Federal Court of Australia

Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122

File numbers:

WAD 490 of 2016

WAD 537 of 2018

WAD 538 of 2018

Judgment of:

MORTIMER J

Date of judgment:

16 September 2021

Catchwords:

NATIVE TITLEwhether the Court has jurisdiction to make determination that native title exists and is held by a group that includes persons who did not authorise an application for the determination in question – whether the Court should exercise the discretion in s 84D(4) of the Native Title Act 1993 (Cth) – whether the Court is bound to follow Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 – where the Court has previously determined that the native title in question exists and is held by the group in question

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 23, 37M, 37N

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Native Title Act 1993 (Cth) ss 10, 13, 61(1), 81, 84D(4), 87, 87A, 213, 223, 225, 251B

Cases cited:

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27

Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1

Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638

Brown v State of South Australia [2009] FCA 206

Cheinmora v State of Western Australia (No 2) [2013] FCA 768

Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355

Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; 204 FCR 542

Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792

Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149

Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1

Hayes v Northern Territory of Australia [1999] FCA 1248; 97 FCR 32

Hazelbane v Northern Territory of Australia [2014] FCA 886

Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612

Jango v Northern Territory [2007] FCAFC 101; 159 FCR 531

Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801

Kokatha Native Title Claim v South Australia [2005] FCA 836; 143 FCR 544

Kokatha People v State of South Australia [2007] FCA 1057

Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517

Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1

McKenzie v South Australia [2005] FCA 22; 214 ALR 214

Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599

Moses v Western Australia [2007] FCAFC 78; 160 FCR 148

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752

Northern Territory of Australia v Alywarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28l 194 CLR 355

Risk v National Native Title Tribunal [2000] FCA 1589

Sandy on behalf of the Yugara/Yugarapul People v Queensland [2012] FCA 978

Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939

Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183

Strickland v Western Australia [2013] FCA 677

Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42

TJ v Western Australia [2015] FCA 818; 242 FCR 283

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568

Velickovic v State of Western Australia [2012] FCA 782

Ward v Western Australia [1998] FCA 1478; 159 ALR 483

Western Australia v Ward [2000] FCA 191; 99 FCR 316

Yarmirr v Northern Territory of Australia [1997] FCA 274; 74 FCR 99

Division:

General Division

Registry:

Western Australia

National Practice Area:

Native Title

Number of paragraphs:

187

Date of hearing:

6 August 2021

Counsel for the applicant in WAD537/2018 and WAD538/2018:

Stephen Wright SC

Solicitor for the applicant in WAD537/2018 and WAD538/2018:

Yamatji Marlpa Aboriginal Corporation

Counsel for the applicant in WAD490/2016:

Tina Jowett

Solicitor for the applicant in WAD490/2016:

Cross Country Native Title Services

Counsel for the State of Western Australia:

Griff Ranson

ORDERS

WAD 537 of 2018

BETWEEN:

IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondent

WAD 538 of 2018

BETWEEN:

IVAN SMIRKE, ALEX ALEXANDER AND KELLMAN LIMERICK

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondent

WAD 490 of 2016

BETWEEN:

ROY TOMMY, NANCY TOMMY, MARY MILLS & ORS

Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondent

order made by:

MORTIMER J

DATE OF ORDER:

16 September 2021

THE COURT ORDERS THAT:

1.    The separate question be answered in the following terms:

Given the principles set out in Commonwealth v Clifton (2007) 164 FCR 355, does the Court have the power to make a determination under s 225 of the Native Title Act 1993 (Cth) in favour of the Yinhawangka People as defined below to give effect to the orders made in relation to Separate Question 1(a)(i) in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 in respect of the Yinhawangka Gobawarrah application WAD490/2016?

Answer: Yes, by reason of the exercise of the discretion conferred by s 84D(4) of the Native Title Act 1993 (Cth).

In this question “the Yinhawangka People” are those persons who:

(a)    are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People:

(i)    Minatangunha;

(ii)    Jarndundha;

(iii)    the couple Thurantajinha and Wilga; or

(iv)    Nijawarla; and

(b)    identify themselves as Yinhawangka under traditional law and custom and are so identified by other Yinhawangka People as Yinhawangka; and

(c)    have a connection with the land and waters of the Yinhawangka Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People.

2.    The Yinhawangka Gobawarrah application WAD 490 of 2016 proceed to a determination of native title in accordance with the Court’s findings in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 once the parties have reached agreement on boundaries around the Ashburton River.

3.    Further programming towards determinations of native title in all three proceedings be referred in the first instance to case management and/or mediation before Judicial Registrar McGregor.

4.    If any party seeks to be heard on the costs of the separate question, submissions on that matter should be the subject of programming in accordance with Order 3.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    This judgment concerns the separate determination of a further question that has arisen in three native title applications that are currently before this Court.

2    The further separate question relates to an area of land comprising 3423 sq km in the Pilbara region of Western Australia, which is referred to in this judgment and others as the overlap area. The overlap area is subject to multiple native title claims, namely claims advanced on behalf of the Jurruru People (WAD537/2018 and WAD538/2018, which are made by the second and third applicants (together, the Jurruru applicant), respectively) and a claim brought on behalf of a group known as the Yinhawangka Gobawarrah (YG) (WAD490/2016). The history of these claims and other claims related to them is summarised in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [18]-[43].

3    In Smirke (No 2), the YG claimants submitted that the YG are a sub-group of the Yinhawangka People that holds rights and interests in the overlap area “under Yinhawangka traditional laws and customs”. These traditional laws and customs were recognised and described in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801, a decision which determined the existence of native title rights and interests held by the Yinhawangka People in areas north and north-east of the overlap area.

4    In Smirke (No 2), the YG claimants contended they held a separate native title in the overlap area from that held by the wider group of Yinhawangka People in the land and waters covered by the determination in Jones. The Court ultimately rejected this contention and instead found that those who constitute the YG claim group hold native title in relation to certain parts of the overlap area commonly with at least some other members of the Yinhawangka People (Smirke (No 2) at [1292]). These parts of the overlap area are referred to in this judgment as the Yinhawangka area.

5    Following the decision in Smirke (No 2), the State of Western Australia and the applicant in proceeding WAD 490 of 2016 (the YG applicant) have agreed that the relevant native title holding group for the Yinhawangka area comprises the native title holding group defined in Jones and – additionally – the descendants of one of the YG apical ancestors (namely Nijawarla). Relevantly to the present application, the native title holding group defined in Jones includes the descendants of two apical ancestors who are not identified as apical ancestors for the Yinhawangka area (Minatangunha and Jarndundha).

6    Although as a consequence of Smirke (No 2) the Jurruru claim group has no interest in the Yinhawangka area, in a case management hearing held for the purposes of progressing both native title parties’ claims to final determination of native title, the Jurruru applicant raised a question about the authorisation of the YG applicant, given the Court’s findings in Smirke (No 2). The State also submitted there may be a legal issue to be determined in this respect. As I explained to the parties during the hearing, because of the Court’s findings in Smirke (No 2), in my opinion there is a real question whether the Jurruru applicant has any standing to question the authorisation of the YG applicant in relation to the Yinhawangka area. Be that as it may, no point was formally taken by the YG applicant, and since the State has joined in submitting that the present matter requires a decision by the Court, I considered it was appropriate to proceed and to hear the Jurruru applicant on the question.

7    In substance, what arises on the separate question is whether this Court can make a determination in favour of all descendants in the native title holding group in Jones and the descendants of Nijawarla on the s 61 application made by the YG applicant, in circumstances where that group of people has not, in its totality, authorised the making of a claim on its behalf for a determination of native title (the Authorisation Question).

8    The question is set out in full in paragraph 1 of the orders made by the Court on 29 June 2021:

1.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) the following question (the Authorisation Question) arising in the proceeding is to be decided separately by the Court:

Given the principles set out in Commonwealth v Clifton (2007) 164 FCR 355, does the Court have the power to make a determination under s 225 of the Native Title Act 1993 (Cth) in favour of the Yinhawangka People as defined below to give effect to the orders made in relation to Separate Question 1(a)(i) in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 in respect of the Yinhawangka Gobawarrah application WAD490/2016?

    In this question “the Yinhawangka People” are those persons who:

(a)    are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People:

(i)    Minatangunha;

(ii)    Jarndundha;

(iii)    the couple Thurantajinha and Wilga; or

(iv)    Nijawarla; and

(b)    identify themselves as Yinhawangka under traditional law and custom and are so identified by other Yinhawangka People as Yinhawangka; and

(c)    have a connection with the land and waters of the Yinhawangka Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People.

9    For the reasons that follow, I find that the question should be answered yes, by reason of the exercise of the discretion conferred by s 84D(4) of the Native Title Act 1993 (Cth).

Relevant provisions and principles

10    Native title is recognised, and protected, in accordance with the Native Title Act (s 10).

11    The Federal Court’s jurisdiction in relation to matters arising under the Native Title Act is expressed to be subject to the Native Title Act and, if, for the purpose of any matter or proceeding before the Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures set out in the Native Title Act (s 213).

12    Section 225 sets out the definition of a determination of native title. It provides:

225     Determination of native title

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.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

13    Pursuant to s 13(1)(a) of the Native Title Act, an application for a determination of native title in relation to an area for which there is no approved determination of native title may be made to the Federal Court under Part 3 of the Native Title Act. Section 13(3)(a) clarifies that a determination of native title made on an application under s 13(1)(a) is an approved determination of native title.

14    Part 3 of the Native Title Act includes, among other things, the requirements for making applications to the Federal Court for native title determinations. These requirements are found in Division 1 of Part 3, which includes a table in s 61(1) that specifies the persons who may make an application mentioned in s 13(1)(a) as follows:

(1)    A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or

Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.

(2)    A person who holds a non‑native title interest in relation to the whole of the area in relation to which the determination is sought; or

(3)    The Commonwealth Minister; or

(4)    The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.

Clifton

15    The interaction of ss 13, 61(1), 213 and 225 was considered in Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355. This decision of the Full Court is, as the separate question itself makes clear, central to the contentions of the Jurruru applicant and the State. Clifton involved an appeal from the decision in Kokatha People v State of South Australia [2007] FCA 1057, in which it was held that an application under s 61 of the Native Title Act is required to enliven the Court’s jurisdiction to make a determination of native title and, as s 13(3) indicates, that determination must be made on the application that gave rise to the Court’s jurisdiction.

16    In Clifton, a claim known as the Kuyani Native Title Claim had been lodged in relation to an area of South Australia. The claim area overlapped the claim area of another native title claim (the Kokatha Native Title Claim). The named applicant of the Kuyani Claim, Mark McKenzie, became a respondent party to the Kokatha Claim. On 27 January 2005, Finn J ordered that the Kuyani Claim be struck out on account of defects in its authorisation (McKenzie v South Australia [2005] FCA 22; 214 ALR 214). Subsequently, Mansfield J held that the striking out of the Kuyani Claim did not, of itself, result in Mr McKenzie ceasing to be a party to the Kokatha Claim (Kokatha Native Title Claim v South Australia [2005] FCA 836; 143 FCR 544). In the Kokatha Claim, Mr McKenzie sought a determination of native title rights and interests in favour of himself and other Kuyani People. However, in Kokatha, Finn J ordered that a determination of native title could not be made in favour of Mr McKenzie and other Kuyani People. The Commonwealth was granted leave to appeal from Finn J’s decision.

17    Before the Full Court, the Commonwealth contended that if, on the evidence in a particular case, the Court is satisfied that native title rights and interests are held by a person or group that does not have an application for a determination of native title under s 61 of the Native Title Act, then a determination to that effect is not proscribed by the Native Title Act. Mr McKenzie supported the Commonwealth’s contention.

18    The Full Court rejected the Commonwealth’s contention. It held that, while s 225(a) of the Native Title Act does not limit the range of persons or groups who were eligible to be identified as the native title claim group that had authorised a s 13(1) application, s 225 is not directly concerned with the power of the Court to make an order in favour of a group that has not authorised the making of a claim on its behalf for a determination of native title (Clifton at [38]).

19    Rather, s 213 was identified by the Full Court as the critical provision in terms of the Court’s jurisdiction. Section 213 was construed as a limit on the Court’s more general jurisdiction arising under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and the jurisdiction otherwise conferred by s 81 of the Native Title Act. That limit, the Court held (at [40]), was that:

any determination of native title must be made in accordance with the procedures in the Act.

20    Therefore, the procedures in the Native Title Act that govern the making of a determination of native title must be identified (at [43]). Having reviewed the scheme for which the Native Title Act provides, the Full Court found (at [52]):

In our view, it is unlikely almost to the point of being fanciful that the legislature intended that standing to institute a proceeding claiming a determination of native title should be strictly limited to persons authorised by the relevant native title claim group but that standing effectively to counter-claim for identical relief should be unlimited by any requirement for authorisation.

