgment, it merges in the judgment and no longer exists; if it was found not to exist, the unsuccessful party may no longer assert that it does: Jackson v Goldsmith (1950) 81 CLR 446 at 466; Anshun at 597, 610 ff; Chamberlain v Deputy Commissioner of Taxation at 508, 510-511; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 556-557; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 964, approved in Anshun at 597.

136    Then at [26], the Full Court relevantly stated:

However, here, there can be no doubt that, whether or not what is being discussed is a right or the facts upon which a right is based, the very same rights under the very same Act based on the same asserted factual connection is now sought to be maintained as was claimed in the earlier proceeding which was dismissed.

137    Noting (at [30]) that an application for summary dismissal on the basis of abuse of process was but one of several ways a respondent such as the State could challenge the Thalanyji No 2 claim, the Full Court observed (at [31]) that whether it would be appropriate to deal with such an argument in a summary way would depend on the circumstances. In the case before it, for reasons it set out at [32]-[38], the Full Court found the Thalanyji No 2 claim was not appropriate for summary dismissal. One of the matters to which the Full Court adverted, having recognised the unique nature of Native Title Act proceedings, was the following (at [35], in the context of considering the position of the State):

Should the State approach a claim of such historical and future importance by reference to the drastic consequence of res judicata in the circumstances of the order having been brought about? The answer to that question might fashion the development of a rule of law qualifying the principle of res judicata in the context of this type of claim between these parties under the Native Title Act. The answers to these questions may involve a conclusion of the position of the State informed by notions of trust, good faith, informed recognition of the deep importance of the vindication of proven historical connection affecting generations past, present and future.

138    This led the Full Court to conclude (at [38]):

In all the circumstances, it would be inappropriate to permit the Thalanyji people’s claim to be disposed of in a summary way without exploration of the kind of considerations to which we have referred. The question of res judicata and any consequential matter should be pleaded.

139    We accept these observations were all made in the context of explaining why the Full Court did not consider it appropriate to deal with the question summarily, which is different to the circumstances in Warrie, where the abuse of process argument was dealt with at trial.

140    Nevertheless, the consequence here for the Yindjibarndi People is no less drastic. And given the timing of the way the matter was raised by the State, and then supported by the appellant, one might say even more so. The considerations to which the Full Court adverted in Fazeldean, of “informed recognition of the deep importance of the vindication of proven historical connection affecting generations past, present and future”, are just as important here in considering where justice and injustice lie, and how public confidence in the administration of justice and “contemporary values” (to use the language in Batistatos) inform the answer to the question whether the exclusive possession claim over the Area A area in the Warrie proceeding constitutes an abuse of process. In the present circumstances, those considerations weigh in favour of the conclusion that there is no abuse of the processes of this Court.

Wyman v State of Queensland

141    Insofar as it might be said that the reasoning we have adopted is not consistent with the approach taken by Jagot J in Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777, we do not consider that to be the case. In Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (the earlier decision) her Honour had concluded that the Bidjara People had not proven continued acknowledgement and observance of their traditional laws and customs in relation to the area of land known as the “overlap area”: see Wyman at [26]-[28]. That is a factual finding likely to affect any future native title claim made by the Bidjara People, even over different land and waters. We see that as quite a different situation to the present. It may be possible for a finding of that kind to be revisited in a s 13 application, but it is otherwise understandable why a claim group might not be permitted to proceed with further claims over other land and waters if there has been a clear finding of no continuity in the observance of their traditional laws and customs: such a finding is less specific to any particular land or waters.

Dale v Western Australia

142    We do not consider the Full Court’s decision in Dale compels any different conclusion to the one we have reached. Dale was an appeal from a decision that a further native title claim brought by a group described as the “Wong-Goo-TT-OO” or “WGTO” should be summarily dismissed on the basis of issue estoppel, arising from Nicholson J’s determination in Daniel. As we noted earlier, the members of the WGTO claim group were, through their own earlier proceeding and a series of joinder orders, parties to the Daniel proceeding, so that they became the third applicants, insofar as there was an overlap between the land and waters they claimed and the land and waters claimed by the Ngarluma and Yindjibarndi Peoples (as well as another claim group): see Dale at [11]. The complex history of the several proceedings which culminated in the Daniel judgment is explained by the Full Court in Dale at [3]-[22]. The Full Court noted at [21] that in Daniel, Nicholson J found that the WGTO claim over the overlapping portions of the Ngarluma and Yindjibarndi consolidated claim area (as well as the claims of another claim group) should be dismissed. The Full Court noted at [22]:

As to the WGTO claim, his Honour said at [24] that:

… [the] dismissal [was] without prejudice to any rights the members of the [WGTO] group … may have as Ngarluma people or Yindjibarndi people (and not as [WGTO]) to be native title holders.

In effect, his Honour contemplated that those persons comprising the WGTO claim group in respect of the NY consolidated claim area may be eligible to enjoy native title rights and interests as members of either the Ngarluma People or the Yindjibarndi People.

143    Having described in some detail the lay and anthropological evidence which the WGTO claimants put before Nicholson J in order to prove their claim, and the factual findings Nicholson J made, and also noting (at [43]) that the WGTO claimants unsuccessfully appealed from Nicholson J’s dismissal of their claim, the Full Court in Dale then noted (at [48]) that what the WGTO claimants now sought to do was to pursue their claim for a determination of native title in relation to remaining areas that were not the subject of the determination by Nicholson J. The arguments made by the State before the primary judge were summarised by the Full Court at [53]:

The notice of motion was heard by McKerracher J. The State successfully contended that the claim was bound to fail because the WGTO people were estopped from asserting that they form a society that has existed continuously since sovereignty because of key “findings” made in Daniel. As a secondary argument, the State contended it was “highly implausible” the WGTO people could establish native title over the town sites of Karratha, Wickham and Point Samson when the trial judge found in Daniel that the Ngarluma People held native title to the areas surrounding those town sites and that the WGTO people did not.

144    On the appeal, for reasons that need not be set out, the Full Court also allowed the arguments to be put on the basis of abuse of process, although they were not put this way to the primary judge: see [84] and [86]-[87] of the Full Court’s reasons. The Full Court summarised its conclusions at [88]:

We have decided that the WGTO application constitutes an abuse of process and McKerracher J was correct in making the order he did dismissing the WGTO application. While we entertain real doubt that issue estoppel has any field of operation in applications for native title determination, it is unnecessary to resolve that legal question. We shortly explain why we doubt that issue estoppel has any application in proceedings of the present type.

145    At [110]-[111], the Full Court explained the basis for their conclusion about abuse of process:

What can be seen in this review of the further affidavits together with our earlier discussion of the evidence before the trial judge in Daniel is that the earlier evidence concerning whether the WGTO claim group was a cognatic kin group was not focused only on the circumstances of the WGTO claim group in the NY consolidated claim area considered by his Honour. Rather, it was evidence that apparently applied to establishing (but unsuccessfully so) the existence of the WGTO claim group as a cognative kin group who held at settlement and have continued to hold native title rights and interests generally in the broader area which was the WGTO claim area, including that part which became part of the NY consolidated claim area. It was not evidence confined only to that part of the wider WGTO claim area which had been consolidated into the NY consolidated claim area.

…

It is our view that, in substance, the WGTO essentially seek to have the same issue as determined in Daniel determined differently in the present WGTO claim. Its attempts to do so constituted, in our opinion, an abuse of process.

(Emphasis added.)

146    And then at [114]:

Litigation of native title disputes or issues is very often a time-consuming and resource demanding process. Those demands are made of the parties and the Court alike. Applicants have the protective benefit of s 85A of the NT Act in relation to costs. In our view, WGTO should not be permitted to relitigate the issue determined against them in the Daniel proceedings. Its attempts to do so in this matter constitute an abuse of process. The appeal should be dismissed.

147    As an aside, we note the application by the State to the primary judge in Dale was made in mid-2008 (and amended in early 2009), and the appeal was determined in 2011. The State’s application was first brought as a notice of motion seeking summary dismissal over parts of the WGTO claim, and subsequently as an application for summary dismissal of the entirety of the claim. In other words, in around 2009 the State was actively pursuing abuse of process-like arguments in relation to claims dealt with in Daniel. Yet it did not do so in the Yindjibarndi claim until around six years later, in 2015. We also note that the approach taken by the Full Court in Dale was to consider whether the content of the application – or the content of the claim – made by the WGTO group constituted an abuse of process. The matter was dealt with on that basis, and well before any trial.

148    Like Wyman, the finding of abuse of process in Dale turned very much on the nature of the factual findings which had been made in the earlier decision in Daniel. On any view, what was sought was a re-litigation of factual matters determined against a native title applicant and claim group, which would apply to any land and waters over which they sought to have native title recognised. As we have sought to explain, we see the issue here as quite different.

Conclusion

149    Ground 1 of the appeal should be rejected.

The Yindjibarndi’s Notice of Contention

150    Given our conclusion on ground 1, it is not necessary to determine the notice of contention filed on behalf of the Yindjibarndi. However, it is apparent from what we have outlined above that we consider the procedural history of the Warrie claim is a matter to weigh in the Court’s consideration of “all the circumstances” in which the allegation of abuse of process arises: see Tyne at [7], citing Johnson v Gore Wood at 31.

GROUNDS 2 AND 3 – EXCLUSIVE POSSESSION

151    We have set out these grounds at [5] above. They are necessary to decide because ground 1 has not succeeded.

152    These grounds concern the first of the two arguments which we have summarised at [12] above, by reference to an extract from the primary judge’s reasons: namely, the contention that the Yindjibarndi People were not able to prove the existence of a right to exclusive possession, and to the extent that the Full Court decisions in Griffiths and Banjima suggest such a right can be established and recognised on the basis of evidence about “spiritual sanctions” alone, those decisions are wrong, and this Court should overrule the findings to that effect in those decisions.

153    We have noted at [61] above that in his reasoning on the abuse of process issue, the primary judge referred to Nicholson J’s crucial finding in Daniel at [292], which characterised the Yindjibarndi People’s claimed right to control access to land, and evidence of seeking permission to access land, as “a matter of respect rather than in recognition of a right to control”.

154    In contrast to Nicholson J’s finding, the primary judge relied on what was said by the Full Court in Griffiths at [127]. The appellant contends the primary judge used this passage as a central authority for the proposition that “spiritual necessity” could found a right of exclusive possession. In that passage, the Full Court stated:

It is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should, in their testimony, frame their claim to exclusivity as some sort of analogue of a proprietary right. In this connection we are concerned that his Honour’s reference to usufructuary and proprietary rights, discussed earlier, may have led him to require some taxonomical threshold to be crossed before a finding of exclusivity could be made. It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a “spiritual affair”. It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. The status of the appellants as gatekeepers was reiterated in the evidence of most of the indigenous witnesses and by the anthropological report which was ultimately accepted by his Honour. We would add that it is not necessary to exclusivity that the appellants require permission for entry onto their country on every occasion that a stranger enters provided that the stranger has been properly introduced to the country by them in the first place. Nor is exclusivity negatived by a general practice of permitting access to properly introduced outsiders.

155    The primary judge noted (at [380] of his reasons) that the kind of argument put and accepted in Griffiths was not put to Nicholson J in Daniel, and that Nicholson J’s finding “did not negate or deny the existence of a spiritual or gatekeeper dimension to the assertion of an exclusive right”. It was this approach which led the primary judge to find (at [382]):

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

156    As will become apparent, although this is a key passage in the primary judge’s reasons, we do not consider it fairly represents the whole of the primary judge’s approach to the question whether the Yindjibarndi People had, under their traditional law and custom, a right in the nature of exclusive possession which should be recognised in a determination of native title.

157    We have concluded that grounds 2 and 3 should be rejected. The findings made by the primary judge were well open to him on the evidence, and there was no error in principle in his approach. The decisions of the Full Court in Banjima and Griffiths support the approach taken by the primary judge and are not wrongly decided. Nor is Sundberg J’s decision in Neowarra v Western Australia [2003] FCA 1402 wrong. The primary judge’s approach is not inconsistent with earlier authorities, including Ward, Yarmirr and Western Australia v Brown [2014] HCA 8; 253 CLR 507.

158    Finally, by way of general observation, one matter to note is that not long before the hearing of the appeal the State filed a submitting notice. Although it led the submissions, and the cross-examination, before the primary judge on the question of exclusive possession, ultimately it did not seek to contest the Court’s findings, nor the application of Griffiths and Banjima, despite the submissions it put in those cases, which were repeated by the appellant on this appeal.

The primary judge’s orders

159    To understand how grounds 2 and 3 fit into the challenge to the orders made by the primary judge, it is necessary to explain the determination itself, insofar as it concerns areas over which the Yindjibarndi People were recognised as having exclusive rights.

160    Paragraph 4 of the determination stated:

Subject to paragraph 5, in the Exclusive Area, the native title rights and interests confer the right to possession, occupation, use and enjoyment of that area to the exclusion of all others.

161    Paragraph 5 stated:

Qualifications on the native title rights and interests

5.     The native title rights and interests set out in paragraphs 3 and 4:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Yindjibarndi People;

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and

(c)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

162    The “Exclusive Area” was defined in para 11 of the determination by reference to its description in Part 2 of Schedule 1 and its depiction on the maps in Schedule 3. The description in Part 2 of Schedule 1 makes it clear that the Exclusive Area comprises land which has been the subject of findings by the primary judge pursuant to s 47A and s 47B of the Native Title Act, and involves land which was unallocated Crown land, or (in the case of the parcel to which s 47A applies), reserved land. There is also one area of waters.

163    Any mineral leases or mineral licences in these areas are severed from the definition of the Exclusive Area, so that exclusive possession rights do not apply to them: see Schedule 4.

164    The map in Schedule 3 of the orders which shows the Exclusive Area is the following:

The primary judge’s findings

165    It is necessary to set out the steps in the primary judge’s reasoning which led to his conclusion about the Yindjibarndi People’s rights of excusive possession, beginning with what his Honour set out at [40] of his reasons as admitted facts between the parties. We have emphasised in bold those we consider to be of particular relevance to grounds 2 and 3:

40    The applicant, the State, FMG, the Rio parties, the Hancock parties and the Todd respondents filed statements of their contentions. In those, FMG, the Rio parties and the Hancock parties substantively adopted the position of the State, with the exception of the abuse of process issue, that only the State and FMG pursued. The statements of contention and the agreed statement of issues, read together, identified the following admitted facts, namely that:

•    the Yindjibarndi constitute a society that has continued to exist, since before the assertion of sovereignty in 1829, as a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs under which they possess native title rights and interests;

•    the Yindjibarndi’s native title rights and interests are held by them as communal rights and interests and it is unnecessary to establish connection on a subgroup or estate basis;

•    the Yindjibarndi have a connection with the claimed area within the meaning of s 223(1)(b) of the Act;

•    members of the Yindjibarndi language group occupied and used the claimed area, as of right, under a body of laws that they acknowledged and customs that they observed, and they possessed rights and interests in relation to, and had a connection with, the claimed area;

•    the Yindjibarndi have continued, substantially uninterrupted since sovereignty, to acknowledge and observe a body of traditional laws and customs under which they possess, as a group, rights and interests in relation to their traditional land and waters, including the claimed area and the Moses land (collectively Yindjibarndi country), and by those laws and customs have a connection with Yindjibarndi country;

•    rights and interests in relation to Yindjibarndi country are gained primarily by cognatic descent, under the traditional laws and customs as presently acknowledged and observed by the Yindjibarndi;

•    the Yindjibarndi consider that Yindjibarndi country, including the claimed area, is redolent with spirituality, commemorated by senior male members through mytho-ritual traditions, and, in particular, their unique Birdarra law;

•    the right to rehearse the spirituality of Yindjibarndi country (including, of course, the claimed area) and manage its geographic and physical manifestations rests primarily with those Yindjibarndi qualified to do so;

•    the exercise of rights to use Yindjibarndi country requires knowledge of the country and its resources;

•    under traditional laws and customs as presently acknowledged and observed, a person who does not belong to Yindjibarndi country and cannot assert rights to it, is identified by use of the word “manjangu”;

•    the Yindjibarndi language is a common point of identity reference for those Yindjibarndi individuals who claim native title rights and interests in the claimed area;

•    persons identifying as Yindjibarndi, in general (I have used the qualification “in general” because the State and FMG do not admit that each and every Yindjibarndi person acknowledges and observes the Birdarra), acknowledge and observe the mytho-ritual religious observance called Birdarra;

•    the observance of the Birdarra includes singing the Bundut, which is a series of songs and accompanying exegesis that is performed in connection with male rituals;

•    the Yindjibarndi understand that, first, the Bundut relates directly to Yindjibarndi country, including the claimed area, by associating the various subjects of the songs with named places in the countryside, and secondly, the singing of those songs unites a singer with the part of the country that is the subject of the songs in such a way that the country can “feel” the singer, and the singer can “feel” the country and keep it alive;

•    much of the information about the Birdarra and associated rituals is esoteric and its dissemination is restricted to ritually qualified men. Generally, women do not discuss any matters relating to the Birdarra;

•    the Yindjibarndi continue to practice the Birdarra law (that they sometimes call “the Law” or “initiation”) and commonly do so at the “Woodbrook Law Ground”, near Roebourne, where many Yindjibarndi now reside.

(Emphasis added.)

166    There is no doubt from the primary judge’s description of these admitted facts, and what he says at [42] of the reasons, that his Honour approached the issues in dispute between the parties on the basis that the Yindjibarndi People’s traditional law and customs applied to both the claim area and the determination area in Daniel/Moses.

