Federal Court of Australia

Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant r 26.01 of the Federal Court Rules 2011 (Cth), the Mirning Eastern Sea and Land Claim Part B (as defined in paragraph 3 of the orders made on 24 June 2021) is summarily dismissed insofar as the claim area covers the claim areas in the following proceedings:

(a)    Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors (Wirangu (No 2) Part A) (SAD6019 of 1998);

(b)    Caroline Wilson and Ors on behalf of The Wirangu No 3 Native Title Claim v State of South Australia (Wirangu (No 3) Part A) (SAD228 of 2019); and

(c)    Attorney-General for South Australia non-claimant application (Wirangu No 2 non-claimant application Part A) (SAD123 of 2019).

2.    Pursuant to s 84C of the Native Title Act 1993 (Cth), the originating application filed on 10 May 2021 is struck out to the extent that it covers any area within the boundaries of the Mirning Eastern Sea and Land Claim Part B (defined in paragraph 3 of the orders made on 24 June 2021) that is not affected by the order in paragraph 1.

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84C of the Native Title Act 1993 (Cth), the originating application filed on 10 May 2021 is struck out insofar as it covers the area within the boundaries of the Mirning Eastern Sea and Land Claim Part A as defined in paragraph 2 of the orders made on 24 June 2021.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

Introduction

1    This native title claimant application is known as the Mirning Eastern Sea and Land Claim (MESL Claim). Before the Court are two interlocutory applications seeking to have the MESL Claim struck out in its entirety and otherwise summarily dismissed in part.

Overlapped claims

2    The originating application seeks a determination of native title under s 13 of the Native Title Act 1993 (Cth) (NT Act) in relation to a large area of sea in and around the Great Australian Bight, together with a portion of land situated on the Eyre Peninsula incorporating the town of Streaky Bay (the MESL Claim area). It overlaps the claim areas of other native title determination applications. Having regard to those overlaps, on 24 June 2021 the Court made an order partitioning the MESL Claim into western and eastern parts, respectively called “Mirning Eastern Sea and Land Claim Part A” (MESL Part A) and “Mirning Eastern Sea and Land Claim Part B” (MESL Part B).

3    The overlapped claims are:

(1)    the Far West Coast Sea Claim commenced on 9 March 2016 described at [32] – [38] below:  Leonard Miller Senior and Ors on behalf of the Far West Coast Sea Claim v State of South Australia and Ors (SAD71 of 2016). I will refer to it as the FWCSC Application. It is wholly overlapped by MESL Part A; and

(2)    three claims made on behalf of the Wirangu People described at [54] – [60] below (together, the Wirangu Applications) and a non-claimant application made on behalf of the Attorney-General of South Australia:  portion of Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors (SAD6019 of 1998) known as Wirangu No 2 Part A, portion of Caroline Wilson and Ors on behalf of The Wirangu No 3 Native Title Claim v State of South Australia (SAD228 of 2019) known as Wirangu No 3 Part A, Neville Bilney & Ors v State of South Australia (SAD84 of 2021) known as Wirangu Sea Claim; portion of Attorney-General for South Australia non-claimant application (SAD123 of 2019) know as Wirangu No 2 non-claimant application Part A. All of these applications are overlapped by MESL Part B.

4    The Aboriginal applicants in the above-mentioned proceedings will be referred to as the FWCSC Applicant and the Wirangu Applicants respectively.

5    A large portion of the MESL Claim area is not overlapped by the claim area of any other application.

6    On 24 June 2021, the Court made an order pursuant to s 67 of the NT Act that MESL Part A be dealt with in the same proceeding as the FWCSC Application, that proceeding to be known as the Great Australian Bight Overlap Proceeding. On the same day, the Great Australian Bight Overlap Proceeding was set down for trial to commence on 14 March 2022, being the date that the trial of the FWCSC Application was otherwise due to commence by orders made by White J on 4 December 2020. Six weeks have been set aside for the trial. The trial is in respect of a separate question, identified by White J by an order made on 28 April 2020, as:

But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(a)    Does native title exist in relation to any and what land and waters of the claim area?

(b)    In relation to that part of the claim area in which the answer to (a) above is in the affirmative:

(i)    who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    what is the nature and extent of the native title rights and interests? (Preliminary Questions)

The relief sought

7    The first interlocutory application is that filed on 17 June 2021 by Mr Neville Miller and Ms Elizabeth Pool in their capacity as respondents. Mr Miller and Ms Pool are also among the persons who comprise the Wirangu Applicants. They seek orders that:

…

2.    Pursuant to section 84C(1) of the NTA the Mirning Eastern Sea and Land native title claim (SAD76/2021) be struck out on the basis that it does not comply with sections 61and 62 of the NTA.

3.    Further or in the alternative the Mirning Eastern Sea and Land native title claim be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 on the grounds that:

a.    the proceeding is frivolous;

b.    the proceeding is an abuse of process of the Court.

…

8    The second interlocutory application is that filed by the FWCSC Applicant on 28 June 2021 after the s 67 order was made. The FWCSC Applicant seeks an order pursuant to s 84C of the NT Act that the MESL Claim be struck out on the basis that the authorisation requirements of s 251B of the NT Act have not been satisfied and (separately or consequentially) the initiating process does not meet the requirements of s 61 of the NT Act.

9    There are common issues arising on the two interlocutory applications, as well as issues peculiar to one or other of them.

10    Before turning to the issues, it is necessary to briefly traverse the applicable provisions of the NT Act, to provide some further information about the determination applications presently before the Court, and to mention some prior determinations having significance to the outcome.

The NT Act

11    The expressions “native title” or “native title rights and interests” are relevantly defined in s 223(1) of the NT Act to mean:

… the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

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

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

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

12    As Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, a “traditional” law or custom is one that has been passed from generation to generation of a society that has existed before the assertion of sovereignty by the British Crown (at [46]). In important respects, laws and customs “arise out of and, in important respects, go to define a particular society” (at [49]). As such, the word “traditional” must be understood as referring to “the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty” (at [86]). Their Honours reinforced the point (at [88]):

…. continuity in acknowledgment and observance of the normative rules in which the claimed rights and interest are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.

13    For a native title claim to succeed, it must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist, substantially uninterrupted, throughout the period since sovereignty “as a body united by its acknowledgment and observance of the laws and customs” (at [89]).

14    Section 61(1) of the NT Act contains a table prescribing the persons who may make particular kinds of applications under the NT Act. A native title determination application may be made by:

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; …

15    For the purposes of the NT Act, s 253 relevantly defines the expression “native title claim group” (in relation to an application for a determination of native title made to this Court) as the claim group mentioned in relation to the application in the table in s 61(1). The word “traditional” in s 61 must be understood in the sense explained in Yorta Yorta.

16    In the case of a native title determination application made by a person or persons authorised to make the application by a native title claim group the person is (or the persons are jointly) the “applicant”:  NT Act, s 61(2)(c). The procedure by which an applicant may be authorised to make a native title determination application is prescribed by s 251B. It provides:

For the purposes of this Act, all the persons in a native title claim group … authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group … authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

17    Section 62 of the NT Act prescribes the requirements of a determination application. They include a requirement that the application be accompanied by an affidavit sworn by the applicant including:

(1)    to the effect that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it:  s 62(1)(a)(iv); and

(2)    setting out the details of the process of decision-making complied with in authorising the applicant to make the application to deal with matters arising in relation to it:  s 62(1)(a)(v).

18    A determination application must also contain the details required by s 62(2). Those details relevantly include:

(d)    a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

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

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

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

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

19    Section 84C(1) of the NT Act provides that if an application does not comply with s 61 (including because it is not made by persons authorised to make it) or s 62, a party to the proceedings may at any time apply to this Court to strike it out.

20    Section 84D of the NT Act relevantly provides:

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

…

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

The MESL Claim

21    The MESL Claim was commenced on 10 May 2021 by an initiating process in Form 1 (the Original MESL Form 1). The named applicant comprises Ms Meegan Sparrow and Mr Cameron Miller (the MESL Applicant).

22    On 14 September 2021 (after the conclusion of argument and reservation of judgment), the MESL Applicant filed an application for leave to amend the Original MESL Form 1. The proposed amendments are considered elsewhere in these reasons. The following analysis is based on the content of the Original MESL Form 1, as it was that document that formed the basis of oral and written submissions at the hearing of the strike out applications. If the Original MESL Form 1 is liable to be struck out, it will be necessary to consider whether the circumstances justifying the striking out or dismissal of the application are of a kind that are capable of being cured by amendments of the kind proposed.

23    As has been mentioned, the MESL Claim relates to a large area of the sea in the vicinity of the Great Australian Bight and includes a body of land in its eastern portion. The western boundary is a seaward prolongation of the South Australia / Western Australia border. The southern boundary follows the line of latitude 33 degrees south, to the point where that line intersects the lowest astronomical tide. It then continues over the land generally in a straight line easterly to a landmark known as Murphy’s Haystacks. The eastern boundary is a straight line between Murphy’s Haystacks and Wallala Rock, terminating where that line intersects with the boundary of a determination made in SAD6011 of 1998 (a determination made for the benefit of the Barngarla People in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724). The northern boundary coincides in part with the southern boundary of a determination made in 2013 in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (the 2013 Determination), the significance of which will be discussed throughout these reasons.

24    As the State of South Australia correctly observes, the distance from the western boundary of the claim area to the eastern boundary is in excess of 500km. From the lowest astronomical tide, the claim area extends seaward to a maximum distance of approximately 150km. The MESL Claim area overlaps the whole of the waters covered by the FWCSC Application, being an area of the sea traversing the length of its coastal boundary and extending seaward to a distance of 300m from the lowest astronomical tide. The overlapped portion is small in size relative to the whole of the MESL Claim area.

The MESL Claim group

25    The claim group description has three elements. In these reasons it will be necessary to repeatedly refer back to them. For convenience I will label them “CRITERION A”, “CRITERION B” and “CRITERION C’. They are extracted below, with those headings inserted by me:

Under the traditional laws of the Mirning people, the native title holders are those living Aboriginal people who:

CRITERION A:

A.    are a biological descendant of one or more of the following persons:

a.    Tjabilja (mother of Mickey Free Lawrie);

b.    Bingi (father of Yari Wagon Billy);

c.    Maggie (mother of Jimmy Scott);

d.    Colona Tom;

e.    Jack McCarthy;

f.    Jimmy Mingo (also known as Kolbari, Karraiji and Mailman Jimmy);

g.    Jack Jacobs (whose wife was Kakaanj);

h.    Charlie Traveller; and

i.    Jinna Makul

AND

CRITERION B:

B.    self-identify as a Mirning person; AND

CRITERION C:

C.    acknowledge that the Mirning people possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning people.

26    The phrases “Mirning people”, “Mirning person” and “the traditional laws of the Mirning people” are not expressly defined. It is nonetheless plain from the opening words of the description that the claimed native title is possessed “under the traditional laws” of a society whose members are referred to as “Mirning people”.

27    On the evidence presently before the Court it does not appear that there are any living descendants of the apical ancestors named in paragraphs (d), (f), (g), (h) and (i) of CRITERION A.

28    The claimed rights and interests include rights “in accordance with Mirning traditional law and custom”, to do such things as access, pass over and remain in the area, to access resources in the area, to make decisions about the custodianship and use of the area which are binding upon the native title holders.

29    The claimed rights and interests are expressed to be non-exclusive.

30    Adopting the language of s 62(2)(e) of the NT Act, the factual basis upon which it is asserted that the claimed rights and interests exist is broadly asserted in Schedule F as:

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

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

(c)    the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

31    The “traditional laws and customs” that are said to give rise to the claimed native title are set out in Schedule F of the Original MESL Form 1. It asserts that the “Mirning people” have been recognised as native title holders in relation to particular apical ancestors in two prior determinations made by this Court including the 2013 Determination. It goes on to state that “[n]ecessarily, these determinations mean that the Mirning people have traditional laws and customs” and that the “apical ancestors identified in this claim are all either recognised apical ancestors in South Australia in relation to the [2013 Determination] or have been noted in various historic documents as being present in or near the application area around the time of white settlement”. In relation to the waters claimed, Schedule F asserts that the parallel at 33 degrees south is an approximation of the extent of land inhabited by “the Mirning people’s ancestors” when sea levels were much lower.

Overlapping Applications

The FWCSC Application

32    The FWCSC Application was filed on 9 March 2016. It is made on behalf of those persons who are said to hold native title rights and interests in accordance with the traditional laws and customs of a regional society referred to as the Far West Coast People, comprised of three language groups referred to as the Mirning People, the Kokatha People and the Wirangu People.

33    The claim area originally covered an area from the seaward prolongation of the South Australia / Western Australia border in the west to the easternmost point of Cape Bauer in the east, and seaward from the low water mark to the three nautical mile limit. By an amended originating application filed on 24 June 2021, the claim area was reduced so that it now extends seaward to a maximum of about 300 metres in some parts, encapsulates some islands and incorporates an area 50 metres along the Bunda Cliffs.

34    The claim group is defined by two alternate criteria. The first captures “those living Aboriginal people who … are descendant, either through birth or adoption, from one or more of the following Kokatha, Mirning and Wirangu antecedents”. The list of 44 apical ancestors that follows is not subcategorised as either Mirning, Wirangu or Kokatha. However, the list includes the following four persons:

(1)    Tjabilja;

(2)    Bingi;

(3)    Maggie (mother of Jimmy Scott); and

(4)    Jack McCarthy.

35    It is common ground that these four apical ancestors are the same as those named in the definition of the MESL Claim group:  see paragraphs (a), (b), (c) and (e) of CRITERION A. I will refer to them as the Common Ancestors.

36    The second criteria captures those persons who “are recognised by the native title claim group under their traditional laws and customs as having native title rights and interests in the application area” (including because of their birth in, or their mythical or ritual knowledge of, the claim area.