21    At [56], the Full Court clarified they were only dealing in Clifton with group or communal rights, not individual native title rights. Their Honours concluded at [57]:

Section 213(1) of the Act discloses a legislative intent that a determination of native title should only be made by the Court in accordance with the procedures set out in the Act. In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Pt 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1). It is unnecessary on this appeal to determine what, if any, other requirements of Div 1 of Pt 3 of the Act may also be critical to the making of such a determination.

22    This is the passage which the Jurruru applicant and the State submit is the ratio of the decision.

23    However, in my opinion [58] is also critical:

We therefore conclude that where more than one native title claim group seeks a determination that it holds common or group rights and interests constituting the whole or part of the native title to an area, each group must authorise a person or persons to make an application as mentioned in s 13(1) under Pt 3 of the Act. Where more than one application is made, to the extent that the applications cover the same area, they will be dealt with in the one proceeding (s 67). Consequently a determination of native title in respect of any one or more of the claim groups will be able to be made in accordance with the procedures of the Act (s 213(1)).

24    It should also be noted that at [60], the Full Court recognised there was some inconsistency in the conclusion they had reached with the views expressed by Beaumont and von Doussa JJ in Western Australia v Ward [2000] FCA 191; 99 FCR 316. Indeed, there was some inconsistency, in my respectful opinion, with the outcome in that case, as the Full Court in Clifton had recognised at [38]. The Full Court in Clifton found that the critical difference was the introduction of the 1998 amendments to the Native Title Act, and the authorisation requirement that those amendments introduced into s 61.

25    The Full Court in Clifton found that their approach was consistent with the reasoning of the Full Court in Moses v Western Australia [2007] FCAFC 78; 160 FCR 148. Part of the extract from Moses cited by the Full Court in Clifton should be extracted here, as it is relevant to my reasoning below. In Moses, the Full Court held, referring to the conclusion in Ward and to the position in the appeal before it regarding the Kariyarra People as respondents (at [18]):

A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; Munn v Queensland [2002] FCA 486. Of course the obverse position, namely a decision that the Kariyarra people did not have native title rights and interest in those overlapping areas, was able to be made, because competing evidence that the Kariyarra people enjoyed native title rights and interests in these overlapping parts of the claim area was adduced. Such a conclusion did not have to address the issues arising under s 251B of the NTA.

(Emphasis added.)

26    In my opinion Clifton is distinguishable, as I explain below. Further, the circumstances which the Full Court outlined at [37] of their Honour’s reasons are relevant to the resolution of the separate question. The paragraph prior to [37] should also be set out, to ensure the correct context is given. At [36]-[37], the Full Court stated:

It is plain that a person who claims to hold native title in relation to land and waters the subject of a s 13(1) application is a party to the proceeding initiated by the filing of the application under s 13(1) (s 84(3)(a)(ii)). It is also plain that a determination of native title is required to identify the persons, or each group of persons, holding the common or group rights comprising the native title (s 225(a)) and set out details of the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)). Does it therefore follow, as the Commonwealth and Mr McKenzie contend, that provided that a valid s 13(1) application (ie an application made by a person or persons properly authorised by the native title claim group) has been made in relation to an area, the Court may make a determination that another group of persons, who have not authorised the making of an application for a determination of native title in relation to that area, hold common or group rights comprising native title in relation to that area?

It is important to note that the situation posited by the above question is quite different from the situation faced by the Court when it is required to determine a dispute (a) as to the true membership of a native title claim group; (b) concerning the boundaries of the area over which the claim group holds native titles; or (c) as to the nature and extent of the native title, rights and interests held by the claim group. The resolution of disputes of this kind is an inherent aspect of the determination of an application made under s 13(1).

(Emphasis added.)

Other cases

27    The issue of sufficient authorisation has been raised in a number of other cases, and at a number of stages of proceedings: see for example Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1; Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638: Brown v State of South Australia [2009] FCA 206; Velickovic v State of Western Australia [2012] FCA 782. There are others, but the State and the Jurruru applicant principally relied on Clifton. Most of these authorities concern quite different circumstances to the present. I have explained how different the situation was in Clifton, where the group seeking a determination had no s 61 application at all. Many of the authorities are strike out applications. Ashwin is in a different category, having also been a trial of a series of separate questions. In Ashwin, there were no findings that native title existed, and the applicant nominated only one pathway for the acquisition of rights, while also alleging native title was sourced in Western Desert traditional law and custom, which has multiple pathways for acquisition: see [189] and [192].

28    Nevertheless, it is clear there are a number of authorities which support the proposition set out by Mansfield J in Hazelbane v Northern Territory of Australia [2014] FCA 886 at [123]:

There is considerable authority that a claim for native title rights and interests by a subset of the putative native title holding group is contrary to s 61 of the NT Act and cannot succeed: Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 at 542; Risk v National Native Title Tribunal [2000] FCA 1589 at [60]; Tilmouth v Northern Territory [2001] FCA 820; (2001) 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187; (2003) 127 FCR 364 at [55]; Landers v South Australia [2003] FCA 264; (2003) 128 FCR 495 at 504; Harrington-Smith v Western (No 9) (2007) 238 ALR 1 at [1209]-[1217].

29    As I explain below, the Jurruru People have agitated a “sub-set” argument (or similar) against the YG (or a former iteration of essentially the same group) on at least two occasions before Smirke (No 2). One of the issues which went to trial in Smirke (No 2), after the Jurruru were unsuccessful on their strike out application, was whether the YG were a separate group holding separate title from the Yinhawangka People. The YG were unsuccessful in their contention to hold separate native title: see below.

30    As I explain, that finding against the YG in Smirke (No 2) does require part of the submissions on this present separate question by the Jurruru applicant and the State to be upheld. However, there are no other authorities where there has been a finding by the Court that native title exists (and therefore should be recognised) and yet the Court relied on the absence of a properly authorised claim to refuse to grant that recognition. The very particular course that the claims over the overlap area, and the wider Yinhawangka area, have taken cannot be ignored, and as I explain, provides an appropriate foundation for the exercise of the power in s 84D(4) of the Native Title Act.

Parties’ arguments

Jurruru applicant

31    The Jurruru applicant submits that the Authorisation Question should be answered in the negative.

32    It contends that the relevant findings of the Court in Smirke (No 2) were that the YG claimants did not hold native title in relation to the Yinhawangka area that was separate and distinctive from other Yinhawangka People and that which families or individuals have particular associations or affiliations with particular land and waters are “matters for intramural allocation” (Smirke (No 2) at [1292]-[1294]). The Jurruru applicant submits that, similarly to the decision in Jones, the decision in Smirke (No 2) recognised that there is a single Yinhawangka communal native title over all Yinhawangka country (Smirke (No 2) at [1300], [1303]-[1310]).

33    It is the position of the Jurruru applicant that the Court could find that, while native title exists in the Yinhawangka area, it is not the native title claimed by the YG claimants. The Jurruru applicant then contends that the Court cannot make a determination of native title in favour of the holders of that claimed native title (the YG claim group).

34    This submission is advanced on the basis that the principle pronounced in Clifton is of general application and reflects the scheme of the Native Title Act. The Jurruru applicant also relies on the Full Court’s decision in Jango v Northern Territory [2007] FCAFC 101; 159 FCR 531 at [84]-[85] and [91]-[92] as authority for the proposition that the Court cannot, in hearing a native title determination application, conduct a roving inquiry into whether anybody, and if so who, held any, and if so what, native title rights and interests in the land and waters under consideration, and make a determination accordingly, since that kind of inquiry is of an administrative rather than a judicial function. The Jurruru applicant further refers to a written submission it advanced in the hearing for Smirke (No 2), in which it contended that if, contrary to their primary case, the overlap area is not solely Jurruru country, native title rights and interests in the overlap area are held communally by the Yinhawangka People and not (solely) by the Yinhawangka Gobawarrah, and the YG claim should be dismissed because it is not authorised.

35    The Jurruru applicant contends that these submissions should be understood in context of the procedural history of the claims about the overlap area, and surrounding land and waters. An earlier claim by advanced by family members of the YG claimants (the Gobawarrah Minduarra Yinhawangka (GMY) claim) was summarily dismissed by the Court on the basis that it was not authorised by all Yinhawangka People (Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792). It contends the YG claim was deliberately formulated differently to the GMY claim, and the Jurruru applicant’s application for summary dismissal of the YG claim failed (Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568 at [3]-[5], [16]-[19] and [43]-[44]). In these circumstances, the Jurruru applicant contends that “[t]here is no unfairness to the YG claim group, nor the broader Yinhawangka People, in requiring the YG applicant to prove the case as formulated and presented in the YG claim. To the contrary, it would be unfair to the Jurruru applicants to do otherwise.”

36    The Jurruru applicant submits that the description of Yinhawangka People set out in paragraph 1 of the Court’s 29 June 2021 orders is identical to the description of the native title holders at Schedule 7 to Jones, except that the former:

    includes an additional ancestor (Nijawarla); and

    requires a connection with the land and waters of the Yinhawangka Area, rather than the determination area defined in Jones.

37    Following from this are two propositions, the Jurruru applicant contends. First, the Court’s findings in Smirke (No 2) about Nijawarla’s native title rights and interests are not inconsistent with its finding that native title in the overlap area is held by the Jones native title holders communally. Relatedly, in Smirke (No 2), the Court did not find that there are any persons alive today who have native title in the Yinhawangka area and who are only descendants of Nijawarla, rather than descendants from any of the apical ancestors identified in Jones.

38    Second, a determination that native title in the Yinhawangka area is held only by those Yinhawangka persons who have a “connection” with the Yinhawangka area would be inconsistent with the finding in Smirke (No 2) that native title in the overlap area is held communally by the Jones native title holders. Therefore, according to the Jurruru applicant, an affirmative answer to the Authorisation Question would not only contradict the principle in Clifton; but would also not be supported by the findings in Smirke (No 2). As my reasons below explain, I do not accept that submission.

The State

39    Like the Jurruru applicant, the State asks that the Court answer the Authorisation Question in the negative.

40    In summary, the State’s contention is that this Court is bound by the decision in Clifton and that, absent re-authorisation of the YG claim, or the filing of a new claim, by the Yinhawangka People, the Court lacks power to make a determination in relation to the Yinhawangka Area. The State’s position is simply expressed. Since the native title claim group that was described in the YG applicant’s application is not the native title holding group as found by the Court in Smirke (No 2), it necessarily follows that authorisation of the YG claim is defective.

41    The State has provided the Court with three alternatives that it submits could remedy this defect.

42    The State’s first alternative is that all “Yinhawangka People” (as described in Jones) are invited to join with the existing YG claim group members to authorise an amendment of the claim group description that reflects the findings in Smirke (No 2) and to either re-authorise the YG applicant or to authorise a new applicant. This is the alternative that the State positively supports. It submits that this alternative is the most efficient way to remedy the authorisation defect.

43    The State’s second alternative is that the Court accepts a submission by the parties that the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit, based on the evidence or other materials before the Court, including evidence that the claim group has authorised a determination in a different form from that proposed by the s 61 application. As I understand it, this second submission of the State in substance picks up and relies upon what is said by the Full Court in Clifton at [37]. The State submits this practice has become commonplace in consent determination negotiations, specifically where either:

    additional genealogical and/or anthropological research is undertaken after the claim is filed that necessitates a change to the claim group description (e.g. Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [46]) – the State claims that a determination in terms of that proposed by the YG applicant has only been made by the Court in circumstances where there was clear evidence that the native title application was otherwise valid (i.e. properly authorised) and the variation to the description of the native title holders had subsequently been agreed to and authorised by the native title claim group (that is, at a subsequent authorisation meeting); or

    a minor typographical or clerical error appearing in the application form is to be corrected (e.g. Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149 at [26]-[27]; Cheinmora v State of Western Australia (No 2) [2013] FCA 768 at [28]).

44    However, the State submits that this second alternative would not be appropriate in circumstances where:

    the nature of the amendment required to the claim group description is a substantive one;

    a change to the claim group description of the type proposed will represent a shift in the underlying principle upon which the YG claim has been prosecuted (i.e. from a subgroup claim to a communal Yinhawangka native title);

    the question of the YG applicant’s on-going authorisation is unresolved; and

    the Yinhawangka People (as defined in Jones) may not be aware of the proposed determination of native title and have not authorised the description of the proposed native title holding group.

45    The State’s third alternative is that the Court exercise the discretion conferred by s 84D(4)(a) of the Native Title Act to hear and determine an application despite a defect in authorisation. In exercising this discretion, the Court must balance the need for due prosecution of the application and the interests of justice (s 84D(4)).

