FEDERAL COURT OF AUSTRALIA

McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) the application for a determination of native title filed on 19 February 2020 is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This native title determination application is made under s 13 of the Native Title Act 1993 (Cth) (NT Act) on behalf of the Barngarla people. It relates to an area south of Port Lincoln on the Eyre Peninsula in South Australia (the Port Lincoln area) and is referred to as the Barngarla SEP claim.

2    The Barngarla SEP claim was filed on 19 February 2020. It wholly overlaps with a claim commenced on 21 June 2016 on behalf of the Nauo people (SAD 188 of 2016) (the Nauo No 2 claim).

3    By an interlocutory application filed on 14 April 2020, the State of South Australia applies for orders that the Barngarla SEP claim be struck out or summarily dismissed on the basis that (among other things) it is an attempt to relitigate matters that have been finally determined in earlier proceedings.

4    I am satisfied that the Barngarla SEP claim constitutes an abuse of the processes of the Court for the reasons asserted by the State. There will be an order summarily dismissing the proceedings pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth).

THE NATIVE TITLE ACT

5    Native title is recognised and protected in accordance with the NT Act:  s 10.

6    Section 13(1)(a) of the NT Act provides that an application may be made to this Court under Pt 3 for a determination of native title in relation to an area for which there is no approved determination of native title. The expression “determination of native title” is defined in s 225 of the NT Act as follows:

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

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

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

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

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

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

7    The expression “native title” is relevantly defined in s 223 of the NT Act as follows:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

…

8    In Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Gleeson CJ, Gummow and Hayne JJ said that the native title rights and interests to which s 223 refers are rights and interests finding their origin in pre-sovereignty law and custom, and are not to be understood as being a creature of, or created by, the NT Act: at [45]. A traditional law or custom “is one that has been passed down from generation to generation of a society, usually by word of mouth and common practice”:  at [46]. Their Honours said that the requirement in s 223(1)(a) that the rights and interests be “possessed” under traditional laws “requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty” (at [47]). The plurality went on to discuss the “inextricable link between a society and its laws and customs”:

49    Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group'’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. Some of these issues were considered in Milirrpum v Nabalco Pty Ltd where there appears to have been detailed evidence about the social organisation of the Aboriginal peoples concerned. Some were touched on by Toohey J in Mabo [No 2] where his Honour referred to North American decisions about similar questions. They appear not to be issues that were addressed directly in argument in this matter in the courts below, whether for want of evidence about them or for some other reason does not matter.

50    To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.

(footnotes omitted)

9    Part 3 of the NT Act contains rules for the making of applications to this Court for native title determinations.

10    Section 61 relevantly provides that an application for a determination of native title may be made by a person authorised by all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed.

11    Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. The phrase “approved determination of native title” relevantly includes a determination of native title made in accordance with s 13(1)(a);   NT Act, s 13(3)(a).

12    If there is an approved determination of native title in relation to a particular area, the Court must not conduct any proceeding relating to an application for another determination of native title, or make any other determination of native title in relation to that area or to an area wholly within that area (except in cases where variation or revocation of the earlier determination is sought):  NT Act, s 68.

13    Section 66 makes provision for a native title determination application to be publicly notified. Section 84 makes provision for other persons to be made a party to proceedings in this Court including (subject to conditions) other persons who claim to hold native title in relation to the claim area.

14    If two or more proceedings before the Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such orders 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 by, for example, providing that different parts of the area covered by an application are to be dealt with in separate proceedings:  NT Act, s 67.

15    The abovementioned procedural provisions are plainly intended to ensure that persons whose interests may be affected by a determination of native title in relation to an area become aware of the application and have the opportunity to be heard before the Court determines “whether or not native title exists” in the area within the meaning of s 225 (emphasis added). As discussed below, they are also intended to avoid a multiplicity of proceedings affecting the same land or waters.

16    Once made, a native title determination may be varied or revoked under s 13(1)(b) if subsequent events have caused the determination to no longer be correct or if the interests of justice require that it be varied or revoked:  NT Act, s 13(5)(a) and (b).

THE EARLIER PROCEEDINGS

17    The Barngarla SEP claim and Nauo No 2 claim are not the first applications for a determination of native title made on behalf of the Barngarla people or the Nauo people affecting the Port Lincoln area.

18    In action SAD 6011 of 1998, the Barngarla people claimed to hold native title rights and interests in respect of a large area of land and waters on the Eyre Peninsula, of which the Port Lincoln area formed the southern part. That claim was first lodged 4 April 1996. It will be referred to as the Croft claim. Over time, there were 14 other claims overlapping the Croft claim, most of which have been resolved.