37    The factual bases for the claimed native title are set out in Attachment F. The bases include an assertion that the Kokatha, Mirning and Wirangu “comprise the Far West Coast People” and reference is made to “the relevant traditional laws and customs of the Far West Coast Peoples”. The MESL Applicant complains that there is ambiguity in some aspects of these assertions. However, it is plain enough that the FWCSC Applicant asserts the existence of a regional society, that is, a society defined by a body of traditional laws and customs under which the asserted rights and interests of the members of the claim group are said to be possessed. The FWCSC Applicant relies on the 2013 Determination and alleges that the FWCSC Application constitutes a logical extension of the rights and interests that were the subject of that determination. The 2013 Determination area relates to a body of land immediately adjacent to the area in the sea now covered by both the FWCSC Application and (in part) the MESL Claim.

38    On its face, the FWCSC Application does not particularise the rights held by particular individuals in relation to specific parts of the claim area. Presumably, that detail is intended to be left to internal decision-making processes within the regional society itself, should a determination be made in the terms sought.

The Bunna Lawrie Parties

39    On 15 November 2016, Mr Michael Laing (represented by Campbell Law) filed a notice of intention to become a party to the FWCSC Application. On 16 January 2017, an entity describing itself as the Indigenous Justice Advocacy Network also filed a notice of intention to become a party on behalf of seven persons:  Mr Robert Miller, Mr Robert Lawrie, Ms Dorcas Miller, Ms Meegan Sparrow, Mr Michael Laing, Ms Rose Miller and Mr Bunna Rupert Lawrie. All of these persons became parties to the FWCSC Application by the operation of s 84(3) of the NT Act. Their joinder notice stated that they sought to be joined “on behalf of the Mirning People”.

40    Since that time, Ms Sparrow has been removed as a respondent on her own application. Mr Laing remains represented by Campbell Law, and Mr Robert Lawrie has been represented by that firm since 19 May 2021. The present solicitor and counsel for the remaining four (Ms Virginia Marshall of Triple BL Legal and Mr David Billington of Counsel) are the same solicitor and counsel now acting on behalf of the MESL Applicant.

41    These respondents have previously been referred to collectively as the “Bunna Lawrie Parties” and I will continue to use that description. However, it is appropriate that I exclude Mr Laing from the description as it is presently unclear whether the interests asserted by Mr Laing are the same as those asserted by the others. I do not consider the particular interest asserted by him to bear on the outcome of the present applications.

42    It is common ground that each of the Bunna Lawrie Parties (again excluding Mr Laing) is a descendant of the apical ancestor named “Tjabilja”, one of the four Common Ancestors.

43    The position adopted by the Bunna Lawrie Parties forms a part of the factual context in which the interlocutory applications are to be determined.

44    In September 2017, White J heard an application by the FWCSC Applicant for orders removing the Bunna Lawrie Parties as respondents together with an application by the Bunna Lawrie Parties for orders striking out or dismissing the FWCSC Application. Both applications were dismissed:  Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599. As White J observed, at the time that the applications were determined, the persons who the Bunna Lawrie Parties described as “the Mirning People” had not made a claimant application asserting the particular native title rights and interests then asserted by them in their individual capacities as respondents, nor had any anthropological evidence been put forward to support the interests asserted by them.

45    The Bunna Lawrie Parties filed a Statement of Facts Issues and Contentions (SFIC) on 28 February 2020, prior to the commencement of the MESL Claim. Their case is further pleaded in their Points of Response dated 20 March 2020 (POR).

46    By their SFIC, the Bunna Lawrie Parties plead that the culture of “the Mirning People” is distinct and different from Western Desert laws and customs and has been described as the “old coast culture”. By [7.3] it is alleged that there are two regional societies which are bound together by normative rules namely:

7.3.1.    the Far West Coast society, comprising the Mirning, Wirangu and Kokatha People (together with certain other persons who are not Mirning, Wirangu or Kokatha persons but who are recognised by one or more of those Peoples as having native title rights and interests within that part of the FWC Determination area referred to as ‘Native Title Land’); and

7.3.2.    the Mirning (WA) society, comprising the Mirning People and the Spinifex People (together with certain other persons who are not Mirning or Spinifex persons but who are recognised by one or more of those Peoples as having native title rights and interests within the Mirning (WA) Determination area), …

47    It is further alleged:

    “Mirning law and custom is entirely descent-based and is concerned with a primarily coastal bounded geographic area which is the aggregate of all Mirning local group territories at Sovereignty”;

    the Mirning People are a “native title society” and have been recognised as such in prior determinations of native title;

    the Mirning People are a body of persons united in and by the traditional rules of the Mirning People (referred to in the pleading as “Mirning Native Title Rules”); and

    Mirning Elders may give directions about the exercise of native title rights and interests which should be obeyed.

48    Paragraph 46 of the SFIC alleges:

The Mirning elders have the traditional power to allow a person with Mirning ancestry, but who would not otherwise satisfy the Mirning Native Title Rules, to become a Mirning native title holder. However, this has never been done in relation to a person who has consciously decided to follow another Aboriginal group’s laws and customs.

49    The extent of “Mirning country” is described at [52] of the SFIC as extending east “at least as far as Clare Bay, SA”.

50    Among other things, the POR alleges that traditional tenurial rights in the area covered by the FWCSC Application were the product of the laws and customs of “local groups or language groups, not some regional society” POR, [5]. The Bunna Lawrie Parties put the FWCSC Applicant to proof “to show that any non-Mirning people had traditional rights or interests in the sea claim area at Sovereignty” POR, [6]. They dispute that “Mirning persons can belong to or within any other Aboriginal group”:  POR, [8]. They assert that the Aboriginal People who occupied the FWCSC claim area at sovereignty acknowledged “the same or substantially similar body of laws and customs, namely, Mirning traditional laws and customs” and possibly some persons who observed Wirangu traditional laws and customs:  POR, [11.3]. They go on to assert:

25.    Traditionally, the Mirning People comprised a number of clans, each with distinct territories:

25.1.    access to, and use of, another clan’s territory was only by permission; and

25.2.    the usual means of seeking such permission was to light a fire to send a smoke signal from an area on or near the boundary between clan territories and to wait for members of the other clan to come and meet the persons seeking permission and, if appropriate, to give permission.

26.    Traditionally, the Head of the Bight was within the territory of the Yirkla Mirning clan, and members of other Mirning clans (and other Aboriginal groups) needed to obtain permission from the Yirkla clan to access:

26.1.    the Head of the Bight; and

26.2.    permanent water along the cliffs of the Bight (where lying within Yirkla territory).

51    The Bunna Lawrie Parties allege (at POR [35]) that insofar as the FWCSC Applicant contends that there is “one integrated polity” comprising Kokatha, Wirangu and Mirning People:

… that is a contention of the absorption of the Mirning People as a people into some larger People and it is disputed by the Mirning People and put in issue by them.

(emphasis in original)

52    These allegations are consistent with those contained in materials before White J at the time that the applications in Miller were decided in 2018. His Honour observed (at [118]):

The affidavits of the Bunna Lawrie Parties indicate, and it was not in dispute (other than in the case of Mr Laing), that they are Mirning People. Some (including Bunna Lawrie, Robert Lawrie and Dorcas Miller) are Senior Elders and others are Elders. The Bunna Lawrie Parties assert that the Mirning are a distinct people with a distinct language and distinct laws and customs. They deny that they form part of any larger society or group and, in particular, of the Far West Coast People. The Bunna Lawrie Parties claim that much of the area claimed in the Far West Coast Sea Claim is Mirning country - the claimed Mirning country does not extend as far east as does the Far West Coast Sea Claim but does extend further west, beyond the South Australian-Western Australia border. They assert that only the Mirning have authority to speak for, and to bring a claim for native title in respect of, this country. They dispute that the Kokatha People and the Wirangu People have any connection with their sea country and dispute that those people are entitled to claim native title in respect of it. Each of the Bunna Lawrie Parties has deposed that the Mirning People have not authorised the Far West Coast Sea Claim.

53    Justice White went on to consider a number of factors weighing in favour of the removal of the Bunna Lawrie Parties as respondents. Among other things, his Honour observed that it was open to them to bring their own application for a determination of native title (provided that they could obtain the authority “of all the Mirning People to do so”) but that alternative had not been pursued by them (at [144]). His Honour observed that there was no evidence that the Bunna Lawrie Parties had attempted to resolve what was essentially an intermural dispute in accordance with traditional decision-making processes deposed to by them (particularly Mr Bunna Lawrie). However, his Honour was not satisfied that the Bunna Lawrie Parties should be removed as parties, including because (at [148]):

…  Although there is an intra-mural dispute, its subject matter is the composition of the claim group as the party asserting native title, and not the manner of conduct of the claim. It cannot be assumed that, if native title exists in relation to the sea area, it is held by the same group recognised as having native title over the adjacent land. That recognition is likely to be an important factor in the determination of the sea claim but it is not decisive. It is open to the Bunna Lawrie Parties to contend that the native title is held by a more confined group. It has been recognised that when the sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that subgroup may itself constitute a native title claim group:  Kite v South Australia [[2007] FCA 1662] at [22]. That tends to confirm that the Bunna Lawrie Parties may have an interest to be defended in the present proceedings.

The Wirangu Applications

54    As has been mentioned, there are three Wirangu Applications, two relating principally to areas of land (the Wirangu Land Applications) and one relating to an area in the sea (the Wirangu Sea Application).

55    As explained earlier the Wirangu Land Applications are:

(1)    a partitioned portion of Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors SAD6019 of 1998 known as Wirangu No 2 Part A; and

(2)    a partitioned portion of Caroline Wilson and Ors on behalf of the Wirangu No 3 Native Title Claim v State of South Australia SAD228 of 2019 known as Wirangu No 3 Part A.

56    Wirangu No 2 Part A relates to land on the Eyre Peninsula. It is the northern portion of a partitioned claim comprising Part A in the north and Part B in the south. The Part A claim area incorporates the township of Streaky Bay. The proceedings now comprising Part A and Part B were commenced about 23 years ago.

57    Wirangu No 3 Part A (commenced more recently on 25 October 2019) relates to discrete parcels of land within the external boundaries of Wirangu No 2 Part A. The claim area in Wirangu No 2 Part A did not encompass those parcels because of issues concerning tenure and extinguishment. The parcels could not later be incorporated within Wirangu No 2 Part A because to do so would enlarge the claim area contrary to s 64(1) of the NT Act. On 18 June 2019 a non-claimant application was made by the Attorney-General of South Australia including in respect of the parcels of land now incorporated within Wirangu No 3 Part A. The relevant parcels fall within the external boundaries of Wirangu No 2. The State’s non-claimant application was made to ensure that all of the land and waters within the external boundaries of Wirangu No 2 Part A could be dealt with in the one trial and/or consent determination. The State has previously foreshadowed to the Court that the non-claimant application may be withdrawn, because its purpose is served by the claimant application in Wirangu No 3 Part A.

58    The Wirangu Sea Application was commenced on 18 May 2021 (that is, after the commencement of the MESL Claim):  Neville Bilney and Ors v State of South Australia (Wirangu Sea Claim #2) (SAD84 of 2021). It relates to an area in the sea extending south from Cape Bauer to Point Westal, then roughly south-east through Cape Blanche, Slade Point, Point Labatt, Cape Radstock and then to Wellington Point. The north-eastern border follows the coast and is contiguous with the border of Wirangu No 2 Part A. The Wirangu Sea Application area encompasses Corvisart Bay, Sceale Bay, Searcy Bay and Anxious Bay, and includes Flinders Island, Waldgrave Island and islands known as “The Watchers”, extending seaward 300 metres from the low water mark.

59    The Wirangu Applicants include Mr Neville Miller and Ms Elizabeth Pool.

60    The claim groups in the applications are said to be descendants of apical ancestors, none of whom are named as apical ancestors in the FWCSC Application or the MESL Claim.

Prior Determinations

61    Two prior native title determinations are relevant.

The 2013 Determination

62    In Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285, Mansfield J made a native title determination by consent under s 87 of the NT Act (referred to earlier in these reasons as the 2013 Determination). The determination area extended from the coast north of the town of Streaky Bay to the South Australia / Western Australian border. Its seaward boundary extended to the low water mark measured at the lowest astronomical tide.

63    The determined native title holders are described as the Kokatha, Mirning and Wirangu People “who comprise the Far West Coast People”. The determined native title is that held under the traditional laws and customs of “the Far West Coast People”. The native title is held by a prescribed body corporate, the Far West Coast Aboriginal Corporation (Far West Coast PBC).

64    The 2013 Determination followed the consolidation of a number of competing determination applications in respect of the same area. The overlapping claims included an application made in WAD6016 of 1998 known as the “Mirning Native Title Claim”. The claim group in that proceeding was defined (in part) by reference to the descendants of two sons of Tjabilja and the descendants of “Gumillya ‘Carmelia’ Button”. It is to be recalled that Tjabilja is one of the Common Ancestors.

65    In 2004 the Aboriginal Legal Rights Movement facilitated an extensive mediation at Spear Creek, culminating in an agreement for the resolution of the multiple overlapping claims. There followed a series of meetings of the peoples represented in each of them. As a result of those meetings, an amended native title determination application was filed in proceedings SAD6008 of 1998. It became known as the “Far West Coast Native Title Claim”. The people on behalf of whom that claim was made included all of the people who had previously been claimants in the Mirning Native Title Claim and the original Far West Coast Claim. It was that amended claim that culminated in the 2013 Determination, but not before a good deal of interlocutory dispute evidencing the disaffection of some persons with the consolidation that had occurred. As White J observed in Miller, much of the interlocutory activity (at [18]):

… seemingly [reflected] a concern by some individuals within Mirning People that their interests, or those of the Mirning more generally, were not being properly represented in the processes then taking place and the view, by some, that the Mirning were a separate and distinct society and did not form part of the Far West Coast People.  …

66    The interlocutory activity included an unsuccessful application by an entity known as “Mirning Community Incorporated” to be joined to the Far West Coast Native Title Claim (see Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381); an unsuccessful application for the reinstatement of the original Mirning Claim and its deconsolidation from the Far West Coast Native Title Claim (see Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542); an unsuccessful attempt to have a separate body corporate prescribed in respect of the interests of the Mirning People (see  Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468); and an unsuccessful application to have the effect of the agreement reached at Spear Creek suspended (see Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270).