46    The State refers to the decision of Bromberg J in Ashwin and that of White J in Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 for judicial consideration of s 84D(4). In Miller at [93], White J described the operation of that section as follows:

… the matters which may be relevant to the exercise of the discretion under s 84D(4) may include the expense and inconvenience likely to be suffered by the party if the application is struck out and the applicant required to commence the process of bringing the application afresh; the public interest in litigation in the Court being conducted justly and as quickly, inexpensively and efficiently as possible; and the potential for delay in the determination of the existence or otherwise of the claimed native title rights. It may [be] accepted that the desirability of the Court being seen to encourage proper compliance by prospective claimants with the requirements of the NT Act is also a relevant consideration.

47    While the State acknowledges that the YG application is well advanced, with significant expense and resources having been committed towards it, the State submits that the particular circumstances of the YG application do not favour the exercise of the Court’s discretion under s 84D(4). Like the Jurruru applicant, the State refers to the procedural history of the YG claim, which, according to the State, evinces a long-running dispute between the YG claimants and the wider group of Yinhawangka People. The State also submits that neither the Court nor the parties know whether Yinhawangka People beyond the YG claimants wish to assert their native title rights and interests in the overlap area.

YG applicant

48    The YG applicant submits that the Court should answer the Authorisation Question in the affirmative. Alternatively, the YG applicant submits that the Court should exercise its discretion under s 84D(4) of the Native Title Act to make a determination in favour of the Yinhawangka People.

The Court has power under s 225 to make a determination in favour of the Yinhawangka People

49    In support of its first submission, the YG applicant submits that Clifton is “clearly distinguishable” from the YG proceeding. It contends that, unlike Clifton, where a party was seeking a determination in favour of a group without any s 61 application before the Court, in the present matter the YG claimants have made an application under ss 13(1) and 61 of the Native Title Act. I note the Jurruru applicant submits that Clifton applies equally whether the party seeking a determination is a respondent (as in Clifton) or an applicant (as here).

50    Furthermore, the YG applicant submits that the legislative history regarding the insertion of s 251B into the Native Title Act supports the making of a determination of native title in favour of the Yinhawangka People. According to the YG applicant, prior to the 1998 amendments to the Native Title Act, a number of native title claims were lodged and successfully determined without authorisation (namely Yarmirr v Northern Territory of Australia [1997] FCA 274; 74 FCR 99; Hayes v Northern Territory of Australia [1999] FCA 1248; 97 FCR 32; Ward v Western Australia [1998] FCA 1478; 159 ALR 483). By its submissions, the YG applicant appears to submit that the 1998 amendments relating to authorisation were directed at preventing individuals or small splinter groups from competing with claimants who represented the whole of the relevant native title group. It submits that the YG are not a splinter group, but rather a group that has consistently asserted native title over the overlap area since 1997, in circumstances where other Yinhawangka People have either demonstrated a lack of interest in having these rights recognised, or, in the case of some Yinhawangka persons who gave evidence in Jones, have given evidence that the overlap area was not Yinhawangka country.

51    The YG applicant also picks up the State’s acknowledgement that the Court can accept a submission by the parties that the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit, based on the evidence or other materials before the Court. It submits that the State should treat the Court’s findings of fact in Smirke (No 2) as matters that require changes in the claim group description, in the same way that parties might treat developments in connection and ethnographic materials.

52    The YG applicant further submits that s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the Court to exercise powers conferred by civil practice and procedure provisions in a manner that best promotes the “overarching purpose”, applies to the Court’s authorisation of a native title claim. The YG applicant cites TJ v Western Australia [2015] FCA 818; 242 FCR 283 at [73] in connection with this submission. Section 37M(1) of the Federal Court Act provides that the overarching purpose of the Court’s civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

53    This submission is advanced together with two further submissions. First, it is said that a refusal to make a determination in favour of the YG applicant when it is in the Court’s power to do so would be contrary to the clear and plain intention of the Native Title Act, whose objects are to provide for the recognition and protection of native title (s 3 and 10). In reply, the Jurruru applicants submit that the general objects of the Native Title Act cannot override the proper construction of the Native Title Act as a whole (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [10]-[11], [51]-[52]). Second, the YG applicant notes that, in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 62, Brennan J observed that communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands. It submits that “[i]t follows that it is entirely appropriate for the Court to make a determination in favour of the description of the native title holders for the Yinhawangka Area as set out in the [Authorisation] Question” and that dismissing the YG application would “frustrate… the High Court’s decision in Mabo (No 2) when findings pursuant to s 223 have been made.”

The Court should exercise discretion under s 84D(4)

54    The YG applicant’s alternative submission is that, if the Court considers that the YG application is defective in relation to authorisation, it should exercise its discretion under s 84D(4) of the Native Title Act.

55    The YG applicant agrees with the State that the Court must consider “the need for due prosecution of the application and the interests of justice” in this regard. However, contrary to the State, the central contention of the YG applicant is that, “[g]iven that there has been a fully contested hearing regarding s 223, and the Court has made findings of fact, there can be no better example of an instance where it would be appropriate for the Court to exercise its discretion (if it considers it is necessary)” (citations omitted).

56    The YG applicant seeks to reason by analogy with Sandy on behalf of the Yugara/Yugarapul People v Queensland [2012] FCA 978. In that decision Reeves J noted that, despite the relatively exhaustive process engaged in by the representative body to identify any member of the Yugarapul native title claim group who may be dissatisfied with the Yugarapul authorisation process, nobody had come forward. The YG applicant refers to Reeves J’s observation at [43] of his Honour’s reasons that the only complaint about the authorisation process in that case, which had come from overlapping applicants opposing the Yugarapul application, was “axiomatically self-serving”. In this context, the YG applicant emphasises that no Yinhawangka person has formally objected to the authorisation of the YG application, and only the Jurruru applicant has opposed the determination of native title in favour of the Yinhawangka People or YG on the basis of defects in authorisation.

57    The YG applicant relies on reasoning in several other cases in support of its submission that the Court should exercise its discretion under s 84D(4) of the Native Title Act.

58    It refers to Stone J’s reasons in Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25], where her Honour identified that an “overly technical” or “pedantic” approach to procedural aspects of the authorisation process is not required by the Native Title Act.

59    It relies on Finn J’s reasons in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1 at [930]-[931], where, noting the considerable delay, cost and confusion that would ensue from a dismissal of a claim that had been successfully prosecuted to all but finality, his Honour decided to exercise the discretion under s 84D(4) and not require strict compliance with the authorisation requirement in s 61.

60    It relies on McKerracher J’s reasons in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [470]-[476], where his Honour criticised the State’s construction of s 61 and noted that it could preclude a native title claim that could otherwise be successful under s 223(1) of the Native Title Act. However, the YG applicant acknowledges that McKerracher J also found that, if there was an insoluble problem with authorisation, the Court was required to take it into account under s 84D(4) of the Native Title Act.

61    Finally, the YG applicant relies on White J’s reasons in Miller at [93], which paragraph is extracted in this judgment above at [46].

Other responses from the State and the Jurruru applicant

62    The State submits that it is not incumbent on other members of the Yinhawangka People to challenge the YG application. In the State’s submission, whether or not a Yinhawangka person has objected to the application is not the relevant test for whether the requirements of authorisation have been satisfied. Rather, the State submits that the Court should ask whether members of the claim group have been given “every reasonable opportunity to participate in the decision-making process” (Lawson at [25]). Somewhat relatedly, the Jurruru applicant submits that Smirke (No 2) did not test whether the YG claim was authorised, with the implication being that the YG applicant cannot advance its position on the Authorisation Question in reliance on the fact that no Yinhawangka People opposed the YG claim in Smirke (No 2).

63    The State submits further that Stone J’s reasoning in Lawson concerned whether all members of a claim group must be present and vote unanimously at an authorisation meeting under s 251B of the Native Title Act, and her Honour’s decision is authority only for the proposition that, when assessing such a meeting, the Court should take into account the practical difficulties in organising and conducting a claim group meeting; Lawson does not proscribe consideration of valid concerns about the authority of those who purport to act on behalf of the native title holding group in circumstances where there has been no reasonable opportunity for the whole claim group to participate in the decision-making process.

64    Finally, the State reiterates its submission that the history of the YG and GMY claims is a relevant factor for the Court to take into account when considering whether to exercise the discretion in s 84D(4). In its reply submission, the Jurruru applicant reiterates that, in the past, the Yinhawangka People have collectively refused to authorise a claim in relation to the Yinhawangka area, or the overlap area, made on their behalf (citing Smirke (No 2) at [39], [1194]-[1195]).

65    The Jurruru applicant also submits that the authorisation issues in Sandy, Akiba and Miller were the kind contemplated in the explanatory memorandum to the Bill which introduced s 84D(4) (i.e. whether the initial authorisation process was conducted properly, whether the applicant had exceeded their authority and whether the members of the applicant are dead or incapacitated), and that Lawson did not concern s 84D at all. They contend that the authorisation issues with the YG claim are substantive, not technical, and therefore it is not appropriate for the Court to exercise its s 84D(4) discretion.

YG reply submissions

66    In response to the State’s submission about re-authorisation, the YG applicant submits that this would result in an expensive authorisation process that should be unnecessary after a full hearing has occurred and findings have been made under s 223 of the Native Title Act.

67    In response to the emphasis placed by the Jurruru applicant and the State on the history of claims over the overlap area, the YG applicant submits that this history is irrelevant to the Authorisation Question. It also submits that to give prominence to this factor in opposing the exercise of the s 84D(4) discretion would be inconsistent with a party’s obligations under s 37N(1) of the Federal Court Act. It submits:

[i]t is hardly surprising that in the fringes some families within a group will not identify some parts of that group’s country as their own, and will disavow a connection, particularly in circumstances where those same families agreed with the neighbouring Jurruru group in 2001 to move the very same boundaries. The State complains of the lack of harmony within the Yinhawangka community, yet this did not stop the State from agreeing to a consent determination that included the same people in Jones.

(Citations omitted.)

68    The YG applicant submits any failure of the YG applicant to prove its pleaded case was incorrect and misses the point of the Authorisation Question, which is to assist the Court regarding its exercise of powers to make a determination, in the context of Clifton.

69    The YG applicant submits it is not necessarily the case that descendants of Nijawarla who are part of the Yinhawangka communal native title holding group are also the descendants of one or more of the ancestors who are listed in the Jones determination. Contrary to the position of the Jurruru applicant, the YG applicant agrees with the State that, since factual findings have been made about an ancestor, it is appropriate, if not imperative, to include that ancestor in the determination. The apical ancestor group is therefore distinct from Jones, which is another reason to distinguish Clifton.

70    The YG applicant also submits there is an “identical requirement of connection” as to the Yinhawangka area, as there is in the Jones determination.

Resolution

The relevance of the history of the YG claims

71    While the history of these proceedings is recounted to some extent in Smirke at [18]-[43], it is necessary to set it out again in summary. Relevantly to the current issues before the Court, on 21 June 2016, Barker J dismissed an interlocutory application of the then GMY group for orders allowing more time to conduct an authorisation meeting, which the Court had found was required: see Giggles. The name of the then lead member of the GMY applicant comes from Jambu Giggles, the brother of Mabel Tommy: see Smirke (No 2) at [95]-[96].

72    As his Honour relates at [6]-[7], by this stage, the then GMY group (in substance constituted by the same Yinhawangka people who constitute the YG claim group) had resolved an overlap between the GMY claim and the then Innawonga claim (WAD6285/1998), and what eventually became the Yinhawangka Part A and B claims were able to proceed. This left the overlap between the GMY claim and the Jurruru claim. At [13], Barker J described the materials filed on behalf of the GMY applicant as disclosing that:

the GMY claim was advanced on the basis that the GMY claimants were a sub-group of the Yinhawangka (previously referred to above as Innawonga) claim group[.]

73    Preservation evidence was taken in May 2016 in the GMY claim from Nancy Tommy and David Cox: see also [75]-[83] in Smirke (No 2). Having set out some of the case management history, Barker J found in Giggles at [18]:

The question of the authorisation of the GMY claim is the paramount issue and always has been. As soon as it became clear that the GMY claimants were not putting forward a discrete claim, saying that they and they alone, under traditional law and custom, were the holder of all rights and interests in the claim area, it became apparent and was acknowledged that, in fact, they were part of a broader group of Yinhawangka people and that other Yinhawangka people had rights and interests in the area.