19    One of the overlapping claims was an application lodged on behalf of the Nauo people on 30 September 1998 in respect of a large area of land and waters on the Eyre Peninsula, including in the Port Lincoln area (original Nauo claim). The historical overlap affecting the Port Lincoln area was resolved when the authorised representatives of each claim group entered into a Memorandum of Understanding (MOU) in 1999 and a Deed of Termination in 2010. Relevantly, as a result of the MOU and the Deed, the boundaries of the original Nauo claim were redrawn (so as to remove the overlap) and the persons constituting the authorised applicant in each action was changed.

20    In 2012, orders were made for the trial of the separate question of whether the Barngarla people possessed rights and interests that could be recognised and protected under the NT Act in respect of that part of the claim area that was not then the subject of any remaining overlapping claims.

21    The hearing of the separate question commenced on 19 November 2012 and proceeded over 22 days. The Barngarla applicant called 21 lay witnesses, as well as preserved evidence of deceased persons pursuant to s 64 of the Evidence Act 1995 (Cth).

22    In the result, Mansfield J held that the Barngarla people did not possess native title rights and interests in respect of the land or waters in the Port Lincoln area: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213 at [709] and [718]. The connection aspect of the claim was otherwise upheld in respect of the remainder of the area subject to the trial on the separate question:  Croft at [729].

23    Following the delivery of reasons for judgment, the parties went on to identify and resolve issues concerning tenure and extinguishment in respect of other parts of the claim area north of Port Lincoln in respect of which Mansfield J held that native title rights prima facie existed.

24    On 23 June 2016 a determination of native title was made by consent under s  87A of the NT Act:  Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft No 2). In accordance with the decision in Croft, the area south of Port Lincoln was not included in the description of the determination area in Croft No 2.

25    The orders in Croft No 2 were relevantly to the effect that the Croft claim be dismissed to the extent that it included a claim in relation to the Port Lincoln area: orders [6] and [7].

Reasons for judgment in Croft

26    The history of the Croft claim is set out in Croft at [10] – [33]. That history included the resolution of the original Nauo claim. Mansfield J noted that the overlap was resolved when the Nauo people retracted the boundaries of their claim. His Honour observed that a northern part of the claim area incorporating the town of Port Augusta in which there were remaining overlaps was to be determined in a separate proceeding. His Honour went on to describe the subject matter of the reasons for judgment as follows:

32    … the Court ordered on 29 May 2012 that the [claim] be listed for hearing, but on the basis that: ‘the issues of the existence of native title and the extinguishment thereof be separated, so that evidence as to the existence of native title be heard and a determination be made thereon before evidence is adduced and a determination made as to the extinguishment thereof’.

33    … Hence, the present judgment deals with the claim area as broadly described above, and includes a decision on the whole of the claim area as presently pursued by the Barngarla applicant on behalf of the Barngarla people, other than the Port Augusta Town Area.

27    The description of the land subject to the reasons for judgment includes the Port Lincoln area, as depicted on a map forming Annexure A to the reasons.

28    The claim group was described as “those people who have a connection with the claim area in accordance with the traditional laws and customs of the Barngarla native title claim group” and who are biological descendants of asserted apical ancestors, as well as those who were “of Aboriginal descent” and have been “adopted into the [Barngarla] group by a custom of descent other than biological”:  Croft at [35].

29    In addition to factual questions concerning the existence and observance of traditional Barngarla laws and customs, Mansfield J identified three issues arising out of the submissions advanced by the State and the Commonwealth as respondents. They included a submission by the State that “in any event the Barngarla people never possessed, and do not today possess, native title rights or interests in respect of those parts of the claim area to the south and west of the town of Port Lincoln”:  Croft at [52].

30    In large part, the claim was upheld, as summarised at [672] of the reasons for judgment:

In summary, I am satisfied that the requirements of s 223 of the NT Act have been satisfied by the claimants on this native title determination application. The laws and customs under which the claimants possess rights and interests in land are laws and customs with normative force that find their origins in the at-sovereignty Barngarla laws and customs, and those laws and customs have connected Barngarla people to their land since sovereignty. I therefore find that the claimants hold the native title rights and interests set out in the native title determination application (which have been set out above) in respect of the land and waters comprising the claim area (set out in Appendix A), subject to the exceptions explained below.

31    The exceptions included the Port Lincoln area, as explained at [673] – [719]. The reasons affecting the area were to the effect that:

(1)    The question for determination was whether it could be said that the Port Lincoln area was Barngarla country at sovereignty, rather than the country of the neighbouring Nauo people:  at [673].