167    The primary judge then made three general points, all of which are important in understanding the approach his Honour eventually took to whether the Yindjibarndi People had established they had, and continued to observe, a right to possess, occupy, use and enjoy the claim area to the exclusion of all others.

168    The first was to identify a passage in the High Court’s judgment in Ward at [14], which emphasises what the High Court called a “religious relationship” between Aboriginal people and their country. This passage from Ward was recently approved by the plurality in Northern Territory v Griffiths at [153]. The passage relied on by the primary judge should be reproduced, along with his Honour’s emphasis in bold:

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a “non-exclusive agricultural lease” or a “non-exclusive pastoral lease”, whether the native title rights and interests “confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others”.

(Original emphasis and footnotes omitted.)

169    Second, at [43], noting that the High Court in Ward explained that there must be “the identification of, first, the asserted traditional laws and customs and, secondly, the rights and interests in relation to land and waters that are possessed under those laws and customs”, the primary judge stated that in Ward at [19]-[21], the High Court had emphasised:

… that s 223(1)(a) and (b) provide that the traditional laws and customs, and not the common law, are the source of any native title rights and interests.

(Emphasis added.)

170    Third, at [44], relying on a passage from the Full Court’s reasons in Banjima at [40], the primary judge stated:

Recognition of a law or custom of one indigenous people by another indigenous people in relation to seeking permission to enter, or conduct activities (such as hunting) on, land or waters, and the spiritual or other purpose or consequence of seeking or failing to have that permission, can demonstrate the normative effect of the law or custom.

171    Having adopted under s 86(1)(c) of the Native Title Act the findings by Nicholson J in Daniel at [152]-[190] and [192]-[201] about the historical account of post-sovereignty events affecting the Yindjibarndi People, the claim area and the Moses land, the primary judge then turned to the evidence before him said to support the exclusive possession claim. The evidence to which his Honour referred and his findings can be summarised in the following way.

172    The primary judge relied to a significant degree on the evidence of Michael Woodley, a senior Yindjibarndi lawman, “called a tharngungarli or tharngu in Yindjibarndi, because he is one of the most knowledgeable in the Birdarra law” (at [46]). His Honour summarised the key aspects of Mr Woodley’s evidence, placing particular emphasis (at [52] and [53]) on his evidence about Birdarra law, and about the connection of Yindjibarndi People to their country:

… if we look after our country [in] the proper way, our country must look after us and provide for us; this is the promise of Minkala (God), which was told to us by the Marrga. However, if we break the Birdarra Law, or allow others to break it, we suffer; our people get sick or die, or the country dries up and we can’t get what we need to go on living.

…

Yindjibarndi people, Yindjibarndi language and Yindjibarndi country (and all that is within, from both past and present) are not different things, but related parts of one thing called “Yindjibarndi”, which came into existence in the Ngurranyujunggamu. I do not feel or see myself as something that is separate and different from Yindjibarndi country because my spirit comes from my country and is always connected to it. It’s the same for all Yindjibarndi. This is why, if Yindjibarndi country is hurt because the Birdarra Law is not followed, Yindjibarndi people suffer. The Yindjibarndi people were commanded by the Marrga to look after Yindjibarndi country, in accordance with the Birdarra Law, and we are held accountable for everything anyone does in Yindjibarndi country.

(Original emphasis.)

173    This led his Honour to find (at [54] and [55]):

I am satisfied, having considered all of the evidence, that this explanation of spiritual connection reflects both important traditional laws, that the Yindjibarndi acknowledged, and traditional customs, that they observed, at the time of sovereignty and continue to acknowledge and observe today. The explanation neatly captures the essence of the relationship of the Yindjibarndi to their country and their spiritual obligation, embedded in their traditional laws and customs, to protect that country, including from the presence and activities on it of strangers (or manjangu) unless the stranger(s) first obtain(s) permission from Yindjibarndi people.

In addition, I am satisfied that, if a stranger were free to enter Yindjibarndi country without permission, under those Yindjibarndi normative laws and customs that have continuously applied over the same time period, he or she could “hurt” the country by violating the Birdarra law, even if unintentionally; for example, by entering a sacred or restricted place, or taking something, such as a resource or animal, from the country. And, those laws and customs thus require the Yindjibarndi to protect their country from a manjangu gaining access to it or its living or inanimate resources without permission of a Yindjibarndi elder.

174    The primary judge continued, by reference to Mr Woodley’s evidence, to make findings about how Yindjibarndi country was divided up into 13 areas called ngurras (or homes), each of which had ngurrara (or country owners) who were responsible for that country and whom the spirits watched over to ensure they were protecting it and following the law, with adverse consequences for those people if they were not. His Honour also made findings about Yindjibarndi ritual practices, including at sites called thalu, which embody the law, and were continued by Yindjibarndi people, such as Mr Woodley.

175    The primary judge highlighted aspects of the evidence which, it is clear, his Honour considered illustrated the way these laws and customs were embedded in Yindjibarndi understanding of who had rights and interests in the claim area, and who did not. For example (at [61] and [64]):

A lawman must be the correct galharra to work or perform rituals at any particular thalu and he must be painted up with local ochre. He must ask the Marrga at the site for permission to break a branch or leaves off a tree to use in brushing the thalu from side to side while calling out to the country in Yindjibarndi language.

…

Michael Woodley explained that Yawarnganha has particular importance for the Yindjibarndi. That is because it is the only area in Yindjibarndi country where, first, sacred trees called wirndamarra grow and, secondly, they can hunt emu for their yulbirriri thurru ritual. He said that the wood from wirndamarra is used to make certain sacred objects that identify Yindjibarndi people with their law and country “so [that] no other group can steal our lands”. The yulbirriri thurru ritual is performed by grandfathers with their newly initiated grandsons. The grandson must hunt for an emu on the Yawarnganha plain and once he has one, he must take it to a yulbirriri thurru area, chosen by his grandfather, that surrounds the mouth of a watercourse that flows out of the Hamersley Range (Gambulanha) into the Yawarnganha, near the base of the escarpment. The Yindjibarndi name for the escarpment, Gumbayirranha, means “a face-to-face reflection of each other”. The ritual requires the young man to show his face for the first time to the face of Gambulanha.

(Original emphasis.)

176    The primary judge then turned to the evidence of other witnesses, amongst them Angus Mack, whose evidence described the serious harm which could befall a manjangu (or stranger) who entered Yindjibarndi land without permission (at [66]):

… because what they do, spirits, they take your soul. They lock it up in the country. That’s what I meaning by you will deteriorate somewhere else, at town, or ... you can go from here good but ... if manjangu come into Yindjibarndi country, and they go, the spirit will grab their spirit - will grab the spirit and ... the person wouldn’t know that. You will go back to ... where you come from ... you will slowly deteriorate and pass away. That’s how it does that spiritually. And ... the buyawarri, the dream, well a lot of people ... experienced it.

(Original emphasis.)

177    At [67], his Honour noted Mr Mack’s evidence that “if a manjangu first sought permission, then the Yindjibarndi would perform a ceremony to ascertain the person’s intentions and whether he or she were genuine and did not wish to harm or cause a threat to them or their country”.

178    Having noted a considerable amount of other evidence from Mr Mack, the primary judge then turned to other Yindjibarndi witnesses, whose evidence he found to be in the same vein: Middleton Cheedy, Berry Malcom, Rosemary Woodley, Lorraine Coppin and Bruce Woodley.

179    Reflecting the third general observation his Honour had made at the start of this part of his judgment and to which we referred at [171] above, the primary judge then turned (from [77] of his reasons) to the evidence from non-Yindjibarndi people, who had native title rights and interests in areas surrounding the Yindjibarndi claim area: Wayne Stevens, a Guruma man, Ricky Smith, a Ngarluma man and Archie Tucker, a Banjima man. For example, his Honour summarised Mr Tucker’s evidence (noting the Banjima People were found to hold exclusive native title, and also noting Mr Tucker was not required for cross-examination) in the following way (at [84]):

Archie Tucker said that he had been taught by his “old people that I have to ask the right elders before going onto neighbouring Aboriginal groups’ country”. They had also taught him that “whitefellas” and people from other Aboriginal groups should ask permission from Banjima people before coming onto their country. He knew the boundary between Banjima and Yindjibarndi country. He said that he had asked a number of Yindjibarndi elders for permission to go on their country in the 1990s when he was dogging and that, in giving permission, they had told him where the special places are. He said that because the Yindjibarndi knew him, “they know I will not harm any sites and I will respect their country and not take anything that I don’t need”.

180    The primary judge then made the following finding (at [85]-[86]):

I infer that his evidence that the Yindjibarndi knew that he would not harm any sites, would respect their country and not take anything that he did not need reflected his own understanding of the purpose for which the Yindjibarndi, as well as the Banjima and other Pilbara peoples, required strangers to seek prior permission to enter upon their country. That purpose has existed since before sovereignty and continues to exist to ensure first, protection from the traditional (but no longer practised) physical enforcement of each people’s territorial control by death or injury, secondly, the continuing spiritual consequences to a person entering without permission (such as the instances to which I have referred above) and, thirdly, the protection of the country and its special places.

In my opinion, Archie Tucker’s evidence reinforced the importance of a manjangu, such as him, seeking permission from a Yindjibarndi elder before entering their country because of their role as protectors or guardians of their land and waters and their capacity to communicate with the spirits in order to ascertain whether the manjangu should be permitted to enter and what he or she should be permitted or forbidden to do while on Yindjibarndi country.

181    His Honour’s conclusions on the evidence of Yindjibarndi People and other non-Yindjibarndi people from surrounding country are expressed at [88]-[89]:

I am of opinion that the evidence to which I have referred above reflected not only the Yindjibarndi’s past (since before sovereignty) and present acknowledgment of their traditional laws and observance of their traditional customs in the claimed area and throughout Yindjibarndi country (including the Moses land), but also the Yindjibarndi’s profound sense of relationship with, and duty to protect, their land and waters.

I am satisfied that, under those laws and customs, the Yindjibarndi in the past did not permit a manjangu (stranger) to enter on or to exploit any of the land and waters without a Yindjibarndi elder having first given permission to, and then introduced, the stranger, if the traditional laws and customs permitted him or her to be there at all, to the spirits in the particular place and taken steps to protect the stranger from any harm.

182    The primary judge then turned (from [90] of his reasons) to some of the ethnographic and anthropological evidence which he found supported the view he had formed, including the early observations of Professor Radcliffe-Brown and the expert evidence of Dr Palmer. We return ourselves to Dr Palmer’s evidence below. At [91] the primary judge said of Professor Radcliffe-Brown’s material:

It is safe to infer that Prof Radcliffe-Brown’s reference to “neighbouring tribes” included the Yindjibarndi. The “respect” which the “shepherds” exhibited for the country of their neighbours reflected a regional law or custom that, ordinarily, trespass or entry onto the country of a tribe or local group not one’s own was likely to be punished by death or spiritual harm.

183    And at [95] he said of Dr Palmer’s expert evidence:

Dr Palmer said that in his experience, based on many years work in his field, “it’s a very real fear that people have that there will be supernatural consequences for breaking the normative system ... I don’t underestimate the strength of that belief in this [Yindjibarndi] ethnography. It is of fundamental importance”. I accept that evidence and am satisfied that it reflects the normative system that has existed, and the Yindjibarndi and their neighbours have observed, since before sovereignty. It reflected not only the substance of the confidential evidence of Angus Mack, but also the numerous other Yindjibarndi witnesses’ explanation of the spiritual importance of a manjangu needing to seek permission to come onto, or conduct activities on, Yindjibarndi country. That requirement to seek permission is also present in the apparently complementary, or congruent, system of belief of neighbouring Pilbara people’s. It has a normative importance as a fundamental element of their traditional laws and customs.

(Original emphasis.)

184    The primary judge then referred to one piece of evidence before Nicholson J (from Allery Sandy) which his Honour found to be of the same nature as the evidence of the Yindjibarndi witnesses before him. This evidence was also before this Court, apparently for the purpose of supporting the appellant’s argument that the kind of asserted right could not in any “real world” sense be characterised as a right of exclusive possession, because it was accepted that it could not be enforced against non-Aboriginal people. We return to this issue below.

185    His Honour then turned to the arguments put by the appellant and by the State, and why he rejected them. This part of his Honour’s reasons extends from [98]-[148], and while we cannot do justice to it by a summary, we note the following points which we consider to be of principal relevance to ground 2 of the notice of appeal.

186    At [98] the primary judge described the argument put by the appellant and the State (and now put only by the appellant):

The State and FMG argued that notwithstanding the body of evidence to which I have referred, the requirement that a stranger seek permission before entering Yindjibarndi land was a mere matter of “respect” or courtesy, rather than a requirement of traditional and currently acknowledged Yindjibarndi law. They also contended that in today’s world, not everyone, and particularly not all indigenous non-Yindjibarndi persons, sought permission before entering Yindjibarndi country. They submitted that, in some way, these circumstances demonstrated that the Yindjibarndi laws and customs either traditionally, since before sovereignty, or as they are now acknowledged and observed, did not reflect an actual right of the Yindjibarndi to be asked for, or the continuing practice of a recognised and enforced requirement for a manjangu to seek, permission before entering or conducting activity on Yindjibarndi country.

187    That is how the argument has been put on appeal, albeit that it appears to have been extended to have some more absolute aspects.

188    The primary judge first noted (at [99]) that the appellant’s and State’s contention that the requirement for permission was a matter of respect begged the question: “respect of what?” His Honour also observed that none of the relevant Yindjibarndi witnesses were cross-examined to the effect that the concepts they were articulating involved paying respect in a way that did not involve actual control of access by others. Using some evidence from Charlie Cheedy (about the theft of a person’s pick and shovel and use as if they are one’s own), the primary judge referred (at [101]-[102]) to aspects of the common law of trespass and theft which encompass the concept of respect.

189    The primary judge then returned (at [104]) to the passage in Ward to which he had referred at the start of his reasons, and which we have extracted at [169] above, and the repetition by the plurality in Brown at [36] of the differences between the content of traditional law and custom, and the common law:

It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the “intersection of traditional laws and customs with the common law” (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”.

(Original emphasis and footnotes omitted.)

190    At [105], the primary judge held that the need to show respect was a right or interest under Yindjibarndi law and custom:

… broadly equivalent to the common law concept of trespass to land (and trespass to goods, if things be taken from the land and waters such as ochre or animals). That understanding demonstrated that the need to show such “respect” under Yindjibarndi laws and customs was in the nature of a real proprietary right equivalent to the common law right of exclusive possession, as did the ancient normative consequence that a transgression was punishable by death or spiritual harm. The Yindjibarndi had and continue to have a normative responsibility to care for and protect their country from unauthorised access to it by a manjangu.

191    The primary judge reiterated (at [106]) that there was continuity of this right, albeit that the Yindjibarndi understood they were unable to enforce it as they would once have done:

And, as Stanley Warrie said, in respect of the non-exclusive possession and extinguished areas in the Moses land and in claimed area, “when you’re under the white man law, you’re ... free to go wherever you want to ... And it is a free country then. But our laws still stand the same”. He said that Aboriginal people still followed their law and culture even though “the white man law” had affected the way that Aboriginal laws are respected. He said, “But there’s still respect between Aboriginal people ... But the white man doesn’t respect Aboriginal people’s laws”. Nonetheless, if a stranger came onto Yindjibarndi land (regardless of the position under “the white man law”) without permission, that would break the Yindjibarndi law. However, in the present day, the Yindjibarndi themselves could not harm such a person physically, by, for example, spearing him or her, because “the white man’s law’s in place. We can’t do anything like that”. Stanley Warrie explained (as did Middleton Cheedy, see at [71] above) that nowadays “you can’t kill anybody, because you get in gaol now”, but that “if I had my way, I would deal with him in my own law”.

(Original emphasis.)

192    It is at this point the primary judge referred to the Full Court’s decision in Banjima at [21]-[22], being the passage about Europeans standing “outside the universe of traditional laws and customs”, and being the passage which the appellant places at the front of its attack on the primary judge’s reasoning, and on the reasoning in Banjima.

193    The primary judge’s finding about the normative rule, requiring manjangu to seek permission before entering Yindjibarndi land, is set out at [111]:

I find that, in the ordinary course, a manjangu must seek permission from a Yindjibarndi elder or elders to enter and carry out activity for a particular reason on Yindjibarndi country. As Michael Woodley said, how that permission is sought now “depends on the circumstances” and “[a]ll family has special connection to all Yindjibarndi country” with no difference at all between them.

194    The primary judge then dealt with some of the other points made by the appellant about why the Court should find the Yindjibarndi had not proven a right of exclusive possession, including inconsistent evidence from Yindjibarndi witnesses, and lack of evidence of continuity. His Honour rejected those arguments, in part for the reasons we have already summarised, and then in addition (from [119] of his reasons):

(a)    His Honour found a clear consensus amongst the witnesses (which was not at a factual level the subject of any challenge on appeal) that all Yindjibarndi elders can speak for country;

(b)    His Honour reiterated his reliance, in terms of weight, on the evidence of Michael Woodley as a senior lawman (again, not a matter itself challenged on appeal);

(c)    His Honour referred to the appellant’s admission (in common with the State and all other active respondents) that the Yindjibarndi held rights and interests communally, so there was no need to prove that any sub-group had, or had exercised, rights in a particular way (and, we infer, more readily enabled the Court to rely on the evidence of someone such as Mr Woodley). His Honour did express the view (at [120]) that, in the course of making submissions, the appellant’s arguments appeared to derogate from this admission;

(d)    His Honour was satisfied the evidence showed that although the Yindjibarndi made decisions communally, an elder could, as a matter of “practical convenience”, and taking into account the legitimate adaptation of Yindjibarndi traditional law and custom to modern circumstances, grant a manjangu permission to access country. His Honour found (at [133]-[134]) the current position, on the evidence, was:

The manjangu should approach a senior elder, the nyambali or a tharngu or another law boss to seek permission, and the Yindjibarndi has or have to be confident that the stranger is being straightforward and trustworthy and will not harm or do anything wrong to the country. If they are not comfortable with that person:

we can sense it, and ... we do the ceremony ... and he’s not fulfilling his part of ... the binjimagayi ceremony, then he won’t be allowed in ... he just won’t be trusted.