74    I pause there to note that while in argument on the present application, the Jurruru applicant (and the State) appeared to seek to use the circumstances and outcome in Giggles as supportive of their positions, it seems to me the opposite is true. This recognition by Barker J, and the position to which his Honour refers of the participating parties in the GMY proceeding, disclose that what the Court found in Smirke (No 2) to be the case, was the case: namely, the traditional law and custom governing rights to the land and waters of the Yinhawangka area was Yinhawangka law and custom. That is one of the findings that now binds all of the parties, including the Jurruru applicant and the State.

75    Of the preservation evidence of Nancy Tommy, including the tapes of Mabel Tommy which ultimately proved persuasive to the Court in Smirke (No 2) on key issues, Barker J said at [20]:

Already, and in recent times, preservation evidence was taken from Ms Tommy, in the course of which materials were received into evidence that involved what her late mother had to say about the family’s connection with the claim area. And in many respects, it can be seen that not only was that important preservation evidence, but it also had the potential to inform a wider Yinhawangka audience of the asserted Yinhawangka links to the area, particularly through the Tommy family connections to it.

76    At the hearing before Barker J, the solicitor for the GMY applicant was seeking to persuade the Court to make a range of orders designed, it was submitted, to give the wider Yinhawangka community further information about the GMY claim before that wider group were to be asked to authorise the claim. Barker J was not persuaded any further time should be given, as his Honour explained in his reasons. His Honour related the evidence before him about the contended difficulties in the organisation of a meeting of the Yinhawangka, which Toby Smirke and other Jurruru-identifying people sought to attend. The fact was then, and remains now, that because of the close family relationships between the key participants in both the Jurruru claim and the GMY/YG claim (see [145]-[161] of Smirke (No 2)) that at least at a descent level, if not at an identification and recognition level, members of both “sides” could seek to attend and participate in both Jurruru and Yinhawangka meetings. Yet, they were fierce adversaries in their claims to the overlap area. This is part of the tragedy the native title system has wrought.

77    In Giggles, Barker J refused the interlocutory application to extend the time in which the GMY group could seek the authorisation of the wider Yinhawangka group for the GMY claim, and refused to order the intermediate steps proposed (for example the production of further anthropological material, said to be for the purpose of demonstrating to the Yinhawangka the merits of the GMY claim). Those merits are, I add, the ones the Court upheld in Smirke (No 2), as to the Yinhawangka area and parts of the Ashburton River area, the boundary of which is yet to be determined. Without extracting all of his Honour’s reasoning for refusing the GMY applicant any further time, the following findings (at [21]-[22]) illustrate the substance of his Honour’s reasoning:

The reasons why, on 2 February, I made the orders in the terms that I did had significant regard to the background of the proceeding. In the end, native title proceedings under the [Native Title Act] are not different from other proceedings in the Court when it comes to the obligation to advance them. The parties have to accept that there are time limits to what has to be done. Orders were made that there be a properly authorised application. 30 June was the date set. The setting of it at the time involved an exercise in judicial judgment. It meant that the GMY claimants, to put it bluntly and obviously, needed to convince the broader community of Yinhawangka people that they should support the making of this claim over land that, at that point, was, and still is, claimed as part of the Jurruru Claims.

Now, I have no doubt that, in one sense, the various things that Mr Cummins has today outlined that could be done if the variation orders were made would give, as I say, a wider Yinhawangka audience a longer period over which to consider the question whether they would support and authorise the GMY Claim. But in my view, there simply, at some point, has to be an end to that possible authorisation process. I have come to the view that the time that has been allowed is appropriate. The evidence shows me that there, to this point, has not been authorisation and, on the face of the materials I have been given and the reason for the interlocutory application before me, there is not going to be any such authorisation, that is to say, compliance with the orders made on 2 February by 30 June.

78    There are aspects of the Court’s decision in Giggles which plainly reflect the point in time at which the decision on the GMY application was being taken, and the early stage of the GMY proceeding. Barker J had heard preservation evidence from Nancy Tommy and David Cox, but had not had the benefit of a full trial in the way that occurred on the separate question in Smirke (No 2). At [32] for example, Barker J observed:

The evidence before me shows that the wider Yinhawangka group understand what the circumstances are. Some analysis has been provided as to what an important witness for the Yinhawangka people generally has had to say, that is Mr David Cox, but he was very clear in his evidence, when it was taken at the preservation hearing recently, that he considered this GMY claim area is not Yinhawangka country.

79    In Smirke (No 2), after reading, listening to and watching David Cox’s preservation evidence, and having considered the evidence as a whole and the parties’ contentions, the Court made different findings. I do not mean that at all critically of his Honour. What this shows is the value of a full trial. See generally the Court’s findings in Smirke (No 2) at [233]-[242]; [243]-[245]; [427]; [460]-[461]; [468]-[472].

80    At [33] of Giggles, Barker J acknowledged that, even without an extension of time to the Court’s orders, since the GMY claim remained on foot, the steps suggested by the GMY to gain wider Yinhawangka approval might still be taken, albeit only a short period of time remained. The GMY claim was struck out as part of the self-executing orders made by his Honour

81    On 18 October 2016 (that is, not long after the previous decision in Giggles), the YG applicant filed a new application under s 13(1) and s 61. That was the present application, WAD 490 of 2016. The Jurruru applicant (who was joined as respondent to the YG application) sought to strike this application out. Again, the arguments that the YG were a sub-group, and that there was no lawful authorisation of the claims, featured strongly in the contentions of the Jurruru applicant: see Tommy.

82    As recorded by Barker J in his Honour’s reasons in Tommy at [14], the YG applicant rejected the “sub-group” contention put by the Jurruru applicant for the reason that the basis in the new application was that the claimed native title rights are held only by the members of the YG claim group as described in the s 61 application. The YG applicant also pointed to the fact that the YG claim has passed the registration test. Barker J recorded the YG applicant’s contention at [18], and his Honour’s response to it at [19] (relevantly):

The argument put on behalf of the YG claimant is that they are not a “subgroup” but a “subset” of the Yinhawangka people and that, despite the things that some of the members of the YG claim group said previously or in recent times, they do not admit that other Yinhawangka people hold native title rights in the relevant overlap claim area.

I accept that is an arguable proposition and not one upon which I should rule at this point. I consider it appropriate that the question, based on full evidence, including anthropological opinion, might go to a trial.

83    The Jurruru applicant alternatively contended that there was insufficient evidence before the Court that the new YG claim was properly authorised. Aside from relying on the findings of the National Native Title Tribunal (NNTT) delegate who accepted the claim could be registered, the YG submitted there was sufficient evidence of authorisation, but also relied on s 84D. To the latter point, Barker J concluded at [30]

As the YG applicant has emphasised, the authorisation question can finally be dealt, if necessary, at trial under s 84D of the Act.

84    On the abuse of process argument maintained by the Jurruru applicant (again based on the existence of the previous GMY claim and allegedly insufficient differences between that claim and the YG claim), after describing the parties’ various contentions, Barker J concluded at [44]:

In my view, while there is obvious force in this submission, for the reasons I have given above, it may be contended that a new claim has been formulated on behalf of a “subset”, as distinct from a “subgroup” of the Yinhawangka people. Whether or not that claim can ultimately be made out at a trial remains to be seen. But, I do not consider that this is an obvious case of abuse of process and I accept generally the submissions made on the Stenhouse abuse criteria on behalf of the YG applicant set out above.

85    Accordingly, Barker J refused the strike out application. Shortly after Barker J’s decision on the Jurruru strike out application, orders were made under s 67 of the Native Title Act so that the Jurruru and YG claims in respect of the overlap area would be dealt with in the one proceeding. It should also be recalled it was Barker J who subsequently stated the separate questions, and programmed the matter for trial, which resulted in the decision in Smirke (No 2). I infer that was the trial his Honour was speaking of in [30] above.

86    I reject the submissions of the Jurruru applicant that making a determination of native title in relation to the Yinhawangka area in the terms set out in Smirke (No 2) and without an amended claim authorised by all Yinhawangka People would be unfair to the Jurruru applicant. For a very long time now and at every opportunity, the Jurruru People have opposed any outcome over the entire overlap area but one which recognises them as native title holders. They have taken every forensic opportunity open to them to pursue that goal. They have not been entirely successful, but they have been partially successful. Those Yinhawangka People who have comprised the YG claim group (or, before that, the GMY claim group) have persisted in their claims for recognition in the face of the forensic steps consistently taken by the Jurruru People. The present application is another example. These matters could have been the subject of a negotiated outcome, but instead the Jurruru applicant has pressed its opposition to the Yinhawangka area being recognised as anything but Jurruru country, even where at this point its standing to do is questionable to say the least. What the above history demonstrates, as do the Court’s findings in Smirke (No 2), is that it would be unfair to the Yinhawangka people who have comprised the YG and GMY claim groups, and would bring the administration of justice into disrepute, not to give effect to the Court’s findings in Smirke (No 2), in circumstances where there have been several attempts by the Jurruru People at earlier stages of these claims (in whatever form they took) to get rid of any assertion of native title in the overlap area by any competing group, which attempts have been unsuccessful.

The Court’s relevant findings in Smirke (No 2), by which the parties are bound

87    It should be recalled, as I have in previous judgments in relation to these claims, that committed, sustained and resource-intensive efforts were made by two experienced Registrars of this Court to facilitate the mediation of the dispute in respect of the overlap area. The Jurruru applicant and the YG applicant were given ample opportunities to agree on an outcome between them, and to remove the risk that the Court would make decisions wholly in favour of one party or another, or decisions with which neither of them were entirely satisfied. The latter might describe what occurred in the Court’s decision in Smirke (No 2).

88    There was no application for leave to appeal by any party from the Court’s answers to the separate question in Smirke (No 2). While the parties would have remained bound by the Court’s answers in Smirke (No 2) unless and until they were set aside after the grant of leave to appeal (assuming leave was granted), the existence of an application for leave to appeal was likely to have, in effect if not by order, stayed any further steps towards determinations of native title in the overlap area. The absence of such an application meant there was no reason to postpone moving towards determinations of native title in the overlap area, especially since these claims have remained outstanding (in one form or another) for almost a quarter of a century.

89    Relevantly to the present issue, the parties are all bound by the following findings of the Court in Smirke (No 2).

90    The overarching finding (as the answer to one of the separate questions) was that native title (in the Yinhawangka area, and the yet-to-be-determined boundary region around the Ashburton River) is held by members of the Yinhawangka Gobawarrah native title claim group as Yinhawangka people, under Yinhawangka traditional law and custom.

91    The Court found that the YG were not a community which observes and adheres to a distinct system of traditional law and custom from other Yinhawangka People. It also found the YG applicant had not proven that there is anything in traditional Yinhawangka law and custom which provides for the separate and distinct holding of native title by a sub-set or sub-group of Yinhawangka People who are descended from certain apical ancestors: see Smirke (No 2) at [4].

92    The Court found the parties did not spend a lot of time in evidence or submissions on the content of the native title rights and interests. On the basis of the evidence as it stands, and having given primary weight to the fact that there are existing determinations for the Jurruru People and for the Yinhawangka People, the Court found that the content of the rights should be determined to be the same as the rights set out in the respective determinations in Smirke (No 2) and in Jones: [9].

93    The Court found David Cox, a senior Yinhawangka man who gave evidence for the Jurruru in Smirke (No 2), held considerable antagonism towards the YG claim and claim group members. At [245] the Court found:

It seems likely his antagonism has several sources. I accept Dr McGrath’s opinion that in part it could well be sourced in feeling disrespected as a Yinhawangka person by a claim made over an area he does not consider to be Yinhawangka country. How that sits with his apparent acceptance, at least until his oral evidence in the GMY preservation hearing, of the Yinhawangka Part B determination extending to areas Mr Cox considers to be Jurruru country was not really explored in the evidence. Nor was his concession about the extent of Jiwarlangu’s country. There is something of a contradiction in Mr Cox’s positions during his evidence. It may well be explained by his evidence about the 2001 and 2010 boundary agreements, to which I refer below. In my view, it is likely Mr Cox believed agreements had been struck in 2001 and then again in 2010 and they should be honoured, irrespective of whether that meant the allocation of country which did not entirely accord with a traditional understanding of where the boundaries lay. What this means for the separate questions is a matter to which I return later in these reasons. On this basis, I consider his evidence needs to be approached with some care.