(2)    Aboriginal cultural groupings are not akin to nation states, such that there was never a need for the boundaries to be geographically demarcated with precision:  at [674].

(3)    At the time of judgment, the Nauo people persisted with their claim in respect of a “wedge of land in the south-western quarter of the Eyre Peninsula” but did not maintain a claim over any of the area in issue in the proceedings. The withdrawal of the Nauo claim boundary did not support an inference that the whole of the area was Barngarla country:  at [675].

(4)    The earliest accounts of geographical distribution of Aboriginal people in the Port Lincoln area suggested that “the Nauo people were, at least in the 1840s, the inhabitants of the land to the south of Port Lincoln”, as had been accepted by two experts who gave evidence at the trial:  at [680].

(5)    Early ethnographical material relied upon by the Barngarla people was not sufficient to demonstrate that the boundary between Nauo country and Barngarla country fell within the Coffin Bay / Sleaton Bay sandhills south of Port Lincoln, as had been asserted:  at [680] – [684].

(6)    Linguistic evidence showed that there were three Barngarla etymologies for southern Aboriginal place names that appeared to be plausible (at [685] – [692]). However, there were issues affecting the reliability and utility of the place name evidence, including because of similarities between the Barngarla and Nauo languages (at [692] – [694]). Accordingly, a finding that the Port Lincoln area was Barngarla country could not be based merely upon the three plausible Barngarla place names:  at [695].

(7)    Mansfield J concluded (at [696]):

In all the circumstances, I find that on the balance of probabilities, the boundary between Nauo and Barngarla country or more accurately the extent of Barngarla country lay somewhere around the vicinity of Port Lincoln, and that the lands to the south of Port Lincoln were possibly Nauo country, at least in the 1840s. I do not need to make a positive finding. I am not satisfied that the Barngarla country extended in any significant way south of Port Lincoln.  …

(8)    Barngarla country “at settlement” (1839) was found to encompass the town of Port Lincoln but not the area south of the town:  at [702].

(9)    On the balance of probabilities, at the date of sovereignty (1788) people who identified as belonging to the Barngarla grouping were primary inhabitants of the entire claim area, including the area south of Franklin Harbour, but excepting the area south of Port Lincoln:  at [709].

32    Mansfield J then went on to consider an alternate basis asserted by the Barngarla people as a basis for possession of native title rights and interests in the Port Lincoln area, founded in “conjoint succession”. Given its importance to the present application, it is necessary to extract that portion of his Honour’s reasons in full:

710    These findings do not dispose of the Barngarla people’s claim to native title rights over the southern tip of the Eyre Peninsula. The applicant submitted that if, as acknowledged in closing submissions, the southern tip of Eyre Peninsula was Nauo country at sovereignty, then I should ‘find that the Barngarla People obtained primary or core rights in that country through a licit process of succession if they did not already have it.

711    The question of whether it is permissible for a native title claim group to claim land that was not land to which their apical ancestors possessed any rights and interests to under their laws and customs is a question that has arisen in past cases but has not been authoritatively resolved.

712    In Dale v Moses [2007] FCAFC 82 (Dale), the Full Court (Moore, North and Mansfield JJ) said at [120]:

… The observations of … [Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at 443–444 [44]] do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest [sic] can ultimately be recognised as rights and interests of the transferee society for the purposes of the [NT Act]. The primary judge was probably correct in rejecting this contention. However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established. In the present case, the required factual foundation is lacking in several important respects.

713    The required factual foundation was lacking because the trial judge failed to find on the evidence that (a) the appellants were a society for the purpose of the NT Act; (b) the traditional laws and customs in issue included a right of transmission; (c) there had in fact been a transmission:  Dale at [121]. As such, the comments were obiter. A similar ‘succession’ argument had been rejected by Nicholson J in Daniel at [383].

714    The issue again arose in Western Australia v Sebastian (2008) 173 FCR 1; 248 ALR 61; [2008] FCAFC 65 (Sebastian), before a slightly differently comprised Full Court (Branson, North and Mansfield JJ). Its comments on the issue were again ultimately only obiter dicta:  at [103].

715    In AB (dec’d) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193; [2012] FCA 1268, Bennett J at [578] described the effect of the Full Court’s comments in Sebastian thus:

… [the Full Court] inclined to the view that there could be succession between two societies. However, the succession between the two ‘societies’ was in accordance with the common traditional laws and customs of the two clans and the Full Court was ‘informed’ by the closeness of the laws and customs finding, in effect, that there was, relevantly, one society.