KD No 4

67    This determination concerns land situated in Western Australia to the immediate north west of the FWCSC claim area:  KD (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 (KD No 4).

68    Paragraph 9 states that native title in the area is held by “the Mirning People” (and by certain members of the Spinifex People). The native title holders are described in Schedule Six as “the Mirning people, being those persons who are the descendants of” 10 apical ancestors. Two of those ancestors (Maggie and Tjabilja) are also named in the claim group description in the MESL Claim (assuming that Maggie is the same person as “Maggie (mother of Jimmy Scott)”). The remaining eight apical ancestors include Gumillya “Carmelia” Button and Sally Broome. “Descent” for the purposes of the native title holders’ description is descent by birth or adoption “in accordance with Mirning tradition and custom”. Recital E contains an acknowledgement that the effect of the making of the determination is that the members of the native title claim group, “in accordance with the traditional laws acknowledged and the traditional customs observed by them” should be recognised as the native title holders for the determination area set out in the determination.

69    A part of the determination area is immediately adjacent to the South Australia / Western Australia border and so abuts the determination area in the 2013 Determination. The determination area in KD No 4 (comprised of land) is adjacent in one corner to the MESL Claim area, in the sea.

70    The effect of all of that is that the MESL Claim area is a step away from each of the areas subject to the prior determinations.

71    In accordance with the principles discussed in Yorta Yorta, the legal effect of the determination in KD No 4 is to recognise the Mirning People as a society that has continued to exist, substantially uninterrupted since sovereignty as a body united by its acknowledgment and observance of traditional laws and customs. The rights and interests of the native title holders must be understood as rights and interests transmitted by descent from the named apical ancestors in accordance with those traditional laws and customs. The 2013 Determination had (at least) the same effect.

Issues

72    The issues arising on the present applications may be referred to as the “authorisation issue”, the “subgroup issue” and the “abuse issue”. There is some overlap between them. Briefly, they are as follows.

Authorisation issue

73    The MESL Applicant’s authorisation to bring the MESL Claim is said to have been given by all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. That authorisation is said to have been given at an authorisation meeting held at the Port Lincoln Hotel on 8 May 2021. I will refer to it simply as the Meeting. As discussed below, the Meeting invitation was extended only to persons who fell within what later became the claim group description (with a minor discrepancy to be discussed later).

74    The effect of the interlocutory applicants’ submissions is that the MESL Applicant is not authorised within the meaning of s 61 or s 251B of the NT Act because:

(1)    descendants of previously recognised Mirning apical ancestors were not named in CRITERION A;

(2)    certain descendants of the apical ancestors named in CRITERION A were prohibited from participating because of CRITERION C;

(3)    the decision-making process by which the MESL Applicant was said to have been authorised was not in accordance with traditional law and custom because certain Mirning Elders were not consulted in advance of the Meeting and were otherwise prohibited from attending; and

(4)    the claim group was described by different formulations in different documents in the lead up to the Meeting and, as a consequence, the claim group described in the Original MESL Form 1 was not the same as that originally notified to eligible meeting participants.

75    Relatedly, it is submitted that the MESL Claim constitutes an abuse of process in that there is no reasonable prospect of establishing it was authorised under the NT Act. In my view, whether or not a defect in the authorisation process has the consequence that a native title determination application may also be regarded as an abuse of process is unnecessary to decide. The discretion to strike out a determination application for want of authorisation is conferred under s 84C of the NT Act, subject to the exercise of the discretion conferred by s 84D. It is not necessary to characterise an unauthorised claim as an abuse of process for the power under s 84C to be enlivened.

76    The MESL Applicant’s response to the authorisation issue is that the above arguments misapprehend the claim group description and the provisions of the NT Act as to what authorisation requires in the circumstances of their particular case. The core points are:

(1)    the MESL Claim group is a distinct society defined by traditional laws and customs that are different from the laws and customs upon which prior determinations have been made, so giving rise to a separate native title;

(2)    the particular native title claimed is to be ascertained by reference to their traditional laws and customs, not by reference to the laws and customs of persons falling outside of the claim group description;

(3)    no conclusive finding as to the existence of the alleged society or as to the content of its traditional laws and customs can or should be made in the context of a strike out application;

(4)    no person falling within the claim group description was prohibited from participating in the authorisation process; and

(5)    it cannot be said that the MESL Applicant has no prospects of succeeding in its proof that the claim is properly authorised, such that the question of authorisation, together with the asserted native title rights and interests must be permitted to proceed to trial.

Subgroup issues

77    Subgroup questions arise at different levels of specificity. The largest Aboriginal society referred to in submissions is that recognised by the 2013 Determination, referred to as the “Far West Coast People”. It is the traditional laws and customs of that society that are alleged to be the source of the native title claimed in the FWCSC Application.

78    The question is what (if any) consequences should follow for the MESL Claim on the strike out applications should it be concluded to the requisite standard that:

(1)    the MESL Claim group is to be equated with the Mirning language group, recognised in the 2013 Determination as forming a part of a traditional regional society; and/or

(2)    the MESL Claim group is a subgroup of the Mirning language group by virtue of the omission of descendants of ancestors not named in CRITERION A; and/or

(3)    the MESL Claim group is a more narrow subgroup again by virtue of the exclusion of those descendants of the named apical ancestors who do not fulfil CRITERION C.

79    To an extent, these questions are different ways of expressing some of the arguments raised by the strike out applicants in connection with the authorisation issue. They are raised more pointedly in the written submissions of the State, where it is said:

Given the overlap of Mirning People, albeit Mirning People with different understandings of the extent of Mirning Country and its traditional law and custom, it appears that either one is a sub-group of another, or they are both sub-groups of the broader Mirning People. That is relevant on the FWC Strike-Out Application given that a native title claim must be brought on behalf of properly constituted groups, not individuals or small subgroups. As Mansfield J said in Dieri People v South Australia ‘… the provisions of the NT Act do not permit the making of a claim by a native title determination application by a subgroup of the native title applicant group, or the grant of native title to a subgroup of the real native title applicant group …’. How that sub-group identity can be resolved on these interlocutory applications, without testing lay and anthropological evidence, is unclear. Unlike in Dieri there is no admission by a member of the MESLC applicant that the claim was bought by the MESLC so as to exclude other Mirning People. Likewise, there is no evidence that the application has been brought so as to explore and identify who is Mirning which formed the basis of the summary dismissal in Laing v State of South Australia (No 2) [2012] FCA 980. Rather, the evidence is only that, as discussed immediately below, people could not attend the MESLC meeting if they were not a capable of satisfying the three elements defining membership of the MESLC applicant group.

80    The issues also arose in the course of argument because of a particular interpretation the MESL Applicant asked the Court to adopt on the Original MESL Form 1 in response to the strike out arguments and because of the nature of the evidence advanced in prima facie support of the MESL Applicant’s case. As discussed below, the assertion that the MESL Claim group is a “distinct society” is the principal answer given by the MESL Applicant to the allegation that the claim is not authorised in accordance with s 61 of the NT Act, and to the subgroup issues.

81    The word “subgroup” in these reasons is not intended to be used in a way that suggests that the identification of a claim group as a subgroup of a society necessarily means that the claim group could not be validly constituted, or that a claim made on its behalf could not be validly authorised. I will return to that topic in due course.

The abuse issue

82    For the Wirangu Applicants it is submitted that the MESL Claim should be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) as either frivolous or vexatious or as an abuse of the Court’s processes insofar as it overlaps the Wirangu Land Applications. The argument has two aspects.

83    First, it is submitted that the MESL Claim is either an attempt to re-litigate matters previously agitated in various interlocutory proceedings culminating in the 2013 Determination (summarised earlier), or an attempt to depart from binding agreements culminating in the 2013 Determination or otherwise rendered untenable by reason of the terms of the 2013 Determination itself.

84    Second, it is submitted that the MESL Claim is vexatious or otherwise constitutes an abuse of process because it has been commenced more than 22 years after the proceedings in Wirangu No 2 were first commenced and at a stage where the proceedings I have collectively described as the Wirangu Land Applications (including portions of Wirangu No 2) are otherwise ready to proceed to determination by consent under s 87A of the NT Act.

85    The arguments founded on delay are supported by the State of South Australia as the first respondent to both the Wirangu Land Applications and the MESL Claim.

Strike out Principles

86    Read together, s 84C and s 84D contemplate that substantive findings on the question of authorisation may appropriately be made at the pre-trial stage. So much is apparent from the text of s 84C(1) and s 84C(2), which require that the Court consider any strike out application made under s 84C “before any further proceedings take place in relation to the main application”. Section 84D requires that where a defect in authorisation is demonstrated, the Court may hear and determine the application, despite the circumstance that the defect in authorisation has been shown to exist. A recent example occurred in Miller, White J there concluding that the authorisation of the FWCSC Application was defective because of a failure to notify all members of the claim group in advance of an authorisation meeting (at [56]). It was the identification of that defect that fulfilled s 84D(3)(a) (the application did not comply with s 61), which in turn enlivened the discretion in s 84D(4). His Honour exercised the discretion in favour of permitting the FWCSC Applicant to prosecute its claim (at [97] – [98]), because a subsequent meeting demonstrated that a newly commenced claim in the same terms would have been authorised in any event.

87    The circumstance that the Court may enquire into the validity of the asserted authorisation of its own motion reinforces the importance that the Court’s own processes be protected from the procedural chaos and associated waste of judicial and administrative resources that may result from the prosecution of claims that are not authorised in accordance with the NT Act.

88    As to the test to be applied, in Kite v State of South Australia [2007] FCA 1662, Finn J said (at [24]):

… s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court’s power should be exercised only where the claim as expressed is untenable upon the ‘version of the evidence’ favourable to the respondent to the strike out:  McKenzie, at [26]; Bodney v Bropho (2004) 140 FCR 77.

89    Similarly, in Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967, Mansfield J said a strike out application brought pursuant to s 84C of the NT Act is to be determined in accordance with the same principles that apply on an application for summary judgment brought pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1, Lindgren J put it this way (at [1192]):

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’).

90    There will be cases in which the validity of authorisation may depend upon on anthropological and other evidence concerning disputed questions, including disputes as to traditional decision-making processes. In such cases, to successfully oppose the application it may be enough to point to evidence sufficient to support an arguable case that the claim is authorised within the meaning of the NT Act.

91    In Miller, White J conveniently summarised (at [43]) the principles relating the application of s 84C, drawing on the decisions of this Court in Williams v Grant [2004] FCAFC 178, Bodney v Bropho (2004) 140 FCR 77 and Landers v South Australia (2003) 128 FCR 495. Those which were pertinent in the case were as follows:

(a)    section 84C is concerned with matters of form and authority and not with the merits of the underlying application for determination of native title, Bodney at [33];

(b)    a strike out application under s 84C should be approached in the same way as a strike out application under r 26.01, Bodney at [50], Landers at [7];

(c)    the application should be approached with caution and allowed only when a clear case for summary dismissal is established, Bodney at [51], Williams at [48]-[49]. In Kite v State of South Australia [2007] FCA 1662, Finn J said at [24] that ‘the Court’s power should be exercised only where the claim as expressed is untenable upon the version of the evidence favourable to the respondent to the strike out’;

(d)    it is not for the Applicant to show that it was authorised: instead it is for those seeking to have the application struck out to establish a clear case of lack of authorisation, Bodney at [27];

(e)    the Court may receive evidence relating to the circumstances relied on for the strike out, Bodney at [52];

…

92    As will be explained, an inquiry into the authorisation of a native title applicant cannot be divorced from an inquiry (albeit at a low evidentiary threshold) as to the existence of the asserted traditional society. That is because the statutory test for authorisation encompasses the expressions “all of the persons”, “native title claim group” and “the particular native title claimed”. In the context of a strike out application it is necessary to ask whether there is a tenable case fulfilling the conditions for authorisation, proceeding from a correct interpretation of those expressions. The nature and extent of that inquiry must of course depend on the issues that are in dispute on the application.

Authorisation and subgroup issues

93    These issues may be dealt with together.

94    The persons who comprise the MESL Applicant (Ms Sparrow and Mr Miller) have affirmed affidavits to the same effect concerning their authority to commence the MESL Claim. The deposition of Ms Sparrow is as follows:

…

7.    I am a member of the native title claim group.

8.    I am, together with the other member of the Applicant, authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.

9.    I was authorised at a meeting of the native title claim group held on Saturday 8 May 2021 held at the Port Lincoln Hotel in Port Lincoln, South Australia.

10.    In authorising the Applicant to make the application and to deal with matters arising in relation to it, the claim group complied with the following process of decision-making:

The traditional Mirning law and custom for making decisions about country is mulagie.

Mulagie requires that the Elders hold a nwalgakn (meeting)

The Elders then make the decision at the meeting.

The Elders’ decision is binding.

11.    By decision of the Elders in nwalgakn on 8 May 2021, I was one of the two Mirning persons to be authorised under sections 61(1) and 251B of the Native Title Act 1993 (Cth) to be, jointly, the Applicant.

 12.    The Applicant’s authority is subject to conditions, namely:

1.    The Applicant is required to act in the best interests of all Mirning People and not just the family groups of the persons comprising the Applicant.

