FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 25 January 2016 by Michael Hughes for his joinder under s 84(5) of the Native Title Act 1993 (Cth) be dismissed.

2.    Michael Hughes pay the Yindjibarndi applicant’s costs of the interlocutory application for joinder to this proceeding on an indemnity basis.

3.    Michael Hughes pay the costs thrown away by the Yindjibarndi applicant in this proceeding as a result of the filing and prosecution of the proceeding Michael Hughes & Ors v State of Western Australia (Eastern Guruma #2) (WAD750/2015) on a party-party basis.

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

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The Eastern Guruma applicant pay the Yindjibarndi applicant’s costs in this proceeding.

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

REASONS FOR JUDGMENT

RARES J:

1    On 22 December 2015, Michael Hughes, Judith Hughes, Terry Hughes, July Hicks, Dennis Hicks and Michael Hicks filed a Form 1 application (the 2015 Form 1) in proceeding WAD750/2015 as applicant on behalf of the Eastern Guruma native title claim group (the Eastern Guruma applicant) seeking a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (the 2015 proceeding).

2    The 2015 Form 1 claimed exclusive native title rights and interests over areas in the approximately 722 square kilometres that it covered, in which such rights and interests could be recognised, and a range of non-exclusive rights and interests over the balance of the areas. Those areas are immediately to the north of areas the subject of two consent determinations of non-exclusive native title rights and interests in favour of the Eastern Guruma people made by Bennett J in 2007 and 2012 in proceedings that commenced in this Court in 1998 as a result of having been filed earlier in the National Native Title Tribunal in 1997 (the 1998 proceeding): Hughes (on behalf of the Eastern Guruma people) v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People v the State of Western Australia (No 2) [2012] FCA 1267.

3    The claim in the 1998 proceeding covered an area of about 8700 square kilometres: Hughes [2007] FCA 365 at [2]. The area claimed in the 2015 Form 1 overlapped (the overlap area) the centre of, and bifurcated the much larger area, the subject of proceedings WAD6005/2003 (the 2003 proceeding), brought by TJ (deceased) and others on behalf of the Yindjibarndi #1 people (the Yindjibarndi applicant). The 2003 proceeding also made claims for a determination of exclusive or, alternatively non-exclusive, native title rights and interests over a larger area which lies immediately to the south of the area the subject of the determination of non-exclusive native title rights and interests made as a result of the decision of the Full Court in favour of the Yindjibarndi people in Moses v State of Western Australia (2007) 160 FCR 148.

4    The overlap area covers the Solomon Hub, which is a very large iron ore mine operated by Fortescue Metals Group Limited and its related companies (FMG).

5    In September 2015, I heard evidence in the trial of the 2003 proceeding on country in the Pilbara, and adjourned the balance of the trial to be completed in Perth between 4 and 11 March 2016.

6    On 25 January 2016, the Yindjibarndi applicant filed an interlocutory application in the 2015 proceedings seeking that first, it be joined as a respondent, and secondly, the 2015 proceedings be stayed, struck out or dismissed on the ground that they are an abuse of process of the Court pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Federal Court Rules 2011 (Cth) (the summary dismissal application).

7    Also on 25 January 2016, Michael Hughes, one of the persons constituting the Eastern Guruma applicant, filed an interlocutory application in the 2003 proceeding seeking that he be joined as a respondent pursuant to s 84(5) of the Native Title Act (the joinder application).

8    On 29 January 2016, I ordered, by consent, that the Yindjibarndi applicant and the active respondents in the 2003 proceeding be joined as respondents in the 2015 proceeding.

9    On 9 February 2016, I made orders that vacated the unperformed programming orders made on 23 October 2015 and those for the final hearing dates of the 2003 proceeding and instead set down the two interlocutory applications, for summary dismissal and joinder, for hearing together on 8 and 9 March 2016, and that hearing continued this morning.

The issues

10    In essence, the Yindjibarndi applicant contended that the 2015 proceeding was oppressive and an abuse of process because first, there had been extreme delay in commencing it, secondly, there was no adequate or credible explanation for that delay, thirdly, it caused prejudice to the Yindjibarndi applicant, the Yindjibarndi native title claim group, and the respondents in the 2003 proceeding and, fourthly, the nature of the claim to native title that the Eastern Guruma applicant asserted was, “confused, inconsistent and opportunistic”.

11    The parties accepted that if the 2015 application were stayed, struck out or dismissed on the basis that it was oppressive or an abuse of process, Mr Hughes’s joinder application would still need to be considered. The Yindjibarndi applicant argued that Mr Hughes should not be added as a respondent to the 2003 proceeding because first, that proceeding was very advanced, secondly, there would be real prejudice caused to the Yindjibarndi applicant and other parties, thirdly, Mr Hughes’ delay in seeking to be joined was extreme and unexplained and fourthly, his joinder would not be justified having regard to the public interest in the fair and efficient administration of justice.

12    Obviously, if the Eastern Guruma application were allowed to proceed, the Eastern Guruma applicant would be a proper and necessary respondent to the 2003 proceeding because, then, its interests would necessarily be affected by any determination in that proceeding, and s 67(1) of the Native Title Act requires that the subject matter of the two proceedings, in which an overlap occurs, be dealt with in the one proceeding.

The legislative schemes

13    Relevantly, s 67(1) of the Native Title Act provides:

67    Overlapping native title determination applications

(1)    If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

…

84    Parties

Affected persons

(3)    Another person is a party to the proceedings if:

(a)    any of the following applies:

(i)    the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

(ii)    if notice of an amended application is given under paragraph 66A(1A)(e) – within the period specified in the notice under that paragraph.

…

Joining parties

(5)    The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

14    The Federal Court of Australia Act provides:

31A    Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

…

Part VB – Case management in civil proceedings

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)    The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)    the Rules of Court made under this Act;

(b)    any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

37N    Parties to act consistently with the overarching purpose

(1)    The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2)    A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:

(a)    take account of the duty imposed on the party by subsection (1); and

(b)    assist the party to comply with the duty.

Background

15    In 1997, the Eastern Guruma native title claim group made a claim in the Tribunal for a determination of native title that became the 1998 proceeding. Susanne Boyd, an elder of the Eastern Guruma people is the sister of Michael Hughes. Both are children of Nelson Hughes, the senior surviving Eastern Guruma man who is now in his 90s and whose memory, unsurprisingly, has begun to fail. Ms Boyd and, at least her father, were involved in the formulation of the 1998 proceeding and, as will appear, its prosecution.

16    Dr Edward McDonald is a consultant anthropologist who, since 1994, has provided and project managed anthropological ethnographic and archaeological research services for members of the Eastern Guruma claim group and its associates, including the Wintawari Guruma Aboriginal Corporation (WGAC). He wrote an expert anthropological report in support of the 2015 application that was attachment T to the 2015 Form 1 and verified that report in his affidavit that the Eastern Guruma people read as evidence in these interlocutory applications.

17    The 1998 proceeding involved a claim over the 8700 square kilometres to the southwest of the area that the Yindjibarndi applicant claimed in the 2003 proceeding. However, when the 2003 proceeding was filed, the Yindjibarndi applicant also filed a related proceeding in which it sought to claim an area that overlapped the northern portion of the area claimed by the Eastern Guruma people in the 1998 proceeding. Between June 2003 and early August 2003 elders from both the Yindjibarndi claim group and the Eastern Guruma claim group met at Roebourne and discussed their respective claims. Nelson Hughes and his daughter, Susanne Boyd, attended that meeting. Ms Boyd said in her evidence, and I accept, at that meeting the elders met to discuss, without lawyers, and they then agreed, what the boundaries for each native title claim should be.

18    That evidence is consistent with evidence relied on by the Yindjibarndi applicant. Indeed, on 1 August 2003, the Yindjibarndi applicant withdrew, in its entirety, its other claim that extended south over areas claimed by the Eastern Guruma people in the 1998 proceeding. That action resulted in the boundaries of the two claims becoming contiguous so that the boundary of the areas claimed in the 1998 proceeding by the Eastern Guruma was to the southwest of the common boundary line, and that area claimed in the 2003 proceeding by the Yindjibarndi was to the northeast.

19    In context, that consensual resolution was not surprising. That is because at some time earlier, the Eastern Guruma elders authorised a publication of a book by Brehaut and Vitenbergs (the 2001 book) called “The Guruma Story”, to which, among others, the late Peter Stevens, an Eastern Guruma elder, and Nelson Hughes contributed information. Both of them were described as Top End, or Hill Country, Muntalgura Guruma. The authors of the 2001 book said that the elders had cross checked the parts of the book that were relevant to them. The book depicted the boundaries of the three different sub-groups of Guruma people, being the Robe River Guruma whose lands lay in the northwest, the Bottom End Guruma, whose lands lay to the south of those of the Robe River Guruma and immediately to the west of the Top End Guruma’s lands. A map on page 16-17 of the 2001 book depicted the lands of the Top End Guruma thus:

20    The 2001 book map’s boundaries and location of the Top End or Eastern Guruma claim area closely correspond with that, the subject of the 1998 proceeding and the two determinations of native title that Bennett J subsequently made. The map depicted the location of “Coolawanyah” to the north of the Top End Guruma claim, and Mount Florance to the east.

21    The map below shows the boundaries settled by the elders in 2003 between the area claimed by the Yindjibarndi applicant to the north and the common boundary south of which Bennett J made the determinations of the East Guruma people’s native title together with the overlap area and the earlier and wider 2015 overlap claim made by WGAC that I dismissed last year: Wintawari Guruma Aboriginal Corporation RNTBC v State of Western Australia [2015] FCA 1053 (see [48] below).

22    Considered together, the maps depict that those members of the native title claim group acting on behalf of the Eastern Guruma people in the 2015 proceedings now claim an area that significantly overlaps part of the Yindjibarndi claim to the north of the common boundary that had been settled by the elders of both peoples in 2003.

23    Ms Boyd sought to explain why the new claim arose. She said that she had made a mistake when she had drawn the Eastern Guruma claim boundary on the map for the 1998 proceeding because she had thought that she had included within the claim area a place called “Satellite Springs”. Until Michael Hughes’ affidavit, of 1 December 2015 that was included in the 2015 Form 1, that place had always been described as Satellite Springs in material relied on by the Eastern Guruma people. Indeed, in the 2015 proceeding and the summary dismissal and joinder applications all other witnesses used that European name to describe that location, except Susanne Boyd in her affidavit of 27 January 2016. The European name alone was used in related proceedings that WGAC brought earlier in 2015 (Wintawari [2015] FCA 1053), as did all anthropological reports and solicitors’ correspondence written on behalf of WGAC or the Eastern Guruma applicant.

24    The evidence shows that there are potentially three places called Satellite Springs or Satellite Spring in close proximity to the boundaries of the Eastern Guruma determination area and the Yindjibarndi claim area.