Michael Woodley said that now that most elders had passed away, in speaking for country:

we’re getting very short on elders. So, what we try and do now is ... to rely on several elders to have ... the final say because they have the knowledge and wisdom for all Yindjibarndi country.

(Original emphasis.)

195    The primary judge spent some time at this point in his reasons discussing the way the methods of giving and seeking permission have adapted to the changed circumstances of modern times, and why on the principles in Yorta Yorta at [83] this did not preclude the finding of exclusive possession. This aspect of his Honour’s reasoning about adaptation, in terms of principle, does not appear to be impugned on the appeal.

196    The primary judge’s conclusion is expressed as follows (at [149]):

I am satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

The appellant’s arguments in summary

197    In oral submissions, the appellant modified its position on the appeal from its position at trial in one respect which should be noted at the outset. The appellant now accepts that at both actual and effective sovereignty (ie around 1860 in the relevant part of Western Australia) the evidence and the agreed positions between the parties justified the conclusion that the claimants had, under traditional Yindjibarndi law and custom, a right of exclusive possession. For that concession, the appellant referred to paragraphs [90]-[94], [108], [121] and [148] of the primary judge’s reasons. The first set of references ([90]-[94]) and the last ([148]) concern the opinions of Professor Radcliffe-Brown and Dr Palmer, and appear to be the basis for the modified concession. Paragraph [108] concerns a particular ritual (binja or binjimagayi, the announcing by a manjangu of her or his presence at the boundary of Yindjibarndi land by way of a smoke signal) that the appellant contended had died out. Paragraph [121] concerns the practice, before sovereignty, of Yindjibarndi elders granting permission to manjangu to enter Yindjibarndi land.

198    Senior counsel also submitted orally that the appellant accepted the evidence established the fact of exclusive possession as part of the content of Yindjibarndi traditional law and custom up until effective sovereignty. Senior counsel said:

… when we look at the present case, the evidence establishes that, at sovereignty, the Yindjibarndi people had an exclusive right of possession over the Yindjibarndi country, so that’s there. The evidence also establishes, and the findings as well, that, at the date of first effective European contact, which was about 1860, the position was unchanged, so that’s common ground. Where we submit the analysis has gone wrong, with Rares J, is there has not been a sufficient attention to what happened over the next 100 years. It’s the 100 years between 1860 and no later than the middle of the 20th century that produced a position whereby the sorts of circumstances in Mabo simply could not exist and did not exist, and the types of matters we will be referring to in that area are, firstly – and this is, of course, said without saying any of this was good or bad; they’re factual observations – firstly, over that period, the Yindjibarndi people were progressively dispossessed of their land, so that by the mid-20th century, no one is living on the land. There is no occupation. Occupation has ceased.

199    Given that modification, the appellant’s outline, handed up by senior counsel at the start of his oral argument, contends that in contrast to the position up until effective sovereignty:

… over the next hundred years, the Yindjibarndi ceased to live on or occupy their lands and the extent of the change, and the degree of interruption in use and enjoyment, was such that those earlier rights and interests could not continue in full: Daniel v WA [158]-[201]; (4) thereafter those rights and interests were non-exclusive: Daniel v WA [245]-[304], [370]-[372], [406]-[510].

200    In opening, senior counsel put it this way:

We submit that traditional law and custom did not lead to the possession of an equivalent right to that from no later than 1950, and that what has happened in recent times is an attempt to revive something which might be said to approximate that, based on what is said to be this notion of spiritual sanctions …

…

… when one examines the findings in Daniel … it’s the 100-year history between first contact and 1950 which led to the radical series of changes which made it, we say, impossible in any meaningful way for a traditional law allowing you to exclude anyone and everyone to continue …

…

To continue in existence or exercise …

201    In other words, the arguments that were advanced before the trial judge about “respect” being a qualitatively different matter, on the basis of the findings of Nicholson J in Daniel, cannot be treated as pressed, consistently with this concession. The concession accepts the primary judge’s findings about Yindjibarndi traditional law and custom at sovereignty, and at effective sovereignty, and the basis for it. In particular, the appellant must be taken to accept the primary judge’s finding at [89]:

I am satisfied that, under those laws and customs, the Yindjibarndi in the past did not permit a manjangu (stranger) to enter on or to exploit any of the land and waters without a Yindjibarndi elder having first given permission to, and then introduced, the stranger, if the traditional laws and customs permitted him or her to be there at all, to the spirits in the particular place and taken steps to protect the stranger from any harm.

202    So much flows from the following passage in the oral submissions of senior counsel for the appellant:

… as – but in terms of the richness of the answer, when we look at the present case, the evidence establishes that, at sovereignty, the Yindjibarndi people had an exclusive right of possession over the Yindjibarndi country, so that’s there. The evidence also establishes, and the findings as well, that, at the date of first effective European contact, which was about 1860, the position was unchanged, so that’s common ground.

(Emphasis added.)

203    What that concession left for the appellant to challenge was the primary judge’s finding (summarised at [149]-[151] of his Honour’s reasons, but explained in more detail before that) that Yindjibarndi traditional law about the need for manjangu to seek and be granted permission before coming onto (or exploiting) Yindjibarndi land had continued to be observed by the Yindjibarndi People up to the present day.

204    By reference to a large number of authorities, the appellant made two, related, contentions regarding the principles established in the High Court authorities:

a.    first, in determining what rights and interests are possessed under traditional law and custom, one cannot ignore how the claimant group’s conduct has been affected by white settlement;

b.    second, to get a determination of exclusive possession etc under s 225(e), it is necessary to show, as a matter of fact, that the traditional laws or customs, as currently acknowledged and observed, include an ability to exclude anyone and everyone, for any reason or no reason at all.

205    Some observations should be made about the second of the appellant’s propositions. Language similar to “anyone and everyone” can be found in a number of decisions. In Yarmirr at [93], the plurality state:

We were taken to no other evidence that would suggest the primary judge was wrong in his understanding of the evidence. In those circumstances, it is not demonstrated that he should have been persuaded of the factual proposition that lay behind the claimants’ contentions that they were entitled under traditional law and custom to exclude, as they chose, anyone and everyone from the claimed area.

206    In Fejo at [47] the phrase used is “any and everyone”. The same phrase was used by the plurality in Brown at [36] and [45], in the context of describing exclusive possession at common law for the purposes of assessing inconsistency with native title.

207    As we note below, Yarmirr was a case where, prior to British sovereignty being asserted, there were non-Aboriginal people fishing in the waters subject to the native title claim. The trial judge found, and the High Court agreed, that there was insufficient evidence of traditional law going so far at sovereignty.

208    Thus, care needs to be taken to recall the context in which this description of excluding “anyone and everyone” is used in the various authorities. It is the translation of a normative rule in traditional law and custom into the language of the common law. Words such as “exclusive”, or the concept of excluding “anyone and everyone” may often not find direct expression in the evidence of Aboriginal people. The absence in the evidence of terms familiar to the common law is, as the High Court has repeatedly emphasised (including in Brown at [36]), no barrier to the recognition of a right which is properly characterised, in common law terms, as one of exclusive possession. Also a splintered approach to the evaluation of the evidence or to the findings is to be avoided.

209    Further, the appellant’s second proposition must now be read in light of the appellant’s concession that, up until effective sovereignty, Yindjibarndi traditional law and custom did entitle the Yindjibarndi to “exclude anyone and everyone, for any reason or no reason at all”.

210    Therefore, what remains of the appellant’s argument is the focus on the changes brought about by white settlement on the continued observance of Yindjibarndi traditional law (and therefore its present existence). The appellant’s challenge to aspects of the Full Court’s reasons in Griffiths and in Banjima must be addressed in this context.

211    The appellant then characterises the primary judge’s reasons for concluding that Yindjibarndi traditional law on excluding all others had continued to be observed to the present day as reasoning which was based on the concept of “spiritual necessity”. The appellant submits that reasoning is erroneous. The appellant also submits that the Full Court decisions in Griffiths and Banjima do not stand for the proposition that “spiritual necessity” can give rise to recognition of a right of exclusive possession or, if they do, they are wrongly decided. The latter is ground 3 of the notice of appeal: see [358] below.

The Yindjibarndi response in summary

212    The Yindjibarndi sought to support the primary judge’s reasoning, and to emphasise the depth and breadth of the evidence before him. They submitted there were 17 detailed witness statements filed from Yindjibarndi people and three further witness statements from members of neighbouring Aboriginal groups. The Yindjibarndi also submitted that no responsive material was adduced by the active respondents, including no responsive witness statements or other evidence challenging the content of the Yindjibarndi witness statements, and no responsive anthropological evidence or other expert evidence challenging the opinions of Dr Palmer on connection. His Honour had the benefit of on country evidence, and that the Yindjibarndi witnesses and Dr Palmer were cross-examined about the issues which arise under ground 2. In oral argument, senior counsel for the Yindjibarndi took the Court to examples of this evidence, and we refer to this below.

213    The Yindjibarndi submitted that the primary judge heard evidence, including restricted men’s evidence, at Garliwinyjinha, when Angus Mack, a senior Yindjibarndi lawman, was cross-examined about the consequences of unauthorised entry onto Yindjibarndi country, and that his Honour’s reliance on Mr Mack’s evidence was clear. The Yindjibarndi submitted that the primary judge found (at [68] of his reasons) on the basis of Mr Mack’s evidence that if a manjangu came onto Yindjibarndi country without permission and took, for example, a kangaroo, then he or she would be punished by one or both of the spirits or a Yindjibarndi lawman (mowan) (emphasis added). In other words, the foreseeable (and expected) consequence or punishment was not only spiritual, but able to be imposed by a Yindjibarndi person.

214    The Yindjibarndi referred to two other authorities, aside from Griffiths and Banjima, with which the primary judge’s approach is said to be consistent: Yarmirr at [15]-[16], and Alyawarr at [72].

215    The Yindjibarndi submitted that, on the evidence, what the primary judge found was that Yindjibarndi had customs and traditions which involved normative requirements about how manjangu must behave, and how Yindjibarndi must assert control over their country, for the purposes of protecting the country and adhering to Yindjibarndi law. Findings such as the one made by the primary judge at [111] of his reasons are findings about a normative requirement, not simply a “belief”, in the reductionist sense used by the appellant.

216    The Yindjibarndi also emphasised that the statutory language of s 223 revolves around “possession” of rights, and not their exercise, pointing to the authorities which support that proposition, and submitted that the primary judge’s findings were properly focussed on possession, whereas the appellant’s arguments were focused on exercise. The Yindjibarndi developed this submission by reference to other cases (such as Yarmirr) where, at a factual level, the Court had found there was insufficient evidence to support possession of a right of exclusive possession. The Yindjibarndi submitted these are factual matters in each claim with no precedential value. We return to this issue below.

217    Finally, the other important plank of the Yindjibarndi response was also located in the text of s 223 – that the laws and customs which are to be proven are Indigenous laws and customs, and nothing in s 223 directs attention to any need to establish that those Indigenous laws and customs have been successfully integrated with, or accepted by, the non-Aboriginal world or non-Aboriginal law. Indeed, the Yindjibarndi submitted, otherwise the point of recognition of native title – to give Indigenous people rights enforceable and recognisable in the non-Aboriginal world – would be unnecessary. Senior counsel submitted:

There has been no cessation in the acknowledgement and observance of the laws and customs which give rise to this right of exclusive possession, and within the Indigenous world there has been continuity. His Honour finds that there has been continuity not just in the Yindjibarndi people’s acknowledgement and observance, but their neighbours’ acknowledgement and observance. So that the right within the universe of the Aboriginal world in the Pilbara is there. It’s – it has a fundamental and a thriving existence. White people don’t acknowledge it. White people don’t respect it. But that doesn’t mean that the rights don’t exist.

Now, that was what Mabo, if you like, was all about: the fact that Aboriginal people, Torres Strait Islanders, may well possess rights and interests in their land. But, prior to Mabo, those rights and interests weren’t recognised at all. And subsequently, unless and until a native title claim group obtains a determination demonstrating that, yes, they do, in fact, have a right of exclusive possession, they can’t stop people coming onto their land. This is the step that they have to take before they can exercise that right against non-Aboriginal people. And, again, that’s what the Native Title Act will do. It will now recognise and it will protect that right, whereas [formerly], without that formal determination, the right is not recognised. The right is not protected.

Resolution of ground 2

Summary

218    The appellant’s two sets of arguments – the first putting forward arguments of legal principle, the second challenging the primary judge’s analysis of the evidence on the basis of legal principle – do not sit easily together. That is because it is not submitted (nor could it be) that the evidence disclosed, or the primary judge found, that Yindjibarndi traditional law up until effective sovereignty included a right to exclude all manjangu based on “spiritual necessity”. That was neither the evidence, nor the primary judge’s findings.

219    The evidence which the primary judge accepted was, as we have set out above, that there always have been, and have continued to be, rules under Yindjibarndi traditional law about:

                (a)    manjangu seeking permission to enter Yindjibarndi land, or seeking to exploit resources on Yindjibarndi land;

(b)    permission being capable of being granted or withheld by Yindjibarndi elders, depending on their assessment of what the manjangu intended to do and whether they would cause harm to Yindjibarndi country; and

(c)    if manjangu did not seek permission and/or were not granted permission but came onto Yindjibarndi land anyway, Yindjibarndi law allowed (and continued to allow) for enforcement by Yindjibarndi of dire physical consequences (attack or killing), and also incorporated the expectation that such trespassers would suffer harm in any event (explained by some witnesses as inflicted by the spirits). His Honour noted (at [85]) that “traditional physical enforcement” was no longer practised. However, he accepted the claimants’ evidence it remained recognised as a consequence for entry without permission (see, for example, [70]-[71] and [106] of the primary judge’s reasons) (emphasis added).

220    Contrary to the premise of the “spiritual necessity” aspect of the appellant’s arguments under ground 2, the primary judge did not adopt an entirely different basis for his finding of continuity of observance of Yindjibarndi traditional law on exclusion of manjangu, nor self-evidently could he have done so. The source of Yindjibarndi traditional law had to remain constant, although as the primary judge recognised (at [129]), aspects of its implementation and the manner of its observance could – consistently with Yorta Yorta – be adapted.

221    In our opinion, the appellant’s “spiritual necessity” argument proceeds upon a misunderstanding and misapprehension about the primary judge’s findings in relation to the content of Yindjibarndi traditional law and custom, which was much wider than how it was portrayed by the appellant’s submissions.

222    Given that concession about the content of Yindjibarndi traditional law over the claim area (and the rest of their country) at least until effective sovereignty in 1860, the only question left on the appeal was whether the primary judge was correct to find that the Yindjibarndi had continued to observe that traditional law and custom to the present day. While that may involve some of the arguments of legal principle advanced in the first part of the appellant’s argument, we fail to see how the second part of the appellant’s argument about “spiritual necessity” engages with what was left for the primary judge to decide, and what he did decide. With respect, we also consider the appellant has misunderstood the primary judge’s use of the term “spiritual necessity”, and we explain why in more detail below.

223    We consider the primary judge was correct in the way he approached the question of how Yindjibarndi traditional law on excluding manjangu manifested itself after effective sovereignty, and was correct to observe the restricted ability of Yindjibarndi people, in a practical sense, to enforce their traditional law on those who came onto their land after white settlement. We also consider the primary judge was correct to see this argument by the appellant as effectively requiring the Yindjibarndi to have at their disposal the kinds of tools for the (non-traditional) enforcement of native title that are only given to native title holders under the Native Title Act after a determination is made.

Ward, Yarmirr and Brown

224    The appellant does not challenge the correctness of any of these decisions, and indeed relies heavily on the first two. Its focus is on the High Court decisions, because a particular theme of its submissions is the “essential propositions” which emerge from the High Court authorities, with which the primary judge’s decision is said to be inconsistent, and with which the decisions in Griffiths and Banjima, as applied by the primary judge, are also said to be inconsistent.

Ward (2002)

225    In its amended written submissions at [21], the appellant sought to draw from Ward a number of propositions by reference to particular paragraphs. However, we consider the appellant may have been too selective in its choice of paragraphs, such that its selection may give insufficient weight to the context of the Court’s reasons in Ward.

226    By the time it reached the High Court, the issues in dispute in Ward mostly concerned extinguishment, and how inconsistency of interests was to be assessed and determined for the purposes of extinguishment: see [1] of the plurality reasons. There were relatively minor issues about the existence of native title rights in minerals and petroleum (see [382]-[383], [572]) and there was an issue whether the claimed exclusive native title right to fish could survive post-sovereignty because of the existence of a common law public right to fish. The Court held ([387]-[388], [880]) the native title right to fish had been extinguished, applying Yarmirr. There was also an issue, in the scheme of the decision a small one, about the content of a right to protect and prevent the misuse of cultural knowledge (see [60] and [644] of the judgment).