2.    Before making important decisions, the Applicant must take reasonably practicable steps to consult with all senior Mirning elders (for example by telephoning them and speaking with them or allowing at least 24 hours to respond).

3.    The Applicant can’t pay themselves without consulting the Elders.

95    Whether or not the MESL Application was “authorised” is a mixed question of fact and law. It is appropriate to read the assertions of authorisation in the two affidavits as an expression of a belief on the part of the deponents that the requirements for authorisation under the NT Act were met by the facts alleged. I give no weight to the assertions of authorisation insofar as they depend for their correctness upon questions of law, particularly questions as to the meaning of expressions used in s 61 the NT Act, to which I have just referred.

96    At [10] of her affidavit, Ms Sparrow asserts (at least implicitly) that authorisation was given in accordance with “traditional Mirning law and custom for making decisions about country” by way of a meeting of “Elders”. It is s 251B(b) of the NT Act that is therefore invoked. The affidavit does not identify “the Elders” who participated in the “nwalgakn” giving rise to the decision to authorise the claim.

97    The events that occurred at the Meeting are deposed to directly in two affidavits of Ms Alana Miller affirmed on 30 July 2021 and 11 August 2021. The following findings are based upon those affidavits (taking that evidence at its highest). The events themselves (as opposed to their legal consequences) are not the subject of significant controversy.

Notification and conduct of the Meeting

98    Advance notification of the Meeting was given by way of public advertising, the extent of which is correctly summarised in the MESL Applicant’s written submissions in the following terms:

29.1.    a half-page advertisement in The Advertiser on 9 April 2021;

29.2.    an online advertisement in the Koori Mail from 7-21 April 2021;

29.3.    an online advertisement in the National Indigenous Times commencing on 7 April 2021;

29.4.    a full page advertisement in the Port Lincoln Times on 15 April 2021;

29.5.    a full page advertisement in Norseman Today’s May 2021 edition;

29.6.    the publishing of a dedicated website from 6 April 2021, to which a Questions and Answers section was added on 16 April 2021;

29.7.    a post on Facebook by Bunna Lawrie, visible to his almost 5,000 ‘friends’; and

 29.8.    a post by the Far West Coast Aboriginal Corporation to its Facebook account.

99    The latest of those publications was not at the instance of those responsible for organising the Meeting but rather at the instance of the Far West Coast PBC. The Facebook post by the Far West Coast PBC states “Far West Coast is not endorsing this meeting, nor the claim. The link has been shared for information only”.

100    The content of the advertisement is substantively the same in each instance. It begins with the heading “NATIVE TITLE AUTHORISATION MEETING / MIRNING EASTERN SEA & LAND CLAIM”. There follows a map depicting the proposed claim area. There is then the following text:

All* living Aboriginal people who:

 (1)    are Mirning people (as described below): AND

(2)    acknowledge that the Mirning People possess native title rights and interests in the Claim Area (shown on the map above and described below), under the traditional laws acknowledged, and the traditional customs observed, by the Mirning People, are invited to attend a meeting for the purpose of authorising a native title determination application (Claim) over the Claim Area.

Persons who do not satisfy (1) and (2) above may not participate in the meeting and will not be permitted entry unless exceptional circumstances apply (for example, a carer for a person who is permitted entry).

IF YOU WISH TO PATICIPATE, YOU MUST ATTEND, DECISIONS BINDING, THE MIRNING PEOPLE MAY BE MADE IN YOUR ABSENCE

Saturday 8 May 2021 at Port Lincoln Hotel, Port Lincoln

Meeting commences 11.00 am with registration open 9.00 to 10.45 am

PRE-REGISTRATION IS STRONGLY ENCOURAGED

For the purposes of this claim, the Mirning People are the persons who:

          A.    are a biological descent of one or more of the following persons:

Tjabilja (Lawrie); Bingi (father of Yari Wagon Billy); Maggie (mother of Jimmy Scott); Jack McCarthy; Jimmy Mingo (also known as Kolbari, Karraiji and Mailman Jimmy); Charlie Traveller; Jack Jacobs (whose wife was Kakaanj); and Colona Tom AND

 B.    self-identify as a Mirning person; AND

C.    acknowledge that the Mirning People possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning people.

The Claim Area is the area within the following boundaries:  WEST:  the seaward prolongation of the South Australian border with Western Australia;  SOUTH:  (over the sea) the line of latitude 33° S to the point where that line intersects lowest astronomical tide and then (over the land) generally easterly to Murphy’s Haystacks; EAST:  the line from Murphy’s Haystacks to Wallala Rock, terminating where that line intersects the Barngarla Determination; and NORTH:  the boundaries of the Far West Coast determination and (near Wallala Rock) the Barngarla determination.

To Register you must:

(1)    identify how you are a descendant of one or more apical ancestors identified in (A) above; and

 (2)    sign and return an acknowledgment of (B) and (C) above.

You can text through a photo of your signed acknowledgment form.

*persons aged 15, 16 and 17 years old may or may not be permitted to participate; a decision will be made by those present at the start of the meeting.

Travel & Catering:  Pre-register early to secure your seat on a chartered bus from Ceduna or Adelaide. Fuel reimbursement only by prior arrangement.

Agenda:  Please see website or scan the QR code.

Further information & Pre-register call [redacted]

Email [redacted] or [redacted]

101    As can be seen, the advertisement “STRONGLY ENCOURAGED” eligible participants to pre-register for the Meeting. To register it was necessary for participants to identify how they fulfilled CRITERION A (by identifying their apical ancestor) and to acknowledge that they fulfilled CRITERION B and CRITERION C. Registration forms were available at the website referred to at the base of the notice. The registration form contained a list of apical ancestors for the registrant to circle where appropriate.

102    There are two versions of the registration form in evidence, both of which were promulgated by the Meeting organisers in advance of the Meeting. As correctly submitted by the Wirangu Applicants, there are some discrepancies in the materials concerning the apical ancestors, namely:

(1)    the advertisement contained a list of eight ancestors;

(2)    a registration form initially made available on the Mirning wesbsite included two ancestors not named in the advertisement, namely Bununa and Yabinya;

(3)    a further iteration of the registration form included only those ancestors named in the advertised notice; and

(4)    the claim group description in the originating application includes an apical ancestor who was not named as an ancestor in the advertised notice (Jinna Makul):  see CRITERION A(i).

103    The invitation to pre-register for the Meeting was taken up by 55 people. The asserted genealogies of those persons was checked by Ms Dorcas Miller and Mr Bunna Lawrie (each of whom are Bunna Lawrie Parties). Of those who registered in advance, 26 attended. A further 28 persons completed registration forms at the beginning of the Meeting and their genealogies were also checked. No person who completed a registration form was refused attendance. Altogether there were 54 attendees, including some who were aged between 15 and 17.

104    Of the 54 people who attended the Meeting, 52 were descendants of the apical ancestor Tjabilja alone, or of Tjabilja together with Maggie (mother of Jimmy Scott) or Tjabilja together with Bingi (father of Yari Wagon Billy). Two other attendees were identified as descendants of Maggie (mother of Jimmy Scott) alone. The attendees were overwhelmingly Tjabilja descendants, however (as explained below) by reason of CRITERION C, not all Tjabilja descendants were permitted to attend.

105    Ms Miller deposes that “[f]ive copies of the draft MESL Form 1” were placed on an information table inside the Meeting room and I accept that to be so. By reason of the resolutions described below I infer that the draft document was the same as that which was ultimately filed in this Court.

106    The minutes of the Meeting are in evidence, as are a series of PowerPoint presentation slides that were displayed and discussed. I will identify the slides by numbering them in the order in which they appear in the relevant affidavit. On the basis of the minutes and the slides, I am satisfied that the following events occurred.

107    The Meeting commenced with a “Welcome to Mirning People and Acknowledgment of Country” given by Mr Bunna Lawrie.

108    A slide titled “people involved today” identified Bunna Lawrie, Robert Lawrie (not present) and Dorcas Miller as “senior elders” and three others as “elders” (Slide 5).

109    The attendees were introduced to two lawyers, Mr David Billington (barrister) and Dr Virginia Marshall (solicitor). Slide 5 identifies Mr Billington as the “MC” for the Meeting. Mr Billington gave a background of his work at the bar and provided a brief history of the FWCSC Application.

110    Early in the meeting, two slides were displayed titled “Background to the claim” and “Achievements of Elders”. From the minutes it is reasonable to infer (and I so find) that these slides accompanied Mr Billington’s opening words and I find that the words said by Mr Billington are summarised in them. The slides read as follows:

Slide 6:

•    Background to the claim

•    1994 claim

•    period of pressure 1999 – 2005

•    amalgamation with promise of Mirning – controlled areas

•    FWC land claim – involvement thwarted by majority voting and being ‘out-legalled’

•    FWC sea claim – BLP pushing back but probably can’t get native title for Mirning people this way

•    claim for Mirning people

Slide 7:

•    Achievement of the Elders

•    surviving since 2016 – coming up for 5 years

•    many strong, detailed, affidavits

•    submerged archaeology experts & report

•    anthropology experts & stage 1 report (190 pages)

•    anthropology on country fieldwork for stage 2 (8 days so far)

•    solicitor and barrister retained

•    extraordinary level of historical research done

111    The abbreviation BLP may be fairly understood as a reference to the Bunna Lawrie Parties. I infer that the “pushing back” referred to the positions taken by the Bunna Lawrie Parties in their capacity as respondents to the FWCSC Application, as summarised earlier in these reasons. Slide 6 reflects the history of native title disputes summarised earlier in these reasons.

112    Slide 8 then displayed a list of nine apical ancestors, being the same as those now described on the originating application. The name Jinna Makul had the words “late inclusion” after it. That is consistent with that name not appearing in the advertisement or in any version of the registration form. The same slide contains the word “rights as set out in draft Form 1 on display at meeting”.

113    Slides 9 to 17 contain brief information concerning each of the apical ancestors.

114    Slide 18 is titled “[d]raft rights and interests claimed”. It commences with the words “[t]he native title rights and interests are the non-exclusive rights to, in accordance with Mirning traditional law and custom”, and there follows a description of rights of access, use, custodianship and decision-making in respect of the proposed claim area. The minutes go on to state that decisions would need to be made at the Meeting about the rights and interests. Mr Billington suggested that the claim be non-exclusive in nature, but indicated that was a decision for the attendees. The minutes also state “Re Federal Court both claims can be right” which I infer is a reference to both the FWCSC Application and the MESL Claim as then being proposed at the Meeting.

115    Slides 19 and 21 contain maps showing the claim area and the overlapping claims. The minutes indicate that the area was described as extending many kilometres out to sea and was said to include gas and oil exploration areas.

116    Slides 23 to 26 contain four resolutions. Each of them contains the words “carried by majority vote”. The minutes show that those slides (and others like it) were altered as the Meeting progressed to reflect its outcomes. Slide 22 describes the resolutions as “[r]esolutions of the Claim Group”. The resolutions are:

•    All Mirning persons present aged 15 and older may participate in the meeting.

•    Only Mirning persons present may make decisions. Others can stay in the meeting

•    All non-Mirning persons present must keep confidential anything that they learn at the meeting

•    Sufficient notice was given of the meeting to allow binding decisions to be made.

117    Slides 27 and 28 are titled “[d]ecision making process” and the following two slides are titled “[p]ossible traditional processes”.

118    On the basis of the Minutes, I find that Mr Billington addressed the attendees about “possible traditional processes”. In the discussion that followed Mr Bunna Lawrie said that “the traditional Mirning law of making decisions is called ‘mulagie’”, which requires that decisions be made at a meeting of “Mirning elders” known as an “nwalgakn”. Mr Billington then asked if any other persons “had different ideas”.

119    There followed some discussion about the interpretation of the word “traditional”. The slides on this topic state that it was “easy to say” that white colonisation was so radical and the NT Act was so foreign to traditional laws and customs that there was no traditional process for authorising an applicant for the purposes of s 251B of the NT Act. Slide 28 poses the question “if there is a traditional process, what is it?” Slide 30 states that if there was no traditional process, a simple majority vote could be adopted with or without consulting with the senior elders present.

120    A resolution was passed unanimously in the following terms:

#5 Traditional decision-making process

The claim group acknowledges that, under the traditional laws and customs of the persons in the native title claim group, there is a decision-making process which must be complied with in relation to authorising things of that kind. The process is:

•    The traditional Mirning law and custom for making decisions about country is mulagie.

•    Mulagie requires that the Elders hold a nwalgakn (meeting).

•    The Elders then make the decision at the meeting.

•    The Elders’ decision is binding

121    It may be observed that the words following each dot point in that resolution were replicated in the affidavits of Ms Sparrow and Mr Cameron as evidencing the process that was complied with.

122    There followed a process whereby persons who asserted that they were Elders were asked to come forward. There was a debate about the inclusion of at least one of them. By a majority vote, a group of 12 Elders was identified.

123    From the above resolution and the selection of Elders that followed, it is reasonable to infer (and I so find) that the participants at the Meeting proceeded on the assumption that it would be sufficient to satisfy “traditional Mirning law and custom” for making decisions about country by conducting a meeting (known as a nwalgakn) of the Elders who were present at the Meeting. Plainly, the claim group did not consider it necessary to obtain the approval of any person who was not present at the Meeting (whether an Elder or not).

124    The remaining resolutions at the Meeting were passed by unanimous decisions of the 12 Elders in attendance, and those decisions were then communicated to the attendees.

125    Resolutions six and seven authorised Ms Sparrow and Mr Miller to make a native title determination application “substantially in the form of the draft Form 1 displayed at this meeting” and to deal with all matters arising under the NT Act in relation to it. Resolution nine imposed three conditions on the MESL Applicant’s authority as follows:

1.    The Applicant is required to act in the best interests of all Mirning People and not just the family groups of the persons comprising the Applicant.