25    The explanation for there being two sites called “Satellite Springs” within the Eastern Guruma determination area appeared in the affidavit of Phillip Davies, the General Manager of Culture, Heritage and Religion of the Yindjibarndi Aboriginal Corporation (YAC). YAC holds the native title rights and interests on behalf of the Yindjibarndi people the subject of the Full Court’s determination in Moses 160 FCR 148. Mr Davies explained that the Geographic Names Department of Landgate had identified that the name “Satellite Springs” was approved on 28 November 1969 as part of an Army field check that had occurred about three years earlier. However, the geographical co-ordinates of that site, and the site depicted as “Satellite Springs” on maps differed slightly, because one was about 2.5 kilometres south-southeast of the other. Both of those locations were wholly within the Eastern Guruma determination area.

26    Ms Boyd gave evidence that she erroneously thought that the site named Satellite Springs on the map that she had used to draw the boundaries of the claim area for the 1998 proceeding was the location of the place that the Eastern Guruma people now claim to be the differently located Satellite Springs, being a place located in the overlap area (the FMG Satellite Springs). The latter site apparently had been named “Satellite Springs” by FMG. It is located in an area in close proximity to FMG’s Solomon Mine. The Yindjibarndi people call that site, Bangkangarra. It is some distance to the north of the boundary between the two claim groups and to the south of Mount Margaret. Ms Boyd gave evidence that she thought that the FMG Satellite Springs had been included in her drawing of the boundary that was used to form the basis of the 1998 proceeding.

27    The claim in the 1998 proceeding was last amended in 1999 by slightly reducing the area claimed. I infer that the decision to make such a reduction would have been the subject of an authorisation meeting of the Eastern Guruma people, either, pursuant to s 251B of the Native Title Act, which had come into effect by then, or by a considered decision of the then persons who comprised the applicant in the 1998 proceeding. A number of elders of both the Eastern Guruma and Yindjibarndi peoples present at the meeting held in mid-2003 to resolve the earlier overlap dispute have passed away and cannot give evidence about that meeting and what they understood, if anything, about the inclusion of the FMG Satellite Springs in the areas that they agreed could, and would, be claimed by one group without opposition from the other.

28    In March 2006, Dr McDonald wrote a supplementary anthropological report in support of the Eastern Guruma applicant’s claimed determination that ultimately led to the consent determination made in 2007 by Bennett J. Dr McDonald referred to there being, “not surprisingly”, a degree of contestation between the various native title claim group parties regarding the precise definition of the sub-boundaries. He opined that there had been broad community support and acceptance of the boundaries presented in the 2001 book. He said that the authors Brehaut and Vitenbergs, had mapped the Guruma lands after “extensive consultation with a wide range of Guruma and other elders”, including, as I have said, Peter Stevens senior and Nelson Hughes. Dr McDonald wrote in this report that in January 2004, at least partly due to his instigation, preservation evidence had been taken in respect of the 1998 proceeding. He said that he was mindful at that time of the ill-health of the late Peter Stevens and the increasing frailty of Nelson Hughes. He explained that he had sought to maximise the range of evidence that would be available to the Court and to minimise the stress and negative impacts on those two elders.

29    In his report dated December 2015 (at [5.3]), Dr McDonald said that no evidence had been given in the preservation evidence stage of the 1998 proceeding in relation to either “the location of the boundary in the north-east corner of the [area claimed in those proceedings] or of the Satellite Spring [sic] area. … The boundary in this area at the time was thought to be non-problematic”. He stated that in June 2007, shortly after Bennett J’s determination, he had conducted a survey in relation to the impact of the Solomon Mine project. When he arrived in the general area with Nelson Hughes on 6 June 2007, Mr Hughes expressed his concern to Dr McDonald about “potential impacts on Satellite Spring” [sic] which Mr Hughes thought was located somewhere outside and northeast of the survey area, however, he was unable to identify its location. And, at that time, Dr McDonald also was not able to find where this site was. He said that it was clear that, at that time, that Mr Hughes’ memory was failing, and that on 7 June 2007 he became very distressed and requested to be taken home to Karratha. Dr McDonald formed the view that it was clear that Satellite Spring [sic] was a place of importance and significance to Mr Hughes and other Eastern Guruma consultants who accompanied them on the survey. Notably, at no point up to that episode was any description given to Dr McDonald, so far as the evidence goes, of the characteristics of the place being referred to as “Satellite Springs” or “Spring”.

30    On 26 May 2008, Michael Woodley, one of the elders of the Yindjibarndi people and current CEO of YAC, wrote a letter addressed to the Eastern Guruma prescribed body corporate, being WGAC, and the Eastern Guruma people. In it he referred to the Yindjibarndi people’s withdrawal of their overlapping claim in 2003 as having been “decided by elders from both Yindjibarndi and Guruma in the full understanding of reaching a mutual agreement at a later date based on respect for each other’s country”. He wrote that the groups should try to meet and develop such proposals.

31    In the December 2015 report, Dr McDonald recorded that members of the Eastern Guruma claim group, particularly the men in Mr Hughes’ immediate family, had started their own independent search for Satellite Spring. However, no-one within the Eastern Guruma claim group appears to have found the FMG Satellite Springs until Ms Boyd informed him in an email of 18 August 2009 that her brothers had located it.

32    Significantly, Dr McDonald’s report identified the source of the discovery as being Ms Boyd’s brothers, none of whom has given evidence of having had such an experience in locating this area. Indeed, Michael Hughes gave radically inconsistent evidence about how he came to learn of the “rediscovery” of the FMG Satellite Springs to which I will come later in these reasons.

33    On 3 September 2009, Dr McDonald’s colleague, Bryn Coldrick visited the FMG Satellite Springs in order to record the details of that place for listing on the Register of Aboriginal sites. In the registration form that he completed on 3 September 2009, Mr Coldrick noted, in the statement of importance and significance, about the place he there called “Satellite Spring”, that Nelson Hughes and other Eastern Guruma representatives had expressed concerns about the increasing amount of mining exploration in the area. He recorded that the Eastern Guruma people had requested that a three kilometre buffer zone be established around the site to protect the hydrological system feeding the spring.

34    Importantly, Mr Coldrick had crossed out the options in the statement of importance and significance in the form that had been available to signify that the site had ceremonial or mythological significance and , instead, recounted the following:

Middle aged Eastern Guruma representatives recalled visiting the spring as children and fishing at the pool, and they reported that it was probably, a camping place and meeting place due to its proximity between the upper and lower Guruma groups, and that the paperbarks and fig trees along the riverbed could have been utilised as plant resources.

35    Thus, as at September 2009 when the site was located by Mr Coldrick and members of the Eastern Guruma claim group, they attributed no spiritual, mythical, ceremonial or cultural significance to the FMG Satellite Spring(s) site at all. In particular, Mr Coldrick had not been given any information at that time of any stories that had been passed on by their ancestors or their elders about its significance as a spiritual, mythological, ceremonial or similar site. Rather, as Mr Coldrick noted, his informants had described the site as only being a meeting and camping place with a water source.

36    Dr McDonald said, in his December 2015 report, that the location of the FMG Satellite Springs was approximately 11 kilometres northeast of the position of the site named “Satellite Springs shown on topographic maps”, that is within the Eastern Guruma determination area. He said that his Eastern Guruma consultants had confirmed that the FMG Satellite Springs site was of “major significance” and they had noted the presence of a rock engraving.

37    Importantly, until Michael Hughes swore his affidavit of 1 December 2015 in the 2015 Form 1, no member of the Eastern Guruma group is recorded in any of the material in evidence as having given any Aboriginal name to the FMG Satellite Springs site. I had commented on the absence of any mention of an Eastern Guruma indigenous name for that site in Wintawari [2015] FCA 1053 at [14].

38    Indeed, at no point until Michael Hughes swore his affidavit of 1 December 2015, is there any evidence of anyone in the Eastern Guruma claim group ever saying to anyone else that any place named Satellite Springs had any spiritual, mythological or cultural significance for them at all.

39    Dr McDonald’s report noted that, in addition to Ms Boyd and her brothers (one of whom I infer was Michael Hughes), in August 2009, knowing of the location of FMG Satellite Springs, six representatives from WGAC, attended in September 2009 with Mr Coldrick to record the site, namely Chris Devine, Kristan Camille, Ronald Hicks, Ken Hughes, Dennis Hicks and Justin Gilba. Dennis Hicks senior, a member of the applicant, swore an affidavit in these proceedings that made no mention of that visit, or anything that he learnt on it. He and Mr Gilba have been directors of WGAC since April 2013.

40    Dr McDonald noted that Mr Coldrick had visited FMG Satellite Springs for a second time in November 2009 to do another survey for FMG with WGAC members, Peter Stevens junior, Pauline Hicks, Darren Hicks, and Kalysa Hicks, together with archaeologists and others from FMG. He said that the WGAC personnel were keen to visit and to talk with FMG about the long term preservation. Dr McDonald said that a third visit occurred in March 2010. On that occasion, Michael Hughes, Peter Stevens junior and Mr Coldrick had returned because both Eastern Guruma men wanted to explore the site for hydrology.

41    Thus, by March 2010 at least 13 members of the Eastern Guruma claim group, including elders and persons connected to WGAC, the prescribed body corporate holding the land and waters by then the subject of the 2007 consent determination of native title, knew of the location of the FMG Satellite Springs site.

42    Next, in May 2010, Mr Coldrick and Dr McDonald prepared a report for both WGAC and FMG as an ethnographic survey of FMG’s mining tenements on Hamersley Station in the Pilbara (the 2010 report). That report noted that the ethnographic field survey had occurred between 9 and 12 March 2010 with the participation of Michael Hughes and Peter Stevens junior. It noted that Nelson Hughes had participated in earlier heritage surveys of the study area, having once commented to Dr McDonald that; “No-one can tell him [sic] anything about that country.” The report said that Satellite Spring [sic] had been an ongoing concern for the Eastern Guruma people, in particular, Nelson Hughes, since FMG first began operating in the area:

… largely due to the fact that its precise location had been lost a for some time … [and that it had been] finally relocated by the Eastern Guruma Native Title Holders in August 2009.

…

… the site is actually located outside the Eastern Guruma Native Title determination area within the adjacent Yindjibarndi native title claim. (emphasis added)

43    The May 2010 report went on to say that during the site inspection in September 2009:

… previously unreported engravings were identified at the site which further supported the group’s assertion that this is a place of major significance. (emphasis added)

44    In my opinion, that lack of any prior report of such engravings at the site is somewhat remarkable in the context of the recent claim by the Eastern Guruma applicant of having both stayed at the site and that, as asserted by Ms Boyd, they had some spiritual connection with it.

45    By May 2010, WGAC and, I infer, the Eastern Guruma claim group, were well aware that the FMG Satellite Springs was located outside their determination area and within the area claimed by the Yindjibarndi applicant in the 2003 proceeding. Yet, no Eastern Guruma person did anything about that matter until they began a dialogue with the Yindjibarndi claim group through solicitors in March 2015.

46    However, the Eastern Guruma applicant’s evidence, seeking to explain this delay, portrayed a very different picture.

The Eastern Guruma applicant’s delay in relation to claiming Satellite Springs

47    The Eastern Guruma applicant sought to explain in the following way the delay in taking any action to assert a claim over, among others, FMG Satellite Springs, let alone the much larger 722 square kilometre area, the subject of the 2015 proceeding, as follows.