227    There is a small section of the plurality reasons – 11 paragraphs of 471 – which set out, by way of a general introduction to the Native Title Act, some observations about native title. Some of the appellant’s contended propositions are taken from this part. The other contended propositions are taken from two other parts of the plurality reasons, the first of which ([51]-[52]) deals with the history of the appeal and the second of which ([88]-[94]) deals with the Ward claimants’ submissions on extinguishment. While the statements in the plurality reasons are general in nature, the point we seek to make is that much of even these relatively small number of passages in the plurality reasons upon which the appellant relied make observations about the content of native title in the context of considering the question of extinguishment. Two examples relied on by the appellant will suffice.

228    First, the appellant relies on the plurality reasons in Ward at [51]-[52] for the proposition that:

… a holder of a right as against the whole world to possession of land may control access to it by others and decide how the land will be used, but unless such a right is possessed “as against the whole world”, it is very doubtful that there is any right of exclusive possession[.]

(Footnote omitted.)

229    This was a core theme in the appellant’s submissions, and the foundation of its contention that, post-sovereignty, the Yindjibarndi needed to prove the existence (and, we consider the appellant included the exercise) of a right to exclude all non-Aboriginal people from Yindjibarndi land.

230    Paragraphs [51] and [52] of the plurality’s reasons concern some difficulties the plurality identified with the form of the determination of native title issued by the Full Court in Western Australia v Ward [2000] FCA 191; 99 FCR 316. The plurality were addressing the question of whether the terms of the determination properly articulated the content of the native title rights being recognised. It was in that context the plurality said:

A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)). Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.

It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants’ statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

(Original emphasis.)

231    These passages concern the need to ensure the language of a determination precisely describes the nature and extent of the native title rights being recognised. They say nothing about the quality of the evidence required to establish the content of those rights.

232    Second, the appellant relies on [91] and [94] of the plurality reasons for the following propositions:

…

(6) prior to the passage of the NTA, native title rights and interests of an exclusive nature were “inherently fragile” because “the assertion of sovereignty [by Europeans] marked the imposition of a new source of authority over the land ... Upon that authority being exercised ... the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded”;

(7) however Aboriginal rights and interests in relation to land are not to be confined to the common lawyer’s one-dimensional view of property as control over access. There are other native title rights and interests that persist, despite the confinement or exclusion of a right of exclusive possession.

(Footnotes omitted.)

233    Paragraphs [91] and [94] appear in that part of the reasons discussing the submissions of the Ward appellant. They, and the intervening two paragraphs, should be reproduced:

91.    Reference was made in Mabo [No 2] to the inherent fragility of native title. One of the principal purposes of the NTA was to provide that native title is not able to be extinguished contrary to the Act (s 11(1)). An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land.

92.    In his reasons for judgment the primary judge said that:

“Being satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty in the State or the Territory, it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people. In observing, or acknowledging, customary rules or practices, the community may be so organised that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by subgroups whether described as ‘estate groups’, ‘families’ or ‘clans’ but the traditional laws and customs which order the affairs of the subgroups are the laws and customs of the community, not laws and customs of the subgroup.

…

The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes.” (Emphasis added.)

93.    Although not the subject of direct challenge in the appeals and cross‑appeals in this Court, it is as well to say something about this passage in the reasons. The finding that predecessors of the claimants occupied the claim area at sovereignty does not, without more, identify the nature of the rights and interests which, under traditional law and custom, those predecessors held over that area. The fact of occupation, taken by itself, says nothing of what traditional law or custom provided. Standing alone, the fact of occupation is an insufficient basis for concluding that there was what the primary judge referred to as “communal title in respect of the claim area” or a right of occupation of it. If, as seems probable, those expressions are intended to convey the assertion of rights of control over the land, rights of that kind would flow not from the fact of occupation, but from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country.

94.    It is important to explore issues of this kind because questions of extinguishment of native title cannot be answered without first identifying the rights and interests possessed under traditional laws and customs which it is said have been extinguished. There is much scope for error if the examination begins from the common law expression of those rights and interests. Especially is that so if a portmanteau expression used to translate those rights and interests (“possession, occupation, use and enjoyment … to the exclusion of all others”) is severed into its constituent parts and those parts are then treated as they would be in the description of some common law title to land.

(Footnotes omitted.)

234    Paragraph [91] in particular is plainly about the effect of extinguishment, and what is said must be read in that context. It does not stand for any proposition that post-sovereignty some kind of presumption arises that the traditional law of Aboriginal peoples which previously gave rise to exclusive rights of control over land has disappeared. The remainder of the paragraphs illustrate the difficulty to which the appellant’s submissions give rise: namely, requiring findings of fact to be made about the content of traditional law and custom, by reference to common law proprietary concepts, or to concepts and practices that non-Indigenous legal systems might insist upon. In Ward itself (see [14], [89] and [90]) the Court emphasised, as did Mabo (No 2) and most authorities since, the essentiality of the spiritual aspect of Aboriginal law and custom. As the plurality said in Ward at [14], what the Native Title Act requires is that “the spiritual or the religious is translated into the legal”.

235    To make these observations is not to suggest, by any means, that the content of traditional law and custom is entirely spiritual or religious: that would also be inaccurate. The primary judge’s findings in relation to Yindjibarndi law and custom illustrate the complexity of the system. However, there is nothing secondary, less important – or less worthy of translation into rights recognised by Australian law – of traditional law and custom which has a spiritual aspect.

236    Self-evidently, these appeal grounds do not concern extinguishment. They relate to areas within the claim area which were the subject of findings under s 47A and s 47B, both beneficial provisions where the statute effectively authorises any potential acts of extinguishment to be ignored, where there is occupation in the relevant sense, and none of the disqualifying provisions apply.

237    Thus, these grounds of appeal concern the nature of the evidence required to establish the content of a native title right. Ward is of limited assistance in resolving ground 2, and there is certainly nothing in the primary judge’s approach which we see as inconsistent with dicta in Ward. There is no aspect of the ratio of Ward that has any application to the matters raised under ground 2.

238    However, there are two passages in Ward on which the appellant relied, but which we consider in fact tell against its argument.

239    The first is at [18], where the plurality explores the limbs of s 223 of the Native Title Act. In the context of considering the requirement (which their Honours refer to as ‘(a)’) that the rights and interests must be those ‘‘possessed under the traditional laws acknowledged, and the traditional customs observed’’ by the relevant peoples, they state:

The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters ‘‘by those laws and customs’’.

(Original emphasis.)

240    These are the two steps the primary judge clearly and correctly took in his reasoning. He identified the traditional law as the requirement that manjangu seek permission to enter Yindjibarndi land and that Yindjibarndi, in accordance with the right processes under their customs and law, then decide whether to grant or refuse that permission. He explained the foundations for this law as being both protective and spiritual. He then identified the right arising under that Yindjibarndi law as the right to exclude all manjangu, and as a right to exclude all others. The primary judge adopted precisely what the plurality in Ward identified as the correct approach.

241    The second passage is at [21] of the plurality’s reasons. However, before referring to what was said by the plurality in that passage, it is necessary to set out what was said in the immediately preceding passage, at [20], in which the plurality stated:

Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the ‘‘recognition’’ of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of ‘‘recognition’’.

(Original emphasis.)

242    This emphasis on the importance of keeping steadily in mind the source of native title rights continues in [21], to make a different point. After referring to Fejo at [22], in which the High Court considered the silence of the Native Title Act on enforcement of native title by curial process, the plurality relevantly stated:

…

Thirdly, the recognition may cease where, as a matter of law, native title rights have been extinguished even though, but for that legal conclusion, on the facts native title would still subsist. Thus, for example, the circumstance that, perhaps by reason of the attitude adopted by the non-indigenous owner of land in fee simple, indigenous people retain connections to the land in question does not derogate from the conclusion that the grant of the fee simple extinguished the native title …

(Footnote omitted.)

243    This passage illustrates the difference between establishment of connection (including proof of the content of traditional law and custom) and continuity and then assessment of extinguishment (and proof of post-sovereignty non-Aboriginal conduct and its legal and practical effect). Ward was principally concerned with the latter. These appeal grounds are concerned with the former, because the land in issue is subject to s 47A and s 47B. The focus is on what the evidence disclosed about the content of Yindjibarndi traditional law and custom, and that is where the primary judge correctly kept his focus.

Yarmirr (2001)

244    The appellant also relies on Yarmirr as an illustration of what it contends is “the requirement that a right must be possessed ‘as against the whole world’, indigenous and European alike”. The appellant submits that a majority of the High Court upheld the trial judge’s finding that the traditional requirement to seek permission to enter, use and enjoy the claimants’ land (including waters in this case) applied only to other Aboriginal people.

245    A key passage relied on by the appellant is at [92] of the plurality’s reasons. It concerns, as was the main focus in Yarmirr, control of access to the sea – namely, the waters around Croker Island in the Northern Territory. This passage contains a finding that the evidence of Ms Yarmirr, while capable of bearing a meaning that could have led to a finding that traditional law entitled the claimants to control access by Aboriginal and non-Aboriginal people to their land, was also evidence capable of being understood in the way the trial judge understood it – namely, as traditional law confined to controlling access by other Aboriginal people only. The plurality also pointed out this was the only piece of evidence on which the claim group relied in argument to challenge the trial judge’s finding that the rights held by the claimants were of a non-exclusive nature.

246    As the Yindjibarndi submitted, the findings by the trial judge in Yarmirr turned, as they must, very much on the evidence. As the plurality also noted at [89], a particular issue in Yarmirr was how the claim group’s contention that their traditional law and custom should be recognised as including rights to exclusive possession of the waters should be assessed in light of evidence about the frequent (pre-sovereignty) visits during the 18th and 19th centuries by fishermen from the port of Macassar in southern Sulawesi. Apart from the evidence said to support exclusive possession being limited (as the High Court noted), the evidence which was adduced did not explain the source or rationale for the asserted traditional law of excluding all others, whether by reference to spiritual or other explanations.

247    Yarmirr was simply a very different case which turned on its own facts, and on the nature and quality of evidence before the trial judge. It is of no assistance to the appellant’s contentions under ground 2, especially given the appellant’s concession about the existence of these rights at effective sovereignty.

Brown (2014)

248    The third case the appellant includes in its submissions as an authority on the “test” of exclusive possession is Brown. The appellant submits that in Brown the High Court affirmed the propositions to which the appellant had earlier referred. Brown concerned a determination of native title in favour of the Ngarla People and the issue of the effect on their native title of the grant of mineral leases for iron ore pursuant to a joint venture agreement between the State of Western Australia and a number of joint venturers in 1964, which was approved by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA). Brown was, like Ward, a case about extinguishment. On the basis of Ward and Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1, the High Court held that the grant of the mineral leases had not extinguished the native title of the Ngarla People. It was also a case where the nature and extent of the native title rights and interests were agreed to be non-exclusive: see [35].

249    The appellant relies on the following passage at [36] of the plurality reasons:

It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the “intersection of traditional laws and customs with the common law” (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”. Yet it is no less important to recognise that, as Fejo v Northern Territory made clear, a right of exclusive possession affords the holder the right to “use the land as he or she sees fit and [to] exclude any and everyone from access to the land” (emphasis added).

(Footnotes omitted.)

250    The remainder of [36] in Brown states:

The grant of a right to exclude any and everyone from access to the land for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land but also of any right which depends upon access to the land.

251    The plurality are here speaking of extinguishment and its criterion of inconsistency, explaining how that operates where traditional law and custom gives rise to a right that can be characterised in this way, and where, post-sovereignty, there is a grant of a common law or statutory proprietary right that has the same character. The former is extinguished. The passage says, we consider, no more than that. The Court makes this point because the focus in Brown was whether there was, in fact and law, such an inconsistency, but in the context of the rights of the Ngarla People being admittedly non-exclusive.

252    We do not see how Brown assists the appellant’s argument, or is authority for any propositions which support it.

Neowarra, Griffiths and Banjima

253    As the appellant ultimately accepted, the extension or departure from what the appellant characterises as earlier approaches, especially in Ward, begins with Sundberg J’s decision in Neowarra, and not with the Full Court decision in Griffiths. The appellant added Neowarra to the list of cases it contends are wrongly decided, if the Court does not accept its particular characterisation of what these cases stand for.

Neowarra (2003)

254    Neowarra was an application for a determination of native title on behalf of the Wanjina-Wunggurr people in the North Kimberley region. The application was contested not only by the State but by a number of pastoral lessees and various other interest holders. It was an extensive trial, both on country and off it, occupying some 59 hearing days – Sundberg J describes its extent at [29] of his Honour’s reasons. It is, with respect, a formidable decision in terms of its breadth and depth.

255    The particular passage identified by the appellant as wrong is at [310] of his Honour’s reasons. That passage should be set out together with what precedes it:

308.    Group 2A also contend that the belief that permission should be sought cannot be a law or custom because there is no mandatory requirement to seek permission. Reliance was placed on statements by witnesses that it was bad manners to go onto land without permission and “only courtesy to let someone else know you go there”. I refer to what I have said about the “mandatory” submission at [257]. I find that the permission rule has a normative quality, and at sovereignty applied to Aboriginal persons who were “strangers” to a dambun in the sense described at [302]‑[304].

309.    In a similar vein to the State’s submissions about non‑visitation is its claim that many witnesses said they had rarely enforced (or been invited to, required to, or been in a position to, enforce) the right to be asked for permission for access to country. It was said, as with non‑visitation, that the law or custom “has been significantly diminished”, is not in place in all parts of the claim area, is largely unenforced, and in many cases is not practicably enforceable because those entitled to enforce it no longer live on or near their country. The evidence is clear that relatives do not need to ask permission for access, and that “relationship” is a broad concept. The general tenor of the evidence is that Aboriginal strangers do seek permission, and non‑Aboriginal strangers usually do not. Apart from non‑Aboriginal strangers, the system appears to operate in accordance with the normative rules of the society. Non‑Aboriginal strangers may or may not know of the requirement under traditional law to seek permission before going on a person’s land. Even if there is an awareness of the right, compliance with it in the geography of the Kimberley and the circumstances of the custodians of particular country may be difficult: those with primary rights in Prince Regent country may live at Mowanjum. It would be extraordinary if non‑Aboriginal intrusion onto land, without permission, should cause this Aboriginal law or custom to be lost.

310.    The State names eleven witnesses who, it says, conceded they had never visited their dambun or country for which they assert prime responsibility. In determining whether the custom of being asked for permission to enter a stranger’s land has been modified or terminated, it is appropriate to take into account all the circumstances in which claimants are placed. These include dispersion from their traditional locations consequent upon European settlement, their migration to Church and government settlements, the lack of significant employment opportunities outside the pastoral industry, and the trend towards living in Aboriginal communities. The nature and extent of the claim area is also relevant. In all those circumstances, it would be unworkable and unreasonable to expect the observance of a custom such as being asked for permission to enter land, which was established when Aboriginal people lived next to other Aboriginal people in the adjacent dambuns, all of whom acknowledged the relevant custom, to continue unaltered in the changed situation of uneven Aboriginal distribution across the Kimberley and the intrusion of white people who are strangers to the society. A normative system containing such a custom does not cease to embody that custom simply because some members of the society flout the rule. Most Aboriginal people respect it, though the dispersal of the community resulting from the changed face of the Kimberley means that there are often practical difficulties in the way of observing it. After all, many people drive their cars in excess of the speed limit. They do not thereby cease to be part of a society that requires compliance with speed limits. The permission for access custom is still observed for the purposes of s 223(1)(a). It would be wrong to approach the analysis on the basis of whether or not non‑Aboriginal people respect the custom. Certainly, many Aboriginal witnesses complained, with different degrees of heat, about the non‑observance of the custom by white people, thereby asserting the existence of the custom and deploring its non‑observance by white intruders.

256    As the following description of Sundberg J’s reasons explains, there is nothing erroneous in those passages. To the contrary, we consider them entirely correct, as is his Honour’s explanation of “normative” at [257]:

Two Group 2A submissions were made here. The first was that the avoidance practice was not in relation to land or waters. See [229]. The second was that it was not a law or custom because it did not derive from any mandatory obligation. It was just a practice like not swearing. In Yorta Yorta the joint judgment said at [42] that the Act

“refers to traditional laws acknowledged and traditional customs observed. Taken as a whole, that expression, with its use of ‘and’ rather than ‘or’, obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. Nonetheless, because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.”

The Shorter Oxford English Dictionary defines “normative” as “Establishing a norm or standard”, and “norm” as “A rule or authoritative standard”. One of the meanings of “norm” given by the Macquarie Dictionary is “a standard, model, or pattern”. It gives this meaning, amongst others, of “normative”

“concerning a norm, especially an assumed norm regarded as the standard of correctness in speech and writing.”

There is no doubt that the witnesses who declined to mention the name of a person who had recently died did so because of the existence of a rule that said they must not say the name. Counsel and the Court observed the rule. There was the occasional lapse, which was greeted by a murmur of disapproval from those, mainly other witnesses, at the back of the Court. I find that the “practice” of avoidance has normative content. It lays down a standard of behaviour, and it was observed by the witnesses. If it were necessary to do so, I would characterise the practice as having a mandatory or obligatory quality.

(Original emphasis.)

257    Justice Sundberg’s reasoning is based on the very authorities to which the appellant has referred the Court, without the selectivity applied by the appellant. All of what is said by Sundberg J flows from the terms of s 223(1), as his Honour explains. The appellant seeks to inject into those terms conduct, and a normative system, that derives its legitimacy from the non-Aboriginal world (sometimes inappropriately called by the appellant the “real world”). That is to turn s 223(1) on its head.