2.    Before making important decisions, the Applicant must take reasonably practicable steps to consult with all senior Mirning elders (for example by telephoning them and speaking with them or allowing at least 24 hours to respond).

 3.    The Applicant can’t pay themselves without consulting the Elders.

126    By resolution 10 the Elders directed that the solicitor present be retained to finalise steps to lodge the claim in this Court and that Ms Sparrow and Mr Miller be directed to urgently seek funding for the claim, including for expert anthropological, linguistic, archaeological and legal assistance.

127    At this juncture it is necessary to refer to evidence contained in affidavits of the strikeout applicants which is not contradicted by the evidence of the MESL Applicant. Having regard to that evidence I am satisfied that the following persons were not afforded an opportunity to attend the Meeting (and the MESL Applicant did not contend otherwise):

(1)    all descendants of Sally Broome;

(2)    all descendants of Gumillya “Carmelia” Button; and

(3)    all descendants of the apical ancestors named in CRITERION A (including descendants of Tjabilja and Maggie) who did not give the acknowledgement required by CRITERION C.

128    There are living persons in each of those categories who were precluded from entering the Meeting and participating in the decision-making process because of the Meeting registration criteria. I will refer to them as the Excluded Persons. Some of their evidence is discussed at [187] – [192] below.

129    It is significant that the Excluded Persons include descendants of the apical ancestor Tjabilja who are living close relatives of members of the MESL Claim group and who self-identify as Mirning. The Excluded Persons who are descendants of Tjabilja have been previously determined by this Court to hold native title rights and interests derived from the traditional laws and customs of the regional society recognised in the 2013 Determination (as explained at [62] – [66] above) and of the society described as “Mirning People” in KD No 4 (as explained at [67] – [71] above). As also mentioned above, Sally Broome and Gumillya “Carmelia” Button are also members of the traditional society recognised to exist in KD No 4. At least in KD No 4 they hold the same communal native title rights and interests as all descendants of the Common Ancestors.

130    Against those findings it is necessary to determine whether the MESL Applicant was authorised as prescribed by s 61 and s 251B of the NT Act and, if not, whether the proceedings should nonetheless be permitted to proceed in the exercise of the discretion conferred by s 84D.

Submissions of the MESL Applicant

131    Counsel for the MESL Applicant submitted that the Excluded Persons were not invited to participate because they were not part of the claim group, as is made plain by the advertisements themselves. It was submitted that the entitlement to participate in the Meeting reflected the way in which the claim group was ultimately described in the Original MESL Form 1. In particular, a requirement for registration at the Meeting was the fulfilment of a condition equivalent to CRITERION C, which appears after the number “2” in the opening paragraph of the advertisement and again in the definition of the phrase “Mirning people”. It was submitted that the advertisement stated in plain terms that persons who did not satisfy that criterion “may not participate in the meeting and will not be permitted entry unless exceptional circumstances apply (for example, a carer for a person who is permitted entry)”.

132    The same is said of persons who are not descendants of the eight apical ancestors named in the advertisement. It was submitted that the words “Mirning People” in the advertisement was given a confined meaning and did not encompass all persons who had previously been granted native title in the prior determinations referred to earlier in these reasons. Accordingly, if persons were precluded from participating in the Meeting, that was a consequence of those persons not falling within the proposed claim group.

133    It was then submitted that the interlocutory applicants had not demonstrated a clear case that the MESL Applicant was not authorised within the meaning of s 61 and s 251B of the NT Act because the question of authorisation turned (among other things) upon the content of traditional law as to decision-making processes which in turn depended upon anthropological evidence to be adduced at trial.

134    It was submitted that the case to be advanced at trial was that the traditional law of the claim group was complied with, on one of two alternate factual bases:

(1)    the claim group was itself a distinct society, such that their traditional laws and customs in respect of decision-making about country did not require recourse to any persons outside of their defined membership; or

(2)    even if the claim group was not a distinct society, it has not been demonstrated that the claim group did not follow the requirements of the traditional laws and customs from which their particular native title is sourced in deciding to authorise the MESL Applicant.

135    Counsel explained that at the conclusion of the trial, the MESL Applicant would ask the Court to find that the “particular native title” of the claim group members was a different native title to that asserted by or on behalf of any other person in relation to the same land or waters. Counsel submitted that the MESL Claim group would be entitled to have their particular native title held on trust by a separate prescribed body corporate with which third parties should separately negotiate in respect of matters affecting the native title. Counsel referred to the reasons of the majority in Drury v Western Australia (2020) 276 FCR 203.

A distinct society?

136    The general proposition that separate native titles may be possessed in the relation to the same land or waters may be accepted. The possibility is contemplated in the phrase “the particular native title claimed” in s 61 of the NT Act. As the majority held in Drury, there may be distinct groups of persons each of which hold common rights comprising native title over the same area of land, derived from different traditional laws and customs. A determination that there exists separate native titles is only to be made where the Court has found that there exist native title rights and interests possessed under distinct traditional laws and customs (defining different societies as discussed in Yorta Yorta), so as to give rise to separate sources of connection to the land or waters. In such cases, each group may nominate a separate prescribed body corporate to hold the rights and interests of the relevant common law holders on trust. However, there are not to be separate prescribed bodies corporate representing the interests of subgroups holding the same native title under the same traditional laws and customs.

137    As Counsel for the MESL Applicant frankly acknowledged, a determination in the terms sought would enable the native title to be held on trust by a prescribed body corporate controlled exclusively by members of the claim group without reference to any other Aboriginal persons (whether native title holders or not). To assert that the MESL Claim group is a distinct society is to assert that the “particular native title claimed” is not the same native title as that which may be possessed by persons excluded from the Meeting.

138    As explained below, I am not satisfied that the assertion that the claim group comprises a distinct society is a case in fact alleged on the Original MESL Form 1 in its present state, being the application the MESL Applicant was allegedly authorised at the Meeting to file. Nor am I satisfied that such a conceptualisation of the case has evidentiary support in the material upon which the MESL Applicant relied, taking that evidence at its highest and observing the low fact finding threshold that applies on the strike out applications. Nor am I satisfied that the submission is tenable as a matter of logic, having regard to the prior determinations and the circumstance that the claim group includes some but not all members of the very same family clans.

The Original MESL Form 1

139    Schedule A to the Original MESL Form 1 is titled “Native Title Claim Group”. The description that follows begins with the phrase “[u]nder the traditional laws of the Mirning people, the native title holders are those living Aboriginal people who  …”. There follows CRITERIONS A, B and C (extracted at [25] of these reasons). The phrase “Mirning person” appears in CRITERION B. CRITERION C bears repeating here:

C.    acknowledge that the Mirning people possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning people.

140    The expressions “Mirning person”, “Mirning people”, “traditional laws of the Mirning people” and “traditional laws acknowledged, and the traditional customs observed by, the Mirning people” are not defined.

141    It is necessary to turn to Schedule F and Attachment F to give them meaning, as it is by those parts of the document that the claim group asserts the factual basis upon which the claimed native title rights and interest exists, including the traditional laws and customs from which it is derived. Schedule F is expressed in language that replicates the language of s 62(2)(e) of the NT Act (extracted at [18] of these reasons). It directs the reader to Attachment F for particulars.

142    Attachment F alleges that the “Mirning people” are recognised native title holders under KD No 4 and the 2013 Determination. The Attachment asserts that “[n]ecessarily, these determinations mean that the Mirning people have traditional laws and customs”. There is no reference at all in the Original MESL Form 1 to the claim group deriving its native title rights and interests from a body of traditional laws and customs that are distinct from those under which the native title recognised in the prior determinations is proposed. To the contrary, the express reliance on the prior determinations for their evidentiary value plainly suggests that the native title rights and interests are derived from those same traditional laws and customs.

143    The Court is mindful that prior determinations are not necessarily conclusive in relation to land or waters to which they do not relate. However, it is the MESL Applicant that has articulated its case in a fashion that draws upon them for evidentiary support in respect of the MESL Claim area. Their case is that the traditional laws and customs are the same as those giving rise to the native title determined in the prior determinations. As has already been mentioned, some of the holders of the earlier determined native title are descendants of the same Common Ancestors. But the reliance on the prior determinations means that it must also be inferred that the “Mirning people” referred to in the Original MESL Form 1 are a traditional society whose present day members include persons who are descended from apical ancestors that are not listed in CRITERION A.

144    As confirmed in Kite (at [22]), it is not necessarily problematic for a claim group to be comprised of the descendants of some apical ancestors within a traditional society but not others. It is not unusual that native title rights and interests may be enjoyed by some members of a traditional society in respect of a particular area in accordance with the traditional laws and customs of the wider society of which they form a part. Subject to the requirements of authorisation being fulfilled, a native title claim group need not be comprised of every member of the traditional society. But the question with which I am presently concerned is whether the originating process advances a case that the native title alleged by the claim group is a “particular native title” that they enjoy by virtue of them being a distinct traditional society in and of themselves. My conclusion is that the Original MESL Form 1 does not advance any such case.

145    Counsel submitted that the Original MESL Form 1 was to be read in conjunction with the statement of facts, issues and contentions of the MESL Applicant dated 24 June 2021 (the MESL SFIC). I accept that a SFIC may provide better particulars of a party’s case. As its name confirms, its role is to provide particulars the facts and contentions to be relied upon. In that sense it is a document that may resolve any ambiguity adhering in an originating process. However, I do not consider there to be any ambiguity in the Original MESL Form 1 in respect of this question. Nor do I accept that the MESL SFIC can substitute the Original MESL Form 1 in the sense that it can advance a case that is factually or legally inconsistent with it in respect of such a critical topic. To allow the MESL SFIC to perform that function would be to denude the authorisation and notification processes in the NT Act of their utility.

146    As to notification, a person who is considering whether to join as a party to a native title proceeding is entitled to turn to the originating process to ascertain the facts relied upon, including for the purpose of identifying whether the native title claimed is a different native title to that already claimed by any other person in the claim area. A respondent with an interest in the land and waters may choose to defend an action founded on an allegation that there exists a different native title (particularly if the consequence of the claim succeeding is the necessity to negotiate with two prescribed bodies corporate rather than one). As to authorisation, the case that is authorised is that which is articulated on the Original MESL Form 1 (or any properly authorised amendment to the document made with the leave of the Court). The MESL SFIC may elaborate upon and clarify the authorised case, but it cannot change it. Expressed another way, an inconsistent case advanced in a SFIC going to a topic so fundamental as the identification of the relevant traditional society is not to be regarded as the case that has been authorised.

147    The Original MESL Form 1 is clear in its meaning as to the body of traditional laws and customs upon which the MESL Applicant relies as the source of the “particular native title claimed”. At the very least it is the same body of traditional laws and customs under which the particular native title in KD No 4 was possessed. The expression “traditional laws of the Mirning people” in the definition of the claim group must be given (at least) that meaning. I do not accept that the description of the claim group, read as a whole, defines the claim group as being members of a distinct society in and of itself.

148    The Original MESL Form 1 may nonetheless be understood as asserting (at least implicitly) that the “Mirning people” are a traditional society that exists independently of a wider regional society of the kind upon which the 2013 Determination was factually founded (and perhaps to deny the existence of that wider regional society in respect of the MESL Claim area altogether). In that limited respect, the MESL Applicant may be understood as adopting a position consistent to that adopted by the Bunna Lawrie Parties in contesting the FWCSC Application being the position summarised by White J in Miller:  see [52] above.

Evidence

149    I have not overlooked the evidence upon which the MESL Applicant relied on the strikeout applications. The Court was invited to consider that evidence both for the purposes of determining the authorisation question (albeit at the level of a strikeout) and for the related purpose of identifying whether there exists some evidentiary foundation from which it may at least be argued that the claim group is a distinct society.

150    I have read the affidavit of Mr Bunna Lawrie affirmed on 31 March 2021, before the Meeting took place. I have also read parts of affidavits listed at [4] – [10] of a supplementary written submission made on behalf of the MESL Applicant dated 10 September 2021. Those affidavits were also affirmed before the Meeting took place. The above-mentioned affidavits relied upon are affidavits filed on behalf of the Bunna Lawrie Parties in support of their case as respondents to the FWCSC Application. In addition, the Court has read the affidavits of Mr Miller and Ms Sparrow accompanying the Original MESL Form 1, and two other affidavits responding to the strike out applications. It is convenient to first focus attention on the affidavit of Mr Lawrie principally because of his degree of involvement in the Meeting.

The Bunna Lawrie affidavit

151    The phrase “Mirning people” is used throughout the affidavit. However, no express definition is provided for the phrase. Its meaning is to be discerned by reference to the affidavit as a whole.

152    Mr Lawrie was born at Koonibba, on “Mirning country” and speaks “Mirning language”. He has inherited his right to speak for “Mirning land and Mirning culture” from his mother, his grandfather and other ancestors. The Mirning People are a group of Aboriginal People known as the “Yinyila Nation”, being the name for “our Mirning Nation of clans”. With respect to the deponent, the Court will use the same name.

153    At the time of sovereignty, the Yinyila Nation consisted of over 24 clans “probably more like 30”, not all of which have surviving descendants.

154    When a family line dies out, their responsibilities and duties are inherited by other family lines/clans through kinship protocols. Inheritance may only occur within the Yinyila Nation clans which continue to follow Mirning laws and customs. In this way, the ancestry can still be traced back through the bloodline to the Great Creators of country and there is continuity of caring for country.

155    Mr Lawrie belongs to a clan of the Mirning People known as the Yirgarla of the ngandartha Yinjyla Nation. The bloodline for that clan is from the ancestor Tjabilja, including one of her sons “Mickey Free” Laurie and Kit Mudjina. Mickey Free Laurie inherited further totems and waterholes from his Uncle Jimmy Mingo. Jimmy Mingo had duties and responsibilities for at least 17 waterholes on Mirning country.