94    The Court made findings about the reasons for, and significance of, the “boundary agreements” in 2001 and 2010 which purported to favour all of the overlap area being Jurruru country. At [468]-[471], the Court made a number of findings about this matter, concluding with the following findings (at [472]):

The difficulty in this evidence [referring to some of Mr Cox’s evidence], especially the last piece is that David Cox, on his own evidence, does not consider areas such as Ngulunganga (Mt Elephant) to be Yinhawangka country and yet he agreed, in 2001, to the boundary being set so that would be the outcome. I infer he well knew and understood these matters at the time. Ngulunganga is a significant site in the region. I find that what occurred was that he, and it would appear, other Yinhawangka people, participated in a boundary negotiation which, as counsel for the Yinhawangka Gobawarrah applicant described it, had some pragmatism to it. The 2001 agreement did not reflect the views of all senior Yinhawangka people about the boundaries of their country: it reflected an agreement they were prepared to make, and live with, with the Jurruru, and to make while excluding the GMY claimants. Despite Dr McGrath’s opinions, it does appear the two sides essentially split the overlapping area in half. People such as Brendan Cook took responsibility for drawings lines on maps in relation to country they had never visited. The evidence suggests little that was “traditional” about what occurred in 2001. The exclusion of Mabel Tommy might be explained by gender factors (although no witness did), but the exclusion of Jambu Giggles cannot be. The evidence suggests pragmatism. The evidence about the 2001 negotiation also reveals a desire to cut out the GMY claim group, based in my opinion by this stage more on personal animosities than anything to do with traditional law and custom. This animosity extended to not wanting to listen to and watch the tapes from the Haydock materials in order to see why Mabel Tommy was explaining that at least some of the overlap area was country passed down from her ancestors. The principal Yinhawangka people were simply not open to discussion about the overlap area, despite what is now acknowledged to be the objective quality of what Mrs Tommy was saying, according to (amongst others) Dr McGrath, although I accept she did not see these materials until 2019.

95    At [616], the Court held that both Jurruru and Yinhawangka Peoples were language identity groups, and (as Dr Palmer described it, in a passage the Court expressly adopted), within each language group, “share laws, customs and normative referents in common”. At [627]-[631], the Court described the key features of the determination in Jones, identifying at [628] the three aspects of group membership a descent-based pathway, mutual recognition as Yinhawangka and “connection” with the land and waters which are the subject of the determination.

96    At [631], while accepting that the description of the native title holders in the YG claim was slightly different, the Court found:

On one view, this is a result of the circumstances and history of the Yinhawangka Gobawarrah claim; but on the evidence there is of course no doubt that the Yinhawangka Gobawarrah claim group members are, and have been, identified by other Yinhawangka People as Yinhawangka.

97    At [1227], in the section of the Court’s reasons dealing with what might be called the “sub-group/not a traditional group” contentions, and having referred to the Full Court’s decision in Ward, the Court found:

This, with respect, is precisely what has occurred in the Yinhawangka Part A and B determination. A single native title holding group is identified, but the descent connections of particular families or groups to particular areas or sites within the determination area may well lead to a differential exercise of native title rights within the group. The traditional law and custom which is the source of the Yinhawangka native title allows for the intramural allocations of rights and responsibilities for particular areas.

98    At [1228]-[1231], the Court found this characterisation supported by the Full Court’s reasons in Northern Territory of Australia v Alywarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 at [81] and [86]. The controlling effect of the Jones determination was a feature of the State’s submissions in Smirke (No 2): see [1232]-[1233].

99    In substance, the Court found that the lay evidence from witnesses for the YG applicant supported an approach which saw the Yinhawangka area as land and waters where rights and interests arose from Yinhawangka traditional law and customs. For example, at [1244], in relation to Nancy Tommy:

Again, Nancy Tommy is not in my opinion indicating that the GMY or Yinhawangka Gobawarrah hold rights separately and independently from other Yinhawangka; she is indicating her understanding of a descent-based system where, intramurally, different people may speak or have responsibilities for, and have particular affiliations to, particular areas.

100    At [1292]-[1293], the Court made the following finding on the nature of the native title to the Yinhawangka area:

In my opinion, the evidence does not support the Yinhawangka Gobawarrah applicant’s contention that, as a group, they hold a native title in the overlap area (or parts of the overlap area, on my findings) which is a separate and distinctive native title from the Yinhawangka People. Rather, in my opinion, native title is held in those parts of the overlap area I have identified in these reasons by the Yinhawangka People, including the members of the Yinhawangka Gobawarrah claim group. It is the traditional law and custom of the Yinhawangka People which connect them to that land and waters. It is not any separate system of law and custom. Further, there is no proven aspect of Yinhawangka traditional law and custom which apportions separate and distinct rights and interests to a sub-group of people.

Rather, the evidence suggests, as it does for other areas of the Yinhawangka Part A and B determination, that certain people have particular associations or affiliations with certain parts of the land and waters over which native title is held, and assume particular responsibilities for certain areas, or may be recognised as able to “speak” for those areas. The evidence shows those circumstances may arise because of the acquisition of rights through descent from particular ancestors. It may arise though other matters – birth, death and burial, lived association, and the like. Those matters are not the source of the rights, but they are aspects of traditional law and custom which form part of the connection of the Yinhawangka People to their land. They are, nevertheless, matters for intramural allocation.

101    At [1295], the Court found this was more likely than not to be the way elders such as Mabel Tommy understood the traditional rights and interests in this area:

She identified herself as a Yinhawangka person first, but she had a view that her ancestors’ country ran all the way down to the Ashburton River, a view which I have in substance upheld in this proceeding

102    Then, at [1300], the Court found:

On the evidence then, this aspect of the Yinhawangka Gobawarrah case must fail. The evidence, lay and expert, and the accounts from Mabel Tommy, Jambu Giggles and Muyit Smith in particular, establishes comfortably that the Yinhawangka People are a single community, with shared customs and traditions, and shared laws about the acquisition of rights in land and waters, although within that single community there may be descent-based groups with particular affiliations and responsibilities for particular areas. I am satisfied this was the kind of affiliation and responsibility of which Mabel Tommy spoke, when she described those areas of country around the Ashburton River she felt responsible for, having inherited that responsibility from her parents and grandparents. But she did so as a Yinhawangka person, recognising and adhering to what she understood to be Yinhawangka law and custom, the same law and custom which governed her, and her family, in relation to the land and waters which are covered by the Yinhawangka Part A and B determination. The fact this determination was not made until sometime later does not affect how her accounts in 1999 are to be understood – she was, I am satisfied, speaking about law and custom operating across all of Yinhawangka country.

103    Lastly, at [1303], and following decision in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183, the Court found that the existence and content of the Yinhawangka native title determination in Jones precluded a finding that there was a YG sub-group which, amongst only themselves, held native title to the Yinhawangka area. Having set out various passages from the Courts reasons in Jones, and also the group membership description in Schedule 7 to the Determination, the Court held (at [1308]):

These are descriptions which plainly equate with the descriptions of a single community made up of various descent groups, with connections to particular areas within the wider country held communally by the whole group, as described by the Full Court in Alyawarr[a] in the passage I have extracted at [1229] above, and consistently with the principles set out in Bodney v Bennell and Croft to which I have earlier referred. In the face of that determination, it is difficult to see how this aspect of the Yinhawangka Gobawarrah’s case could ever have succeeded. However, as I have found, it also fails on the accounts given by Mabel Tommy, Jambu Giggles and Muyit Smith, the principal sources of the Yinhawangka Gobawarrah applicant’s positive case.

While I accept Jones was a consent determination, and therefore more flexibility may have been applied to the establishment of the requirements in s 223 of the Native Title Act, the members of the Yinhawangka Gobawarrah claim group, as native title holders in Jones, are bound by that determination. Their present case seeks to depart from its premises in a fundamental way.

104    At [1310], the Court confirmed that the group which holds native title to the Yinhawangka area is the Yinhawangka People, as well as recognising at [1311] that not all Yinhawangka people would welcome this finding.

Clifton does not control the outcome of the interlocutory application

105    Certain aspects of Clifton are not in dispute. Section 213 of the Native Title Act imposes a limit on the Court’s powers, and on its jurisdiction, to make a determination of native title. Any determination must be in accordance with the procedures in the Act. Fundamentally and relevantly those procedures require an application for a determination of native title under s 61 of the Act. Hence the Full Court’s reference at [43] to the need to determine what procedures the legislature intended to be “critical”, in the sense described in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28l 194 CLR 355. That was the issue in Clifton: Mr McKenzie had not made an application under s 61 of the Act. He was a respondent to a s 61 application and was not a part of the claim group that brought the s 61 application. To make a determination in his favour under s 225 would have been contrary to the legislative structure and intention of the Native Title Act.

106    There is however, no suggestion by the Court in Clifton that s 213 is to be read literally, or that the term “in accordance with is to be given some strict and technical operation so that any deviation from the procedures for which the Act provides removes or renders ineffective the jurisdiction and power of the Court. Paragraph [37] of Clifton illustrates the Full Court intended no such approach.

107    Further, s 213 operates on the whole of the procedures in the Native Title Act, and not simply the terms of s 61. For example, it includes s 84D(4).

108    I accept that in [57] of Clifton, the Full Court expressly stated that before any determination may be made that native title is held by a particular group, an application must be:

made under Pt 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1).

(Emphasis added.)

109    However, as I have found, that statement cannot be read literally. If it were to be, it would be incompatible with all the kinds of circumstances to which the Full Court referred at [37], each of which would fall foul of a literal reading of this passage. For example, where an application by a group includes descendants of 5 apical ancestors and those people authorise a claim, but a determination is proposed in respect of 7 apical ancestors, the “particular group” in whose favour the determination is proposed is not the same “particular group” as the one who authorised the claim. Yet this is a wholly commonplace occurrence, in terms of difference between group members as identified in an application, and group membership as identified in a determination.

110    That is why, in my respectful opinion, [57] in Clifton must be read with [58]. Paragraph [58] makes it clear that the Court’s focus is on a situation where two competing groups claim the same land and waters. That was, after all, the factual situation in Clifton, where Mr McKenzie claimed to represent the Kuyani People, and where the Kuyani people had previously had their own applications, but they had been struck out. What Mr McKenzie sought, as an individual respondent and as the extract in [9] at Clifton makes clear was:

a determination…that the common or group rights in respect of the hachured area on the attached map are held by the Applicants on a shared basis with Mr McKenzie and other Kuyani with ancestral connection to that area, in accordance with Murranginhi traditional law and custom.

111    Finn  J held Mr McKenzie was not entitled to a determination of that kind, and the Full Court agreed. In contrast, as Finn J pointed out in Kokatha at [13], by reference to Mansfield J’s earlier reasons in the same proceeding, members of another claim group who assert native title in an area of land and waters are not precluded from “putting forward their claim in a defensive attempt to avoid the dilution of those interests”. That is the situation Kokatha and Clifton were dealing with.

112    Indeed, this focus on whether an individual Indigenous respondent (or respondents) could obtain a determination of native title is also apparent from the way the Full Court posed the question it needed to answer, at [36], just before it made the important distinctions in [37]. The question at [36] was posed thus:

Does it therefore follow, as the Commonwealth and Mr McKenzie contend, that provided that a valid s 13(1) application (ie an application made by a person or persons properly authorised by the native title claim group) has been made in relation to an area, the Court may make a determination that another group of persons, who have not authorised the making of an application for a determination of native title in relation to that area, hold common or group rights comprising native title in relation to that area?

113    That understanding of the focus in Clifton is also consistent with the Full Court’s reliance on Moses at [61] of Clifton.

114    Further, what the Full Court contemplates in [58] is that not only is it appropriate for there to be authorised applications by groups claiming native title over the same land and waters, but that there will be an order under s 67 to deal with the claims in the one proceeding. That is what occurred here as between the Jurruru claim and the YG claim – and that was, as the Full Court states in the last sentence of [58] “in accordance” with the procedures of the Act.

115    In my opinion, what is said at [57] of Clifton should not be read literally, but must be read with [37] and [58] in particular. The statement at [57], taken alone, therefore does not control the outcome of the present circumstances in the way submitted by the Jurruru applicant and the State. That said, I accept the underlying principles in Clifton are of importance in determining the outcome of the Authorisation Question.

Alternatively, the present situation could fall within [37] of Clifton

116    To recap, in [37], the Full Court said:

It is important to note that the situation posited by the above question is quite different from the situation faced by the Court when it is required to determine a dispute (a) as to the true membership of a native title claim group; (b) concerning the boundaries of the area over which the claim group holds native titles; or (c) as to the nature and extent of the native title, rights and interests held by the claim group. The resolution of disputes of this kind is an inherent aspect of the determination of an application made under s 13(1).

117    Both senior counsel for the Jurruru applicant and counsel for the State accepted, correctly, that there was a spectrum in the subject matter dealt with in the distinctions mentioned by the Court. The example I have given above about the Jurruru application being authorised as a claim over the whole of the overlap area, but a determination which will be made being only over the southern portion of it is a clear example. The Court has jurisdiction and power to make such a determination despite the substantive way in which that determination will deviate from the s 61 application authorised by the Jurruru People. There will be no need for re-authorisation, and no need for express authorisation of the determination ahead of it being made. The determination will be made as a consequence of the findings of the Court.