258    In explaining the applicable legal principles, Sundberg J refers extensively to Ward, as well as Yorta Yorta, and there is no submission that he misstated the applicable principles. From [363] onwards, his Honour deals with the native title rights and interests claimed and, in that paragraph, concisely sets out the three requirements in s 223(1):

Section 223(1)(a) requires “the rights and interests” to be “possessed under the traditional laws acknowledged, and the traditional customs observed ...”. Three matters arise here. The first concerns the way in which “rights and interests” are to be viewed. The second is that, because of the introductory words of s 223(1), “the rights and interests” must be rights and interests in relation to land or waters. The third is that those rights and interests must be “possessed under” the traditional laws and customs.

259    At [364]-[365], Sundberg J sets the framework for the first requirement of s 223(1), relevantly to what is in issue under ground 2 of this appeal:

Because the rights and interests of Aboriginal peoples must be possessed under their traditional laws and customs, they must be looked at from the perspective of the claimants; as the anthropologists put it, from an emic as opposed to an etic perspective. Section 223(1)(c) would seem to confirm that the “rights and interests” in par (a) are to be viewed emically, and then must pass the test posed by par (c), namely that the Aboriginally-viewed rights or interests are recognised by the common law. See also s 225 and Yarmirr at [14]-[15]. The witnesses’ descriptions of their rights and interests - what they mean when they say land belongs to them, or that they speak for it, or that it is theirs, are collected at [274]-[276].

The rights and interests in par (a) do not for their vitality require recognition by someone other than the person who asserts them. Nor is a system of enforcement necessary. In Yarmirr at [16] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

“Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.”

The requirement that the rights and interest be “possessed under the traditional laws ... and customs” means no more than that the rights and interests arise or exist under the traditional laws and customs. In other words, those laws and customs must be the source of the rights and interests.

(Original emphasis.)

260    These passages reflect a comprehensive summary of applicable principles and emphasise, as needs to be emphasised to answer the appellant’s second ground of appeal, that the perspective for the identification of traditional laws and customs is the Aboriginal perspective, and that their “vitality” does not depend on recognition by non-Aboriginal people. Nor does their continued existence (and capacity to be recognised in a determination) depend on any system of enforcement against non-Aboriginal people. Justice Sundberg had made a similar point earlier, at [322], in answering a submission from the pastoralist respondents (described as Group 2A):

Group 2A’s submission must be rejected. It fails to distinguish between non-indigenous property rights and native title. The applicants claim native title over the whole of the claim area, including the communities. They rely on what they do at the communities to establish use and enjoyment of the claim area. The fact that, unless they obtain a favourable determination of native title, they must deal with pastoral lessees and the State in order to establish their communities, says nothing about their claim to native title based on the existence of those communities. To put the matter another way, it does not follow from the fact that the communities are situated on land having a particular status for non-indigenous purposes, that members of the communities cannot have a right arising from traditional law and custom to live in the claim area.

261    At [367], his Honour relevantly found, on the evidence before him:

•    the assertion of the right to “speak for” country amounts to more than the right to talk about it; usually the context in which the assertion is made conveys:

•    the right to permit or not permit someone to enter land

•    that the land belongs to the speaker or the speaker’s people (in the sense of ownership of it)

•    the right to make decisions about the country

…

•    strangers (that is to say non-indigenous people and Aboriginal people unrelated to those to whom country belongs) have to ask permission to come onto the country

•    in most cases the implication from the evidence is that someone entering without permission can be expelled, and some witness said so expressly – “We kick them out”, “push them out”

•    some witnesses assimilated unauthorised entry with the non-indigenous concept of trespassing – “just like gardiya way”

•    Aboriginal people who require permission to enter someone else’s country usually seek it – “black people have respect for each other”.

262    Some of the arguments put to his Honour by the State were similar to those now advanced by the appellant. Sundberg J rejected them, stating at [373]:

The State submits that primarily as a result of the impact of European settlement the permission system has been significantly diminished. It is not in place in all parts of the claim area. It is largely unenforced and in many cases is not practically enforceable because those who might under traditional law and custom possess that right no longer live on or near their dambun. The State identifies many witnesses who asserted a right to be asked permission but conceded they had never been asked, and in any event would not be able to enforce any right to exclude. It is true that there are dambun in respect of which no witness gave evidence of the permission rule. But that does not mean that the rule is not in place there. There is a wealth of evidence about the rule in the claim area as a whole. Other customs were of general application across the area. A large and persuasive body of evidence attests to the existence of a society with common traditions and customs, founded in the travels of Wanjina, that exists over the whole of the claim region. It is appropriate in those circumstances to infer that the permission rule is of general application within that society.

263    And, on changed circumstances and after referring again to Yorta Yorta, Sundberg J said at [374]-[376] (including by reference to Ward):

The witnesses who conceded that their present location is an obstacle to enforcing their right to be asked permission still strongly asserted the existence of the right. And the existence of the right was respected and acknowledged by other witnesses notwithstanding the changed circumstances that make enforcement impracticable. I have no doubt on the evidence that at sovereignty, and for many years thereafter, Aboriginal people in the claim area not only asserted but enforced the permission rule. The evidence satisfies me of the existence of the right and its content – who must ask, whose request should be granted, and who need not ask. The statutory question is whether the relevant right is still possessed under the traditional laws acknowledged and traditional customs observed. In my view it is, notwithstanding that the changed circumstances of the claimant group have, as the State submits, resulted in the permission system being significantly diminished in its practical operation.

In relation to the State’s submission that the permission system is largely unenforced, and in many cases not practically enforceable, the High Court’s observations in Yarmirr at [16], quoted in [365], must be remembered. A right or interest does not require for its recognition some enforceable means of excluding from its enjoyment those who are not its holders.

Although the question whether or not claimants have established exclusive possession of land is a matter of evidence, it is useful to record what the joint judgment said in Ward at [88]:

“It may be accepted that ... ‘a core concept of traditional law and custom [is] the right to be asked permission and to speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.”

    (Original emphasis.)

264    Far from being erroneous, much of what Sundberg J says is an answer to the appellant’s arguments under ground 2.

Griffiths (2007)

265    Griffiths was an appeal against, amongst other matters, a determination of native title where the trial judge had found there was no right of exclusive possession arising from traditional laws and customs of the Ngaliwurru and Nungali Peoples. The key finding of the trial judge (Griffiths v Northern Territory [2006] FCA 903; 165 FCR 300 at [614]) is reproduced at [50] of the Full Court’s reasons:

The question to be determined in these proceedings is whether the native title rights and interests of the claimants that have been established rise significantly above the level of usufructuary rights. In my view, that question should be answered both “yes” and “no”. The evidence in this case establishes both usufructuary and proprietary rights. However, it falls short of establishing native title rights and interests in relation to the claim area “to the exclusion of all others”. It also falls short of establishing an unfettered right on the part of the claimants to control others’ access to that area, or to control others’ use and enjoyment of the resources of that area.

266    On the basis of Yarmirr at [11], the appellants in Griffiths contended the trial judge had erred in principle by using criteria for the characterisation of rights arising under traditional laws and customs that were relevant to property rights at common law: the trial judge’s use of the concept of “usufructuary rights” being the key example.

267    The Full Court (French, Branson and Sundberg JJ) upheld the appeal on this ground, finding (at [65]-[71]) that the “significance of the usufructuary/proprietary distinction in this context is not clear”, and that native title rights might (under common law) be described as proprietary or usufructuary, but such terminology was likely to confuse. The Full Court continued at [71]:

… the question whether the native title rights of a given native title claim group include the right to exclude others from the land the subject of their application … depends rather on consideration of what the evidence discloses about their content under traditional law and custom.

268    The Full Court then turned to consider whether the trial judge also erred in fact on the question of exclusive possession, in his consideration of the evidence before him. The Full Court described the evidence of both the anthropological experts and the claim group members. Both categories of evidence contained numerous references to matters described as supernatural or spiritual, and in the case of the claim group members their evidence often referred to “the spirits”.

269    To illustrate, we mention two parts of the expert evidence to which the Full Court referred at [73] and [75]:

The term yakpalimululu referred to an owner of country and was often used synonymously with the English word “boss”. Of yakpalimululu they said:

A yakpalimululu similarly is understood to have authority in relation to his country, limited by supernatural forces of which he must be constantly mindful. An owner then has the right to do what he will in his own country, but always subject to the rules that are believed to be derived from the Dreaming. Such rules invariably imply the exercise of a duty and duty implies a constraint. One part of this constraint is that an owner does not operate autonomously in relation to his country. This is because Dreaming is pervasive and not a phenomenon exclusive to his country. What he may do is constrained by the perceived impact his actions might have on the Dreaming manifest in other countries. He is also constrained by the intimate interests others may have in the Dreamings of his country.

…

At [7.6] of the report the anthropologists wrote:

In our view the right to use the resources of the application area would appear to be the prerogative of all members of the applicant community. However, this fact is tempered by a spiritual reality which is ever-present in the applicants’ minds. This helps to explain why some people may be reluctant to venture too far into country without the guidance of others whose seniority and command of the knowledge of spirituality is regarded as an important safeguard. For strangers, such guidance and protection is essential. Its requirement means that asking permission may be irrelevant. To go somewhere unknown (that is, outside or beyond your known country) is to court disaster from the natural and spiritual world. It is not so much a question of asking permission, but of seeking guidance. Conversely, it is not a matter of trespass but of transgression, where the consequences of transgression are dire in the extreme.

270    To illustrate the kind of claimant evidence to which the Full Court referred, we mention what appears at [80], [81] and [85] of the reasons:

In his written statement which was received in evidence, Mr Griffiths said (at [21]):

…

And at [43]:

I can camp on country. I can do more than just roll out the swag. I can shoot kangaroo anytime. I can hunt goanna and I can fish. I can also burn off country any time. I don’t have to ask anyone to do any of that on my country. I can show strangers around and I can show them where the dangerous places are. And I can show them the evil places or the mowya, poison places. The old fellow, my mother’s father told me that. If a stranger comes and they do the wrong thing then I tell them to go away. The ground belongs to me even if someone else builds a house on it.

…

Another event involved a mining company exploring for diamonds at a site called Japajani, which was associated with the dreaming story of two fighting snakes. Mr Griffiths said he told people generally not to touch the particular hill as they could die. He said (at [59]):

When a mining company wanted to look for diamonds (about four or five years ago) near that place I told them they had to stay away from that hill. I talked to the mining company and the NLC and they listened to me and didn’t go there. That was a few years ago.

…

Jerry Jones gave written and oral evidence. He said (at [11]):

Strangers have to ask me if they want to go to special places on country. They can ask Josie too. If I’m not here then they cannot go to special places unless they ask someone. When I go to special places on country I call out names and open the place up. I call out to the dreaming and open the place up and ask them to give me some fish. If you don’t sing out then its dangerous, especially for strangers. A new person or stranger is called Mayikari. If a stranger come to Makalamayi then you have to stop them and they got to listen to you. They got to listen and understand the rules about where to go. When a stranger comes to country we have to water their head “mulyarp” otherwise that Aboriginal rule broken. I can water the head. [sic]

271    We interpolate here that the fact the evidence was of this kind, sourcing law in matters spiritual and supernatural, as well as in the physical environment of the country itself, is to be expected. That is the nature of traditional law and custom of Aboriginal peoples. The spiritual and the physical are not separate. Spirits and country are not separate.

272    After reviewing evidence of this kind, the Full Court found the trial judge erred in fact in not finding this evidence sufficient to establish that the Ngaliwurru and Nungali Peoples’ traditional law and custom included laws about controlling access, of the kind that should be described as a right of exclusive possession. This finding is at [127] of the Full Court’s reasons, and we have reproduced it above at [155]. To recap, the points made in that passage by the Full Court were:

(a)    native title holders need not frame their claim of exclusivity as some kind of analogue to [common law] proprietary rights;

(b)    traditional laws conferring control of country to prevent harm that the country itself might inflict on unauthorised entrants can support a characterisation as a right or interest arising from that law of an exclusive nature (this is what the Court described as control of access to country flowing from “spiritual necessity”);

(c)    traditional law and custom, insofar as it bore on relationships with people outside the relevant community, would have been “framed by reference to relations with indigenous people”. The question of exclusivity was about the effective exclusion of people from their country who are not of their community;

(d)    the gatekeeper role concerns both preventing harm to those whose entry is otherwise unauthorised, and also protecting country from harm;

(e)    strangers who have been properly introduced to country may not require permission for entry every time, and this will not necessarily affect a characterisation of exclusivity; and

(f)    exclusivity is not negatived by “a general practice of permitting entry to properly introduced outsiders”.

273    There is no disconformity between previous authority and the findings of the Full Court in Griffiths. As always, the findings depended on the evidence. The error identified in the trial judge’s approach in terms of legal principle was a distinction which is clear on the text of s 223(1) of the Native Title Act and has been clear in all authorities, including Ward. The factual error identified, and the different factual findings made by the Full Court, reflected the correct focus on the content of traditional law and custom and what kinds of rights and interests it gave rise to in the circumstances of that case.

Banjima (2015)

274    Although the Banjima People secured a determination of native title in their favour, they appealed to the Full Court about an extinguishment finding. That issue need not be discussed further. The State’s appeal, however, focussed squarely on the trial judge’s finding that the determination of native title should recognise a right of exclusive possession in the Banjima People to particular parts of the claim area. The State also appealed in relation to an issue concerning s 47B of the Native Title Act that is not relevant. There was also a (somewhat conditional) challenge by the State to the Full Court’s decision in Griffiths: see [13].

275    The Full Court’s resolution of the State’s challenge to the determination of exclusive possession is found at [8]-[47] of the Full Court’s reasons. It is necessary only to give a brief summary of the Full Court’s findings, before focussing on those parts of the decision which the appellant sought to impugn in this proceeding.

276    The Full Court found (at [18]) the State mischaracterised the trial judge’s finding as one of Banjima People “expecting” others would seek permission to enter country, when in fact the trial judge had found there was a “need”, or an imperative for them to do so, and that this in turn meant that any entry without permission was in contravention of Banjima law and liable to either physical or spiritual sanction (or both): at [23].

277    The Full Court found (at [19]) that there were at least two reasons for the existence of the Banjima traditional custom – one was to protect people from the spiritual dangers of Banjima country, but the other was to protect the country itself.

278    The conduct of Europeans, and the effectiveness of any attempted enforcement of rights of control over access against Europeans was not seen as material to the decision whether the traditional law or custom existed, nor what its content was, nor what kind of right it gave rise to. What mattered was the exercise of traditional law and customs, and therefore insofar as non-Banjima people were concerned, the relevant evidence was the understanding of other Indigenous people about Banjima law and custom: at [21]-[24]. To the extent the appellant contends these passages should be read differently, or more narrowly, we disagree.

279    The Full Court emphasised again that the assessment of the weight of the evidence, and what it established by way of content of traditional law and customs, were quintessentially questions of fact for the trial judge, and there was no error of fact in the way the trial judge approached the evidence in that claim: at [25]-[26].

280    At [27]-[41], the Full Court dealt with what it described (at [27]) as the State’s “fundamental point”: namely, the submission that (putting to one side the mischaracterisation the Court found the State had made) a permission-based traditional custom or law cannot be recognised by the common law as a right of exclusive possession. Even a need for permission was not equivalent, the State submitted. The Full Court rejected this argument, with numerous aspects to its reasoning picking up observations from earlier authorities to which we have already referred.

281    However, the Full Court made two further points, which should be noted. At [38]-[42] the Full Court found that the need to obtain permission from the Banjima People to enter Banjima country represented a control of access to Banjima country which had a normative character, and that control of access, in turn, is the “essence” of a right to exclusive possession. It was in these passages that the Full Court rejected the State’s interpretation of Griffiths (one not dissimilar to the appellant’s interpretation on this appeal), and also rejected the State’s submissions that Griffiths was wrongly decided. Then, at [40], the Full Court said:

The identification of a traditional law or custom that a stranger to country seek permission to enter or risk suffering spiritually detrimental consequences if he or she enters without such permission can have important consequences. The law or custom so identified can establish among, not just the ancestors of the claim group, but also the neighbouring pre-sovereignty indigenous peoples, whose lands and waters were whose and where the common boundaries lay. That is, such an identification can establish that the consequences of unauthorised entry by a person into the country of another group were recognised and acknowledged traditionally as a normative and effective sanction. Of course, before the super-imposition of European law, the custodians of a particular country could, and did, also use force to protect that country. However, the recognition by indigenous strangers to country of the law and custom of seeking permission to enter was and is a demonstration of the normative effect of, as best the common law can characterise it, an effectual right in the custodians of exclusive possession of their country as between them and indigenous strangers. The evidence of the continued observance of such a law and custom by both the Banjima People and other indigenous peoples that the primary judge accepted justified his Honour’s finding.

282    Consistently with its other submissions, senior counsel for the appellant included this paragraph in its challenge, to the extent the passage suggests at a general level that a normative rule which was formerly based on spiritual sanctions and on physical enforcement can “change” to one just based on spiritual sanctions and still be considered a normative rule that could support characterisation as a right to exclude “anyone and everyone”. Senior counsel also appeared to accept this could have been a finding specific to the evidence and circumstances in Banjima, and he did not seek to criticise it on that basis. We do not understand why it would not, on the appellant’s submissions, be equally impermissible for that approach to be taken on the evidence in Banjima. In any event, for reasons we explain below, we consider what is said at [40] of Banjima correctly reflects the law.