716    Ultimately, Bennett J concluded in the circumstances of that case at [579] that ‘I do not need to decide whether there are differences between Dale and Sebastian …’

717    In my opinion, there is no inconsistency between the views expressed in Dale v Moses and Sebastian. A society for the purposes of native title jurisprudence is merely a ‘body of persons united in and by its observance and acknowledgment of a body of law and customs’:  Yorta Yorta at [52] per Gleeson CJ, Gummow and Hayne JJ. If there are two groups that share a common or closely similar body of law and customs, then they are one ‘society’ for the purposes of native title. It is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society’s traditional laws and customs could not provide for such ‘transmission’ or ‘succession’ between groups in particular circumstances. However, if two groups’ traditional laws and customs vary to an extent such that they cannot be considered one ‘society’, then it is difficult to see how the ‘transmission’ of one group’s country to another group, or the ‘succession’ to one group’s country by another group, could lead to the ‘transferee’ group’s obtaining rights and interests in the relevant land that could be said to be possessed under traditional laws and customs.

718    In this case, there was certainly evidence from the claimants that they regard the relevant land as Barngarla country. The fact that the Nauo Native Title Claim does not claim the relevant land suggests that Nauo people also regard the relevant land as Barngarla country. Those two facts taken together do suggest that there has been a ‘succession’ to the southern Eyre Peninsula by Barngarla people. However, there is no evidence about the Nauo people’s laws and customs at the present day or at sovereignty. So it is impossible to say whether the ‘succession’ is, in the word of the applicant, ‘licit’. That is, it is impossible to say whether the rights and interests now understood to be possessed by the Barngarla people are rights and interests possessed under laws and customs that can be said to be ‘traditional’. As such, the applicant’s ‘conjoint succession’ argument cannot be sustained. It follows that the applicant has not proven on the balance of probabilities that the claim group hold native title rights and interests in respect of land to the south of the township of Port Lincoln.

719    It should be briefly noted that the applicant’s contention that ‘succession’ to another group’s country is in accordance with Barngarla traditional law and custom does not contradict the applicant’s contention that Barngarla country is inalienable. The ideas of alienability and ‘succession’ are distinct. The concept of alienability requires an alienor and an alienee. The concept of ‘succession’ requires only a formerly populated country that has now become ‘vacant’, and the subsequent ‘moving in’ of a neighbouring people.

33    As can be seen, it was not necessary for Mansfield J to determine whether the asserted legal principles underlying the claim founded in conjoint succession should or should not be accepted. His Honour’s conclusion is to be understood as assuming that such a claim may be made in law, but rejecting the claim on the basis that the essential factual elements for it were not established on the evidence.

THE STATE’S APPLICATION

34    The State’s interlocutory application seeks orders that the Barngarla SEP claim be struck out pursuant to s 84C(1) of the NT Act. It relevantly provides:

Striking out applications for failure to comply with requirements of this Act

Strike-out application

(1)    If an application (the main application) does not comply with section … 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:    The main application may still be amended even after a strike out application is filed.

35    Alternatively, it is submitted that the Barngarla SEP claim should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or and/or r 26.01 of the Rules, either on the basis that it enjoys no reasonable prospects of success or on the basis that it constitutes an abuse of the Court’s processes.

36    The various bases for strike-out or summary dismissal all proceed from the premise that the Barngarla applicant seeks to re-agitate the same issues that have been finally determined in Croft.

37    It is convenient to consider first the contention that the claim should be struck out pursuant to s 84C(1) of the NT Act for failure to comply with s 62. Section 62(2)(e) requires that a claimant application contain:

(e)    a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)    the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)    there exist traditional laws and customs that give rise to the claimed native title; and

(iii)    the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

…

38    The asserted factual basis for the Barngarla SEP claim is set out at Schedule F of the originating application. It is expressed as follows:

…

(a)    The Barngarla Native Title Claim Group and their ancestors have, since British sovereignty was asserted over the application area, possessed, occupied, used and enjoyed the area which is the subject of this native title claim ;

(b)    The Barngarla Native Title Claim Group’s right to such possession, occupation, use and enjoyment is derived from and is currently held in accordance with traditional laws and customs acknowledged and observed, including as they relate to the transmission of such rights and interests by descent;

(c)    The native title has been held and continues to be held in accordance with those traditional laws and customs by the Barngarla Native Title Claim Group.