118    It is also clear by the use of the phrase “disputes of this kind” in [37] that the Full Court is not intending to set out an exhaustive list of the kind of disputes which it intends to distinguish from the factual situation in Clifton.

119    While the second and third examples of disputes given by the Full Court are relatively self-explanatory, even within those there are qualitative differences. For example, a claim that is authorised as a claim for non-exclusive native title over land and waters, but during a trial process sufficient evidence is adduced to support a claim for native title rights in the nature of exclusive possession rights being available, and a determination in relation to exclusive rights is sought. That would be a fundamental change in the character and content of the rights asserted, but in my opinion it could not be doubted the Court would have jurisdiction, and power, to make a determination which reflected its findings on the evidence at trial, even though the particular group had authorised a claim for non-exclusive native title rights. The same would be true in reverse: that is, a trial on exclusive rights but a finding of non-exclusive rights.

120    The Full Court does not further explain what it means by the first example – disputes about the “true membership” of a native title claim group. There is no warrant to read that phrase narrowly, but by the same token, these are the Full Court’s reasons for judgment and not a statute: the important point is that issues about group membership is one of the matters which the Full Court accepts may lead to a determination of native title by the Court departing from the terms of an authorised s 61 application.

121    In the present case, there were three applications made under s 13(1), in accordance with s 61. The two Jurruru applications, and the one YG application, have passed the registration test. The two Jurruru applications taken together on the one hand, and the YG application on the other (with some presently irrelevant exception for the very northern tip of the YG application area) covered the same land and waters. Orders were made under s 67, in accordance with the requirements of the Act.

122    The YG s 61 application described the native title claim group as:

those descendants of the following Yinhawangka ancestors:

(i) Wilga and Thurantajinha;

(ii) Nijawarla and Gujarda

who identify as Yinhawangka or Gobawarrah Yinhawangka and have a connection with the land and waters in the application area in accordance with traditional Yinhawangka laws and customs.

(Emphasis added.)

123    While it is true that the YG case was advanced on the basis of a primary submission that YG were, themselves, a native title holding group separate from the Yinhawangka People, this was rejected by the Court. What was never in dispute however, was that all the members of the YG applicant, and the identified members of the YG claim group, were Yinhawangka People, and the source of rights and interests in the overlap area (and the Yinhawangka area) was contended to be Yinhawangka traditional law and custom.

124    It is possible to characterise the Court’s findings in Smirke (No 2) that native title in the Yinhawangka area was held by those people descended from Thurantajinha and/or Nijawarla who identify as Yinhawangka and have a connection to the Yinhawangka area, as findings in a dispute about the “true membership” of the native title claim group. The Jurruru applicant’s primary case was that the Yinhawangka area was Jurruru country, and not Yinhawangka country or YG country. It did not succeed in proving its case that it was traditionally Jurruru country. While it did succeed in its contention that the YG were not a separate native title holding group, explicit in this contention was the proposition that those who comprised the YG claim group were Yinhawangka People, a proposition also common to the YG’s underlying position.

125    Therefore, the dispute in Smirke (No 2) could, in my opinion, be accurately characterised as in part about the “true membership” of the group of Yinhawangka People who claimed native title in the overlap area, and whom the Court found had native title in the Yinhawangka area. According to the Court’s findings, the group is not identical with the wider group in Jones, having a more confined apical ancestor group, because of the historical fact of a separate s 61 application over a particular area (as s 61 requires), and the fact (borne out by the findings in Smirke (No 2)) that only some of the Jones Yinhawangka apical ancestors had rights and interests in the Yinhawangka area.

The possibility of an authorised determination rather than an authorised amended application

126    One of the matters which arose during argument in part because of an examination of some of the authorities, especially in consent determinations, is what kind of authorisation might be required. In a number of existing consent determinations, where there are changes (sometimes very substantial ones) to a claim group description, often to the identification of apical ancestors, but also to other conditions for group membership; or changes to the claim area (at least, reductions), an authorisation meeting is held for the purposes of authorising the particular, amended form of native title determination, and authorising the members of the native title applicant to enter into a consent determination on those amended terms.

127    The Jurruru applicant’s primary case is that the original YG s 61 application must be properly authorised by the wider group of Yinhawangka People: since it is not, that is the end of the matter, and the Court should dismiss the YG s 61 application. As I understand it, as a secondary position, the Jurruru applicant submits that what should occur is that the existing s 61 application itself must be amended and “re-authorised” by the wider Yinhawangka People, being the native title holders in Jones.

128    It is unclear what the Jurruru applicant suggests needs to be authorised – the original s 61 application (the core aspects of which have been ruled upon by the Court in Smirke (No 2)) or a new claim which reflects the Court’s findings, which would seem to set the whole separate question process in Smirke (No 2) at naught and could well create some further room for argument about how the ‘new’ claim should be decided, as well as cast doubt on the status of the Court’s decision in Smirke (No 2).

129    In contrast to the position of the Jurruru applicant, which admitted of little flexibility, the State did concede that it would be possible for an authorisation meeting to be held, at which the Yinhawangka People (as described in Jones) were asked to authorise a determination (rather than an application) over the Yinhawangka area.

130    It was unclear whether the State was submitting the addition of Nijawarla needed to be authorised, since that is a finding by the Court and fairly obviously within the qualifications in [37] of Clifton. One of the difficulties with this kind of approach is seeking endorsement for matters on which the Court has made findings that bind the parties. The State’s position seemed to contemplate that if the proposed determination (not by consent) were not authorised by the wider Yinhawangka People, or parts of it were not authorised (eg Nijawarla was rejected as an apical ancestor) then there would be no legitimate way to implement the Court’s findings in Smirke (No 2).

131    The State also submitted that even this potential option highlighted that in some ways the Authorisation Question might be premature, as the attitude of the Yinhawangka People was unknown. As I explain elsewhere, I do not agree it is accurate to state as an unqualified proposition that the attitude of the Yinhawangka People is “unknown”.

132    As the YG applicant submits, the amendment and re-authorisation of a s 61 application to reflect the Court’s findings, assuming that can be done (as to which see [142] below), would be time consuming, resource intensive and expensive. It would likely involve the re-engagement of the notification and registration processes by the NNTT. Unless there is no other lawful alternative, in the particular circumstances of these proceedings, that is not a process which is consistent with the administration of justice, and it is certainly not consistent with ss 23, 37M and 37N of the Federal Court Act. As I explain elsewhere, it also tends to diminish, or perhaps even set at naught, the Court’s findings in Smirke (No 2), and could place the NNTT in a difficult position in relation to the Court’s findings and what should flow from them.

133    For those reasons, it does not appear to me appropriate to contemplate that a proposed minute of determination could be drawn up and submitted to a meeting of Yinhawangka People for authorisation. I note the parties are agreed a determination of the Yinhawangka area will not be a consent determination, just as the determination over the Jurruru area will not be a consent determination. Neither party was wholly successful in Smirke (No 2).

134    I do not consider the Jurruru applicant’s option of an amended claim under s 61 being submitted to authorisation by the wider Yinhawangka group needs to be further explored because of the conclusions I have reached about s 84D(4), which I consider to be the option which is most compatible with the interests of the administration of justice in this particular situation.

Are the consent determination cases distinguishable because of the separate power in s 87(1A)?

135    Somewhat late in its oral argument, the Jurruru applicant sought to distinguish all of the consent determination cases to which the parties had referred, on the basis that the power to make a determination of native title by consent is a separate power, contained in s 87 and 87A.

136    It can be accepted that the Native Title Act confers a specific power to make a determination where agreement is reached on the terms of an order. Agreement as to the terms of an order may, as s 87 makes clear, extend to orders giving effect to the terms of an agreement that involve “matters other than native title”: see s 87(4) and (6). To the extent required, the Court’s jurisdiction under the Act is expressly extended to include orders concerning agreements “that involve matters other than native title”: see s 87(6). This provision may reflect an abundance of Parliamentary caution rather than necessity, but that matter need not be further discussed.

137    It can also be accepted, as I observed in argument, that there is otherwise no express power conferred upon the Court to make a determination of native title, outside s 87 and 87A. Section 13(1) on its face concerns applications and, implicitly, jurisdiction. Nor does s 13(4) (relating to variations or revocations) expressly confer power. Section 81 confers jurisdiction on this Court, to the exclusion of all other courts except the High Court, to “hear and determine applications filed in the Federal Court”. Section 94A, read with s 225 concerns what must be contained in a determination. Section 213, as the Full Court held in Clifton, imposes some limitations on the Court’s powers, which the Full Court in Clifton identified as located in s 39B(1A)(c) of the Judiciary Act 1903 (Cth). None of the provisions in the Native Title Act itself are empowering provisions in relation to non-consent determinations in the express way that 87 and 87A are. Nor, for that matter, is s 86G (unopposed applications).

138    Accepting those matters does not entail accepting the proposition that the authorisation process which has become a relatively regular feature of the consent determinations – namely the authorisation of a proposed minute of consent determination where that proposed minute contains substantive changes to the way the claim was expressed in the s 61 application – is somehow tied as a matter of power to the terms of s 87 and 87A. The most obvious reason why this is not so is that there is nothing in the purpose, context or text of s 87 and 87A which would suggest that the importance attributed by the scheme of the Native Title Act to the need for an authorised claim under 13(1) and 61 is diminished where the parties reach agreement on the terms of orders constituting a determination of native title. For example, it cannot be suggested that the kind of proposal advanced by the Commonwealth and Mr McKenzie in Clifton could somehow be achieved under s 87 and 87A by presenting a proposed minute of determination authorised by a s 61 claim group and incorporating recognition of the native title of Indigenous respondents, and yet could not be done in a contested determination.

139    To my mind, the fact that neither the Court nor the participating parties have ever seen any difficulty in making a determination of native title under s 87 or 87A where the proposed determination differs substantially from the terms of the s 61 application, confirms that Clifton should be understood in the way I have explained above. What is critical, and fundamental, is that there must be an initiating process, authorised, by which a claim group seeks a determination of native title, such title generally being the recognition of group or communal rights. That is what is fundamental to the scheme of the Act. The scheme of the Act then gives considerable flexibility to the Court and to the parties to shape the content of the ultimate determination of native title, provided compliance with s 94A and 225 occurs. Section 84D(4) adds to that flexibility.

140    In this context, a second authorisation of a proposed determination modified from the proposed determination set out in the s 61 application, may be necessary to persuade the Court it is appropriate to make such a determination. “Appropriate is the express language in s 87 and 87A, but the concept of appropriateness is also inherent in the powers conferred on the Court by s 23 of the Federal Court Act (see Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622). To say as much is not to undercut or diminish the importance of the amendment provisions in the Native Title Act. They may well need to be deployed at an earlier stage of a proceeding, depending on the level of contest in relation to an s 61 application, as much for procedural fairness reasons to other parties as anything else.

141    But at the end of a proceeding, where a determination, or determinations, of native title are to be made either by consent or otherwise, there is no reason to see the scheme of the Native Title Act as precluding, in all matters, a second authorisation of a proposed minute of determination. Whether that is the most appropriate way to proceed will depend on the facts and circumstances. As the Full Court in Moses made clear at [373]-[374], the way native title holders are to be described need not follow any formula. And as many decisions of this Court demonstrate, in order to arrive at the correct description for orders that will operate in rem and for future generations of native title holders, it is important that the scheme allow for some flexibility in altering claim group descriptions prior to a determination.

142    Further, although this was not expressly submitted by the YG applicant, another pertinent distinction between the contested determination process (as here) and the consent determination process is that, in reality where there are competing overlapping claims, and intra-group disputes, attempting to return to a claim group re-authorisation process after a Court has made findings on contested evidence is fraught with problems. There is, for example the clear potential for a claim group to undermine the findings of the Court, to which it has otherwise submitted itself. Or, as here, there is the clear potential for individuals in a wider group who, for a variety of non-traditional reasons may not support the Court’s findings, to use an authorisation process to undermine those findings. That would bring the administration of justice into disrepute.

143    The YG applicant does not propose any further authorisation process. It maintains the costs, delay and resources associated with a second authorisation process should not be forced upon it, either because a determination can simply be made on the basis of the Court’s findings, or through an exercise of discretion under s 84D(4).