156    The Yinyila Nation “covers all the Mirning clans and means the land of the yinyila (sand dunes), ngandartha cliffs and all the sea country that this embraces”. There were strict Mirning laws about coming onto country, land and sea and about hunting and fishing. Someone coming onto Mirning land or sea had to be granted access by the Mirning Elders and also granted permission for hunting or fishing. The Mirning Elders have the role of “controlling and governing our country”.

157    The Yirgarla clan has overarching responsibility for all of the clans. Two other major clans are the Yoolbara clan in the east and the Wondunda clan in the west. Although the clans have different names and different totems, they “were all just one Mirning family along the coast and inland to places where there were responsibilities, where there are waterholes, sacred sites, sacred art and song-lines of the Mirning”.

158    In the Yirgarla clan, the marban bai (medicine men) are the head men. They settle disputes, arrange marriages, lead initiation ceremonies and carry “the Mirning law and Ceremony bag”. The head man has authority “in the Mirning tribe and over all the Mirning clans”.

159    The traditional law of the Yinyila Nation is (or includes) the ngarrgjnuri, (whale law).

160    The whale law is “overseen by the mulaji, government, which is the Mirning Council of Elders, particularly when the Elders gather at a nwalgakn, meeting”. Mr Lawrie is a Senior Elder on that Council. The head man and the Mirning Elders have a duty to call a nwalgakn (meeting) to make sure that there is wellbeing and peace and harmony amongst the clans. Anything to do with neighbouring tribes goes to the marban bai (medicine men) and the Council of Mirning Elders through a nwalgakn (described as a “governing body”), which has the “right of say over Mirning country and Mirning People”.

161    Mr Lawrie’s grandfather was a medicine man who held a position of great authority in the “Mirning tribe”. Mr Lawrie’s grandfather would “go to the Council of Mirning Elders and organise a nwalgakn, a meeting to talk about the everyday life of the Mirning and to talk about the clans of the Mirning to make sure of the wellbeing of all the clans, as they are all one family”.

162    Mr Lawrie states:

(1)    “Our law , language, culture and spiritual lineage is distinct from those of the tribes to the west, north and east, even if there are words common amongst their languages, even if there is intermarriage, and even if we come together for ceremonies or other gatherings”.

(2)    “Mirning laws are distinct from those of the Ngadju People, Wirrangu People, Anangu/Yalata/Maralinga/Spinifex People and Kokatha People”.

(3)    “The Elders have a significant and respected place in Mirning society. The Mirning Council of Elders recognises and acknowledges what kinds of duties and responsibilities an individual does and does not have and whether they are following these”.

(4)    “There is transmission from the Elders through generations, so that there is continuity of goonminyerra laws and customs in fulfilling responsibilities and duties for family line/clan totems and waterhole country. These laws and customs are not changed; they have been here since the Dhooghoor”.

(5)    “Under our traditional Dhooghoor laws and customs of this country, only those who are descended by blood from the Dhooghoor ancestors and continue as custodians by following the laws and customs from this place can assert rights of ownership and bring a native title claim for this country”.

(6)    “Mirning People have rights all through Mirning country, though there are specific clan areas and protocols between clans. For example, our whale totem is across from Clare Bay on the jalja ngadri (tail of the whale) across to the bidimula (nose of the whale) beyond Point Culver. The joombren (fins) of the whale are in the sea and along the edge of the Nullarbor Plain. The moumgjen garu is the blowhole of the whale. Other Mirning clans have different totems and their rights extended over smaller areas, though all come under the whale totem family with government by the mabarn bai (Medicine man) with the Council of Mirning Elders”.

(7)    The Far West Coast PBC is “dominated in membership by Aboriginal people who follow desert laws. Those people seem to think it is OK to try to take over Mirning country, and claim it for themselves. This thinking then infects what the Corporation does. It continues not to respect Mirning country’s traditional laws, customs and the Elders’ wishes”.

(8)    Mirning People have rights to the land and sea in the FWCSC claim area which is “also our ancient Mirning land country”.

(9)    The 2013 Determination was made in circumstances where a registered Mirning native title claim was abandoned on legal advice in order “to work together in harmony in a combined claim”. Mr Lawrie says he was told that “Mirning stories, sites, law and rights would be respected, recognised and acknowledged as the traditional people by the other Aboriginal groups in the combined claim” that “other groups would come to the Mirning Elders and members if there was anything to be done on Mirning country” and that “it was better to work together and have a joint claim like a corporation, so that non-Aboriginal people like miners could deal with one group rather than six groups”.

(10)    The Far West Coast PBC “does not consult the Mirning Elders, the long acknowledged, and traditional, representatives of the Mirning People” and despite their protests, Mirning voices within Far West Coast PBC are being outvoted “even on decisions concerning Mirning country”.

163    Mr Lawrie perceives that the combination of claims in the 2013 Determination may have been a “big mistake”. He concludes:

maybe the evidence in these proceedings will show once and for all that there are Mirning only areas and maybe Mirning shared area in the Far West Coast native title determination area, and maybe then the Far West Coast Aboriginal Corporation will be forced to recognise that Mirning people must speak for Mirning country. I live in hope that this will occur within my lifetime.

164    If all of that evidence were to be accepted at its highest, then there is a sufficient evidentiary foundation to support a case that disputes the existence of a wider regional society of which the Mirning People form but one part (the other groups including Kokatha and Wirangu People) at least in respect of the MESL Claim area. The case supported by the affidavit is that the whole of the group of Aboriginal persons who comprise the Yinyila Nation are a separate traditional society and that their rights and interests in country do not owe their existence (and are not subject to) the traditional laws and custom of any wider regional society in the area.

165    However, again accepting the evidence at its highest, the material does not provide even prima facie support for the proposition that the narrower class of persons who now meet the description of the MESL Claim group are a distinct society vis a vis the Yinyila Nation. Mr Lawrie’s evidence says nothing to that effect. To the contrary, his evidence is replete with references to the Yinyila Nation comprising a significant number of family clans, organised as a cohesive whole. The traditional laws and customs to which he refers are plainly shared by numerous family clans whose relations are organised through (perhaps among other things) a governing body comprising a head man and a Council of Elders. Mr Lawrie is a member of the Council of Elders which is a part of the governing body within (and to an extent evidencing) the traditional society to which he refers. Consistent with the Original MESL Form 1 as I have interpreted it, the group of persons who constitute that society is plainly broader than the MESL Claim group. The affidavit does not support the proposition that a particular family clan acknowledges different traditional laws or observes different traditional customs than the others. Nor is there evidence that members of the same family clan belong to distinct traditional societies in any part of the land or waters referred to in the affidavit. The affidavit defines a native title society in which differences between the multiple family clans are resolved by intramural decision-making processes.

Other affidavits

166    The affidavits of Cecelia Coaby, Dorcas Miller, Kaylebne Fowler, Robert Lawrie and Rose Miller variously assert that there is a group of Mirning People descended from Tjabilja and Mickey Free Lawrie who believe that Mirning country includes the area covered by the FWCSC Application. The deponents emphasise the importance of the traditional Dhooghoor law and (consistent with the evidence of Mr Lawrie) they assert that the Mirning People are a society distinct from the desert people.

167    Some deponents assert that Mirning country extends as far east as Murphy’s Haystacks and Wallala Rock, although the affidavits are not uniform in that respect. The affidavits refer to the importance of sites such as Koonalda Cave and the Head of the Bight, referred to as the “gateway to the galaxy”. They refer to the importance of the sea area. Some of the deponents say that they were taught that Mirning country extends into the sea as far as the eye can see and beyond, and that the place where the sea is now was Mirning country before the sea level rose. On that topic, there is evidence that there exists disagreement about the extent of what is described as “Mirning country”. Read together with the affidavit of Mr Lawrie, I do not consider the additional affidavits lend support to the proposition that there exists a distinct society as alleged in the course of submissions. Rather, the affidavits, read as a whole, evidence the existence of a dispute as to the content of the traditional laws and customs of the society of which the MESL Claim group form one part.

Illogicality

168    Finally on this topic, I consider there to be a logical problem with the contention that there exists a distinct traditional society whose membership is defined by CRITERION A, CRITERION B and CRITERION C. The problem arises because traditional laws and customs under which native title rights and interests are possessed must be shown to have existed at the time of sovereignty, as explained at the outset of these reasons. As I have already observed, the native title claimed on the Original MESL Form 1 is said to have been transmitted by a process of biological descent from the named apical ancestors. And it has also been observed that the claim group description excludes family members of included persons.

169    It has not been explained how one line of descendants of an ancestor could logically form a part of one traditional society and yet another line of descendants of the same ancestor form a part of another. On the facts of the present case, all of the descendants of (for example) Tjabilja have previously been determined to belong to the same traditional society. To the extent that there are divisions among the descendants of the same apical ancestor, those divisions cannot be pointed to as the basis for the existence of distinct traditional societies continuing in existence since the assertion of sovereignty. The Court does not require the evidence of an anthropologist to reach that conclusion:  it is a conclusion that follows from the legal meaning of the word “traditional”. To address that problem, Counsel for the MESL Applicant discussed a scenario in which Mr Clem Lawrie (a Tjabilja descendant excluded from the claim group) and Mr Bunna Lawrie (a Tjabilja descendant included in the claim group) stood in the shallow waters of the area covered by the FWCSC Application, as overlapped by the more expansive MESL Claim. It was submitted that the difference in their respective societies is that Mr Clem Lawrie’s traditional laws and customs extended out to sea only to the extent claimed in the FWCSC Application, and yet Mr Bunna Lawrie’s traditional laws and customs extended hundreds of kilometres further. What was not addressed was the circumstance that both are descended from the same apical ancestor (Tjabilja) and so have obtained their asserted native title rights and interests by a process of biological descent from the same person. Both have previously been determined by this Court to belong to the same society, unified by the same body of traditional laws and customs. That only serves to reinforce my conclusion that the MESL Claim group represents one faction of an intra-familial and inter-familial dispute about the content of the traditional law defining a society whose membership includes representatives of both factions.

Conclusion

170    The contention that the persons fulfilling CRITERION A, CRITERION B and CRITERION C are themselves a distinct traditional society is rejected on multiple bases, each of which is sufficient. The Original MESL Form 1 does not allege that case, such a case is not arguable on the evidence upon which the MESL Applicant relied in any event, and the case is untenable for the additional reason identified in the immediately preceding paragraphs. It follows that the subgroup and authorisation issues arising on the interlocutory applications cannot be overcome by resorting to any such arguable case.

Authorisation on the proper interpretation of the Original MESL Form 1

171    Section 94A of the NT Act provides that an order in which this Court makes a determination of native title must set out details of the matters mentioned in s 225. When asking whether the MESL Applicant has been authorised in accordance with s 61, it is necessary to keep s 94A and s 225 in focus. A determination of native title is a determination whether or not native title exists in relation to a particular area and, if it does exist, a determination of “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. Whilst s 61 may be understood as a provision concerned with standing, it also imports concepts of agency, because the determination of native title that may be made on its final adjudication (including a negative determination) will be legally binding on the persons on whose behalf it is brought.

172    Section 61 is also concerned with the proper administration of justice in legal proceedings under the NT Act. As O’Loughlin J said in Risk v Native Title Tribunal [2000] FCA 1589 at [29], one of the consequences of the amendments to the NT Act in 1998 (relating to authorisation) was the better identification of native title claim groups. His Honour said:

29    …  The act now ensures that applications can only be lodged on behalf of properly constituted groups – not individuals or small sub-groups. This approach is consistent with the principle that native title is communally held. As Deane and Gaudron JJ said in Mabo v Queensland No 2 (1991-1992) 175 CLR 1 at 109-110 ‘ordinarily, common law native title is a communal title, and the rights under it are communal rights enjoyed by a tribe or other group.’ In State of Western Australia v Ben Ward and Others [2000] 170 ALR 159 at par 181 Beaumont and von Doussa JJ said:

‘Under the new Act the person or persons named becomes the applicant (s 61(2)) and s 251B describes the way in which a native title claim group may authorise the person or persons bringing the application. The NTA plainly contemplates a claim by a group or community of people.’

30    The importance of the term (‘native title claim group’) is apparent from its appearance in the table that forms part of subs 61(1) of the Act. Subsection 61(1) imposes requirements not only in relation to the question of authorisation, but also in relation to the anterior question of whether the application has been made on behalf of a ‘native title claim group’. An application which is not made on behalf of a ‘native title claim group’ cannot validly proceed.

173    O’Loughlin J was there concerned with a decision of a delegate of the Native Title Registrar concerning the registration of a determination application. The delegate had expressed her satisfaction that the persons in the claim group were described in the originating application sufficiently clearly. His Honour said that the delegate’s statement overlooked the prior need to be satisfied that the eight named people properly constituted a “native title claim group” for the purposes of the NT Act. His Honour said (at [60]):

It is incumbent on the delegate to satisfy herself that the claimants truly constitute such a group.  I cannot, with respect, accept these passages in the delegate’s reasons.  In the first place, it seems to assume that a family, which is known to be part only of a community, is entitled to claim native title, even though other members of the community (who in the case before the delegate have not been identified) have, for one reason or another, not been included in the application.  In the second place, the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s 61; that section talks of the persons who, as a group, hold “the common or group rights and interests”.  The eight members of the Quall family may be part of the group but they are not the group.  The applicant (in this case, Mr Quall) should be seen to be authorised by all persons who relevantly hold the common or group rights and interests.  There is no mandate for proceeding upon the undertaking or arrangement that the family of eight will not exclude other members of the Danggalaba Clan: nor is it permissible to proceed upon the undertaking or arrangement that the family of eight will hold the entitlements that they achieve on some form of trust for the other members of the Danggalaba Clan.  The tasks of the delegate included the task of examining and deciding who, in accordance with traditional law and customs, comprised the native title claim group.  If, as could perhaps occur in some circumstances, the group was a family of eight, then the delegate would proceed to consider all remaining tests.  But when, as here, it was apparent to the delegate (as appears from the language of her reasons) that the family of eight was not the group – but, at the most, only part of the group – it became impossible to accept the application for registration.