39    The State submits that the asserted factual basis “ignores, and is inconsistent with, the findings of the Court in Croft”, that it is untenable and so should be struck out.

40    In written submissions, Counsel for the Barngarla applicant emphasised that the Barngarla people:

do not submit that any of the findings or conclusions arrived at by Mansfield J in [Croft] are wrong. That is, the Barngarla people do not seek to relitigate any issue which was resolved in [Croft].

(Original emphasis)

41    That acknowledgment must include acceptance of the finding that the Barngarla people did not occupy the Port Lincoln area at sovereignty in accordance with Barngarla traditional laws and customs:  Croft at [709] and [718].

42    Counsel for the Barngarla people submitted that the applicant should be permitted to prosecute the Barngarla SEP claim because it was said to be founded on principles of “conjoint succession”. That foreshadowed claim proceeded from the premise that native title rights and interests “may be transmitted from one society to another”. Counsel referred to the same authorities discussed by Mansfield J in Croft, namely Yorta Yorta (at [43] – [44]); Dale v Moses [2007] FCAFC 82 at [120] and Western Australia v Sebastian (2008) 173 FCR 1 at 31. It will be recalled that his Honour did not conclusively decide whether native title rights and interests may be transmitted from one society to another society (as opposed to estate groups within the same society).

43    It was submitted that the “conjoint succession” claim had not been finally decided by Mansfield J in the earlier proceedings and remains to be resolved.

44    There are no details of the claim founded in “conjoint succession” in the affidavits upon which the Barngarla applicant relied on this application, nor was the asserted factual basis for the intended claim clearly articulated in the course of oral or written submissions. The written submissions nonetheless confirm that the issue sought to be agitated is the same issue raised by the same claim group in closing submissions in Croft. It is a claim that depends upon proof of Nauo traditional law, particularly laws in relation to succession.

45    Returning to the originating application filed in this proceeding, I am not satisfied that that document articulates the claim that the Barngarla applicant now intends to assert. The document does not set out a proper factual basis for the claim that the members of the claim group possess native title rights and interests by a process of succession, whether derived from Nauo traditional laws and customs or otherwise. There is no reference to the Barngarla people having any predecessors other than Barngarla ancestors. The reference to transmission of rights and interests “by descent” does not encapsulate the succession issue. As presently framed, the claim is premised on the Barngarla people possessing native title rights and interests in the Port Lincoln area in accordance with Barngarla traditional laws and customs existing pre-sovereignty.

46    In its present form the asserted factual basis for the claim does not materially differ from that litigated (and rejected) in Croft in relation to the Port Lincoln area by the same claim group defined by reference to the same apical ancestors. It follows that the claim is liable to be summarily dismissed in accordance with the principles stated below. Whether the circumstances comfortably satisfy the conditions for strikeout pursuant to s 84C of the NT Act need not be decided.

47    It is conceivable that, if afforded the opportunity, the Barngarla applicant could reformulate the factual basis for the claim so as to make it plain that the rights and interests alleged to be possessed by the claim group derive from a process of “conjoint succession”. However, no application to amend the claim has been made, whether before or after the State’s application was filed.

48    The powers conferred by s 31A of the FCA Act and r 26.01 of the Rules will now be considered on the basis that the intended asserted factual basis for the clam is that founded in “conjoint succession” notwithstanding that that intention is not made manifest on the originating application as presently drafted. There should be no opportunity to amend the originating application if the foreshadowed amended case would itself constitute an abuse of process.

THE CONJOINT SUCCESION CLAIM

Principles

49    Rule 26.01(1) of the Rules relevantly provides:

26.01 Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

   (b)    the proceeding is frivolous or vexatious; or

   (c)    no reasonable cause of action is disclosed; or

   (d)    the proceeding is an abuse of the process of the Court; or  …

50    The circumstances that may constitute an abuse of process cannot be exhaustively defined: UBS AG v Tyne (2018) 265 CLR 77. As Kiefel CJ, Bell and Keane JJ said in Tyne “[e]ither of two conditions enlivens the power:  where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute” (at [1]). Either or both of those conditions may be present where proceedings are conducted in a manner that undermines the principle of finality in litigation. There are established forms of estoppel underpinned by the same principle. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 570 the High Court explained those doctrines and the distinct (but related) power of courts to prevent abuses of their own process.

22    Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as ‘cause of action estoppel’. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as ‘issue estoppel’. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a ‘judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies’. The third form of estoppel is now most often referred to as ‘Anshun estoppel’, although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

…

25    Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. …

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

See also Fortescue Metals Group v Warrie (2019) 273 FCR 350 at [374]; Dale v Western Australia (2011) 191 FCR 521 at [112]; Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [70] (French J, as his Honour then was); McDonald v State of South Australia [2011] FCA 297 at [36] – [47] (Besanko J); Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777 (Jagot J).