144    With respect, the contentions by the Jurruru applicant about the consent determination cases and the question of power were something of a distraction. The main point for present purposes is that the many consent determinations where a minute of proposed determination is authorised that contains a number of changes, including to the description of the native title holding group, are simply not an appropriate model for the situation the parties find themselves in here, after a contested hearing. That is not to say such a process might not be appropriate in other cases, and in my respectful opinion it is available as a matter of power.

The position of the Yinhawangka People

145    Following the decision in Smirke (No 2), the parties were ordered to provide submissions as to the issues remaining to be decided in order for there to be a determination of native title over the overlap area. The YG applicant submitted that one of these issues was the proper description of Yinhawangka People who hold native title rights and interests in the overlap area. This should be understood to be a reference only to the Yinhawangka area, the rest of the overlap area having been found to be the country of the Jurruru People, subject only to determination of how and where along the Ashburton River region the boundaries should be drawn. It was the initial position of the YG applicant that, once the parties had reached agreement with respect to the issues to be determined, the YG applicant would need to seek consent to the minute of proposed determination from the Yinhawangka common law holders and on the nomination of a prescribed body corporate (PBC) pursuant to s 56 of the Act. In other words, the evidence was ( as I describe below) that the YG applicant and claim group were willing and ready to engage with the wider Yinhawangka group, but resisted the imposition of formal authorisation processes. In my opinion this position is appropriate in the unusual circumstances of these proceedings.

146    At a meeting on 29 March 2021, the YG claimants agreed that it would be realistic that, by 30 June 2021, the YG and Jurruru applicants would consult with their respective common law holders to draft terms of determination and, if possible, the nomination of a PBC, notwithstanding the issues that the YG applicant had faced in obtaining funding for those and other activities. The YG claimants resolved to invite other Yinhawangka People to any future claim group meetings, to consult with the wider Yinhawangka People about any proposed determination of native title and to consult with the Yinhawangka Aboriginal Corporation (YAC) about the need to nominate a PBC. The YAC is the PBC which holds the native title in trust for the Yinhawangka native title holders, as recognised in Jones.

147    However, as became clear at the case management hearing before this Court on 31 March 2021, counsel for the YG applicant expressed reservations about the extent of the resources and finding required to hold a full authorisation meeting compliant with the now considerable body of law around s 251B. The submission of the YG applicant was, as it remained in the hearing in this matter, that such a meeting was not required by law, or alternatively that s 84D(4) of the Native Title Act can and should be invoked.

148    Following the 31 March 2021 case management hearing, the parties conferred with one another and with McGregor JR to prepare a draft timetable that set out the next steps in these proceedings and the deadlines by which those steps were to be completed. A further case management hearing was conducted on 23 April 2021 to finalise that timetable. At that hearing, the Court was informed that the YG applicant had written to the YAC to inform them of the YG applicant’s interpretation of this Court’s findings in Smirke (No 2), particularly regarding the additional apical ancestor, Nijawarla. The YG applicant was informed that the YAC had scant funding and that a meeting with the YG applicant might be “a lot of trouble” for the YAC in circumstances where that corporation was presently preoccupied with new heritage protection legislation in Western Australia. Counsel for the YG applicant informed the Court that the YG applicant and its legal representatives would continue to communicate with the YAC, including at a meeting to be held on 28 April 2021, but that the YAC’s response might be relevant for the Court’s consideration of whether to join the YAC as a party to these proceedings. The Court directed McGregor JR to correspond with the YAC after 28 April 2021 concerning their possible joinder to the proceedings and, on 7 May 2021, McGregor JR caused an email to be sent to YAC to enquire whether YAC had a view in relation to it being joined as a party to these proceedings.

149    The Court understands that, by an email dated 25 May 2021 from its lawyer, Mark Edwards of EMK Lawyers, YAC informed McGregor JR that the corporation did not consider it necessary, nor desirable, to be joined to the proceedings.

150    In any event, YAC has not sought joinder and has not been joined to these proceedings. In the orders referring the Authorisation Question to hearing, this Court invited written submissions from any intervener who wished to be heard on the question. Neither the YAC nor any member of the Yinhawangka People who might be considered to stand “outside” those Yinhawangka People who have identified as Yinhawangka Gobawarrah have made any application, or submission. No communications to the Court have been received.

151    In my opinion YAC was on notice about the decision in Smirke (No 2), and how the YG applicant proposed to progress the matter to a determination. I infer YAC had been on notice about the first separate question proceeding. I infer it was on notice about this hearing. However, YAC has appears to have decided not to intervene, nor has it requested to be joined, and it has not voiced any position to the Court about these matters.

Conclusions on the correct characterisation and consequences of the Court’s findings in Smirke (No 2)

152    It is unclear whether the reference by the Jurruru applicant to Jango at [84]-[85], [91]-[92] and the concept of a “roving inquiry” was intended to be a criticism of the Court’s findings in Smirke (No 2), or something else. There is clearly no “roving inquiry” occurring at the present stage. Nor was there in Smirke (No 2), since the Court was answering separate questions, although the answers did not match the answers which either native title claimant sought.

153    The Court has found native title exists in the Yinhawangka overlap area. There is no doubt at all about that. It has made findings about what is the system of traditional law and custom in which that native title is sourced. It has made findings about which people, at effective sovereignty, held rights and interests in the Yinhawangka area under that system of traditional law and custom, and should be identified as apical ancestors. All these matters were contested, and resolved on the evidence.

154    The Yinhawangka area is not “no man’s land”. The Court’s findings demonstrate the significance of some parts of the land and waters in the Yinhawangka area to the people whose country it is. In these circumstances, the interests of the administration of justice would not be served by a dismissal of the YG s 61 application. That would not be compatible with the objectives of the Native Title Act to provide for the protection and recognition of native title. nor would it be compatible with the objectives of the Federal Court Act, in particular the overarching objective provisions in s 37M and 37N, but also the legislative instruction in s 22 of the Federal Court Act:

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

155    Nor would the interests of the administration of justice be served by requiring the YG applicant to amend its application (presumably to reflect precisely the Court’s findings in Smirke (No 2), although the State and the Jurruru applicant did not really develop this point) and submit it for authorisation to a wider group of Yinhawangka People. That course of action raises the real possibility of an amended claim not being authorised, not for any reason stemming from traditional law and custom, but stemming from the antagonism to the YG group which I found in Smirke (No 2) to be a core feature of the interaction of Yinhawangka People for decades now, and which I also found affected the evidence of people such as David Cox and Brendan Cooke (as to the latter see Smirke (No 2) at [272] and [274]).

156    Although I have found it may be possible to characterise the Court’s findings in Smirke (No 2) as no more than findings about the “true membership” of the claim group, and as findings that there is a wider membership of the claim group than articulated in the YG’s s 61 application, I accept that the history of the competing native title applications about the overlap area, and the various challenges in relation to those people who were part of the GMY claim and then the YG claim, mean that it could be seen to be stretching the (undefined) concept of “true membership” as set out in Clifton at [37] to apply it here.

157    In the particular circumstances of these proceedings, the course which is most appropriate is for the Court to exercise its power under s 84D(4) to make a determination notwithstanding a defect in authorisation. I therefore turn to consider s 84D(4).

The s 84D(4) discretion is available

158    In its reply submissions and during hearing, the Jurruru applicant submitted that the Court had no power to exercise its discretion under s 84D(4) where there is no clear evidence that the variation to the description of the native title holders had been agreed to and authorised by the native title claim group or there was no coincidence between the group for which a determination is sought and the authorisation group. In the Jurruru applicant’s submission, s 84D is to be read “with the decision in Clifton”, in that the discretion in s 84D(4) is not available to the Court if there “is no authorised claim in respect of which [a] proposed determination can be made”. Over the course of the hearing, it became clear that the premise of the Jurruru applicant’s position was that the proposed determination of the Court in favour of the Yinhawangka People could not be characterised as a determination of the application made by the YG applicant, and therefore the power in s 84D(4) was not available to the Court. In the alternative that the proposed determination could be characterised as a determination of the YG application, the Jurruru applicant submitted that the Court should not as a matter of discretion exercise the power in s 84D(4).

159    I do not accept the submissions of the Jurruru applicant that in the circumstances which exist after the Court’s decision in Smirke (No 2), the power in s 84D(4) is not engaged, or not available.

160    Section 84D(4) is a broadly expressed power. As Mansfield J noted in the Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; 204 FCR 542 at [46], s 84D(4), which must be read with s 84D(3), addresses two different circumstances. On the one hand (s 84D(3)(a)), it can apply where an application “does not comply with s 61” because it was “made by a person or persons who were not authorised by the native title claim group to do so”. On the other hand (s 84D(3)(b)), assuming proper initial authorisation by a claim group, it can apply in relation to dealings” (see s 62A) by an applicant with a s 61 application which go beyond the applicant’s authorisation by the claim group.

161    The present issue concerns the first category. In contrast, Far West Coast concerned the second category. Consistently with the authorities to which Bromberg J refers in Ashwin at [181], the “accepted construction” of s 61(1) is that “the authorisation contemplated is not of the persons who claim to be the native title holders, but is rather that of the actual holders of native title” (emphasis added). While the logic of this approach has been questioned (see Strickland v Western Australia [2013] FCA 677 at [12]), the approach has not been overruled. It must of course be read subject to [58] and [37] in Clifton.

162    In the present case, the “actual holders of native title” in the Yinhawangka area are, by reason of the Court’s findings in Smirke (No 2), the Yinhawangka People. Yet the s 61 application was made by a sub-set of Yinhawangka People; namely those who comprise the YG. That is precisely the situation to which s 84D(3)(a) relates.

163    If accepted, the Jurruru applicant’s argument on power would deprive s 84D(4) of a significant amount of work. It is not to be assumed that was Parliament’s intention when the text of the provision is so broad and when the provision is obviously remedial.

164    In Akiba at [913]-[933], the entire process of the appointment of the four individuals who jointly constituted the applicant was challenged by the State and the Commonwealth after two of the four people had passed away before the matter was completed. Finn J found that the claim was not authorised under s 61 and 251B, but decided to exercise the discretion under s 84D(4), finding at [930]-[933]:

The process adopted doubtless drew upon traditional practices. The representatives, for example, were senior elders. Nonetheless, I cannot on the evidence say that the decision-making process was a traditional one or that it was an appropriate adaptation of a traditional process to meet a novel situation. It reflected no more than quite reasonable improvisation in the circumstances. Equally, I cannot say upon the evidence that, for s 251B(b) purposes, it was a process of decision-making agreed to, and adopted by, the persons in the native title claim group. At best one could infer a significant level of subsequent acquiescence in the process adopted. This said, it is difficult to envisage how a s 251B(b) process could be adopted effectively given the Islanders' diaspora. I need hardly repeat the 2006 census figures quoted early in these reasons: see “The people”, above.

I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination.

I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act. Indeed I am not at all sanguine that strict compliance could be secured in any event for logistical reasons.

What should be said is that these proceedings have been longstanding. The trial has been conducted in tandem with a considerable number of land determination applications almost all of which have been prosecuted to finality (usually in a consent determination). A significant part of the trial was conducted in Torres Strait and the Court's presence there was widely publicised. Many elders gave evidence. Finally, the claim group is composed, in aggregate, of the same Islanders who were successful claimants in the land determinations.

In these circumstances I will order that the present application continue on foot until it is determined.

(Emphasis added.)

165    The part in bold should be emphasised because it illustrates the breadth and depth of the power in s 84D(4). On Finn J’s findings, this was a s 61 application where it was probably never possible to comply strictly with s 251B. That is a significant finding to make. That is, this was not only a s 61 application that was never authorised in accordance with s 61, it was one which probably could never have been. His Honour did not suggest, nor apparently did any party suggest, that the power in s 84D(4) was not available in the circumstances.

166    The power being available, the real question is whether it is appropriate in the circumstances for it to be exercised. Many of the findings made by Finn J in Akiba apply to the present case, albeit that the trial in Akiba was a proportionately much larger undertaking so that his Honour’s observations about the contrary approach bringing no credit on the legal system were amplified. However a similar observation on a smaller but still significant scale can be made here, as I explain below.

Why it is appropriate to exercise the discretion in the present case

167    Section 84D(4) requires the Court to balance “the need for due prosecution of the application and the interests of justice”. That phrase suggests the Court should pay particular regard to the stage at which the proceeding is at, and to what might be competing or conflicting interest of justice. As I have noted above by reference to Akiba, the more advanced the proceeding, the more resources which have been expended, the more the balance might favour an exercise of the power. However this is only one factor. Nevertheless, taking into account s 37M and 37N, it is an important one. In a situation such as the present, where a strike out application was brought but was unsuccessful, the prospect of returning claim group members to the start of a process that has taken more than 20 years to reach this point, is worthy of the description of bringing no credit on the legal system.