(original emphasis)

174    In Fourmile on behalf of the Gimuy Walubara Yidinji People v Queensland [2018] FCA 572, Robertson J dismissed a strike out application founded in part on an allegation that the claim group was only a subgroup. His Honour found that the claim was “not self-evidently, or self-confessedly, a sub-group or sub-set claim”. His Honour found that the correspondence between the descriptions of apical ancestors asserted between the claim group on the one hand and earlier determined claims on the other was not a sufficiently clear basis to justify the striking out of the claim. That was because it had not clearly appeared that, if the claim were to succeed according to its own terms, the claim applicant would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed. His Honour emphasised that each case must turn on its own facts.

175    The objective of s 61 is to prescribe who may make (in this case) a claimant application under s 13 of the NT Act and the persons on whose behalf a claim may be made. In my view, s 61 of the NT Act is to be understood as requiring that there be a single claimant application brought on behalf of all of the persons who (supplanting the language of s 223) “possess native title in the land or waters under the traditional laws acknowledged and the traditional customs observed by them and who, by those laws and customs, have a connection with the land or waters”. The phrase “particular native title” incorporates the concept that native title rights are common, group or individual rights and interests. The concern underlying the subgroup cases is that the Court not be burdened by multiple applications representing different factions of intermural disputes as to who the persons holding the common or group rights comprising the native title are. If there is a dispute among members of a society as to what their traditional laws and customs require, that dispute may, indeed should, be resolved through the authorisation processes (incorporated in s 251B), not by a series of claims representing different sides of an argument concerning the same body of traditional law.

176    Of course, the identification of whether there is before the Court an intermural dispute of that kind may involve questions that cannot or should not be determined at the pre-trial stage. It may follow that related disputes as to authorisation also involve questions that cannot be appropriately determined in the context of a strike out application, such that the application should appropriately proceed to trial.

177    By way of example, to the extent that an issue arises as to whether the “Mirning People” (being the traditional society recognised in KD No 4) are a subgroup of a wider regional society known as the “Far West Coast People” (being the society recognised in the 2013 Determination) then in my view that is an issue that ought not to form the basis of a strikeout of a claim brought by the smaller of those two groups. To the extent that the Original MESL Form 1 asserts that the “Mirning People” are a society distinct from the “Far West Coast People” in respect of the waters forming the subject of the claim, there is in my view a genuine question to be tried. It is the same issue agitated by the Bunna Lawrie Parties and there is a prima facie evidentiary basis for the assertion of such a claim notwithstanding the fact and content of the 2013 Determination made by consent in respect of adjacent land. If subgroup issues had arisen only at that highest level of generality, they would not necessarily have been of great concern. It is the additional layer of subgroup issues that require particular attention.

178    For the purposes of s 61 of the NT Act, the “particular native title claimed” is native title possessed under the traditional laws and customs of the Mirning People (as asserted in the opening words of the claim group description) and confirmed in Attachment F to be the laws and customs of the same society recognised in (at least) KD No 4. The decision-making process referred to in s 251B is to be understood as the decision-making process under the traditional law of that same society. On any view of the evidence, the membership of that society includes a wider class of persons than that defined by the criteria for attendance at the Meeting. The following consequences follow:

(1)    In the particular factual circumstances, I am not satisfied that the MESL Claim group is a properly constituted “native title claim group” within the meaning of s 61 of the NT Act. Accordingly, even if authorisation was given by “all of the persons” in the described claim group the statutory requirements for authorisation would not be fulfilled. That conclusion is explained at [182] – [195] below.

(2)    If I am wrong in concluding that the MESL Claim group is not a “native title claim group”, then I would in any event not be satisfied that there is an arguable case that the MESL Applicant was authorised in accordance with the decision-making processes provided for under the relevant body of traditional laws and customs, taking the evidence relied upon by the MESL Applicant on that topic at its highest. That conclusion is explained at [196] – [204] below.

The effect of CRITERION C

179    The persons who were permitted to participate and who in fact participated in the Meeting (hereafter “the Meeting group”) correspond with the claim group description:  cf Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (at [65]).

180    In my view, the circumstance that the apical ancestor Jinna Makul was not named in any of the advertisements does not detract from that conclusion, or at least not in a way that would justify the striking out of the MESL Claim. It has not been shown by either of the strike out applicants that there exist any living descendants of that apical ancestor, let alone ancestors who would have attended the Meeting had they been able to identify themselves as eligible to attend. Nor do I consider the inclusion of two additional apical ancestors on an earlier online version of the registration form for the Meeting to provide a basis for striking out the MESL Claim. Those ancestors are not included in the claim group description in the Original MESL Form 1 and so the possibility that they were not aware that they might have been permitted to register (notwithstanding the limitations in the advertised notice) to my mind should not affect the outcome. I reject the submissions of the Wirangu Applicants in respects of those discrepancies.

181    It is an incontestable fact that not all ancestors of the Mirning People previously recognised by this Court are included in the claim group description by virtue of the apical ancestors listed in CRITERION A not including (for example) Sally Broome and Gumillya “Carmelia” Button. However, as I explained earlier, it is not necessarily impermissible for native title holders to consist of some members of a society but not others in relation to specified land or waters, provided that the claim is properly authorised:  Kite at [22].

182    By reason of the criteria for attendance at the Meeting, the Meeting group (by definition) excluded those persons who fulfilled CRITERION A and CRITERION B (descendants of the same traditional ancestors) who nonetheless disagreed about the topographical extent of the waters to which the proposed application related. On any view of the evidence, CRITERION C (as a criterion for attendance at the Meeting itself) had the practical effect of excluding from the Meeting any person who would not authorise the claim because of that difference of opinion. Critically for present purposes, such persons would be excluded, even if they had native title rights and interests in a part of the claim area. They were excluded irrespective of whether their native title in a part of the area was sourced from the same normative system of traditional laws and customs upon which the MESL Claim is founded.

183    Counsel for the MESL Applicant acknowledged that there may be descendants of the very same ancestors who hold native title rights and interests in a part of the claim area (particularly that part overlapping the FWCSC claim area) who were excluded from the Meeting because of their refusal to give the acknowledgment required by CRITERION C in respect of a much wider expanse of the sea. I have rejected the contention that their exclusion can be explained (even arguably) by their membership of a different society.

184    The fact that there exists a disagreement about the extent of “Mirning country” is acknowledged by Ms Sparrow. Her affidavit affirmed on 30 July 2021 states (at [24]):

I am told that there are affidavits from people who say that they think that Mirning country is smaller than the claim area, maybe a lot smaller. If they say that, they weren’t taught right, and maybe they don’t know the traditional ways.

185    Accepting that evidence as its highest, it does not explain why the native title of excluded persons in the smaller part of the claim area that is not the subject of disagreement (particularly the area covered by the FWCSC Application) should be denuded. Even if such persons acknowledge that their native title in the uncontroversial part of the area has its source in the same body of traditional laws and customs, even if they are descendants of the same apical ancestors and members of the same family or clan (as described in Mr Lawrie’s affidavit), they were nonetheless excluded, and intentionally so.

186    There is ample evidence before the Court to demonstrate that there are living persons fulfilling CRITERION A and CRITERION B but who disagree about some but not all of the extent of the claim area. The consequence of their fulfilment of CRITERION A is that they are people who have been previously recognised as persons who hold native title rights and interests in KD No 4 derived from the same traditional laws and customs upon which the MESL Claim is based. To that extent, there is self-evidently an intermural dispute, not only between family clans but also one within family clans. The evidence of the strike out applicants shows that CRITERION C, as expressed in the notices advertising the Meeting, had the intended effect of excluding from attendance those members of the same society who would not authorise the claim, whether or not they held native title rights and interests in that part of the claim area that was not controversial in the context of that intermural dispute. The evidence includes the following.

187    Ms Pamela Milera deposes that she is a descendant of Tjabilja. Her evidence includes (at [4]):

…  When I looked at the notice, I saw a map that showed that the Mirning Eastern Land and Sea proposed claim area went east to Murphy’s Haystacks and as far south as the line of latitude 33  degrees S which I understand is 170kms off the Far West Coast. I could not believe that any Mirning people would say that Mirning country went that far south and east as shown on the Mirning Eastern Land and Sea Claim map. I did not attend the Meeting because I did not agree with the proposed Mirning Eastern Land and Sea claim area going east to Murphy’s Haystacks and as far south as the line of latitude 33 degrees S. I could see by the notice for the Meeting that if I went to the Meeting I would be [sic] not be able to participate and would not be permitted entry because I did not satisfy one of the criteria for entry which was to acknowledge that the Mirning People possess native title rights and interests in the Mirning Eastern Land and Sea claim area, shown on the map, under traditional laws acknowledged, and the traditional customs observed, by the Mirning People.

188    Ms Estelle Miller deposes that she is a descendant of Maggie (mother of Jimmy Scott). She relevantly states (at [7]):

Because I could not agree to the area being claimed as Mirning country, I did not attend the Meeting because the Notice said that if I did not agree I would not be allowed to participate or permitted entry to the Meeting. I would have gone along to the Meeting if the notice did not say I would not be permitted entry unless I agreed with the map.

189    Mr Oscar Richards deposes that he is a descendant of Mickey Free Lawrie, a son of Tjabilja. He states:

9    Cheryl Saunders and Pamela Milera called me and said they saw on Facebook that a proposed meeting for a Mirning Eastern Land and Sea Claim was to be held at Port Lincoln in May 2021 (Meeting). I did not read the notice and I was not sent a letter inviting me to the Meeting and I was only told about the notice of the Meeting by Cheryl Saunders and Pamela Milera. They said that if anyone went to the Meeting they would not be allowed to participate and would not be permitted entry to the Meeting unless they ‘acknowledge that the Mirning People possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning People’ in the area that went to Murphy’s Haystacks and … right out to the line on the 33 degrees latitude S. I then wondered how the people putting on the Meeting chose the apical ancestors for the Mirning Eastern Land and Sea Claim and the area in the map? I did not agree with the area covered by the Mirning Eastern Land and Sea Claim map or claim area description. For that reason I knew I would be excluded from attending the Meeting.

10    My old Mirning people did not tell me that Mirning country went as far east as Murphy’s Haystacks or out to a line on the 33 degrees latitude S. I would have gone to the Meeting to air my views as a Mirning person but I was told by my family that the notice said I would not be able to participate in the Meeting and would not be permitted entry although my ancestor Tjabiltja was put on the notice as a Mirning ancestor. So I decided not go to the Meeting because I would be told to leave and there might have been a fight or some trouble.

190    Ms Nellie Hirschausen declares (at [8]):

On about 25 March 2021 I was looking at the Far West Coast Aboriginal Corporation Facebook page when I saw a notice for a meeting for a proposed Miming Eastern Land and Sea Claim to be held at the Port Lincoln Hotel on 8 May 2021 (Meeting). The notice came from a link to a website called, mirning.org. The notice stated that Miming people were invited to the Meeting who were descended from certain apical ancestors. I could not undertand [sic] why my grandmother Kumilya was not named as a Miming apical ancestor even though she was the sister to Maggie, mother of Jimmy Scott who had been listed on the notice. I wondered how one person could be identified as an apical ancestor and their siblings were excluded? Kumilya Button was included as an apical ancestor in the Western Australian Miming determination:  KD (deceased) on behalf of the Miming v State of Western Australia (No 4) [2017] FCA 1225. Me and my family were not invited to the Meeting because our Miming ancestor was left out of the Miming Eastern Land and Sea Claim description. I would have attended had my ancestor been included.

191    Mr Clem Lawrie deposes that he is a descendant of Tjabilja and her son Mickey Free Lawrie. He states (at [11]):

My elders never told me that Mirning country went east to Murphy’s Haystack or that far south to 33 degrees latitude. I thought it was absurd. From what I was taught by the old people when I was growing up I do not agree with the map claiming that Mirning country extends that far east and south. After reading the invitation to attend the meeting I decided not to attend because the notice said that I would not be allowed to participate in the meeting and would not be permitted entry even if I was a Mirning person. I could not have done what the notice said I had to do to attend the meeting and acknowledge that the Mirning People possess native title rights and interests in the Claim Area shown on the Mirning Eastern Sea and Land Claim map because my old people did not say it did. I would have gone to the meeting in Port Lincoln to air my views as a senior Mirning person but the notice shut me out.

192    Ms April Lawrie deposes that she is a descendant of Tjabilja and the great granddaughter of Mickey Free Lawrie. She states:

19.    In the past, affidavits have been filed in Court by the Indigenous Respondents to state to the effect that I am no longer Mirning and that I have been ‘banished’ from the Mirning people. I refute these allegations and they have no effect. These actions by these members of my family are based on personal animosity and have nothing to do with Mirning traditional laws and customs. I was born, raised and lived experience as Mirning. My Mirning heritage comes through descent from Tjabiltja. I identify as a Mirning person and I am accepted by all other Mirning people as being Mirning. I am proud to have been raised by my Mirning·grandfather, Albert James ‘Bulla’ Lawrie and my Mirning mother, Elma Sylvia Lawrie.

..

22.    After reading the notice I realised I would be stopped from attending the Meeting because the notice said that I would not be allowed to participate and would not be permitted entry to the Meeting, because while I am a Mirning person I had to ‘acknowledge that the Mirning People possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning People’. As I did not agree with the area covered by the Mirning Eastern Land and Sea Claim map or claim area description in the notice I was excluded from attending the Meeting. My old Mirning people did not tell me that Mirning country went as far east as Murphy’s Haystacks and Wallala Rock or out to a line on the 33 degrees latitude S. I would have taken the opportunity to have gone to the Meeting to air my views as a Mirning person but the notice said I would not be able to participate in the meeting and would not be permitted entry.