51    As to abuse of process, in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423, Giles CJ identified the relevant factors to include:

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

  (b)    the opportunity available and taken to fully litigate the issue;

  (c)    the terms and finality of the findings as to the issue;

  (d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

52    And as the Full Court said in Fortescue Metals Group (at [376]):

…  Regard may need also to be given to oppression and unfairness to the other parties in the litigation. Ultimately, the Court must assess and evaluate whether the relevant conduct which is said to constitute an abuse of process brings the administration of justice into disrepute in the eyes of ‘right-thinking people’, which is largely an evaluative exercise.  …

53    In undertaking the evaluative exercise, it is necessary to have regard to the statutory and other legal contexts in which the earlier claim was decided and in which the new claim is brought.

Submissions of the Barngarla applicant

54    The Barngarla applicant submitted that the applicant in Croft could not reasonably have been expected to adduce evidence about the traditional laws of the Nauo peoples as they related to the acquisition of rights in land by succession. It was submitted that the reasons in Croft contain statements to the effect that the Barngarla people may have acquired native title rights and interest by a process of succession, but the issue was “impossible to decide” and so left undecided. It was submitted that there was no evidence that any shortcomings in the approach taken by the claimant in Croft was the result of any forensic decision made by the Barngarla people or their legal advisers in the earlier proceedings. It was submitted that the provisions in the NT Act providing for the variation or revocation of an approved determination of native title provide an indication that the principle of finality is not absolute in native title proceedings. It was submitted that there was no “approved determination of native title” because Mansfield J had not gone so far as to determine that native title did not exist in the Port Lincoln area. In the circumstances, it was submitted, the present proceeding could not constitute an abuse of process, having regard to the unique nature of the rights and interests in issue. Their continuance would not bring the administration of justice into disrepute in the eyes of “right thinking people”, so it was submitted.

Consideration

55    The submission that Mansfield J did not resolve the questions relating to conjoint succession as argued in Croft must be rejected for the following reasons:

(1)    The issue separately tried in Croft was whether the claim group possessed native title rights and interest in land and waters that included the Port Lincoln area. It was for the claim group to articulate and establish all of the facts upon which its claim to possess native title rights and interests was based.

(2)    The claim group asserted two alternate factual bases for the claim.

(3)    The first (articulated in the originating application) was founded upon the premise that the Barngarla people occupied the Port Lincoln area at sovereignty pursuant to Barngarla traditional laws and customs and without reference to the traditional laws and customs of any other Aboriginal group or society. That basis for the claim was rejected by Mansfield J for reasons that are not sought to be challenged in this proceeding.

(4)    The second (raised in the course of closing submissions) was that the Barngarla people acquired native title rights and interests by a process of “conjoint succession” derived from the traditional laws and customs of the Nauo people. Mansfield J considered that issue in Croft at [710] – [719]. His Honour concluded that the argument “cannot be sustained” because of the absence of evidence about Nauo traditional laws and customs. Without that evidence, it was “impossible to say” that the rights and interests now understood to be possessed by the Barngarla people were rights and interests possessed under laws and customs that could be said to be “traditional”.

(5)    Read in their proper context, the reasons at [710] – [719] in Croft must be understood as a rejection of the conjoint succession claim on the grounds that the applicant had not discharged its burden of proof. So much is plain from his Honour’s conclusion (at [718]) that “the applicant has not proven on the balance of probabilities that the claim group hold native title rights and interests in respect of land to the south of the township of Port Lincoln”.

56    The circumstance that the issue appears to have first been raised in the course of closing submissions does not mean that it formed no part of the issues to be adjudicated upon.

57    As has been mentioned, the claim as it related to the Port Lincoln area was ultimately dismissed by an order made on 23 June 2016:  Croft No 2. The dismissal necessarily followed from the rejection of each alternate basis for the claim. The applicant consented to the order for dismissal in any event. Strictly speaking, that order may not fall within the “determination of native title” relating to the remainder of the claim area tried in Croft. However, the order had the effect of finally determining the rights of the Barngarla applicant in the Port Lincoln area as asserted in that proceeding.

58    The circumstances plainly give rise to an issue estoppel. It remains to explain why the provisions of the NT Act do not displace that doctrine, nor do they assist the Barngarla applicant to avoid the conclusion that the present (intended) claim constitutes an abuse of process.