48    They instructed their solicitors, Castledine Gregory, and in particular, Matthew Hansen, only on 27 August 2014. Nothing in these reasons is intended to cast any doubt on the veracity of Mr Hansen’s evidence, but I have serious reservations about the veracity and accuracy of his instructions for the reasons below. He said that he had been asked to investigate whether Satellite Springs was located in the Eastern Guruma determination area. Importantly, no witness gave evidence on behalf of WGAC in these proceedings. However, WGAC in early August 2015 commenced proceedings seeking a determination of native title over a larger area that wholly enclosed the overlap area. On 25 August 2015, I dismissed those proceedings as misconceived because WGAC, as a prescribed body corporate, did not have any power to initiate fresh proceedings over a new area outside that which it held on trust for the Eastern Guruma native title claim group: Wintawari [2015] FCA 1053.

49    Mr Hansen explained how his firm’s instructions evolved. He said that WGAC instructed Castledine Gregory that Terra Rosa Cultural Resource Management had advised WGAC that Satellite Springs was included within the Yindjibarndi applicant’s claim area. Of course, WGAC knew that fact by no later than May 2010 because it was stated in the report that Mr Coldrick and Dr McDonald had provided to it on its instructions. There was no report or any other document in evidence from Terra Rosa.

50    Moreover, on 29 July 2014, FMG had invited WGAC, through Tony Bevan, to nominate four to six representatives to “join us at the Solomon Project for the commencement of Wirlumurra Yindjibarndi Aboriginal Corporation (WMYAC) and Gamburlarna Project” during the week commencing 11 August 2014. WMYAC is an organisation of some Yindjibarndi people that has a working relationship with FMG and is distinct from YAC which is aligned with the Yindjibarndi applicant. (Mr Bevan was not a director of WGAC at that time but soon after he was appointed to that office.) This is the first use in the evidence of the word “Gamburlarna” involving Eastern Guruma people. The invitation explained that there would be a one day ethnographic consultation on the FMG Satellite Springs with Yindjibarndi elders and proposed that a nominated Eastern Guruma person perform a joint welcome to country ceremony at that launch with a Yindjibarndi person.

51    Mr Woodley, however, had used the word “Gamburlarna” in his 2009 evidence, quoted in the Tribunal’s decision to permit the State to grant a mining lease to FMG as a furture act: FMG Pilbara Pty Ltd/Ned Cheedy and others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 at pp 20-22. Mr Woodley said that “Gamburlarna” was the Yindjibarndi word for the whole of the Hamersley Ranges.

52    On 12 August 2014, FMG told Mr Bevan about the statement in the 2010 report that the FMG Satellite Springs was in the Yindjibarndi claim area. That communication occurred after Mr Bevan had emailed FMG saying that he had been in to look at the map of the Eastern Guruma determination area in WGAC’s office in Karratha and had seen that Satellite Springs was located within the determination made by the Court in favour of the Eastern Guruma people.

53    These emails came to light only immediately before the hearing when FMG produced them on subpoena. Mr Hansen, I infer, had no knowledge of these facts before he saw the subpoenaed material. However, the impression that his instructions conveyed, and were intended to convey, was that WGAC had only received advice in 2014 as to the location of the FMG Satellite Springs site. That impression was reinforced by a number of other affidavits, in particular, those of Michael Hughes and Ms Boyd. Yet, both knew in 2009 where the FMG Satellite Springs site was, and they knew at that time it was not in the Eastern Guruma determination area.

54    Initially, in his affidavit of 27 January 2016, Michael Hughes said that he found out in late August 2014, that the FMG Satellite Springs was not in the Eastern Guruma determination area by “bush telegraph” after some Eastern Guruma people had seen a television program showing that the Yindjibarndi applicant was claiming it. In fact, FMG had paid him over $1,000 for his attendance on 14 and 15 August 2014 as one of the Eastern Guruma representatives at the FMG Satellite Springs, WMYAC, Gambularna project.

55    There is no reasonable basis to find other than that by the time of that occasion Michael Hughes was fully aware that the Yindjibarndi claim group were asserting a claim over the FMG Satellite Springs. Indeed, I am of opinion it is reasonable to find, as I do, that he knew that fact by no later than May 2010 at the time of Dr McDonald’s report. The Eastern Guruma elders, WGAC, and Michael Hughes knew by about May 2010 that the FMG Satellite Springs was, first, not in the Eastern Guruma determination area, and, secondly, was in the Yindjibarndi claim area. After all, other than Michael Hughes, at least 10 Eastern Guruma claim group members had visited the site with Mr Coldrick, and Ms Boyd and her “brothers” (who “discovered” it) knew of it.

56    Indeed, Michael Hughes had reported the “discovery” of the FMG Satellite Springs site to Ms Boyd in August 2009 and that report caused Mr Coldrick to visit it shortly afterwards to record it as a heritage site. And, Michael Hughes had visited the site again with Mr Coldrick in March 2010 to deal with his concerns about its hydrology. It is inconceivable that Michael Hughes did not know or learn at that time, or shortly after WGAC received the May 2010 report, that the FMG Satellite Springs was in the area that the Yindjibarndi applicant was claiming.

57    Ms Boyd sought to explain in her recent evidence her involvement in what occurred in August 2009. She said that when Dr McDonald had told her that, at that time, the FMG Satellite Springs was outside the Eastern Guruma determination area, she had asserted to him that this must have been a mistake. Dr McDonald’s December 2015 report stated that Ms Boyd was very assertive in 2009 that the site was in the Eastern Guruma determination area. In my opinion, it is inconceivable that she did not realise, even if he did not tell her, that the site was in the Yindjibarndi claim area. However, having regard to his close connection to the Eastern Guruma people since he began working with them, I infer that Dr McDonald informed her of this either directly or through his May 2010 report in order to deal with her concerns.

58    Ms Boyd then asserted in her affidavit, remarkably, that despite what must have been a stunning revelation in 2009 to her about this supposedly important site, she ceased involvement with WGAC and did nothing about it. She asserted in her 27 January 2016 affidavit:

I also thought that Satellite Spring/Gamburlarna and the area around it would be protected as we had asked FMG to protect it and I thought that Eddie McDonald was asked to protect it. When my dad found out that Satellite Springs/Gambularna was not in the Eastern Guruma determination area, he became very upset. (emphasis added)

59    Tellingly, she gave no date for when her father found out and became upset. She gave no evidence of what she or anyone else to her knowledge had done to protect the site. Yet, she asserted that only five years later, in 2014, did she learn that, as a fact, the FMG Satellite Springs was in the Yindjibarndi claim area.

60    I do not accept that she did not know contemporaneously what Dr McDonald had reported in the May 2010 report, namely, that the FMG Satellite Springs was in the Yindjibarndi claim area. Indeed, it is difficult not to think that the reason why the Eastern Guruma people did nothing to claim the site was because they knew that it was protected by and had been agreed by the elders in 2003 to be part of the Yindjibarndi claim and so the Yindjibarndi applicant had responsibility to protect it from any further potential acts that might affect native title rights and interests in it.

61    It is inconceivable that a person concerned about protecting native title rights and interests in an important site, as Ms Boyd asserted that the FMG Satellite Springs was to her, would have allowed it to be left simply to be protected by a mining company that was building and operating a significant iron ore mine very close to the site. I cannot accept that she or other Eastern Guruma people would have taken no steps in, or soon after, May 2010 to protect a site in which they believed they had native title rights and interests from the economic interests of FMG. It was obvious that there was at least a very real risk that company’s interests would have dictated that if the site were not the subject of a native title claim, FMG would try to do whatever was legally and legitimately open to it to prevent the land being burdened by such a claim if it could.

62    I do not accept that the Eastern Guruma applicant has given any credible explanation for leaving the FMG Satellite Springs unprotected for the period beginning no later than May 2010 up to August 2015. I reject their explanation that they believed that FMG or Dr McDonald had been asked to protect it.

63    Ms Boyd is the only claim group witness who has given any evidence about the asserted spiritual significance to the Eastern Guruma people of the FMG Satellite Springs. But she only did this in her affidavit, on these applications, sworn on 27 January 2016. There she made various assertions about it being a sacred site, protected by a water serpent. There is no record of any other Eastern Guruma person asserting any of that information, including her father, her brother (Michael Hughes) or others such as the elders, Linda Camille, Dennis Hicks senior and Judith Hughes. In their affidavits about the significance of the site, those persons, said like Mark Lockyer, who was a Western Guruma elder, that in the late 1960s to 1970s they went to “Satellite Spring” with Nelson Hughes when he took his family there to camp and others, such as Linda Camille, added that they also went dogging. They also said that Nelson Hughes had told them that the site was in Eastern Guruma country. None of those persons referred to the engravings at that site that Mr Coldrick had noted, as at September 2009 had been “previously unreported” (see [43] above). And when Mr Coldrick visited the site and completed the Aboriginal site recording on 3 September 2009, his informants said nothing to him about the sacred or other spiritual significance of the site or the engravings, despite them having said it was an important site.

64    The Eastern Guruma applicants’ evidence (other than Ms Boyd’s 27 January 2016 affidavit) was devoid of any reference or mention of there being some cultural, spiritual, ceremonial or mythological significance of the site. Had Nelson Hughes, or anyone else, said that the site had such significance or engravings on earlier visits in the 1970s or at any later time, that fact would have been impressed on those persons at that time. The absence of prior reference to any cultural, spiritual, ceremonial or mythological significance of the FMG Satellite Springs for Eastern Guruma people reinforces that there is no reasonable prospect (for the purposes of s 31A(2) of the Federal Court of Australia Act) that a claim by the Eastern Guruma people, based on Ms Boyd’s recent evidence of such significance, would have any prospect of success.

65    I find that, because of the consistent evidence, prior to Ms Boyd’s affidavit of 27 January 2016, of Eastern Guruma people reporting on the FMG Satellite Spring site that its significance for them was that it was only a camping, hunting or meeting ground and a source of fresh water, and that there is no reasonable prospect of the Eastern Guruma applicant establishing any other significance to them of the site.

The explanation for delay in bringing the recent claim

66    There is an unexplained delay of over five years between the Eastern Guruma people’s asserted rediscovery of the FMG Satellite Springs site in about August 2009 and the instructions given to Castledine Gregory in late August 2014. The purported explanations for that delay are not credible.

67    Ms Boyd and Mr Hughes are the only persons who gave direct evidence seeking to explain the delay of the Eastern Guruma people in taking steps since August 2009 to protect any native title rights and interests they might assert in relation to the FMG Satellite Springs site. However, there is no explanation as to the delay in making a claim over the balance of the 722 square kilometres claimed in the 2015 Form 1. I find that there is no explanation for any delay in making the claim in the 2015 application.

68    Michael Hughes and his sister, Ms Boyd, explained that the cause of the reinvigoration of the interest of the Eastern Guruma people in the site was the broadcast of a television program in about late August 2014. That evidence was not plausible given the sequence of events that I have referred to, involving each of them that occurred before the broadcast of the television program. Mr Hughes did not mention in any affidavit that he and his brother(s) had found the site by August 2009. He had visited it with Mr Coldrick in March 2010 and had been paid over $1,000 to attend with Yindjibarndi people there on 14 and 15 August 2014, shortly before the broadcast. Those omissions of his knowledge were coupled with his false explanation that he found out that the Yindjibarndi people were claiming the FMG Satellite Spring “by the bush telegraph” after the television broadcast.