283    The second point, made at [33]-[34] of the Full Court’s reasons, is directly impugned by the appellant. This is a point in the Full Court’s reasons where it addressed [127] in Griffiths. At [34], the Banjima Full Court referred to the State’s submission that what the Full Court in Griffiths meant by the proposition in [127] of Griffiths was that “[t]he question of exclusivity depends upon the ability of the [traditional owners] effectively to exclude from their country people not of their community” (emphasis added). The Banjima Full Court stated that “the problem with [that] submission is that it fails to recognise the source or foundation of that ability in traditional law and custom”, and relevantly held that:

By “ability to exclude others” in the context of traditional law and custom, the Full Court in Griffiths did not have in mind Western proprietary concepts of barring entry with signs, fences or physical opposition, nor concepts of trespass and eviction, but an ability or capacity embedded in and springing from the spiritual relationship of indigenous people with the land to which they are traditionally connected. In this context, as the primary judge’s conclusions properly recognised, the continuing need of other indigenous people for Banjima permission to enter Banjima country to provide protection from harm for people and country provided evidence of what the common law will recognise as a right of exclusive possession in the Banjima People.

284    The appellant’s criticism of this passage, and other parts of the Full Court’s reasoning which suggest that the behaviour of non-Indigenous people is irrelevant to the inquiry of whether traditional law and custom give rise to what may be characterised as a right of exclusive possession, is that to the extent it does not require “the response of the claim group to conduct of non-Indigenous people” to be taken into account “it is inconsistent with s 223(1)(a) of the [Native Title Act] as it has been construed by the High Court and should not be followed”.

285    We consider that all the Banjima Full Court was explaining at [34] is the well-established proposition that the focus of s 223(1) is on the content of traditional law and custom, and to what rights related to land that law and custom gives rise, if any. The task of ascertaining that content proceeds from an Aboriginal perspective only. That is the point made by the High Court in Ward at [89]:

The expression ‘‘possession, occupation, use and enjoyment . . . to the exclusion of all others’’ is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of ‘‘possession’’ of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.

(Emphasis added.)

286    It is apparent that, contrary to the appellant’s submissions, the reasoning and themes of Banjima are the now familiar ones. There is nothing novel, or revolutionary about them. It is unnecessary to debate whether the Full Court’s decision in Banjima is appropriately described as a “development” in the law about s 223(1). For our part, we see the same themes in Banjima as have been present in all of the authorities to which we have referred: in particular, the emphasis on the nature and quality of the evidence being the principal determining factor in what a court can find about the content of traditional law and custom, but also that the assessment and determination of the content of the traditional laws and customs of any given claim group, and the rights and interests relating to land to which those laws and customs give rise, is an exercise performed within the universe of traditional law and custom. It is not dependent on proof of exercise against non-Aboriginal people (although such evidence may exist and may be especially relevant to matters such as continuity: see Banjima at [21], [43]-[44]) nor is it dependent on effectiveness of enforcement against non-Aboriginal people. Indeed, the authorities make clear that it is more usual for traditional law to be treated as ineffectual, and this is what the Native Title Act is designed to remedy.

287    The point being made, in both Griffiths and Banjima, read with the earlier authorities to which those cases refer, is that it is to misunderstand the concept of native title rights and interests to require them to fit into non-Aboriginal concepts of property, the exercise of proprietary rights and the enforcement of property rights.

288    That is why what occurs is recognition of native title; not conferral, and not transformation into non-Aboriginal property rights. Whether or not others outside Aboriginal society believe the sanctions for transgression of the law will eventuate or not is beside the point. The very foundation of traditional Aboriginal law and customs, or “customary law” as Dr Palmer prefers to describe it, is in the spiritual, and the intermingling of the spiritual with the physical, with people and with land. That is how Aboriginal law works. The distinctions which might easily be made, at least in the 21st century, in Anglo-Australian law, between spiritual belief and real property rights, or personal property rights, are not to be imported into an assessment of the existence and content of Aboriginal customary law. To do so would be to destroy the fabric of that customary law.

289    The factual consequences of transgression are also beside the point, other than providing a potential component of the evidence for the existence of the law. What matters is the basis upon which it is held, and asserted, by those who have the rights of control of access – not whether the transgressor in fact suffers the punishment which should follow. Likewise, evidence of the no doubt millions of daily trespassers around the world, who are not caught and who suffer no punishment or consequence for their trespass, would not be evidence of the non-existence of the property rights against which they have trespassed.

290    It would be an intolerable irony if post-sovereignty authorities and non-Aboriginal peoples whose society has been responsible for the dispossession and oppression of Aboriginal peoples were able to use the inability of those peoples to enforce their customary law against those who entered and sought to exploit their land as a basis to continue the disenfranchisement. The objectives of the Native Title Act are not served by such an approach and nor do they countenance it.

291    The appellant’s own submissions acknowledge, by reference to Ward and other authorities, that the relationship between Aboriginal peoples and their country is in part a spiritual one.

292    “Spiritual” is, of course, an English term, and represents the judiciary’s best attempt at employing an English language term to capture and describe concepts and relationships from the oldest living culture in the world, expressed originally in an oral tradition in hundreds of different languages, and lived and experienced just as much as expressed. It will always suffer from inadequacy, and the real risk of inaccuracy. As the High Court acknowledged in Ward, the task under the Native Title Act is to translate traditional law, including the spiritual and religious, into legal rights and interests recognised by contemporary Australian law, and therefore any inadequacies must be accommodated. However, those rights and interests must also be recognised, and the word “spiritual” must not become a gloss on descriptions used by Aboriginal people themselves, nor become some kind of singular taxonomy taken to describe the entire relationship between Aboriginal people and their country.

The appellant’s reliance on the term “spiritual necessity” in ground 2

How the primary judge used this term

293    There are only four points in the primary judge’s reasons where this term, or something akin to it, features. His Honour used the term when describing the evidence received from the non-Yindjibarndi witnesses about the requirement to seek permission to enter Yindjibarndi country and their own respective countries at [77]. His Honour also used the term at [22] and [378], when referring to the passage from Griffiths at [127] where that phrase is used.

294    Relying on that passage in Griffiths, his Honour made a finding at [23]:

The evidence before me, as I will discuss below, provided a detailed explanation about why a non-Yindjibarndi or a stranger, called a “manjangu”, needed permission to enter Yindjibarndi land. That explanation was consistent with the concept of spiritual necessity giving rise to a right of exclusive possession.

(Original emphasis.)

295    That is the fourth point at which his Honour used the term.

296    The highest these passages rise is that his Honour expressed a view that his findings were consistent with what the Court said about “spiritual necessity” in Griffiths. As we have explained at [293] above, all these references are doing is seeking to put into the English language an explanation for one of the sources of the normative rules which form part of Aboriginal customary law. Spiritual necessity is not the rule; it is the explanation or the source of the rule. The rule is exclusion of manjangu, or the requirement for manjangu to seek permission before entry to or exploitation of Yindjibarndi land.

297    Otherwise, his Honour uses the word “spiritual” at many points in his reasons. There can be no criticism of this. Foundational authorities in native title recognise that the connection of Aboriginal peoples to their land involves what non-Aboriginal people would describe as a “spiritual” aspect, although all these labels and descriptions are ones imposed on the Aboriginal understanding of their relationship to country, in an attempt to come to grips, in the foreign language of English, with how best to describe the relationship between Indigenous people and their country. It is always likely to be inadequate, and to some extent inaccurate.

298    Further, and critically, the appellant’s concession about the existence until around 1860 of a right in the Yindjibarndi People of exclusive possession again undercuts the suggested problems with the primary judge relying (at least in part) on evidence about spiritual obligations, spiritual belief and spiritual consequences. That is the Yindjibarndi universe, and it has been so since time immemorial. The appellant now accepts that, until effective sovereignty. As we have said elsewhere, the nature, source and content of the right does not change (although its manner of expression or exercise may adapt) – that is the essence of the principle of continuity. What was spiritual for Yindjibarndi people about their relationship to their country a thousand years before white settlement remained of that character at sovereignty in 1788. What was spiritual for Yindjibarndi people in 1860 about their relationship to their country remained of that character in 2017, if that relationship, and the laws and customs which govern it, is still observed.

299    Perhaps, at times, the primary judge uses “spiritual” more generally, such as in [382] where he refers to the Yindjibarndi opening the “spiritual gates”. These references are not at the centre of his reasoning and do not reveal error in any event.

The use of “belief” by the primary judge

300    It is clear that much of the evidence upon which the primary judge made his findings could be described as “beliefs”, and indeed his Honour adopts that language at times. For example, at [381], his Honour stated:

That normative requirement [to require manjangu to seek permission] has existed and continues to exist in order that the Yindjibarndi can ensure that they protect their land and waters from manjangu and because of the belief of both the Yindjibarndi, and their indigenous neighbours, in the spiritual powers that can affect manjangu who enter Yindjibarndi (or other neighbouring Pilbara peoples’) land and waters without permission.

301    As we explain elsewhere in these reasons, passages such as this demonstrate clearly that the primary judge correctly directed his attention to whether what was put forward by the Yindjibarndi as “law” had a normative content, and why it had such a content. In this passage, the primary judge made a clear finding to that effect: the Yindjibarndi controlled access by manjangu so as to protect their country, and to prevent spiritual harm befalling a manjangu who enters Yindjibarndi land and waters without permission.

302    In the passage at [381] his Honour’s emphasis was on the Yindjibarndi role as gatekeeper, and he properly identified this as a basis for possession of a right to exclude manjangu, if the Yindjibarndi choose to do so.

303    To describe, as his Honour does, part of Yindjibarndi law and custom as a “belief” is not, as the appellant’s proposed interpretation of that word might suggest, to diminish its significance, or render it something the common law or Anglo-Australian law will not recognise. It is doing no more than attempting to identify the source and explanation for the normative rules about which the Yindjibarndi witnesses, Aboriginal witnesses from neighbouring country, and Dr Palmer, gave evidence.

304    When “belief” is understood in this way, it can be seen there will be many examples of how a “belief” (that is an explanation or an assumption) underlies laws in the Anglo-Australian legal system as well. This point was made by Brennan J in Mabo (No 2) at 47:

It is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies. The origin of the rule is to be found in a traditional belief that, at some time after the Norman Conquest, the King either owned beneficially and granted, or otherwise became the Paramount Lord of, all land in the Kingdom. According to Digby’s History of the Law of Real Property William I succeeded to all rights over land held by the Anglo-Saxon kings; he acquired by operation of law the land of those who had resisted his conquest and a vast quantity of land was deemed to have been forfeited or surrendered to William and regranted by him. He may have become the proprietor of all land in England so that no allodial land remained. Or it may be, as Blackstone asserts, that in England, as in France, the allodial estates were surrendered into the king’s hands and were granted back as feuds, the only difference being that in France the change “was effected gradually, by the consent of private persons; [the change] was done at once, all over England, by the common consent of the nation”. But, whatever the fact, it is the fiction of royal grants that underlies the English rule. Blackstone says that:

“it became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, ‘that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived as a gift from him, to be held upon feodal services.’ For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise”.

It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.

(Footnotes omitted.)

305    In other passages, such as a later part of [381] where the primary judge spoke of “the Yindjibarndi’s belief in their role as spiritual gatekeepers”, it is important not to latch on too quickly to the use of the word “belief”. As he did elsewhere in his reasons, his Honour was speaking of the Yindjibarndi People’s perception of their role, under Yindjibarndi law and custom.

The evidence of the Yindjibarndi witnesses

306    Some direct examples from the evidence of the Yindjibarndi witnesses confirm that the findings the primary judge made were plainly open to him.

307    At trial, both the State and the appellant cross-examined, when they chose to, on matters which are inherent in the arguments now being made by the appellant on the appeal.

308    In post-hearing submissions, the appellant contended that, on the reading of Griffiths for which it contended, the difference between Griffiths and the situation before the primary judge was that “… Griffiths included (although was not limited to) evidence of assertion of the alleged norm of exclusivity against Europeans and the effectiveness of that assertion”.

309    We do not agree. What follows are some examples from the evidence of witnesses who the primary judge accepted gave reliable evidence about the nature of Yindjibarndi law and custom on permission and controlling access.

310    Middleton Cheedy’s evidence was:

My Yindjibarndi country is like a big house with 13 rooms or 13 ngurra. Each ngurra has its own mob, who we call ngurrara. My ngurra is Winyjuwarrnha and across to Garliwinjinha (B7) in the Yindjibarndi #1 claim area. Each ‘room’ has a family that speaks for it. They have the knowledge and they can make decisions for that area after speaking with the other Yindjibarndi people who speak for all Yindjibarndi country.

If I want to go into someone else’s ‘room’, of course, I will let them know out of respect and see if it is alright. But if someone wants to come into our house, they have to ‘knock first’ and talk to us about our area and then the Yindjibarndi elders will discuss things. We will try to accommodate them because of nyinyadt (system of reciprocity), so if they want to travel along a particular path through our ‘room’, we will help them find the right path. But we have the right to say ‘no’ to Ngaarda (Aboriginal people) and whitefellas if they are doing things that we consider will harm the country and not protect it like the old people spirits would want us to.

…

It is important to ask elders when you want to go to other Ngaarda (Aboriginal) groups’ country. People are expected to ask the Cheedy family if they go to Hooley Station, and want to get something there. People do this and let someone in my family know before going.

If a mining company, whitefella, or stranger wanted to take rocks, wood or sand from Yindjibarndi country, they should come and speak to Yindjibarndi people. My family has the right to do anything on Yindjibarndi country as the traditional owners. We should be spoken to first. For example, if someone wanted to mine at Mt Florance they would have to speak with the Pat family. The Pat family then has a responsibility to speak with all Yindjibarndi people about this. It would be the same for Hooley Station. Strangers would need to speak with the Cheedy family and then we would talk with all the Yindjibarndi people.

I learnt from my babu about how the spirits of the strangers’ country ngurra can make you sick if you’re breaking the rules and going on to country without the ngurrara’s permission. I was taught by him to always ask permission.

I make boomerangs from wood on my country. I want to get some wood for my boomerangs but sometimes I don’t have time or the money for petrol to get the wood from Yindjibarndi country. There is some good timber out near the 5 Mile Community, which is in Ngarluma country. I spoke to my brother-in-law Reggie Sambo (Pansy Cheedy’s husband) who is a Ngarluma man. He told me to go and ask Pansy Hicks and Violet Samson. I went to see Pansy and Violet and asked them if I could get wood for my boomerangs at 5 Mile and they said ‘yes’. I am now allowed to go out to that spot. I have to throw my arms into the air and say in Yindjibarndi language, “I am Boonja Cheedy, I am Yindjibarndi, please look after me, I am taking some wood for my boomerangs.”

We heard at the Old Reserve that a Ngarluma man took timber from Yindjibarndi ngurra without asking Yindjibarndi elders and he got very sick. When we were told by the Welfare to move to Roebourne no one was living on the country anymore. The elders knew what caused his sickness. He got sick because he took the timber from Yindjibarndi country without asking. He shouldn’t have gone on Yindjibarndi country without talking to an Yindjibarndi elder first. The spirits of the ngurra can make someone sick. The Ngarluma man who took the wood from Yindjibarndi country died soon after. I do know that man’s name but I don’t want to say it in public because it might shame his Ngarluma family.

311    So far as the cross-examination in evidence on the appeal is concerned, most of this evidence was not the subject of cross-examination.

312    Rosemary Woodley’s evidence included the following:

Yindjibarndi people have the right to tell people ‘no’ on all our country, and we have the responsibility to care for country too. We have to support senior Lawmen to make sure sites aren’t destroyed, and that the Yindjibarndi people have to be strong in saying ‘no’ to mining companies, to fight for their land and to stop it from being destroyed. Michael Woodley, Middleton Cheedy, Angus Mack, Kevin Guiness, Stanley Warrie and Barry Pat do the right thing in standing up to those who don’t speak to us and respect our rules.

…

My fathers, Woodley King, Alec Ned and Gilbie Warrie, my uncles Kenny and Jerrold Allan Jacobs, my grandfather Long Mack, and my brother David Daniel protested and went to the Minster in the 1970s about the building of the Harding River Dam. It was going to damage the Barrimirndi site and undu thalu (rain maker site) and other sacred places. They were angry that our country could be damaged and that no one had come to talk to them. They tried to stop the dam but nobody listened. A lot of the old fellas were getting upset about the dam. Some of the old men like Angus Mack’s dad died of a broken heart.

313    When the evidence about saying “no” to mining companies is read in the context of the first part of Ms Woodley’s evidence (having “the right to tell people ‘no’ on all our country”), it would seem to be the same kind of evidence that was given in Griffiths.

314    Mavis Pat’s evidence was:

When they built the Harding River Dam the old people did not want it built. We tried to stop it. They should ask the Pats and the Sandys if they are going to do anything on Yiraiy-na.

We were always taught that we had to ask permission if we went to other people’s country. When I say other people I mean other Aboriginal groups. I just wouldn’t go onto a stranger’s country without seeing an elder first. It is the same for Yindjibarndi country. Outsiders have to ask us if they want to do something on our country like hunting or camping. If people don’t ask the right elders they could have problems and get sick. They would get sick from the spirits. The mowan man (witchdoctor) would kill that person if they didn’t like them.

315    Again, not only is this evidence about the existence of, and adherence to, traditional law about permission as between Yindjibarndi and non-Yindjibarndi people, it is also evidence of Yindjibarndi people’s understanding that their law was being flouted by those who were building the Harding River Dam, because those people (presumably the Europeans of which the appellant speaks in its submissions) had not asked Yindjibarndi for permission. Other witnesses such as Lorraine Coppin also gave evidence about Yindjibarndi trying to prevent the dam going ahead.

316    Bruce Woodley’s evidence was:

If someone who is not Yindjibarndi wanted to go to Garliwinjinha (G7) they have to do the right thing and ask us Yindjibarndi people. They have to ask a Yindjibarndi person “who is the nymbali of the ngurra?” I would be a nyambali so would Mum Berry and Rosemary as the elders for the Woodley family. The Cheedys speak for Winyjuwarranha (J6).