Finality of litigation in native title proceedings

59    A determination of native title involves a recognition under Australian law of rights and interests in land of a unique and enduring character. The determination does not create rights, but rather gives declaratory effect to the recognition of native title rights and interests by the common law of Australia in accordance with the principles stated in Mabo v Queensland (No 2) (1992) 175 CLR 1. The rights recognised in a determination of native title 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”:  Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34] (Allsop CJ, Marshall and Mansfield JJ). Subject to the terms of the determination, native title rights and interests are exercisable by persons falling within the defined claim group for generations into the future. The proceedings differ in critical ways from private controversies adjudicated in this Court, both in their subject matter, their procedure and in their consequences. It follows that omissions in the presentation of a party’s case may have significant implications for generations to come.

60    The power under s 13(1)(b) is one that introduces a degree of flexibility that may not be available in other legal contexts. The inclusion of that power in the NT Act is a reflection of the uniqueness and importance of its subject matter. The exercise of the power to vary or revoke a determination may have the result that the principle of finality in litigation is undermined in the achievement of a higher purpose. However, that flexibility can extend no further than the text of the statute permits.

61    In the present case there is no suggestion that s 13(1)(b) of the NT Act applies to the dismissal order made in (or in conjunction with) the determination in Croft No 2. As White J explained in Fortescue Metals Group at [574]:

… while s 13(1)(b) permits in limited circumstances an approved determination of native title to be revoked or varied, it does not otherwise alter the character of a determination. Unless and until revoked or varied under s 13(1)(b), a determination of native title stands as a final adjudication of the matters in dispute, and is no less final than any other court order …

62    The critical obstacle for the Barngarla people is not so much the determination in Croft No 2, but the order made, by consent, dismissing that part of the claim that related to the Port Lincoln area. That order followed from the failure of the applicant to prove its case at trial.

63    The legal context gives rise to a special responsibility on the part of the authorised applicant and the publicly funded legal representatives having the conduct of the proceedings. It emphasises the importance that the factual foundation for claims be identified, articulated and prosecuted with diligence, and that forensic choices be adverted to well in advance of the trial. In my view, that responsibility is heightened in circumstances where alternate factual bases for a claim appear to be available.

64    As the preamble to the NT Act acknowledges, the people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement and have been progressively dispossessed of their lands. There are areas in which the assertion of sovereignty caused the destruction of neighbouring Aboriginal societies and the forced relocation of groups into vacant areas previously occupied by others in a short period after European contact. In cases where early disruption has occurred, the task of proving which Aboriginal group occupied a particular area at sovereignty may present forensic difficulties, particularly in areas where a number of societies or groups originally occupied areas within a confined region. The possibility that rights and interests may have been acquired post sovereignty by succession cannot be disregarded in the preparation of the claimant’s case. A decision must be made as to whether or not a claim based on succession is to be advanced in the alternative. If advanced (as it was in the Croft claim), the essential elements of the claim founded on succession must be proven. Necessarily, that requires forensic decisions to be made about the evidence that is to be obtained and adduced. That work is ordinarily undertaken in advance of the trial. In the present case, 15 years lapsed between the filing of the claim and the trial of the critical issues.

65    The public significance of proceedings under the NT Act has other implications for the manner in which they are to be conducted. As has been observed, the procedures under Pt 3 of the NT Act ensure that the public is notified of a claim and that all persons asserting an interest in the land or waters have an opportunity to participate in the proceedings to support or oppose the claim. The proceedings are not merely between the claim group and the State, but invariably affect the interests of multiple respondents in litigation continuing over many years.

66    Read together, the provisions contained in Pt 3 evince an intention that there be a single proceeding for the agitation of the question of whether or not native title exists in an area. Subject to rulings for the trial of separate issues, it is plainly desirable that there be a single trial incorporating all of the factual and legal bases upon which all claimants assert their rights and interests, including in contest with each other. In the ordinary course, that process should result in there being an “approved determination of native title,” the existence of which avoid multiplicity of proceedings in respect of the same area:  NT Act, s 61A(1). The prospect that there may be a multiplicity of successive proceedings relating to the same area is anathema to the scheme of the NT Act. The conduct of multiple successive actions is potentially oppressive to all respondents and wasteful of this Court’s judicial and administrative resources.