168    The 2007 Explanatory Memorandum to the Bill which introduced s 84D(4) (extracted in Far West Coast at [48]) gives some examples of circumstances in which it might be employed, but they are not exhaustive.

169    In my respectful opinion, it is not the case that s 84D(4) discretion extends only to” technical” or “procedural” matters (whatever they might be). It covers such matters, plainly, but its terms are no so limited. It is a broader dispensing power than that. Thus despite the language in some authorities (e.g. Booth at [44]), in my respectful opinion the boundaries of the power are not marked by the distinction between “substance” and “form”. That said, it is no doubt correct that a matter which will significantly inform the exercise of the discretion is the nature of the alleged defect in authorisation. Booth was a strike out application. The stage of the proceedings may be highly relevant to the exercise of the s 84D(4) discretion, as Akiba demonstrates. It was brought by both the responsible representative body (QSNTS) and by the State, each with differing contentions but both challenging authorisation. As with Risk v National Native Title Tribunal [2000] FCA 1589, the Court’s focus was on what might be the consequences – adverse and irredeemable consequences – of all allowing a s 61 application to proceed where it was authorised by only part of a claim group. In Booth, Jagot J observed (at [44]):

It is not in the interests of justice that the Kungardutyi Punthamara application be permitted to proceed. The defect in authorisation involves a matter of substance, not form. The confining of the Kungardutyi Punthamara native title claim group to four descent lines when comparison between that application and the Wongkumara application discloses other descent lines, members of which must also be members of the Kungardutyi Punthamara native title claim group, means that the Kungardutyi Punthamara application cannot have been properly authorised. It would be contrary to the interests of justice to permit the Kungardutyi Punthamara application to proceed in these circumstances. The conclusions I have reached below, that the Kungardutyi Punthamara application involves an abuse of process and has no reasonable prospects of success, each also provide additional independent grounds on which to reach this conclusion.

(Emphasis added.)

170    In other words, her Honour’s view on the evidence was that a number of people from other descent lines would be excluded from any determination as native title holders. In a legislative scheme designed to identify and protect native title, and correctly to identify the holders of that title, such a result could not be said to be in the interests of the administration of justice.

171    In my respectful opinion that consideration of exclusion of persons who may well be native title holders also explains the reasoning in cases such as Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1192], where, in describing the strike out process in s 84C, Lindgren J commented:

How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the ‘claim group’ (all the ‘claimants’).

172    This is what led Lindgren J to conclude at [1223]:

I do not see any basis on which the court could make a determination in favour of a group that did not include those members of the Wongatha people who were excluded in the Wongatha form 1 filed on 1 November 1999. As Mansfield J held in both Dieri People and Edward Landers, s 61 permits a native title determination application to propose only a determination in favour of all the members of the native title claim group. By reason of the exclusion, the Wongatha claim does not meet the requirements of s 61(1) and (4).

173    That is not the situation here. No Yinhawangka People are being excluded. In contrast, as a result of the Court’s findings (but based squarely on the evidence presented by the YG applicant) a wider group of native title holders are being included. The Court in Smirke (No 2) found the Yinhawangka area was not Jurruru country and so there is no relevant question of exclusion or adverse consequences in relation to the Jurruru People; indeed it is not a matter for the Jurruru People at all. It might be said that because two Yinhawangka men gave evidence on behalf of the Jurruru People and against the YG claim, this affects what is in the interests of the administration of justice. However, this is where the Court’s reasons in Smirke (No 2) must be given careful attention. As I have explained above in a more summary form, the Court found that there were reasons for the position adopted by those two men which were not based in Yinhawangka traditional law and custom.

174    There is no inconsistency, unfairness or incompatibility with the objectives of the Native Title Act in exercising the s 84D(4) discretion in this case. The YG proceeding has always been based on the proposition that it is Yinhawangka traditional law and custom which gave rise to native title in the overlap area. The YG s 61 application was replete with such references: Schedule F (General description of native title rights and interests) is a good example. Schedule G is to similar effect. The description of the native title claim group in Schedule A was:

The native title claim group comprises those descendants of the following Yinhawangka ancestors:

(i) Wilga and Thurantajinha;

(ii) Nijiwarla and Gujarda

who identify as Yinhawangka or Gobawarrah Yinhawangka and have a connection with the land and waters in the application area in accordance with traditional Yinhawangka laws and customs.

175    The Court’s answers to the separate question in Smirke (No 2), and its findings as to the Yinhawangka area (and putting to one side the precise boundaries around the Ashburton River) closely align with this description. While it is the case that in Jones, there were two further apical ancestors identified, that is no more than the consequence of the combination of what were originally two separate claims (Yinhawangka Part A and Part B) into one consent determination. And if there had been less antagonism and conflict between some Yinhawangka people who are native title holders as a result of Jones, and those Yinhawangka who brought the GMY and YG claims, then I find it was quite likely that what is now the Yinhawangka area for the purposes of these reasons could have been included in the determination in Jones. As it has turned out, because of the conflict, and because of the claims of the Jurruru People, the overlap area had to be dealt with separately, as a separate claim area, and Yinhawangka ancestors with connections to that area had to be identified separately. That in itself is no reason to withhold the s 84D(4) discretion.

176    These historical facts do have the consequence that the determination of the Yinhawangka area, must – as the Native Title Act requires – be a determination in relation to that, separate, area. The Jones determination is framed in terms of a connection with the determination areas. There is no reason in principle this determination could not be framed in the same way; I reject the Jurruru applicant’s submission that this would be inconsistent with the Court’s findings in Smirke (No 2). Indeed for the determination not to be framed by reference to connection to the area being determined may render the determination inconsistent with Jones. There may be some choices to be made about how the group description in the determination should be framed, and those matters can be the subject of discussion between the State and the YG applicant, and the wider Yinhawangka group. As Bromberg J’s reasons in Jones make clear, the group membership description for Jones was re-framed before the consent determination. So long as the Court is satisfied the terms of the determinations are appropriate and within power, there is some flexibility about the framing of the native title holding group description. They are not matters of concern to the Jurruru applicant, just as the framing of the Jurruru determination is not a matter of concern to the YG applicant.

177    A further factor which I consider significant to the exercise of the s 84D(4) discretion is the position of the wider Yinhawangka group, and the silence to this point of YAC. As I have outlined above, the inference can readily be drawn that YAC is well on notice about the outcome of Smirke (No 2), and its consequences. It has been invited to join the proceeding and has not done so. No individual Yinhawangka People have come forward to oppose a determination of the Yinhawangka area in favour of a wider Yinhawangka group, who have descent connections through Thurantajinha and/or Nijawarla. It is reasonable at this point in these proceedings to expect any opposition to have been voiced through the Court’s processes.

178    There is also a clear basis in the Court’s findings in Smirke (No 2) to infer that if the Court were to require the YG applicant to revert to some wholesale authorisation process with a wider Yinhawangka group, that any such process is more likely than not to be derailed by the very same forces which have sought to exclude the Tommy family and those who are aligned with them for the last 20 years or more. The Court’s findings in Smirke (No 2) suggest that opposition and exclusion were misplaced, in the sense of what the evidence in that case demonstrated about rights and interests under traditional law and custom. One explanation put forward by Dr McGrath and accepted to some extent by the Court was based in gender: Mabel Tommy, as a woman, was not accepted as having the knowledge that the objective evidence suggested she did. There may be other explanations: the Court’s findings in Smirke (No 2) pass no judgment on these interpersonal issues which have endured for decades, nor on the effects of family breakdown; the Court’s findings pass no judgment on peoples behaviour and conduct, and all the other entirely human matters which can give rise to animosity and the adoption of entrenched positions about deeply felt issues. However, the circumstances described in the Court’s reasons, and the fact there has been a litigated outcome, mean that there are likely to be multiple, non-traditional factors at play between the YG claim group and the wider Yinhawangka group.

179     If, in 2021 (or 2022), people at a Yinhawangka meeting were called upon to vote on authorisation of an amended claim (recalling the unaddressed difficulties I have referred to about whether they would be asked to authorise a claim reflecting the Court’s findings, or something else), it would be neither rational nor logical to ignore all these non-traditional motivations for how people might act, might think, and might vote. The more contemporary animosity is just as likely to drive decision making as anything which could remotely be described as “traditional” opinions. And that is before one even reaches the controversial contention – evident from parts of factual history given by Barker J and a source of conflict from that at least that point on – that those who lead the Jurruru claim, such as Ivan Smirke, claim because of their descent through Nancy Tommy to be able to attend Yinhawangka meetings, and to vote “as” Yinhawangka People, notwithstanding the conflict of interest writ large in such an assertion.

180    To require the YG applicant to go back to such a process; and to require the representative body to fund such a resource intensive process, would make a mockery of the native title system, and bring the administration of justice into disrepute. In the very particular circumstances of these proceedings, there must be finality, and that finality should proceed on the basis of the Court’s findings in Smirke (No 2), which have not been challenged by any application for leave to appeal.

Conclusions on the s 84D(4) discretion

181    The concern in many of the authorities about authorisation, in terms of the consequences of allowing a group that is a “sub-set” to authorise a s 61 application and for it to proceed to determination, is well expressed by O’Loughlin J in Risk at [66]:

Imagine, contrary to my decision, that it was correct for the delegate to accept Mr Quall's application for registration and further assume that, in due course of time, the family of eight was successful in obtaining from this Court a determination of native title. Who would be the beneficiaries of that determination? It would not be the remaining members of the Danggalaba Clan because the application had not been made on their behalf and they had not authorised the application. The only beneficiaries would be the family of eight. The remaining members of the Danggalaba Clan would have no official status and would be denied the opportunity of seeking another determination of native title because of the provisions of subs 61A(1).

See also Velickovic at [38] and the cases cited by Besanko J in Brown at [19].

182    Of course, an aim such as this might well have been said to be the original objective of the YG claim. However, the YG applicant accepts the outcome in Smirke (No 2) and does not press for any such exclusive determination (nor could it). It accepts there must be a determination in favour of a wider group of Yinhawangka people in respect of the Yinhawangka area. The consequences with which many of the authorisation decisions are concerned will not manifest themselves here.

183    Nor is there any uncertainty about membership of the native title holding group (cf Velickovic at [39]) because this matter has been the subject of findings by the Court.

184    The objectives of the legislative scheme imposing a requirement for authorisation are not undermined in the way which concerned judges in many of the previous authorities.

185    Earlier in these reasons, I have extracted White J’s observations in Miller at [93]. Many of the matters to which his Honour there refers are classic discretionary considerations. Many are relevant to the present circumstances. The dispute about the overlap area is of extremely long standing. The dispute about the overlap area occurred in a context where surrounding claims themselves have taken a very long time to reach determination. The resources and expenses which have been spent on this land and waters are considerable, and they have been expended over a period of more than 20 years: see [18]-[43] of Smirke (No 2). They are all public resources and funds – each native title claim group has been publicly funded through its representative body, the funds of the NNTT are public funds, and the funds of the State and the Court (including in extensive but unsuccessful mediation, and an on country hearing) likewise are public funds. No tally has been undertaken but it is straightforward to infer it would be in the millions. The rights at stake are in rem, and have remained uncertain for more than 20 years. I find the YG have acted in good faith, attempting to comply with the Native Title Act, but of course have done so in framing their case in the way they considered it should be framed, being represented by experienced solicitors and counsel. The different ways in which native title was alleged to be held in the overlap area were all arguable matters, as Barker J found in 2016.

186    At base an “application” under s 61 concerns an “area”, and concerns native title to that “area”. As I have sought to explain in these reasons, and in more detail in Smirke (No 2), the lengthy and complex history of the dispute in relation to the overlap area meant it could not be included in the respective determinations in Jones or in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. That being the case, it is plainly in the interests of the prosecution of the application about the Yinhawangka area, and the overlap area for there to be finality, rather than processes which expose all concerned to further protracted disputation. It is also plainly in the interests of the administration of justice for the Court’s findings in Smirke (No 2), after an intensive and lengthy trial process, with no application for leave to appeal, to be able to be reflected in two determinations of native title in relation to the overlap area.

Overall Conclusion

187    Accordingly, there will be orders under s 84D(4) to the effect that the YG application under 61 of the Native Title Act made on 17 October 2016 should proceed to a determination of native title in accordance with the Court’s findings in Smirke (No 2), and after there is agreement on boundaries around the Ashburton River between the YG applicant and the Jurruru applicant. Any submissions on costs of the separate question, if raised, can be programmed into the further steps necessary in all three proceedings. However, from this point onwards, perhaps a less adversarial approach might prevail.

I certify that the preceding one hundred and eighty seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:

Dated:    16 September 2021