It was always the same for the old people. If a stranger comes they would ask “could I go to your country hunting kangaroo or cutting wood for boomerangs?” We would tell them we had to go with them to make sure they were doing the right thing. We tell them “you can get that kangaroo but don’t stay too long. Get your kangaroo and go.” The Garliwinjinha area is a very spiritual country and something dangerous could happen to them so they have got to be careful.

When any big decisions are getting made about Yindjibarndi country, like mining, the Yindjibarndi have to come together and make decisions about our country together in times when our land is being threatened.

When we first started to talk with Andrew Forrest in about 2007, he wanted to build the Solomon mine he just wanted to know about the one family that speaks for the area where he wanted to build that mine. But that is not the way Yindjibarndi people make decisions about their country. He needed to talk with all the elders who are the traditional owners not just one family for that area.

Ngaarda from other groups should ask permission before coming onto Yindjibarndi country. Troy Eaton from Port Hedland came to me and asked if he could go swimming in Millstream. I took him down there and took a mug of water and put it in my mouth and blew it out and said to the spirits of the country that had I invited these people to have a bath in my yinda.

If someone was driving along the Wittenoom Road and didn’t stop they wouldn’t have to ask an Yindjibarndi person for permission. But if they stopped and got some food or timber they would have to ask.

I do the same when I go to Tom Price. I will call an elder like Alec Tucker and ask him. If I was going to Mulga Downs I would ask Archie Tucker. They would always say “yes” because I am showing them respect and they would make sure I am not going to a dangerous place. They know me as I am related to them.

If you don’t ask permission, you can get sick and the spirits can chuck something spiritual on your back that you take back to your own country. You will be in pain and agony. You will have to look for a mowan man to get the thing out of your back. If you don’t find mowan man you will get weaker and weaker and you could pass away. I am spiritual man and some people have come to me to ask me to get the bad spiritual powers out of their back.

317    Mr Woodley was not required for cross-examination.

318    Mr Stanley Warrie’s evidence was:

As an Yindjibarndi man I have the right to speak for Yindjibarndi country, to go to the places in Yindjibarndi country that I want to with my family and to live in those places for as long as I like and do whatever I like. I was taught that if you broke Yindjibarndi Law you could be punished by the country, by your family or by the elders. It is very important to be respectful of the customs and Law for Yindjibarndi country and I follow that Law.

I also have the right to keep other people out of Yindjibarndi country. People who aren’t Yindjibarndi can’t just come here going wherever they want and doing whatever they want in our country without getting permission from the Yindjibarndi People. Our country is alive with the spirits of the Marrga (creation spirits) and the old people and they can grab strangers and make them very sick or even kill them if they go to the wrong places [because Yindjibarndi country is mantha mantha ngurra].

In the old days if outsiders were found in Yindjibarndi country by our old people without first getting their permission they would be speared or killed.

319    As senior counsel for the Yindjibarndi submitted, using the language of “speaking for” country was recognised in Ward as being one typical way for Aboriginal people to indicate a right to control access. In this evidence, Mr Warrie clearly asserts a right to “keep other people out”, and explains the physical consequences which would be imposed, at least in the “old days”.

320    Mr Warrie’s cross-examination is also instructive on this issue. Some examples from it are as follows:

MR O’GORMAN: Mr Warrie, did I understand you a moment ago – say two minutes ago – to say that, today, people are doing these things everywhere?

STANLEY WARRIE: Yes.

MR O’GORMAN: Yes. And there’s not much you can do about it to stop it.

STANLEY WARRIE: Yes. Yes.

MR O’GORMAN: Yes.

STANLEY WARRIE: Yes.

MR O’GORMAN: And you also speak about - - -

HIS HONOUR: Well, when you say that, do they do it everywhere on the Yindjibarndi determination area that the court has said you have Native Title to?

STANLEY WARRIE: Even there, as well, you know. You’ll – where – you’ll – you’ll see – you’ll see, you know – our laws are still in place with us, you know? But you’ll see the – the laws of the white man, you know, are, you know, covering up the – you know, when we say, you know – but – “Don’t goin there because”, you know, but, like, the laws of the – what – what we have here now, today, given everybody the right to go on country without, you know, without - - -

HIS HONOUR: Under the white man - - -

STANLEY WARRIE: This is under the white man’s law, you know, because - - -

HIS HONOUR: Yes.

STANLEY WARRIE: - - - when you’re under the white man law, you’re – you’re free to go wherever you want to.

HIS HONOUR: Yes.

STANLEY WARRIE: And it is a free country then. But our laws still stand the same, you know? But – but, knowing that we can’t – you know, people don’t recognise our law, you know - - -

HIS HONOUR: Yes.

STANLEY WARRIE: - - - it’s our law, but use the white man law to go into the country anyway, you know - - -

HIS HONOUR: Yes.

STANLEY WARRIE: - - - without even respecting us or even coming to us which been treating all this land, to, you know, “I want to go here”, “I want to come on Yindjibarndi country. And that’s the thing, you know? But we – you know, we don't have the thing, you know, but our law still stands. And you – you should come to us first, you know, without – you know – but, as I said, this other thing to – to help, you know, guide you through … you know, all these things. Yes.

HIS HONOUR: Yes. Yes, Mr O’Gorman.

MR O'GORMAN: Mr Warrie, you say that your laws are still in place - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - but the difficulty is, nowadays - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - is trying to get people to respect those laws.

STANLEY WARRIE: Yes.

MR O'GORMAN: Yes.

STANLEY WARRIE: Yes.

MR O'GORMAN: And if people outside your – the – the area that we’re dealing with in this case - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - the claim area - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - want to come in and, say, take an animal or something like that - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - they should - - -

STANLEY WARRIE: Yes.

MR O'GORMAN: - - - seek permission.

STANLEY WARRIE: Yes.

MR O'GORMAN: Yes.

STANLEY WARRIE: And Aboriginal people still hold these things, laws belong to Aboriginal people, you know, they still hold the respect against – towards each other -- -

MR O’GORMAN: Yes.

STANLEY WARRIE: - - - and, you know, neighbouring tribes or whatever. They still – Aboriginal people still hold this thing and – this law in place. But, you know, the white man law, you know – because Aboriginal people still hold their law and culture and – you know, in – how they want to treat people going into their – into their own land, you know.

MR O’GORMAN: But the white man law has affected the way that your laws are - - -

STANLEY WARRIE: Yes.

MR O’GORMAN: - - - respected; is that what you’re saying?

STANLEY WARRIE: Yes.

MR O'GORMAN: Yes.

STANLEY WARRIE: I think respect, you know. But there’s still respect between Aboriginal people, you know. But the white man doesn’t respect Aboriginal people’s law.

…

HIS HONOUR: And does somebody make a decision if a stranger comes onto country without permission, that that person has broken the law?

STANLEY WARRIE: Yes, I think – yes. In – in – what we saying, you know, using the person, that thing coming into the land without permission, mantha mantha. He’s broken the law, you know. You know, he stepped there in our boundary and without permission or anything; he’s broken the law. And, you know, he should be dealt with – how we got to deal with him. It’s – you know, whether we spear him or – or send him back, you know, into his – he probably came in looking for – run away from his own troubles that he caused with his own people, or, you know, looking for thing to – thing to hide – hide away, or run away from his troubles.

…

MR O’GORMAN: Mr Warrie, in, say, the last five years, are you aware of anyone from another tribe coming onto your country without permission being punished by Yindjibarndi?

STANLEY WARRIE: Well, like I said to you, the white man law’s in place. We can’t do anything like that. You know, we can’t spear anybody, you know. That’s – that's the thing I’m saying. But if I – if I had my way, I would deal with him, in – in – in – you know, my own law.

(Emphasis added.)

321    This evidence is, as the primary judge found, capable of proving the continuing content of Yindjibarndi law about asking permission, and demonstrates that the granting or withholding of permission has the purpose of controlling access to Yindjibarndi country. Control of access under Yindjibarndi law would be accompanied by punishment for transgression, including serious physical punishment. “White man’s law” precludes that occurring, but it does not, as his Honour found, negate the existence of the normative rule under Yindjibarndi traditional law including the normative rule of punishment. Control of access, with consequences for transgression is, as the primary judge found, the kind of traditional law which is capable of being characterised as the right exclusively to possess the land which the Yindjibarndi seek to control. In that sense, the kind of cross-examination of Aboriginal witnesses, as occurred with Allery Sandy (to which we have referred at [185] above and on which the appellant relied), was beside the point. Ms Sandy was cross-examined about whether tourists were being stopped coming onto Yindjibarndi land, and about whether the Yindjibarndi “would like” to be consulted by the Government about what happens on their land. It was suggested to her:

MR PETTIT: When you say that, that under the Yindjibarndi way of doing things, the Government should come and consult – yes, of course you understand that. Is that really a matter of what the Yindjibarndi people would like to happen?

…..

MR PETTIT: So to say that there’s a Yindjibarndi law that the Government must consult, would it be fair me to say that really that’s just a way of saying that the Yindjibarndi people really want the Government to come and ask first?

322    Ms Sandy broadly agreed with these propositions. However, that is because Ms Sandy recognised, as all Yindjibarndi witnesses did in the extracts we have set out, that they were powerless to insist on anything without recognition of their native title. What the cross-examiner was implying needed to be present in the Yindjibarndi attitude to tourists, to Government, and to other non-Aboriginal people, was something that could only occur after recognition of native title, with the force of Australian law at their disposal.

323    Senior counsel for the Yindjibarndi also referred the Court to some lengthy oral evidence given by Mr Mack, which was to similar effect. It need not be set out, but there is one passage from this oral evidence that underlines why English language labels, ones that appear to make perfect sense in the context of what is being said in English by a Yindjibarndi witness, turn out to be inadequate. This is what Mr Mack said in his evidence when cross-examined on the basis of the label “belief”:

MR O’GORMAN: If a stranger comes onto Yindjibarndi country - - -

ANGUS MACK: Yes.

MR O’GORMAN: - - - and doesn’t seek permission - - -

ANGUS MACK: Yes.

MR O’GORMAN: - - - and takes a kangaroo away - - -

ANGUS MACK: Yes.

MR O’GORMAN: - - - you say that the spirits could get him?

ANGUS MACK: Yes.

MR O’GORMAN: Okay. And is that because you have that belief in those spirits?

ANGUS MACK: It’s not a – it’s not a believing thing, it’s a giving.

MR O’GORMAN: That changes - - -

ANGUS MACK: You believe in – you believe in it as well. That’s why the belief is if I’m – if I grab somebody, if I get it – oh, no, well, it’s a bit difficult to what you call it – if you can put belief in there, then it’s a believing thing, or if you believe in that – we believe in that.

MR O’GORMAN: Yes.

ANGUS MACK: It’s not a believing thing if you believe because you’re handed down that - - -

MR O’GORMAN: Yes.

ANGUS MACK: - - - and that’s given. They have given – given a – giving a what you call the word for it?

…

HIS HONOUR: Are you saying it’s knowledge for you?

ANGUS MACK: No, well, it’s – to answer the question I’m trying to make it in a way that I will make you understand. You got given something – you got given something, then that belong to yours, yours and belong to him. It got given to you from him to you. That’s what I mean.

MR O’GORMAN: So- - -

ANGUS MACK: If that’s well, you know – if that answer your question or no?

MR O’GORMAN: I’m not sure. So, it’s a Yindjibarndi belief - - -

ANGUS MACK: And it is a – sorry, the belief, sorry is a – it’s a belief that if someone gives you – a spirit is giving you a special power to heal and to do other silly thing – oh, silly things, you have that knowledge from him as well you and him that that relationship – relationship.

(Emphasis added.)

324    Now it is true that, eventually, Mr Mack appears to move to the use of the word “belief”. Whether that was a form of acquiescence to have the questioner move on, or Mr Mack trying not to disagree too much with the questioner and appear disrespectful, is not the subject of any findings by the primary judge, nor was this Court invited to make any. We refer to it as nothing more than an example of why choosing an English language label like “belief” may be an inadequate description of the source and content of Yindjibarndi traditional law, or indeed of other Aboriginal traditional law and custom. And this example illustrates that at least one Yindjibarndi witness tried his best to explain that “belief” was not the right description. What he sought to convey by the use of “given” is a stronger and deeper concept. Sometimes, an English language label has to be used, that can be accepted. However, using it cognisant of its limits is one thing, using it (as the appellant’s submissions might be seen to do) as a way of diminishing the content of the law is another.

325    As we have said elsewhere in these reasons, it was the primary judge’s task to assess all this evidence on the basis of his impressions of the witnesses and in the context of other evidence, but it cannot be said the requisite kind of evidence was absent.

326    Further, we do not accept the appellant’s submissions that [106] and [107] of the primary judge’s reasons make good its submissions that the evidence in this proceeding was of a different nature to that in Griffiths. Paragraph [106] concerns only the evidence of Mr Warrie, about why “the white man’s law” precluded Yindjibarndi from enforcing their own law. As the extracts we have reproduced above demonstrate, in any event his evidence was not of a materially different character. Paragraph [107] is the primary judge’s application of the quotation from Banjima at [21]-[22] to the evidence of the Yindjibarndi witnesses, which, as we have explained, the primary judge was entitled and bound to apply, and which we consider correct. However, the citation of that passage is not any kind of admission that there was no evidence before the primary judge of the kind that existed in Griffiths.

327    Finally, this aspect of the appellant’s submissions is inconsistent with other aspects of its submissions, to the effect that a “belief” in harm occurring to strangers who enter without permission cannot found a normative rule or practice sufficient to constitute a traditional law or custom, and further, cannot then give rise to a right in the nature of a right to exclusive possession. The source of the traditional law in Griffiths was of the same kind as the source for the Yindjibarndi traditional law in this proceeding. Although, for reasons we have explained, we do not agree that describing it as a “belief” adequately captures its nature, using the appellant’s prism, there is no difference. Yet, in its post-hearing submissions the appellant appears to accept the Full Court in Griffiths was entitled to make the findings it did.

Dr Palmer’s expert evidence

328    The primary judge accepted Dr Palmer’s evidence on the exclusive possession issue, and Dr Palmer’s evidence contributed to the findings his Honour had reached “independently”: see [148]-[150].

329    It is not clear what challenge the appellant put forward to Dr Palmer’s opinion. It referred to Dr Palmer’s report in its outline of oral submissions, to support the concession it made at the commencement of the appeal about the existence of a right to exclude “anyone and everyone” up until the time of effective sovereignty. However, it did not thereafter refer to Dr Palmer’s clear evidence about the continuity of that right to the present day. It would appear the appellant includes Dr Palmer’s evidence in its general contentions about the insufficiency of the evidence to support the findings made by the primary judge, or its criticisms about the primary judge’s use of evidence about “belief”.

330    However, just as the primary judge reached his findings “independently” of Dr Palmer, so Dr Palmer reached his findings at an earlier stage of the claim, and independently of the primary judge’s reasoning. Dr Palmer’s opinion was the product of many years spent working with various claim groups in the Pilbara, including the Yindjibarndi, and a careful and thorough examination of original and secondary sources.

331    Consideration of the relevant aspects of Dr Palmer’s report, and his evidence, confirms in our opinion why there was no error in the primary judge’s approach to exclusive possession. The primary judge accepted in its entirety the opinion of Dr Palmer on these matters, and therefore any challenge by the appellant to the evidence of Yindjibarndi witnesses as not going far enough (in its view) would be insufficient to sustain ground 2. That is because it does not address Dr Palmer’s evidence, on which the primary judge placed considerable weight.

332    Chapter 5 of Dr Palmer’s expert report (as amended), was entitled “Customary rights and connection”. It is in this chapter that Dr Palmer notes (at [319]) that many of the early writers were not primarily interested in “recording a system of land law or enumerating rights that characterised it”. However, he singles out the work and opinions of Professor Radcliffe-Brown from the early 20th century, whose opinions the primary judge also relied upon, as work which did focus on the structure of “local organisation and its component relationships” (at [320]). Dr Palmer notes that this did lead Professor Radcliffe-Brown to express some conclusions about, for example, rights to exclude, a duty to seek permission and rights to punish for trespass in his ethnography. Dr Palmer concluded (at [322]):

Within the community of rights holders as described by Radcliffe-Brown there appear to have been degrees of authority and perhaps differentiation as to what rights could be exercised by whom. However, the complex of rights, summarised in the Table 5.1, were exercised only by those who had a customary connection to the country which, according to the normative system which was accepted by all participants as the canon that regulated rights to country. Others who were not holders of these rights, according to this system, could be excluded: persuaded or forced to leave on pain of death. The ability to exclude others by means of capital penalty denotes, in my view, a system of exclusive rights to the country of the country group. Those not members of the country group by reference to customary principles of recruitment could be excluded or annihilated.

333    At [375], as part of his discussion of the Yindjibarndi ritual practices, Dr Palmer explained the melding of the spiritual and the physical in the Yindjibarndi connection to country:

Based on these data I provide the following expert view. Ritual practice associated with the Bithara Law and the burndud dances and song are a means whereby country is evoked and remembered. This may be done at a distance: Woodbrook is near Roebourne on Ngarluma country; Cane River is near Onslow. The song and dance is believed to have supernatural origins and to be a part of an observance that seeks to mediate between people today and supernatural forces and beings. These are spiritual forces that are immanent within Yindjibarndi country. I am consequently of the view that the ritual acts of singing and dancing create and perpetuate a spiritual link or connection between the ritual practitioners and the country named or evoked.