69    Matters then moved slowly on the part of the Eastern Guruma people. Mr Hansen said that following a WGAC board meeting on 11 November 2014, his firm was instructed that the board wanted to refer the matter to an Eastern Guruma elders’ meeting for direction from them. Following a meeting of elders on 11 December 2014, and a subsequent WGAC board meeting on 12 January 2015, Castledine Gregory received further instructions from WGAC on 19 January 2015. His firm was asked to review existing anthropological and other materials prepared for the previous Eastern Guruma native title determination application and references to Satellite Spring within that process. He said that his firm made requests to WGAC’s previous lawyers, its anthropologists, and other consultants regarding those materials.

70    On 28 February 2015, Paul Tolcon of Castledine Gregory had a telephone conversation with George Irving, the principal solicitor of YAC.

71    On 3 March 2015, Castledine Gregory wrote to YAC seeking a meeting between elders of the two claim groups to discuss Satellite Spring[s] and associated issues and to explore non-litigious means of resolving points of difference. The letter asserted that “WGAC only discovered late last year (August/September 2014) that there were two places named Satellite Springs [sic]”.

72    On 5 March 2015, Mr Irving responded by email. He pointed out that there was only one site called Satellite Springs on official maps and that was located within the Eastern Guruma determination area, as shown on a copy map that he attached. He said that the Yindjibarndi had a distinct name for the FMG Satellite Springs site and that FMG and those associated with WMYAC only recently had begun to use the name “Satellite Springs” in connection with that site. Mr Irving enquired whether the Eastern Guruma people may have been confused by that recent use of the name “Satellite Springs” for a site not in their determination area.

73    On 5 May 2015, Mr Irving sent an email to Mr Tolcon asking, for the purposes of conducting negotiations, for clarification of what native title rights and interests the Eastern Guruma people asserted in respect of the FMG Satellite Springs site, that the Yindjibarndi called “Bankangarra” [sic], whether they only asserted those rights in respect of that site or more broadly, and why those asserted rights and interests had not been previously claimed by the Eastern Guruma people. Mr Irving asked for copies of any anthropological research on the issues that Castledine Gregory had.

74    On 22 May 2015, Castledine Gregory responded on instructions. In its letter Castledine Gregory stated that WGAC asserted non-exclusive rights and interests “only in respect of the Satellite Springs [sic] (aka Barnkangarra [sic]) site”. The letter attached Mr Coldrick’s Aboriginal site recording form of 3 September, 2009. It also attached a map on which the two sites called “Satellite Springs” were marked. The letter stated that the marked site within the Yindjibarndi applicant’s boundary “is the site our client calls Satellite Springs [sic]”. It added that:

As indicated in our earlier email to you of 3 March 2015, our client only discovered late last year through a documentary on television, that the site of particular significance to our client was located in the Yindjibarndi No 1 native title claim area. (emphasis added)

75    Castledine Gregory’s letter asserted that the WGAC was making the claim because it always had believed that the actual site was within its boundaries, and that what had occurred had been:

… simply a mapping error resulting from when Sue Boyd of the Eastern Guruma initially prepared the Eastern Guruma claim. She was of the mistaken belief that the claim encompassed the Satellite Springs site (aka Bangkangarra).

76    The letter candidly admitted that the site had been located by Eastern Guruma native title holders in August 2009 and attached a copy of extracts from the May 2010 report. The letter also attached Michael Hughes’ affidavit of 5 October 2005 in support of the determination of native title in which Mr Hughes identified the boundaries of the claim in the 1998 proceeding including those proximate to the FMG Satellite Springs, near Hamersley Gorge:

At the Hamersley Gorge area it goes in a north westerly direction over the mountain ranges and along a narrow valley. Going to the northern edge of the Hamersley Range north of the Willumarranha a law meeting ground of Guruma and Yindjibarndi meeting ground and north Galiwinji Spring area. It is a very old meeting ground. (emphasis added)

77    He has repeated that description substantively in his subsequent affidavits in these proceedings and in the earlier proceedings brought last year by WGAC.

78    As can been seen on the map of the overlap area here, Mr Hughes’ description does not bear a real relationship to the claim area in the 2015 Form 1 or its boundaries. For example, he did not describe the newly claimed boundary that runs for approximately 20 kilometres in a direct line east-west at the foot of the Yindijibarndi people’s determination of native title made by the Full Court in Moses 160 FCR 148. Mr Hughes gave a new description in par 16 of his affidavit of 1 December 2015 that was an attachment in the 2015 Form 1 that he substantially repeated in par 53 of his affidavit of 27 January 2016 as follows:

At the Hamersley Gorge (Minijikuntinha) area, [the boundary] goes in a northwest direction along the eastern edge of the Hamersley Ranges, heading in a northwest direction following the ranges. It continues along the ranges until it rounds the range at the north end of the range From the north end of the range it follows the range in a southwest direction going to a law meeting ground for the Guruma people, known as Willumarranha. This law ground is a meeting place from both Guruma and Yindjibarndi people: it is a very old meeting ground. From Willumarranha it goes to the Galiwinji Spring area. (emphasis added)

79    Once again, that description omits any reference to the part of the claimed boundary that runs due east-west and does not seek to relate itself to any named geographical reference points in the area of the eastern edge of the Hamersley Range. Indeed, having regard to the nature and extent of the new area that is being claimed, Mr Hughes’ description is remarkable for its lack of detail or explanation as to how or why the metes and bounds of the new 722 square kilometre claim area in the 2015 Form 1 application or the even larger area claimed by WGAC in its 2015 application were chosen.

80    However, he said in his affidavit of 27 January 2016 that on 26 June 2015 he was “involved in the drawing of the boundary of the area to be covered by WGAC’s [2015] application”. He asserted that he drew the new boundary line on 26 June 2015 and, because of time pressures, that task had to be done very quickly without a proper survey. Mr Hughes asserted that he and other Eastern Guruma elders attended on a field trip with Archae-Aus in mid-September 2015 because they “wanted to make sure that this boundary was correct” and that this “resulted as a more accurate claim boundary”.

81    I do not accept that as an explanation of the nature or reasons why the 722 square kilometre area in the 2015 Form 1 is being claimed. Apart from broad, generalised assertions in the affidavits in support of that claim, there is no explanation in the 2015 Form 1 as to how the Eastern Guruma people have a connection with the FMG Satellite Springs site. In particular, the 2015 Form 1 contains no description of that or any other site within the claimed boundaries having spiritual or religious significance for Eastern Gurama people .

82    It is of the essence of native title that there be such connection. In Western Australia v Ward (2003) 213 CLR 1 at 64 [14], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd [(1971) 17 FLR 141 at 167], 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”. (emphasis added)

83    The absence of any articulated, essentially spiritual or religious connection between the Eastern Guruma people and any identified part of the large area the subject of the 2015 Form 1 claim is significant, having regard to the very late making of the new claims, their knowledge by that time of what they were claiming, and because sometime since at least 3 March 2015, as appears in Castledine Gregory’s letter of that date to Mr Irving, they knew that the final hearing on country for the Yindjibarndi application had been set down for later in 2015.

84    Ordinarily, of course, a Form 1 application for a determination of native title will not be expected to identify matters in support of the claim with the degree of precision necessary at a trial to do so. That is not the function of such a form. But here there was a void of evidence concerning connection of an essentially spiritual nature, other than Ms Boyd’s subsequent assertion that FMG Satellite Springs was a sacred site that she belatedly made in her affidavit of 27 January 2016. The balance of the evidence and anthropological material before me in support of this last minute claim is bereft of any such material.

85    That is more remarkable because this claim involves a very large overlap area that extends well beyond the specific, limited claim for non-exclusive rights over just the FMG Satellite Springs that Castledine Gregory had said was all that was claimed in their letter of 22 May 2015. No explanation has been given on behalf of the Eastern Guruma applicant as to why that position changed or the basis for the current claim.

86    The superficiality of the material on which the Eastern Guruma applicant and Mr Hughes relied in the 2015 Form 1 and on the two interlocutory applications needs also to be considered in the context of my reasons in Wintawari [2015] FCA 1053 at [13]-[14], [39]-[40]. I held that the Court had no power, and WGAC had no status to seek, to amend by expanding, beyond the original outer boundary, the area of the consent determinations made by Bennett J in 2007 and 2012. Relevantly I said:

13    Indeed, the revised application had, as attachment F, an affidavit filed in support of the joinder application on 11 August 2015 by Susanne Boyd, a member of WGAC and elder of the Eastern Guruma people. There she said that she had drawn the original map to show the area claimed in the Eastern Guruma application when it was lodged in October 1997. She asserted that she “inadvertently missed out the section the subject to these proceedings” (i.e. the new claim area). Ms Boyd then asserted that she could see that the area that her 1997 map claimed “included a place marked as Satellite Springs” and that she knew both its significance and that it was in Eastern Guruma country. She said that she now knew that “the area marked as Satellite Springs, had been recorded by white men in the wrong place” and that the location of that site was in the Yindjibarndi claim area.

14    Attachment G to the revised application was another affidavit filed on 11 August 2015 in support of the joinder application, affirmed by another elder of the Eastern Guruma people, Michael Hughes. Mr Hughes said that “[f]ollowing a revision of the Eastern Guruma Claim boundaries by WGAC, I now believe that the northern boundary of the Eastern Guruma Claim are incorrect” and that the boundary should extend into the Yindjibarndi claim area. Mr Hughes attached to that affidavit the affidavit that he had affirmed on 5 October 2005 in support of the claim to the area in the proceedings before Bennett J. In his 2005 affidavit, Mr Hughes gave a detailed description of the northern and other boundaries of the area claimed and made no mention of Satellite Springs. The northern boundary is that in the 2007 determination made by Bennett J. No indigenous language name for Satellite Springs appeared anywhere in the revised application.

…

39    Moreover, the applications were made very late in the piece, in circumstances where WGAC’s own evidence in the revised application showed that for at least one year it had been aware of the asserted error in the description of the Eastern Guruma determination area. Yet, WGAC made no attempt to assert this new claim until 11 August 2015, immediately before, as it knew, the Court was to sit on country to determine the Yindjibarndi proceeding.

40    In my opinion, such unreasonable behaviour was calculated to cause significant disruption and expenditure of significant costs by the Yindjibarndi applicant, by reason of the interruption to its preparation of its case for the imminent hearing. The Yindjibarndi applicant would have incurred significant costs in meeting what, in my opinion, were two misconceived, baseless applications. (emphasis added)

87    The evidence now relied on by the Eastern Guruma applicant and Mr Hughes has not advanced substantively beyond what I summarised at Wintarwari [2015] FCA 1053 at [13]-[14]. It is difficult to attribute states of mind to collective bodies such as WGAC or a meeting of a claim group or elders. However, I am not satisfied that Ms Boyd's evidence is, or is capable of establishing, the state of mind of those who authorised the boundaries sought in the 1998 application, being the original Eastern Guruma claim. Her assertions of a mistake by her are not consistent with the ultimate settlement of the boundaries between the Eastern Guruma and Yindjibarndi #1 claims arrived at by the elders of both claim groups in 2003.