67    It has not been overlooked that Mansfield J did not make a determination to the effect that native title did not exist in relation to the Port Lincoln area. It is unclear why that was not done, given that the boundaries of the original Nauo claim had been retracted. The State’s legal representative has deposed that no “negative determination” was sought by the State because there was some suggestion in the reasons of Mansfield J that the Port Lincoln area might have been Nauo country at sovereignty giving rise to continuing rights and interests possessed by the Nauo people. Whether that was the correct position for the State to adopt is not an issue that is presently before me.

68    The circumstance that there is no approved determination of native title means that there is no express statutory prohibition on the commencement of either the Barngarla SEP claim or the Nauo No 2 claim. However, that does not alter the fact that the Barngarla SEP claim in respect of the area was dismissed after a trial in which the succession claim was advanced and rejected, nor does it alter my conclusion that the present proceeding is an attempt relitigate issues that were finally determined when the order for dismissal was made.

69    The contention that it would have been unreasonable to expect the Barngarla people to adduce evidence as to Nauo traditional laws and customs is not elaborated upon. It may be accepted that the task of proving the elements of a claim founded in succession would have inherent difficulties, given that there appear to be surviving members of the Nauo people who do not accede to the proposition that there has been a transmission of rights by succession in accordance with their traditional law. To the extent that there was originally a dispute that included questions as to which of the two groups occupied the Port Lincoln area at sovereignty, it was open to both groups to proceed to trial on their contested claims, or to cooperate with each other in the resolution of their claims by giving evidence or other assistance in their respective proceedings.

70    I consider the Barngarla people to have been on notice that the claim as it related to the Port Lincoln area was disputed by the State in Croft. It was for the Barngarla people, by their legal representatives, to consider how to formulate and prove its claim in light of that opposition. It matters not whether there was a deliberate choice made to not adduce evidence necessary to discharge the onus of proof. I am satisfied that the applicant in the Croft claim had every opportunity to fully litigate the issues. The circumstance that there may have been “shortcomings” in the presentation of the claim may explain the result, but it cannot avoid the conclusion that the Barngarla SEP claim constitutes an abuse of process.

Affidavits

71    Before concluding, it is appropriate to refer to the affidavit material upon which the Barngarla applicant relied in opposing the State’s application and to explain the use to which that evidence that has been put, namely:  affidavit of Jason Bilney filed 3 July 2020; affidavit of Frederick Richards filed 10 July 2020; affidavit of Lavinia Richards filed 3 July 2020; affidavit of Vera Marissa Jade Richards filed 3 July 2020; affidavit of Brandon Colin McNamara filed 16 July 2020, and affidavit of Nicholas Llewellyn-Jones filed 17 July 2020.

72    The last two mentioned affidavits concern the named applicant’s authorisation to commence the Barngarla SEP claim (which is not disputed) and a procedural issue.

73    The remainder of the affidavits refer to the strong spiritual connection the witnesses have with the Port Lincoln area as experienced and expressed over their lifetimes and earlier generations. They are consistent with Mansfield J’s finding that the Barngarla people consider the Port Lincoln area to be Barngarla country. If accepted, the evidence establishes that the members of the claim group have a present day connection with the land and waters which they genuinely believe is founded upon their traditional laws and customs existing from and continuing since sovereignty.

74    Two of the affidavits refer to intermarriage between Barngarla and Nauo people. However, the deponents do not depose to any knowledge of Nauo traditional laws or customs or the rights that might be acquired by a process of succession under any such traditional law. The affidavits as a whole do not contain any acknowledgement that the land and waters were Nauo country at sovereignty.

75    For the reasons given earlier, the Barngarla SEP claim is liable to be summarily dismissed as an abuse of process. It is for that reason that the claim cannot enjoy reasonable prospects of success. It is unnecessary to enquire whether such a claim could have succeeded on its substantive merits had it been presented in a different way at the trial in Croft. It is sufficient to find (as I have done) that the claim group had a fair opportunity to advance and prove a case founded in succession at that trial. It did in fact advance that case, but did not discharge the burden of proof in respect of it. The affidavits demonstrate the genuine dissatisfaction of the Barngarla people with the outcome and the importance of the subject matter to them. The evidence is given some weight for that purpose. However, it does not demonstrate that the Barngarla people are presently in the possession of evidence capable of supporting a succession claim that could not have been obtained at the time that the issues in Croft were tried and determined. It is therefore unnecessary to consider what effect such evidence might have had on the exercise of the Court’s discretion.

COSTS

76    The State seeks an order that the Barngarla applicant pay costs in respect of the application in accordance with s 85A of the NT Act. The parties will be afforded an opportunity to file supplementary submissions in respect of that question.

Associate:

Dated:    24 December 2020

SCHEDULE OF PARTIES