334    Chapter 7 of Dr Palmer’s report is entitled “Contemporary rights and interests”, and at [387] he describes his task in that chapter:

My task in this chapter is then to describe my understanding of the rights claimed by those with whom I have worked with respect to the Yindjibarndi 1 claim area. I will then compare these rights and the laws and customs that frame them with those that I have considered (in chapter 5) to have been likely to have typified Yindjibarndi systems of land ownership in times past, including the right to exclude.

335    There is a substantial passage in this chapter about Dr Palmer’s research on current Yindjibarndi practice and law concerning manjangu. It is lengthy, but worthwhile reproducing because of its significance to how Dr Palmer assessed the continuity of Yindjibarndi traditional law and custom (or “customary law” as Dr Palmer calls it, for reasons he explains at [27] of his Report). Dr Palmer stated at [396]-[399]:

With respect to those who are not recognised as Yindjibarndi the situation is more straightforward. I was told that the name for a ‘stranger’ in Yindjibarndi is manjangu. A stranger is a person whose family and country are not known so they cannot be readily accommodated into the network of social relationships that constitute Yindjibarndi society. By this account a Yindjibarndi person cannot be manjangu because even if they are not known personally, their position within a Yindjibarndi family may be readily computed and their section (galarah), country and ancestry quickly known.

Michael Woodley told me that a manjangu is a person who is unidentified and who is not known for a place or area. When the term is applied to Aboriginal people it evokes fear and uncertainty. Michael explained that when a manjangu is identified,

for us we fear the worst. ... We wonder who he is and what’s going on. If we see a strange car with people we want to know who they are. We like to ask them and find out. In the old days and even now a manjangu is thought of as being bad and he brings in danger. He could be jinagarbi. … But we still fear the strangers because they might be one of these. So a stranger for us brings all the worrying signs. He could be anything. Stealing things; trying to take over. (KPFN 10, Michael Woodley).

Given this uncertainty and possible fatal danger, strangers must make themselves known and declare their purpose for being in Yindjibarndi country. Michael described how this was done in times past when a stranger would first send up smoke to alert local ngurara of their intended arrival and then wait at a distance until the senior man of the local group (darga or nyambali) signalled that it was acceptable for him to approach. Introductions were made and the purpose of the visit explained. The visitor could then proceed as directed by the darga and with his permission. Should a stranger not provide a proper explanation or his intentions were in doubt, in times past at least, he might be taken away and killed. Michael explained that today the circumstances whereby European Australian strangers enter Yindjibarndi country are seldom subject to customary practices as there is little if any recognition of the rights of Yindjibarndi owners of the land. However, the customary principles of behaviour apply if an Aboriginal person enters land that belongs to someone else. He explained this as follows, speaking of Roebourne.

People get to know if there’s any strangers in town through telephone calls - they ring each other up and say there’s a strange car with a mob been hanging round. Who are they, what they want? It might even be on the social media. But if it’s a car that’s broken down or something, and they have to wait here for a part, say they come from Kimberley or somewhere, then one of them will let someone know - explain what’s happened so everyone will know and let the boss man [perhaps Michael] know and he can tell people not to worry and give them comfort that this is not a dangerous thing. But even so the manjangu will be treated with caution and they for their part will respect the fact that they are in another person’s country and keep to where they have been told they can camp. (KPFN 10, Michael Woodley).

Underpinning this system of the allocation and exercise of rights to country is the principle that in matters relating to country a senior ngurara has the right to grant or withhold permission for entry, access and use by others. While denial of permission to Yindjibarndi people whose ngura lies elsewhere is understood to be possible, its exercise is judged to be contrary to customary rules that govern behaviour in this regard. However, there is no such determinative normative system applicable to manjangu. In contemporary dealings senior ngurara consider it their customary right to make decisions as to whether to exclude or include others from their country. Michael Woodley added,

So mining companies should ask first and it’s up to the Yindjibarndi people to say where they can go and where they can’t go. It’s not up to the visitors to tell the Yindjibarndi where they think they want to go or be given any reasons why they can go here but not there. (KPFN 11, Michael Woodley.)

(Footnotes omitted.)

336    Having (at [405]) effectively disagreed with the conclusions of Nicholson J in Daniel, Dr Palmer relevantly concluded (at [407]-[408], and [410]-[414]), omitting the tables to which he refers, which are not necessary for present purposes:

In chapter 5 of this report I provided my views as to the customary system of rights to country (paragraphs 291 to 315). I set down a summary of the system that characterised the possession of rights (paragraphs 316 to 318). Based on these data I then explained my understanding of the likely nature of the rights in the claim area at or about the time of effective sovereignty, as I am able to deduce them from my reading of the relevant literature. My findings in this regard can be summarised as the following rights.

i.     The right to exclude others from country or inhibit their encroachment into it. The right to punish trespass by death or violent acts (paragraph 319).

ii.     Habitual occupation and use of specific area of country. (Table 5.1);

iii.     Right to exclude, duty to seek permission. (Table 5.1)

iv.     Right of use and benefit of all products of horde estate, animal, vegetable and mineral. (Table 5.1)

v.     Right to hunt over estate of other members of language group, right to enter country of another horde. (Table 5.1)

vi.     Trespass punishable by death. (Table 5.1)

vii.     Right(?) to visit spouse’s (wife’s) country. (Table 5.1)

viii.     Rights to country of ego’s mother. (Table 5.1)

I noted that I was not of the view that this represented an exhaustive list of rights that might have been claimed, but was reflective of those discoverable in the early literature only. I was of the opinion, based on my assessment of the materials considered in this chapter that rights to country were only exercisable by those who had a customary connection to the country, according to the normative system which was accepted as the canon that regulated rights to country. Others who were not holders of these rights, according to this system, could be excluded: persuaded or forced to leave on pain of death. The ability to exclude others by means of capital penalty denotes, in my view, a system of exclusive rights to the country of the country group. Those not members of the language group by reference to customary principles of recruitment could be excluded or annihilated (paragraph 322).

…

The rights I have identified in column 1 of Table 7.2 are paralleled in columns 2 and 4. I note only one aspect of the exercise of these rights which has been abandoned: that of exacting the death penalty on those who enter without permission. To the extent that death was a punishment for trespassers in pre-sovereignty times the neglect of this right shows discontinuity with the past. Rights to different country areas – a significant part of the customary system whereby rights were exercised in my view (see paragraph 312) – was facilitated by appeal to cognatic filiation or rights within spousal country, as shown in the penultimate and ultimate row of the Table. I understand these ways whereby rights to country may be legitimated, along with other social and kin-based relationships, to provide support for the view that all Yindjibarndi people have rights generally in Yindjibarndi country (see paragraph 309).

The listing of rights, as I have shown above, neglects the complex system of relationships that underpins the possession and exercise of rights to land. These are evident in my field data and show that relationships exist not just between people (through exercise of the yinyard principle, for example discussed in paragraph 394 above) but, significant in this ethnography, between people and the metaphysical world of spirits and spiritual danger which are understood to inform and imbue the claimants’ country. This aspect of the spiritual and metaphysical basis for Aboriginal relationships to land was not comprehended in the writings of the early diarists or pioneering ethnographers. However, it is an understanding that was to inform much later scholarly writing on Aboriginal relationships to land (Strehlow 1965, 127; R.M. Berndt 1970, 1). Others have noted the significance of spiritual danger in country for different areas of Aboriginal Australia (e.g. Kaberry 1939, 138-9; 203-4; Biernoff 1978, 99).

Based on my consideration of these accounts and the field data I have set out above, I am of the view that the system of asserting rights to country reflects those likely to have been in evidence at the time of sovereignty. I am further of the view that the possession of rights as they are understood by the claimants with respect to their country is based on customary systems of belief and practice, as I have set these out in earlier paragraphs of this chapter. I consider it a reasonable assumption that similar or the same customary principles would have operated in relation to the possession and exercise of rights to country in times past. I conclude therefore that the rights asserted by the claimants in this matter today are rights that show substantial continuity in form and substance since the time of effective sovereignty and so too, it is reasonable to conclude, since the time of sovereignty.

The rights that I have set out in columns 1 and 2 of Table 7.2 can be understood to combine two principles. First, a ngurara has the right to enter, use and exploit his or her countryside. These rights, whether enumerated as to their detailed particulars or not, may be considered to encompass all activity that could be contemplated on the country in question. The customary constraints on use and occupation are generally not evident in the listing of rights. However, I have shown that the constraints that are understood by those with whom I worked constitute operative principles that govern the use of country. These are developed from customary beliefs and practices that mandate the nature of the relationship between a person and the spirituality of their country (paragraphs 389 to 392 above).

The second aspect of the possession of rights is the right to exclude others who are not Yindjibarndi and are consequently identified as manjangu. This means that country is not shared with those who are outside of an owner’s network of social and kin relationships unless he or she grants permission and invites those others in. Those who hold the rights in country have the power or function to exclude; that is to bar or keep out others who are outside of the system whereby rights to country are defined. Definition of rights is made by reference to the normative operative system that characterises Yindjibarndi tenurial arrangement. Thus the system of rights to country, as I have set them out here, is ‘exclusive’.

(Emphasis added and footnote omitted.)

337    The primary judge’s reasons suggest Dr Palmer maintained his opinions during the trial as well, although the Full Court did not have any transcript from Dr Palmer’s oral evidence.

338    The appellant has not demonstrated how it was erroneous for the primary judge to rely on the expert evidence of Dr Palmer. In light of the appellant’s concession about the content of Yindjibarndi traditional law and custom until at least 1860, then Dr Palmer’s clear opinion that Yindjibarndi traditional law has continued to give rise to a right in the nature of a right to exclusive possession provided ample support for the findings of the primary judge. As we have noted, so too did the direct evidence of the Yindjibarndi witnesses, on which the primary judge placed principal reliance.

Responses to other submissions made by the appellant

339    In this part of our reasons we address other submissions made by the appellant to which we consider the Court should respond, and which are not covered by what we have said about ground 2 to this point.

The Schedule F point

340    The appellant submits that paragraphs 11 and 12 of Schedule F to the further amended native title determination application made under s 61 of the Native Title Act, read with [381] of the primary judge’s reasons, illustrates that there was a “fundamental mismatch between the rights claimed and the rights proved”.

341    Paragraphs 9-12 of Schedule F should be set out, as they need to be read together:

Yindjibarndi country (including the application area) is considered by Yindjibarndi People to be redolent with spirituality, commemorated by senior male members through mytho-ritual traditions; and in particular the, uniquely Yindjibarndi, Birdarra Law. The right to rehearse the spirituality and manage its geographic and physical manifestations rests with those ritually qualified to do so. Those who have gained this qualification, usually but not exclusively with respect to ancestral country, are spoken of as having the right “to speak for country”. To “speak for country” is to have the legitimate authority to make decisions about the future of the country with respect to its physical as well as spiritual future and these decisions are understood by Yindjibarndi People to take priority over the exercise of rights of other Yindjibarndi People to use the land and waters within Yindjibarndi country.

The exercise of rights to use country, including within the application area requires knowledge of the country and its resources. In order to use country safely, those exercising rights must know of the spiritual potentialities of the country, particularly its dangers. Accordingly, use rights are potential until such time as they can be realised through acquisition of knowledge of the country in which they are to be exercised.

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

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

(Original emphasis.)

342    The appellant submitted the “mismatch” was that a “belief” cannot found a normative rule which in turn can be recognised as a right of exclusive possession. In other words, the complaint about the way these paragraphs in Schedule F are expressed is simply another manifestation of the appellant’s overall complaint. We have rejected it, and no further support is derived from Schedule F. It is also unclear how the appellant’s contentions about these paragraphs sit with the concession it has now made.

343    These arguments do not assist the appellant on ground 2.

Belief was not found to be “proof” of a right of exclusive possession

344    Contrary to the way the appellant puts ground 2 in its notice of appeal, the primary judge did not find that a belief of adverse spiritual consequences for trespassing was “proof” of a right of exclusive possession. The appellant sets up a “straw person” to demolish. This simply does not represent a finding made by his Honour.

No default position

345    At [22] of its amended written submissions, the appellant contended:

Drawing those ideas together, the notion that at the present day there would be continuing exclusive rights or interests in respect to particular parcels of land should not be expected to be the norm in most cases, even allowing for the full importance of the spiritual background. Rights and interests will more usually lie at the level of non-exclusive rights. Further, the concept of “respect”, as referred to by Nicholson J in Daniel, will usually be an accurate reflection of the rights that remain.

346    We reject any suggestion there is such a presumption, or a default position, in the correct approach to the content of traditional law and custom for the purposes of s 223(1). Each claim is taken on its own facts, with the law applied to it. There is no basis for any assertions about what is “usual”.

AB v Western Australia

347    The appellant submitted, in contrast to Neowarra, Griffiths and Banjima, that Bennett J’s decision in AB v Western Australia (No 4) [2012] FCA 1268; 300 ALR 193, in particular at [748]-[826], was a correct application of principle.

348    We agree with the appellant that AB v WA involves a correct application of principle. The question for her Honour was whether she was satisfied the evidence was of the character it needed to be to prove the existence of a traditional law which gave rise to a right or interest relating to land which was capable of being characterised as a right in the nature of exclusive possession. Her Honour was not so satisfied on the evidence: see [826]-[827].

349    That is all that comes out of AB v WA for present purposes.

How certain arguments were put to the primary judge

350    The Court raised with the appellant whether some of the arguments being put on appeal were put to the primary judge, given there was no mention of them in the primary judge’s reasons. In particular, senior counsel was asked whether the submissions made on behalf of the appellant that what must be alleged and proved is “everyone outside the group shares a belief in the matters in paragraph 12 [of the s 61 application – see above at [342]] or that they order their affairs on the basis that paragraph 12 is to be respected” were put to the trial judge.

351    In its post-hearing submissions, filed with leave, the appellant submitted that “[a] detailed submission to this effect was put to the trial judge in the ‘[State’s] written submissions in response to the Applicant’s submission’s filed 27 June 2016’ filed on 1 August 2016 at [32]-[52]” and that “[t]he Appellants put a similar submission below at [24]-[25] of the ‘FMG Respondents’ Submissions on Connection Issues’ filed on 12 August 2016”.

352    In its post-hearing submissions, the appellant also submits, relying on cross-examination (largely conducted by the State) about Europeans not being part of the Yindjibarndi belief system and not seeking permission on the basis of that belief system, that “[t]he matter was thus joined, in submission and evidence”.

353    Whether this is correct or not depends on what “the matter” is.

354    Further, we do not accept that simply because the primary judge was bound by the Full Court decisions in Griffiths and Banjima, it was not incumbent on the appellant to make the primary judge aware that it challenged the reasoning in those decisions. It did not do so, and what is stated at [16] of its post-hearing submissions is in effect an acceptance that it did not. That is likely to explain why the primary judge’s reasons contain no indication that he understood those two decisions were said by the appellant to be wrongly decided.

355    The primary judge, and the Yindjibarndi, were entitled to know that was the appellant’s position. The raising of these arguments for the first time on appeal has meant that the primary judge’s reasons are being examined through a prism which is different to the prism through which the primary judge had been asked to look at the matter. What the primary judge said about Griffiths and Banjima was said not only on the basis that he was bound by them, but more importantly, on the basis that he did not understand the reasoning in those decisions to be impugned by any party. Likewise, the Yindjibarndi were not afforded the opportunity to develop why the reasoning in those cases was correct, and to have their arguments taken into account in the primary judge’s reasoning.

356    The course taken by the appellant in withholding any notice of a challenge to these decisions at trial was inappropriate. If we had been disposed to uphold this ground of appeal, further consideration would have needed to be given to what, if any, consequences should flow from the appellant adopting that course.

Resolution of ground 3

357    The appellant describes its argument on this ground in the following way at [41] of its amended written submissions:

This alternative ground arises only if Griffiths and Banjima are understood to erect a barrier in principle to the arguments addressed under Ground 2 by: (1) holding that it is necessarily irrelevant to the enquiry into whether rights and interests arising under traditional laws and customs are exclusive to examine how the claim group responds to conduct of non-Aboriginal persons; and (2) holding that spiritual necessity will of itself directly give rise to a right of exclusive possession.

358    It should be clear by this point in our reasons that we see several impediments to the way this argument is framed.

359    The first is the concession by the appellant about the existence of Yindjibarndi traditional law up until at least 1860 that gave rise to a right that can be described as a right of exclusive possession. Given that concession, the only question is whether the primary judge was correct to find the Yindjibarndi had proven the continued observance of that traditional law and custom. There was, and could not have been, any change in the fundamental nature of Yindjibarndi traditional law and custom, subject to the applicable principles about adaptation flowing from Yorta Yorta. It is plain on the authorities that whether or not its exercise altered – in form or frequency, or whether enforcement was or was not possible in a practical sense against “Europeans” – were not matters precluding a conclusion that the traditional law continued to be observed by the Yindjibarndi People. The question will always be whether any change has been so significant that particular laws or customs have been “lost”, or can no longer be properly described as “traditional”: see Rubibi Community v Western Australia (No 6) [2006] FCA 82; 226 ALR 676 at [5]-[6] (Merkel J); Sandy on behalf of the Yugara People at [12]-[13] (Reeves, Barker and White JJ); Wyman (on behalf of Bidjara People) v Queensland [2015] FCAFC 108; 235 FCR 464 at [170]-[173] (North, Barker and White JJ). However, as we have explained, there was ample evidence before the primary judge for him to conclude that Yindjibarndi people had continued to observe traditional law and custom about the need for manjangu to seek permission and the consequences and sanctions if they did not, the “adaptation” being the need for Yindjibarndi to observe and comply with non-Indigenous laws so as to refrain from imposing physical punishment, and the powerlessness felt by Yindjibarndi in insisting that their traditional law and custom be respected by non-Indigenous people.