88    I infer that the reason that WGAC and Eastern Guruma native title group members did nothing until 2015 is that the 2003 settlement of the boundary issue was being respected by them.

The disruption to the 2003 proceeding

89    I am satisfied that if either or both, the 2015 proceeding remains on foot, or Mr Hughes is joined to the 2003 proceeding, there will be further, as there already has been, significant disruption of the progress of the 2003 proceeding. Completion of the final hearing had been fixed to occur during the course of this week. However, on 9 February 2016, I had to vacate the unperformed orders that would have led to the evidence and submissions being concluded during the now vacated hearing dates.

90    If the 2015 application were to proceed to hearing or Mr Hughes were joined, then it would be necessary to obtain evidence from the Eastern Guruma witnesses in support of their new claim to the overlap area. That evidence then will need to be dealt with by witnesses called by the Yindjibarndi applicant and other respondents. The preparation of all the lay evidence, no doubt, will require a considerable amount of detailed work having regard to what looks like a broad ambit claim to a very large area that is unsupported at the moment by any specific evidence about the Eastern Guruma people’s basis for asserting native title rights and interests in the whole of the newly claimed area.

91    Then, the Eastern Guruma applicant will need to file anthropological evidence to support the claim for that new area, and Dr Kingsley Palmer, the anthropologist engaged by the Yindjibarndi applicant, will need to respond to that. It will be necessary to retake much of the evidence of witnesses who had given evidence previously on country or in Roebourne during the period 7-13 September 2015 so that they can deal with what will be said by the Eastern Guruma lay witnesses.

92    Then, there would be further delay because much of the lay evidence would be given only during a time of year when weather conditions in the Pilbara permit the convenient taking of that evidence on-country. Because of the significance of the site, it is likely that it will be necessary for a further hearing to occur at Bangkangarra or FMG Satellite Springs at which further evidence be taken. That site is difficult to access, as I found when I went there on 9 September 2015, to take evidence on-country.

93    The delay caused by the time needed to provide further evidence and, to organise a further hearing on-country and then a subsequent one to take anthropological evidence and final submissions, would be significant. It is unlikely that the trial would conclude before the end of 2017, and may possibly extend into 2018, assuming that the litigation will be conducted by the Eastern Guruma applicant or Mr Hughes with a degree of efficiency and dispatch that neither has shown to date in seeking the protection of their recently asserted rights.

94    Moreover, several senior elders of both the Yindjibarndi and Eastern Guruma peoples have died in the intervening years since the settlement of the boundary dispute in 2003, including Cheedy Ned, Guinness Gilby, Kenny Jerrold, and Alec Ned of the Yindjibarndi claim group, and Peter Stevens of the Eastern Guruma claim group. Moreover, as I have noted, Nelson Hughes is now very old and his memory was already failing in 2007, as Dr McDonald noted.

95    Thus, if the 2015 proceeding went to trial or Mr Hughes were joined to the 2003 proceeding, there would be a range of new issues, a need to revisit all or much of the evidence already given in the part heard trial, and a need to require witnesses to give evidence again after they had already undergone the experience of giving evidence and being cross-examined. A number of the witnesses who gave evidence on-country, to my observation, found that experience confronting, stressful and difficult. Indeed, that is a normal human reaction to giving evidence in any event.

96    For those reasons, I am satisfied that if this new claim proceeds or Mr Hughes were joined, there would be significant delay caused before a final resolution of the 2003 proceeding could occur. The Eastern Guruma applicant and the members of its native title claim group have known about the 2003 proceeding since at least the time that their elders settled the boundary dispute in 2003. The new issues would require detailed case management, at least two further hearings, one on-country and one in Perth, before the whole matter could be brought to completion.

The Eastern Guruma applicant’s submissions

97    The Eastern Guruma applicant disputed the Yindjibarndi applicant’s submissions that in the circumstances the 2015 proceeding constituted an abuse of process. The Eastern Guruma applicant argued that great caution should be used in considering applications for summary disposal under s 31A of the Federal Court of Australia Act having regard to what French CJ and Gummow J said in Spencer v Commonwealth (2010) 241 CLR 118 at 131 [22] and what Mason CJ and Dawson, Toohey and McHugh JJ said in Williams v Spautz (1992) 174 CLR 509 at 529.

98    The Eastern Guruma applicant submitted that this cautious approach was particularly apposite in native title proceedings having regard to the principles discussed by Allsop CJ, Marshall and Mansfield JJ in State of Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at 156 [34], when they said:

… litigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. How that context affects the operation of principles such as res judicata under or in the context of the Native Title Act is a large question, and is one of great importance. Such a question is not apt to be disposed of on a summary application.

99    The Eastern Guruma people submitted, correctly, that, if the 2015 proceeding were either summarily dismissed or otherwise dealt with as an abuse of process of the court, that would effectively prevent the Eastern Guruma people maintaining a claim that sought to have recognised native title rights and interests in the overlap area. It argued that those factors reinforced the need for caution in dealing with the Yindjibarndi applicant’s claim that the 2015 proceeding should be summarily dismissed under s 31A or otherwise dealt with as an abuse of process.

100    During the course of argument, I pointed out that the Yindjibarandi applicant had put its interlocutory application and submissions on substantively alternate bases that the 2015 proceeding, first, was an abuse of process that could be dealt with in the inherent jurisdiction of the Court or under r 26.01(d) and, secondly, should be summarily dismissed under s 31A(2) as having no reasonable prospects of being successfully prosecuted.

101    The Eastern Guruma applicant argued that the evidence on which it relied should be taken at face value, and that that evidence established that the Eastern Guruma applicant had a prima facie case for the relief it sought in the 2015 proceeding. It contended that its evidence was sufficient, “prima facie”, in the sense of that expression as explained by Brennan CJ, and Dawson, Toohey, Gaudron and Gummow JJ in North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 at 615-616, namely “at first sight; on the face of it; as appears at first sight without investigation”.

102    The Eastern Guruma applicant submitted that, its evidence revealed a real basis of a dispute in respect of which the Court should exercise its powers to quell a controversy, despite the necessary consequence that this would cause a significant delay in the progress of the 2003 proceeding to finality. It contended that its witnesses’ accounts, based on Ms Boyd’s asserted misunderstanding of the precise location of the FMG Satellite Springs, and her account itself should be taken at face value. It argued that this prima facie evidence provided “an acceptable explanation for the original omission of the new claim area”.

103    The Eastern Guruma people asserted that they had taken non-litigious action from late 2009 to ensure proper care for the area of the FMG Satellite Springs. It contended that that approach was practical and understandable having regard to Bennett J’s then recent 2007 consent determination and the context that further work was being done to finalise the status of the balance of its claim (that occurred in the 2012 determination) in relation to an area around the township of Tom Price that was enclosed within the 2007 determination boundaries.

104    It submitted that the rediscovery of the location of the FMG Satellite Springs in 2009 should not be conflated with merely general knowledge among the Eastern Guruma people that the area in which it happened to be located was being claimed by the Yindjibarndi applicant. It argued that the Eastern Guruma native title claim group should be found to have first had general knowledge that the Yindjibarndi people were claiming exclusive native title rights and interests over the FMG Satellite Springs only in about August 2014 and that once the Eastern Guruma elders had been apprised, in about December 2014, of the circumstances they took relatively prompt action to instruct Castledine Gregory, and to progress the matter towards the institution of proceedings. It argued that the delay between August 2014 and the filing of the 2015 proceeding was because of WGAC’s misconception of its powers to bring proceedings for a determination of native title outside the area for which it was a prescribed body corporate, that had caused its attempt to raise the present claim to miscarry. Thus, it argued, it was necessary then to go through the authorisation and registration processes prescribed by the Native Title Act so as to be able to bring the current claim.

105    The Eastern Guruma applicant submitted that it had taken prompt, serious, and costly steps to overcome the problem revealed by my decision in Wintawari [2015] FCA 1053. It contended that the native title rights and interests of current and future generations of Eastern Guruma people could not be allowed to turn on the state of knowledge and decision-making of “one or two people who are not in any event their agents in a formal sense” [sic]. The Eastern Guruma people urged caution against treating the present interlocutory applications as a substitute for a trial at which the facts and legal arguments would be properly explored. It contended that its evidence had advanced a prima facie case that it did have native title rights and interest in the area claimed. That was because the Eastern Guruma people were hill country people and the Hamersley Range extends over some, but not all, of the area the subject of the 2015 application traditionally known as their country.

106    It submitted that an invidious balance had to be struck between the impact of the 2015 proceeding on the 2003 proceeding and the need, in the interests of justice, for the Eastern Guruma applicant to be allowed to ventilate its claims in litigation. It argued that generic evidence of the character given in its numerous witnesses’ affidavits about what they had been told about the nature and extent of their geographical country, being the hill country including the Hamersley Range, was sufficient to establish a prima facie case of connection. It also relied on what Michael Hughes had said in his affidavits of 1 December 2015 (in the 2015 Form 1) and 27 January 2016. There, he described flora and fauna and other features that, the Eastern Guruma applicant argued, would suggest that the Eastern Guruma people had traditional native title rights and interests over the now claimed area.

107    I interpolate that, however, none of that evidence related expressly or directly to any particular or identified lands or water and all of it could have applied, just as generally, to any part of the lands and waters comprised in the determinations made by Bennett J.

108    The Eastern Guruma applicant contended that it was not necessary for it to establish that its whole claim would succeed. Rather, it said, that part of it may succeed while other parts may fail. In particular, it asserted it had a strong case for establishing connection to, and a special interest, in the FMG Satellite Springs. It submitted that the whole Eastern Guruma native title claim group should not be permanently deprived of its right to make a claim because of any error that Ms Boyd or others made prior to August 2014 in failing to raise or pursue this new claim.

Mr Hughes’ submission

109    Mr Hughes argued that he should be joined as a respondent to the 2003 proceeding under s 84(5) of the Native Title Act. That was because he contended that his interests might be affected by a determination in the 2003 proceeding and it was in the interests of justice that he be joined, having regard to the special connection with the FMG Satellite Springs that he and others in the Eastern Guruma native title claim group asserted. Mr Hughes argued that he should be joined regardless of whether the 2015 proceeding were allowed to proceed.

110    He submitted that s 84(5) did not require that he claim to have an interest sufficient to establish a native title claim. He argued that the evidence explained why there had been a delay in his making his claim, namely the mistaken belief that the FMG Satellite Springs had been included originally in the 1997 map that Ms Boyd said she mistakenly drawn. He claimed that he acted promptly in 2014, after the broadcast of the television program that conveyed that the Yindjibarndi people were claiming the FMG Satellite Springs.

111    He accepted that the Court could impose conditions on his joinder, including as to costs that might have been thrown away. But, he submitted that such costs would be minimal and those could only be assessed after a final hearing when the impact of his joinder could be seen in context.

112    I should note one matter raised by the Yindjibarndi applicant that is no longer in issue. Mr Woodley had said that the source of funding the litigation for the Yindjibarndi applicant came from agreements between Rio Tinto mining group companies and YAC. Under that agreement, payments to YAC would be suspended when an overlap claim was filed and pending its resolution. As a result of recent discussions between YAC, the Eastern Guruma and Yindjibarndi applicants’ lawyers and Rio Tinto, the Eastern Guruma applicant offered this morning to do all things reasonably necessary to effect an agreement between those parties so as to enable YAC’s funding to continue. The proposed agreement would provide that for the period until final determination of these proceedings, the Eastern Guruma applicant would not assert any entitlement under the agreements between Rio Tinto and YAC to payment from moneys that Rio Tinto would otherwise have had to pay into a suspense account so that YAC could continue, as of right, to receive those payments. Counsel informed me that they believe that it will be possible to conclude a satisfactory contract to that effect. Accordingly, the Yindjibarndi applicant no longer presses, as a reason for granting it relief, that it would be prejudiced by the loss of its funding due to the overlap claim.

Consideration - principles

113    Lord Hailsham of St Marylebone LC, said in Reg v Lawrence [1982] AC 510 at 517B:

… it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side. (emphasis added)

114    While his Lordship was speaking of the importance of promptitude in criminal proceedings, his remarks apply equally to civil proceedings, particularly native title proceedings where obtaining the historical and cultural recollections of elders is becoming more difficult to establish as generations and years pass. Tragically, many elders have not lived long enough to give evidence of their knowledge and experience of matters fundamental to their people’s claims.

115    For any witness, participation in litigation is stressful. This can be so particularly in native title litigation. Witnesses who give evidence seeking to establish the native title rights and interests to which their claim group claims to be entitled often have significant emotional involvement in such proceedings as a natural concomitant of the spiritual connection that the witnesses have, or claim to have, with the lands and waters in issue: cf Ward 213 CLR at 64-65 [14].

116    The stresses on witnesses of delays and interruptions to the ordinary process of litigation cannot be gainsaid. So much was recognised by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 particularly at 213-215 [98]–[103], where their Honours said, among other things (at 214 [101]):

… whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end.

117    There, their Honours were considering how statutory case management principles, such as those in Pt VB of the Federal Court of Australia Act, should be applied. The purpose of Pt VB and its analogues is to equip the Court with power to manage litigation (s 37M) and to impose concomitant duties on the parties and their lawyers to co-operate positively in that case management so as to facilitate the just resolution of proceedings according to law as quickly, inexpensively and efficiently as possible (s 37N(1) and (2)).

118    French CJ, Kiefel, Bell, Gageler and Keane JJ emphasised this in relation to interlocutory proceedings in Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51]. They said that in Aon 239 CLR at 211 [92]-[93], 213 [98]:

… it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. (emphasis added)

119    Their Honours explained that the evident intention and expectation of provisions such as Part VB (250 CLR at 323 [56]-[57]):

… is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. ... The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the [analogue of Pt VB] assume that its purpose, to a large extent, will coincide with the dictates of justice. (emphasis added)

120    Until the Eastern Gurama applicant commenced the 2015 proceeding and Mr Hughes’ brought his application for joinder, they were not participants in the 2003 proceeding. Here, both the Eastern Guruma applicant and Mr Hughes have known since the elders settled the boundaries in 2003 that the Yindjibarndi people claimed the area immediately to the north of the Eastern Guruma’s determination area, as originally claimed in the 1998 proceeding. The May 2010 report explicitly stated that the FMG Satellite Springs site was included in the area claimed by the Yindjibarndi applicant in the 2003 proceeding. On 12 August 2014, FMG reminded WGAC and Mr Bevan of that fact by quoting from the May 2010 report. And, by 16 September 2014 Castledine Gregory knew of this, as Mr Hansen said in his evidence.

121    Of course, after the 2003 meeting of the elders, the Eastern Guruma claim group allowed the Yindjibarndi applicant to pursue its claim in the 2003 proceeding, to the area north of the agreed boundary, including so much of the Hamersley Range and FMG Satellite Springs as the Yindjibarndi applicant claimed. Had anyone in the broader Eastern Guruma native title claim group participated in the 2003 proceeding and sought to advance a claim for exclusive or non-exclusive native title rights and interests in the overlap area, then that claim group, as a whole, may have been bound by the group member’s conduct in the 2003 proceeding. Given the knowledge of the Eastern Guruma native title claim group as a whole, since the 2003 meeting of the elders, that the Yindjibarndi people had relinquished their overlap claim in 2003 and were pursuing the claim to the north of the area sought in the 1998 proceeding, it may be that the Eastern Guruma claim group as a whole is bound to respect the 2003 agreement of the elders on the principle in Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 and see too : Osborne v Smith (1960) 105 CLR 153 at 158-159 per Kitto J with whom Menzies and Windeyer JJ agreed. In The Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 403, that principle was applied by Barwick CJ, with whom McTiernan, Menzies and Stephen JJ agreed (at 404, 405, 459), as did Gibbs J on this point (at 456). There, the High Court dealt with the consequence of a Land Board decision on an inter-clan dispute. Barwick CJ said (at 403):

The Tubumaga Laurina were bound by the Board's decision both because, being notified of the hearing and invited to make such claim as it thought fit, it attended the hearing and made no claim; and also, having stood by and allowed the Tubumaga Idibana to claim the land, it cannot now dispute the result. Nana Ofori Atta II. v. Nana Abu Bonsra II [[1958] AC 95] lends support to this view of the matter.

122    Of course, those considerations do not directly apply to a person’s delay in instigating litigation. The High Court considered the powers of the Court to deal with cases in which there has been delay in commencing litigation or other processes potentially affecting a person’s rights or interests in Walton v Gardiner (1993) 177 CLR 378 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

123    The powers of the Court to dismiss proceedings as an abuse of process, on the one hand, and stay or dismiss proceedings summarily under provisions, such as s 31A on the other, are conceptually distinct although they may overlap.

124    Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 392-393 said:

The inherent jurisdiction of a superior court to stay proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness.

125     Gleeson CJ, Gummow, Hayne and Crennan JJ examined the principles underlying the power of a court to deal with an abuse of its process in Batistatos 226 CLR 256. They adopted (226 CLR at 264 [6]) the following from Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536C-D, namely, that there exists:

… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. (emphasis added)

126    Their Honours held that (226 CLR at 265 [9]):

What amounts to abuse of process is insusceptible of a formulation comprising closed categories. Development continues.

127    They traced the modern development of the Court’s power to protect the integrity of its processes, once they have been set in motion, from Lord Blackburn’s speech in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221. He had explained that the Court had inherent power to protect its process from abuse in the category of case, where a proceeding had been brought without reasonable grounds, so as to be vexatious and harassing. His Lordship emphasised that the Court did not exercise this power through use of other procedures, such as by use of a demurrer, examining the record or by a jury verdict or a decision based on evidence admissible at a final hearing. He held that the Court exercises its power to stay a proceeding as an abuse of process by “informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court”.

128    Gleeson CJ, Gummow, Hayne and Crennan JJ said (226 CLR at 266 [11], [12] and 267 [15]):

The references by Lord Blackburn to “power” rather than to “jurisdiction” and to the summary procedure whereby the court informed its conscience upon affidavits are significant.

… the power existed to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation.

… the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious [Mickelberg v The Queen (1989) 167 CLR 259 at 312]. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court. (emphasis added)

129    They held that in assessing whether proceedings should be stayed as an abuse of process, a Court had to take into account what Dixon J had said in Cox v Journeaux (1935) 52 CLR 713 at 720 (see 226 CLR 281 [71], referring to 277 [53]) namely:

A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. (emphasis added)

130    Delay in commencing proceedings can amount to an abuse of process even though the proceedings are brought within the applicable limitation period for the cause of action. That is because, as Gleeson CJ, Gummow, Hayne and Crennan JJ said (Batistatos 226 CLR at 280 [64]-[65]):

… limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term “delay”.

The “right” of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process. (emphasis added)

131    Their Honours held in Batistatos 226 CLR at 281-282 [69]-[71] that the remedy of a permanent stay was appropriate in that case because of the burdensome effect of the proceedings on the defendants created by the delay, in commencing the proceedings, of the plaintiff who suffered from a mental disability. There, the lapse of time was so serious that it would not be possible to have a fair trial. As a result of the delay, no realistically useful evidence was available to the defendants (226 CLR at 277-278 [54]-[57]). They concluded (226 CLR at 281 [69]-[70]):

… in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants.

What Deane J said in Oceanic Sun Line Special Shipping Co Inc v Fay [(1988) 165 CLR 197 at 247. See also the judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555], with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no “requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff”; what was decisive was the objective effect of the continuation of the action. (emphasis added)

Consideration – general

132    The first issue is whether the use of the Court's procedures, having regard to the Eastern Guruma applicants’ delay, is oppressive to the Yindjibarndi applicant, or will bring the administration of justice into disrepute. The second, or alternative, issue is whether the Eastern Guruma applicant has any reasonable prospect of successfully prosecuting the 2015 proceeding for the purposes of s 31A(2). That involves identifying whether a sufficient basis exists to support the use of the power to give summary judgment.

133    When determining whether a proceeding is an abuse of process under the inherent power of the Court or a rule, such as r 26.01(d), the Court must undertake a weighing or balancing exercise in which “the conscience” of the court is informed by affidavits: cf Batistatos 226 CLR at 266 [10]-[11]. Mason CJ, Deane and Dawson JJ explained the nature of the evaluative task for determining whether proceedings should be permanently stayed on the ground of abuse of process in Walton 177 CLR at 396, 398. The weighing process involves a subjective balancing of a variety of factors and considerations depending on whether the proceedings are criminal, civil or administrative. Those factors can include the requirements of fairness to the defendant or respondent, the legitimate interest of a party or the parties or the public in the determination of the issues in the proceeding, the seriousness of any criminal charge or civil allegation and “the need to maintain public confidence in the administration of justice”.

134    The two sources of power on which the Yindjibarndi applicant relied to resist the 2015 proceeding being heard and determined on their merits are distinct. One, the summary power, requires the moving party to satisfy the Court on the evidence that its procedures should be used to decide the outcome of the proceedings summarily in its favour. The second, the protective power, requires the Court to weigh whether its procedures are being, or are sought to be, used oppressively (not necessarily intentionally so), unfairly or unjustly so that the Court should not use its powers to determine the controversy on its merits.

135    However, proceedings that are, or are said to be, frivolous or vexatious, can engage the exercise of each of those sources of power depending on the circumstances. That is because the particular merit, or lack of merit, in the underlying claim may justify the enforcement of a right or a defence by a summary judgment that is based on a conclusion that a proceeding is hopeless, doomed to fail or certain to succeed. On the other hand, the protective power is used to prevent the further unjust use by a party of the Court’s process in the proceedings: Batistatos 226 CLR at 268-270 [19]-[26].

136    An action such as the 2015 proceeding that has been commenced regularly, within the applicable limitation period, may nonetheless be stayed as an abuse of process: Batistatos 226 CLR at 271 [30], 277 [53] and 281-282 [69]-[71]. The question here is whether the objective effect of the continuation of the 2015 proceeding, in all the circumstances, including the Eastern Guruma applicant’s delay and the consequences of that delay, has been shown to have a sufficiently burdensome effect on the Yindjibarndi applicant, that the processes of the Court should not be permitted to be used to hear and determine that matter: Batistatos 226 CLR at 280 at [63]-[65], 281-281 [69]-[71]. It is not a question that necessarily relies for its answer on any moral or other delinquency of the Eastern Guruma applicant, real or asserted, but the existence of such a factor can be relevant in the exercise of the power.

137    In addition, while the exercise of either of these powers must be attended with caution, that does not entail that they should not be exercised in appropriate cases. The present circumstances involve considerations about both the use of the Court’s processes as well as the evaluation of the prospects of the success of the 2015 proceeding that are different from the circumstances in Fazeldean 211 FCR 150.

The protective power issue – consideration

138    In my opinion, the Eastern Guruma applicant’s lengthy delay in asserting its claim to native title rights and interests in the overlap area in all the circumstances are such that the 2015 proceeding constitutes an abuse of process of the Court. The Eastern Guruma claim group members had known for at least 6 years before they initiated the 2015 proceeding that the FMG Satellite Springs was not in the Eastern Guruma determination area, yet they did nothing to assert their claims at any earlier time.

139    They were aware of the existence of the Yindjibarndi applicant’s claims to the overlap area since at least when the boundaries of the two claim groups were settled in the 2003 meeting between the elders and others, including Ms Boyd. They knew that the boundary that they claimed in the 1998 proceeding was contiguous to that claimed by the Yindjibarndi applicant in the 2003 proceeding. The Eastern Guruma applicant also knew that the Yindjibarndi applicant had withdrawn an overlap claim over some lands and waters the subject of their claim to what became part of the determinations of native title that Bennett J made in 2007 and 2012.

140    The 2003 meeting of elders reached a compromise of disputed claims over the boundaries that each native title claim group accepted that the other was entitled to seek as determinations in the 1998 and 2003 proceeding. A reasonable person in the position of each claim group wold have recognised that the agreed boundaries involved some imprecision and that some areas with which the other claim group may have had some connection thereafter would be located in their neighbour’s claim. So much is necessarily reflected in the Yindjibarndi applicant’s decision to withdraw its overlapping claim to give effect to the compromise: cf Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 178-180 [36]-[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52-53 [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

141    The Eastern Guruma people then obtained their consent determinations, over the previously disputed lands in 2007 and 2012 without opposition from their Yindjibarndi neighbours and without giving them any notice of the 2015 overlap claim. The Yindjibarndi applicant will suffer significant prejudice in their ability to contest the 2015 proceeding. It would be manifestly unjust to allow the 2015 proceeding to continue. Many of the knowledgeable elders in both claim groups are no longer able to give evidence because they have passed away or their memories have become frail or lost. Such evidence is relevant both to the issues of the 2003 compromise, the recognition of boundaries in the 2001 book, and to connection, of lack of connection, of each claim group to the overlap area: Walton 177 CLR at 393; Hunter [1982] AC at 536C-D: see too Daera 130 CLR at 403.

142    Moreover, the Eastern Guruma applicant has given no intelligible or specific explanation as to the way in which it asserts native title rights and interests of a spiritual nature over the vast expanse of overlap land and waters. That dearth of evidence is especially significant in relation to their central claim over the FMG Satellite Springs: Ward 213 CLR at 64 [14]. Prior to Mr Coldrick’s September 2009 visit to the FMG Satellite Springs, no Eastern Guruma person had referred to the rock art there. Both before and after that visit, with the exception of Ms Boyd’s 27 January 2016 affidavit, no Eastern Guruma person, including her father and brother, suggested that the FMG Satellite Springs had any significance beyond being a hunting area, a meeting or camping ground, and a water source.

143    The Eastern Guruma applicant brought the 2015 proceeding knowing that doing so inevitably would interfere with the conclusion and final hearing of the 2003 proceeding. Despite that, it did not make a properly articulated claim that identified any spiritual connection that would suffice to establish a claim for native title. The evidence on which the Eastern Guruma applicant relied is bereft of details of such spiritual connection (other than Ms Boyd’s recent assertions) or any explanation, other than in respect of the location of the FMG Satellite Springs, as to why such a very large area of land had been overlooked in its earlier claims in the 1998 proceeding.

144    Over many years, the Yindjibarndi applicant prepared its case and proceeded to the first stage of the final hearing on the basis that there was no overlapping claim. Indeed, all parties in the 2003 application had accepted that the Yindjibarndi applicant’s native title claim group had connection to its claimed land and waters. The 2003 proceeding has been heard on the basis that there is a limited dispute as to whether the Yindjibarndi people, through their traditional laws and customs, can establish a continuing observance since the time of white settlement of those laws and customs sufficiently to demonstrate that their native title rights and interests are held exclusive of all others over land and waters where native title subsists.

145    If the 2015 proceeding were allowed to go to trial, it would cause further disruption to and delay in the part-heard trial of the 2003 proceeding and it would undermine the acceptance, by all parties, including the State, in the 2003 proceeding that the Yindjibarndi applicant had non-exclusive native title rights and interests in the land and waters that it claimed. That proceeding had been listed for the period 4-11 March 2016 for the taking of the balance of the evidence and final submissions.

146    The Eastern Guruma people were involved in pursuing the 2012 determination that Bennett J made at a time when, as litigants, they were bound by Pt VB of the Federal Court Act. They had an obligation also to move promptly upon their rediscovery of the FMG Satellite Springs, in August 2009, to ensure that the claims that they seek belatedly to make in the 2015 proceeding could be dealt with promptly and in a fair and just way with a minimum of disruption to the 2003 proceeding.

147    There is no acceptable explanation for the Eastern Guruma applicant’s delay since 2009. Indeed, it resorted to relying on palpably false explanations for that delay including the Eastern Guruma applicant’s asserted ignorance of the Yindjibarndi applicant’s claim over the FMG Satellite Springs. That delay and conduct would lead right thinking people to question the genuineness of the claims in the 2015 proceeding and to think that it would be an affront to justice to hear them: Hunter [1982] AC at 536C-D; Bastistatos 226 CLR at 264 [6].

148    Even if the Eastern Guruma applicant had made a mistake, that has had the consequence that, since the 2003 meeting, the Yindjibarndi applicant has pursued the 2003 proceeding to the point of a part-heard hearing without any knowledge of, or participation in, such a mistake. In those circumstances, it would be an unfair and unjust use of the Court's procedures to allow the Eastern Guruma applicant, to maintain, the 2015 proceeding.

149    These factors demonstrate that to allow this recent claim to be ventilated at this time would be an abuse of process of the Court despite the fact that it is brought within any applicable limitation period.

150    For those reasons, I am of opinion that the 2015 proceeding should be dismissed, in the exercise of the protective power, as an abuse of process of the Court.

The summary power issue – consideration

151    Hayne, Crennan, Kiefel and Bell JJ explained in Spencer v The Commonwealth 241 CLR 118 at 140-141 [56]-[60], that the test in s 31A(2) of the Federal Court of Australia Act involves an assessment of the prospect of an applicant’s success in the litigation. That test is distinct from the common law, and earlier legislative criteria that required a party seeking summary dismissal to demonstrate a certainty of outcome of the proceeding. Their Honours held that the statutory test in s 31A(2), namely that a party had “no reasonable prospect of successfully prosecuting the proceeding or that part of”, should not be qualified by judicial epithets such as “frivolous”, “untenable”, or “clearly”, albeit that they recognised that the power was not to be exercised lightly. But, they said that the circumstances for the exercise of the power were not confined to cases of a kind that fell within earlier, different, procedural regimes.

152    French CJ and Gummow J (at 241 CLR 130-132 [22]-[25]) characterised the criterion of “reasonable prospect” in s 31A as not being limited to those in the earlier regimes, but they took a possibly more restrictive approach to that of Hayne, Crennan, Kiefel and Bell JJ saying that:

Where there are factual matters capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issues.

153    The evaluation of a reasonable prospect of an outcome at an earlier, and perhaps protean, stage of litigation is a task that invites a cautious approach, not least because, ordinarily, the decision must be made without the benefit of the ordinary preparation of evidence and issues for a full trial. Nonetheless, the purpose of the Parliament in enacting s 31A was to broaden the power of the Court to bring to an end, and to summarily end, litigation that the Court had evaluated judicially as having no reasonable prospect of success. That evaluation is substantively different to one determining whether a party has no prospect of success.

154    As I have sought to explain, in these proceedings, the claim in the 2015 proceeding has been put forward in such a way that it lacks reasonable coherence in all of the circumstances. Although the Eastern Guruma applicant has put on evidence in which its witnesses assert that they are people of the hill country, they have done nothing to establish a spiritual connection to the land and waters in the claimed area, other than in the recent affidavit evidence of Ms Boyd. I consider, for the reasons I have already given, there is no reasonable prospect that Ms Boyd’s recent assertions of there being some spiritual dimension to the FMG Satellite Springs would be believed having regard to all of the evidence and earlier, considered statements, including those of her father in relation to that specific site, none of which suggested that it was anything other than a meeting or camping place, hunting ground and a place at which water was to be found year-round.

155    Moreover, there is no other evidence whatsoever of the Eastern Guruma people having any stories of a spiritual or other nature to tell about the land and waters the subject of the 722 square kilometre claim in the 2015 proceeding, and no explanation as to how that claim has been made.

156    Michael Hughes’ affidavits describing the nature of the north-western boundary do not engage in any way with the shape of the northern boundary running due east-west of the claim in the 2015 application. His description of the boundary is incoherent with the document to which it relates, namely the 2015 application. He does not explain how that boundary, as it appears in the 2015 Form 1, was chosen. In my opinion there is no reasonable prospect that the unexplained assertions of its metes and bounds would be able to be established, having regard to the lack of any coherent explanation for the making of this claim or WGAC’s earlier, slightly larger claim. WGAC made its claim last year soon after Castledine Gregory on 22 May 2015, on instructions from the Eastern Guruma people and WGAC, had told the Yindjibarndi applicant’s solicitor that the Eastern Guruma people were only seeking to claim non-exclusive rights and interests in the far smaller area around the FMG Satellite Springs.

157    I am conscious that a summary dismissal of the proceedings would have the practical effect of precluding other Eastern Guruma people’s claims in or over the overlap area, but there is no evidence before me that would suggest that there is any reasonable prospect of any such claim being established. Moreover, I am mindful that the Eastern Guruma people, and their elders as opposed to simply Ms Boyd, first in 1999 and later in the 2003 elders’ meetings authorised the selection of the final boundaries claimed in the 1998 proceeding as reflected in the determinations Bennett J made in 2007 and 2012 and their elders also recognised those boundaries in the 2001 book.

158    Whatever Ms Boyd may have thought in her own mind is not probative, let alone determinative, of the thought processes of any other person. Even if it were accepted that she had made a mistake, as she asserted, because she thought the FMG Satellite Springs was included in the area claimed in the 1998 proceeding, there is no reason to think that the location of Satellite Springs as marked on the map, which was inside the claimed area in the 1998 proceeding, was not the area intended to be the subject of the claim. Indeed, there is no evidence that Eastern Guruma people responsible for making the 1998 application, had made any error in their claim or that they had or had not visited the overlap area, or erred in making the acknowledgment of the top end Guruma boundaries in the 2001 book or the decisions in the 2003 meeting of elders or that the area claimed in the 1998 proceeding is not the entire location about which they sought to make their claim now reflected in the consent determinations. Ms Boyd’s assertions of her thought processes do not prove or tend to prove that any of the relevant decision-makers or elders made any mistake in about 1998, 1999, 2001 or 2003 or later.

159    If Ms Boyd’s state of mind did establish that the decision-makers in about 1998, 1999, 2001 or 2003 made a mistake about the correct boundaries or the location of the FMG Satellite Springs, the Eastern Guruma applicant, on its own case, made that error unilaterally. It induced another claim group to proceed to the point of nearly completing the final hearing, many years after 2003 when elders of the two claim groups had settled the location of the common boundary and resolved a previous dispute about it.

160    There is no evidence of any spiritual basis on which the Eastern Guruma applicant claimed a connection to the land and waters in the 2015 Form 1, other than Ms Boyd’s recent evidence. It follows that there is no reasonable prospect to think that the Eastern Guruma applicant would succeed in establishing native title rights and interests in the overlap area or any part of it: Ward 213 CLR at 64 [14].

161    For those reasons, in addition to the reasons I have given for considering that the 2015 proceeding should be dismissed as an abuse of process, I will order under s 31A(2) that the 2015 proceeding be dismissed summarily. Each ground of my decision is independent of the other.

Mr Hughes’ application for joinder – consideration

162    Ordinarily, it will not be appropriate for the Court to exercise its power to join a person to native title proceedings pursuant to s 84(5) where he or she asserts rights or interests in relation to a claim for native title that are remote or indirect or fanciful or lack substance or clear definition: Worimi Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at 185 [10] per Bennett J and Byron Environmental Centre Inc v Arakwal People (1997) 78 FCR 1 at 7F-8C, 9A-D per Black CJ, 19C-D per Lockhart J and 42D-E per Merkel J. In Arakwal Lockhart J said (78 FCR at 19C):

However, the person's interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public, and must be not that of a mere intermeddler or busybody. The person must have some interest that may be affected by the native title determination. (emphasis added)

163    The discretionary power to order that a person be joined to a native title proceedings under s 84(5) is properly conditioned by a consideration of whether that joinder would be in the interests of justice. The Native Title Act prescribes processes for native title claim groups to follow in authorising the making of claims and that govern the conduct of the proceedings in which the claims are made: see e.g. s 251B. Those processes are prescribed to enable an applicant to be selected or agreed and, to an extent, will involve majority or consensual decision-making for or on behalf of a claim group. It is inherent in those processes that some persons will have, or believe they have, or can advance, some right or interest in respect of the whole or part of the land or waters claimed, different to the majority or consensus view.

164    However, there will also be persons who have a disagreement with an authorised applicant’s conduct of a native title claim or the claim itself, but whose rights or interests will still be affected by a determination of the claim, so that it will be appropriate or in the interests of justice to join those persons as parties to the proceedings. And, the interests of justice relevant to an application under s 84(5) must be assessed in the whole of the circumstances, including the stage that the proceedings have reached when the application is made and the consequences of the joinder, or refusal to order it, on all of the parties and the person applying to be joined. A consideration that may be relevant is the role that the State or Territory Government, as the representative of the community where the land and waters claimed are, has played in the litigation (see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J), as well as the position advanced by other respondents in relation to the claim in the context of the rights or interests that the person seeking to be joined wishes to advance.

165    Native title proceedings can affect many private persons’ rights and interests, as well as Governmental rights and interests, because of the scale of the land and waters over which a determination can be made. It is important not to restrict the breadth of the discretion that s 84(5) confers as Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ held in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 when they said:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

166    I am of opinion that Mr Hughes’ application to be joined as a party under s 84(5) should be dismissed. His joinder would serve no proper purpose and would not be in the interests of justice. He has known about the location in the Yindjibarndi claim area, and asserted significance of the FMG Satellite Springs, since at least March 2010 (when he went there with Mr Coldrick) or August 2009 (when he “discovered it”) and yet did nothing to cause the Eastern Guruma people to assert a claim over it.

167    If he became a party to the 2003 proceeding he could assert all the rights of a party. In that capacity he could cause matters to be in issue and litigated that had been resolved, after the expenditure of considerable sums of money, by all of the parties that to date have participated actively in the 2003 proceeding. That would not be in the interests of justice. As a party, Mr Hughes would be able to put the Yindjibarndi applicant to proof of the matters that all the other parties, including the State whose duty it is to protect the public interest, have accepted not be in contest.

168    Indeed, given his support of the Eastern Guruma applicants in bringing the 2015 proceeding, Mr Hughes’ participation as a party in the 2003 proceeding would be highly likely to result in him seeking that all matters be re-agitated in the exercise of his rights as a party. He has made no offer to accept the concessions or common positions that have been made or reached by all other parties in the conduct of the 2003 proceedings to date, including the common acceptance of the Yindjibarndi people’s connection to the overlap area.

169    In my opinion, Mr Hughes’ participation would be destructive of the orderly conduct of the 2003 proceeding. His conscious delay and his false explanations for it are further matters that demonstrate it would not be in the interests of justice for him to be joined to the 2003 proceeding.

170    Were Mr Hughes joined, I am satisfied that he is likely to interfere with the orderly conduct of the 2003 proceeding and to assert matters that would replicate what the Eastern Guruma applicant sought to raise in the 2015 proceeding. None of his affidavit evidence demonstrated that he could add to the hitherto unchallenged evidence of the Yindjibarndi applicant’s witnesses’ assertions of their very careful and deeply spiritual regard for their claimed country, including for Bangkangarra, being their name for the FMG Satellite Springs. Mr Hughes’ evidence is devoid of any reference to there being any spiritual significance of the FMG Satellite Springs or any other specific place in the whole 722 square kilometres of the overlap claim.

171    It does not appear to me that Mr Hughes’ participation in the proceedings would result in any particular augmentation of the protection of the FMG Satellite Springs for the benefit of any indigenous people who have an interest in it being preserved and respected. Any rights that Mr Hughes might have are so remote, indirect, lacking in substance or clear definition that it would not be in the interests of justice to join him. I am not satisfied that Mr Hughes now seeks to assert any rights or interests that fall within the descriptions in the authorities of a sufficient interest to warrant his joinder, or that the interests of justice require it: Arakwal 78 FCR at 7F-8C, 9A-D, 19C-D, 42D-E; Worimi 164 FCR at 185 [10].

172    For those reasons, I dismiss Mr Hughes’ application to be joined.

Costs

173    The Yindjibarndi applicants seek an order for costs pursuant to s 85A(2) of the Native Title Act and that those costs be payable on an indemnity basis in respect of the 2015 application and the two interlocutory applications with which I have dealt, together with costs thrown away in the 2003 proceeding by reason of the vacation of the final hearing dates.

174    The vacation of the hearing dates occurred because it was necessary, first, to decide the two interlocutory applications and, second, because s 67 of the Act would have required the 2015 proceeding to be heard together with the 2003 proceeding because of the overlap.

175    The abuse of process that I have found was, for the reasons I have given, unreasonable. It caused the Yindjibarndi applicant to incur costs in connection with the 2003 proceeding that were thrown away by reason of the need to vacate the March 2016 hearing dates. I am of opinion that the Yindjibarndi applicant should be compensated by an order in respect of those costs thrown away together with costs to reflect their success on the two interlocutory applications and, to the extent that there are any other costs that the Yindjibarndi applicant may have incurred, in the 2015 application itself.

176    However, during the interlocutory processes to bring the two interlocutory applications on for hearing, the Yindjibarndi applicant issued a considerable number of subpoenas. Those subpoenas were quite broad and occasioned a degree of objection by various addressees. It also sought to take evidence from Dr McDonald on the voir dire. I had a special hearing on 15 February 2016 at which that occurred. That led me to decide not to allow cross-examination of witnesses for the purposes of the interlocutory applications.

177    Because I have found that the 2015 proceeding constitutes an abuse of process of the Court, it is appropriate to order that the Eastern Guruma applicant pay the Yindjibarndi applicant’s costs of the 2015 proceeding, and the interlocutory application for their joinder into the 2003 proceeding, together with the costs thrown away by the Yindjibarndi applicant as a result of the filing and prosecution of the 2015 proceeding, on a party-party basis. In my opinion, that will fairly reflect the fact that a number of the steps taken by the Yindjibarndi applicant to seek to arrive at the ultimate result of the applications went further than would be properly compensated by an order for costs on an indemnity basis but would reflect their overall success in a way that is fair.

178    In my opinion, Mr Hughes should pay the costs of his application on an indemnity basis, it being entirely devoid of merit for the reasons I have given: see s 85A(2) of the Native Title Act.

Associate:

Dated:    2 June 2016

SCHEDULE

WAD 6005 of 2003

BETWEEN:

STANLEY WARRIE, KEVIN GUINESS, ANGUS MACK, MICHAEL WOODLEY, JOYCE HUBERT, PANSY SAMBO, JEAN NORMAN, ESTHER PAT, JUDITH COPPIN and MAISIE INGIE

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

FORTESCUE METALS GROUP LTD (ACN 002 594 872), THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340) and FMG PILBARA PTY LTD (ACN 106 943 828)

Second Respondent

ROBE RIVER MINING CO PTY LTD, HAMERSLEY IRON PTY LTD, HAMERSLEY EXPLORATION PTY LTD and RIO TINTO EXPLORATION PTY LTD

Third Respondent

GEORGINA HOPE RINEHART and HANCOCK PROSPECTING PTY LTD

Fourth Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION

Fifth Respondent

MARGARET TODD, LINDSAY TODD and PHYLLIS HARRIS

Sixth Respondent

SCHEDULE

WAD 750 of 2015

BETWEEN:

MICHAEL HUGHES, JUDITH HUGHES, TERRY HUGHES, JULY HICKS, DENNIS HICKS and MICHAEL HICKS

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

STANLEY WARRIE, KEVIN GUINESS, ANGUS MACK, MICHAEL WOODLEY, JOYCE HUBERT, PANSY SAMBO, JEAN NORMAN, ESTHER PAT, JUDITH COPPIN and MAISIE INGIE

Second Respondent

FORTESCUE METALS GROUP LTD (ACN 002 594 872), THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340) and FMG PILBARA PTY LTD (ACN 106 943 828)

Third Respondent

ROBE RIVER MINING CO PTY LTD, HAMERSLEY IRON PTY LTD, HAMERSLEY EXPLORATION PTY LTD and RIO TINTO EXPLORATION PTY LTD

Fourth Respondent

GEORGINA HOPE RINEHART and HANCOCK PROSPECTING PTY LTD

Fifth Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION

Sixth Respondent

MARGARET TODD, LINDSAY TODD and PHYLLIS HARRIS

Seventh Respondent