193    Counsel for the MESL Applicant also submitted that CRITERION C should be understood as encapsulating the concept of a present day “connection” with country. However, conceiving of the Criterion in that way does not resolve the issue. It is not explained how a person’s acknowledged connection with one part of the claim area should be denuded because of their opinion that other persons do not or cannot have a connection with a much wider area in accordance with the same traditional laws and customs.

194    The Excluded Persons whose evidence I have just mentioned do not deny the existence of native title in that part of the MESL Claim area that overlaps the narrower claim area covered by the FWCSC Application. Their exclusion from the Meeting had the consequence that the Meeting group was not a “native title claim group”:  it did not include all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, in respect of the area considered as a whole. The MESL Claim is therefore affected by the defect identified by O’Loughlin J in Risk.

195    The Court has jurisdiction to strike out the MESL Application under s 84C of the NT Act on that basis alone.

Decision-making processes under traditional law

196    In his affidavit, Mr Lawrie described the traditional decision-making processes of the Mirning People (comprising multiple family clans), involving a head man and a Council of Elders in a meeting known as a nwalgakn.

197    I satisfied that the group of Elders who passed resolutions six and onward at the Meeting was not the same governing body referred to in Mr Lawrie’s description of traditional decision-making processes in his earlier affidavit. It cannot be reasonably argued otherwise.

198    The question to be determined is whether there is an arguable case that the relevant traditional laws and customs permit some parts of some family groups among the Mirning People to make decisions about country without invoking the decision-making processes described in Mr Lawrie’s affidavit.

199    In the course of argument, the Court asked Counsel for the MESL Applicant to point to the evidence demonstrating that the Meeting group could “go it alone” on the decision to authorise the MESL Applicant. The principal response was that the Meeting group was a distinct society. Counsel also submitted (I assume in the alternative) that there is prima facie evidentiary support to be found in the affidavit of Ms Miller as to what occurred at the Meeting itself. Counsel referred to the evidence that Mr Lawrie addressed the attendees about the requirements of traditional laws and customs, which the attendees accepted and resolved to follow. It was submitted that Mr Lawrie’s opinion as to that process, together with the Meeting group’s acceptance of it, was sufficient to prove its correctness to the low evidentiary threshold necessary to withstand the strike out applications.

200    It is plain that the persons attending the Meeting resolved to follow that decision-making process. But it is also plain that they made the resolution at the suggestion and on the advice of Mr Lawrie after some discussion about whether traditional law had anything to say on the subject. Counsel for the MESL Applicant submitted that Mr Lawrie may have been correct or incorrect in his assumption that the decision-making process at the Meeting complied with the relevant traditional law, but as the question depended on anthropological evidence, it must necessarily be permitted to go to trial. I cannot accept that submission in the particular circumstances of the present case.

201    The MESL Applicant has not relied on direct evidence from Mr Lawrie as to the events that occurred at the Meeting. Rather, the Court is asked to draw an inference that because Mr Lawrie expressed an opinion about the requirements of the relevant traditional law, which the attendees at the Meeting accepted, it is at least arguable that his opinion was correct.

202    The difficulty is that the opinion expressed by Mr Lawrie at the Meeting finds no support in his own sworn evidence. Rather, Mr Lawrie’s affidavit (taken at its highest) supports a finding that the process adopted at the Meeting was not in accordance with traditional law to which he himself deposed. The affidavit is comprehensive in its content. Mr Lawrie deposes to no process by which contentious decisions about country can be made by some members of some family clans in respect of matters arising under traditional law independently of the wider “Yinyila Nation” through the governing body he describes. The role of the Council of Elders in the decision making process of the Yinyila Nation is emphasised throughout Mr Lawrie’s affidavit without exceptions or qualification. Over and again the affidavit refers to the several family clans as part of a society defined by a normative system which includes rules about relations as between clans, including rules in relation to rights and interests in land, overseen by the Council of Elders.

203    Of course, the Court is to consider both the affidavit of Mr Lawrie and the evidence of what occurred at the Meeting together – both sources of evidence are relied upon by the MESL Applicant and both are to be taken at their highest, as are the additional affidavits relied upon. However, this is not a case in which there is a contest of conflicting evidence vis a vis opposing parties in the litigation. Rather, there is contradiction within the body of evidence upon which the MESL Applicant itself relies. By reason of the affidavit evidence, I am not prepared to draw the inference (even at an arguable level) that the opinion expressed by Mr Lawrie at the Meeting about traditional decision-making process was correct. The Court should act on Mr Lawrie’s affidavit (as it has been invited to do) to identify the content of the actual traditional decision-making law, accepting his evidence for present purposes. There is no reason to suppose that an expert anthropologist giving evidence in the MESL Applicant’s case could rightly express any different view from that expressed by Mr Lawrie himself.

204    I am satisfied that the strike out applicants have discharged their burden of establishing that the MESL Applicant has no reasonable prospect of success in demonstrating that the MESL Claim was authorised in accordance with s 61 of the NT Act. In addition, I am not satisfied that the MESL Applicant has identified sufficient factual or evidentiary disputes to make a trial of that question necessary:  Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, Gordon J (at [127]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978, McKerracher J (at [3]).

Section 84D

205    As explained in the next section of these reasons, I have reached the conclusion that the MESL Claim constitutes an abuse of process insofar as the claim area overlaps the Wirangu Land Applications. In light of those reasons, I would not exercise my discretion under s 84D of the NT Act so as to permit the MESL Claim to proceed to trial in respect of that overlapped area, irrespective of the conclusions I have reached in connection with the authorisation issues and irrespective of the consideration informing my discretion under s 84D of the NT Act.

206    As White J said in Miller (at [93]), the matters which may be relevant to the exercise of discretion under s 84D(4) 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.

207    The discretion under s 84D is to be exercised in circumstances where an application has been filed by the MESL Applicant to amend the Original MESL Form 1. The amendment application has not been set down for hearing. I will first consider the circumstances as they exist apart from the amendment application, before considering the consequences of the application having been filed.

208    The proceeding titled the Great Australian Overlap Proceeding (including MESL Part B) has been set down for trial of preliminary questions to identify whether native title exists and, if so, who the native title holders are. In supplementary written submissions the MESL Applicant asserted:

17    It may be that answering the Preliminary Questions in light of s 84D, permits, perhaps necessitates, the Court engaging in a form of judicial ‘inquiry’ which transcends any party’s pleaded case, and in respect of which the success or failure of any party on any particular issue within their pleaded case will not necessarily determine the answers to the Preliminary Questions.

18    Further, the answers to the Preliminary Questions might identify native title and native title holders which does not accord with any authorised claim. If so, at a minimum all parties will need to consider their positions.

209    The intended import of these contentions is somewhat unclear. To the extent that it is submitted that a claim that has been identified as unauthorised should nonetheless be permitted to be tried so that the Court can conduct an inquiry unconfined by the pleaded cases of any party so as to get to the truth on the preliminary questions, I cannot accept the submission.

210    In a trial of claims, the Court’s task is to decide the matters that are in dispute. The disputed issues are defined by the allegations in the originating applications as clarified in documents in the nature of pleadings (in this case statements of facts, issues and contentions and responding documents). It is true that at the conclusion of a trial of contested claims, the factual findings of the Court may not wholly coincide with the case alleged by one claimant group or another. The facts as found may nonetheless enable a determination of native title to be made, provided that all of the requirements of s 225 of the NT Act can be met. However, a difficulty may arise because the determination that appears open to be made is not one that has been authorised in accordance with s 61 of the NT Act by all of the persons who hold native title in accordance with the Court’s factual findings. An issue might then arise as to whether the Court could (and if so should) exercise the discretion under s 84D of the NT Act to proceed to a judgment giving effect to its findings notwithstanding the lack of authorisation.

211    That circumstance arose in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 (Smirke No 2) and Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 (Smirke No 3) at [152] – [164], after a trial of overlapping claims in Western Australia. One of the claim groups (known as the YG claimants) alleged that they were a subgroup of a wider group whose traditional laws and customs had previously been recognised and described in an earlier determination in connection with other land. The YG claimants contended (as has been contended in this case) that they held a separate native title in the overlap area from that held by the wider group as recognised in the earlier consent determination. Following a trial of the overlapping claims, Mortimer J rejected that case. Her Honour held that the YG claimants, as native title holders in the earlier determination, were bound by that determination and that their case had sought to depart from it in a fundamental way: Smirke No 2 at [1309]. Her Honour held that those persons who constituted the YG claimants held native title in respect of some parts of the overlap area in common with some other members of the wider group and that the native title of the YG claimants was not separate and distinct from that of the wider group:  Smirke No 2 at [1193] – [1206], [1310] – [1317]. As explained in her Honour’s reasons (at [4]):

The Court has not accepted the Yinhawangka Gobawarrah applicant’s argument that the claim group as defined in the Yinhawangka Gobawarrah application is a native title holding group. It has accepted the contentions of the State and the Jurruru applicant that the group is not a ‘traditional’ one; it is not a community which observes and adheres to a distinct system of traditional law and custom from other Yinhawangka People. Nor has it been 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. Rather, the evidence establishes that Yinhawangka traditional law and custom allows for intramural allocation of responsibilities and interests in particular areas of country, based on a number of factors, including descent from certain ancestors, but also other matters such as birth and death on country.  …

212    I digress for a moment to reiterate my observations of the evidence of Mr Lawrie in the present case in respect of Mirning traditional laws and customs and its provision for the intermural allocation of responsibilities and interests in particular areas of country, giving rise to my conclusion that there was no arguable case evidencing the existence of a distinct society sufficient to permit such a case to go to trial.

213    In Smirke No 2, the YG claimants had survived a pre-trial strike out application based on subgroup arguments then failed at trial to prove that the claim group held a distinct native title. The findings in Smirke No 2 gave rise to a question as to authorisation at a time when the proceedings were well advanced and critical preliminary questions had been tried and adjudicated at considerable public expense. The issue arose because the other members of the wider society had not participated in the authorisation of the YG claimants’ claim. A question arose as to whether the Court could make a determination in favour of all descendants in the native title holding group in the earlier consent determination, together with the additional descendants of the apical ancestors named in the YG claimants’ case in circumstances where that group in total had not authorised the making of a claim for a determination of native title in the terms contemplated.

214    The competing claimants in Smirke No 3 contended that the Court had no jurisdiction to make the determination, including because it formed no part of the Court’s function to undertake a “roving inquiry” beyond the pleaded cases of the parties:  see Jango v Northern Territory (2007) 159 FCR 531 (at [84] – [85], [91] – [92]). Presumably, the supplementary submissions of the MESL Applicant in the case before me are intended to invoke what Mortimer J said in response:

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.

215    Mortimer J went on to find that the discretion in s 84D(4) was available. Her Honour continued (at [161]):

…  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.

216    Mortimer J considered it to be an important factor that the proceedings were well advanced (there having been a contested trial of a significant issue) and ultimately made the determination notwithstanding the absence of authorisation, having regard to all of the circumstances of the case.

217    In Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638, Jagot J considered the exercise of the discretion at a pre-trial stage in a case even more analogous to the present (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.  …

218    As I have explained, the substantive defect in the MESL Claim is not so much the exclusion of descent lines (although that too is relevant), but the exclusion of persons from the very same descent lines.

219    What is apparent from the various judgments in Smirke No 2 and Smirke No 3 is the very real potential for unnecessary complexity and waste to arise if an unauthorised claim is permitted to go to trial. In light of the authorities I have just discussed, I can see no proper basis for embarking upon a “judicial inquiry” on the preliminary questions if what is intended by that phrase is a fact-finding exercise uncoupled from authorised claims, with questions of whether a determination can be made at all at the end of the day giving rise to further inevitable litigation, associated delay and costs.

220    I have had regard to the circumstance that the Great Australian Bight Proceedings are presently set down for trial of critical separate issues commencing in a little over four months’ time. The dismissal of the MESL Claim gives rise to the possibility that there will be insufficient time to commence a properly authorised new claim before the trial of the FWCSC Application commences or proceeds to judgment. It is also possible that any such new claim may in turn be met with arguments related to delay. However, I do not consider that circumstance to warrant the exercise of the discretion under s 84D to permit the unauthorised claim to proceed to trial. The defect in authorisation is not merely a procedural oversight. It is a consequence of the choices made by the proponents of the Meeting to constitute the claim group in a particular way. There is nothing to suggest that the claim, so constituted, would in fact be authorised if the traditional decision-making processes referred to in Mr Lawrie’s affidavit were to be followed.

221    I have not overlooked the circumstance that the Bunna Lawrie Parties remain respondents to the FWCSC Application. It remains open to them to contest issues concerning the composition of the claim group in that proceeding. The Court is mindful that if they succeed in part, an issue as to authorisation of that claim may arise bearing some similarities to those which arose in Smirke No 2 and Smirke No 3. If such an issue were to arise, it would be determined on its merits having regard to all of the facts and circumstances then existing. I have not been asked to revisit the findings of White J in Miller in relation to the status of those respondents and do not propose to do so. Permitting the unauthorised MESL Claim to go to trial would not eliminate the potential for complexity should the case of the Bunna Lawrie Parties be successful in whole or in part in any event. Indeed, it would only serve to introduce yet another complexity because the case of the Bunna Lawrie Parties and the case of the MESL Applicant are not wholly aligned in ways that are unnecessary to detail here.

The application to amend

222    It is necessary to consider whether the fact that the amendment application has been filed should cause the Court to avoid making an order striking out the whole of the Original MESL Form 1 without affording the MESL Applicant the opportunity to make amendments in the terms proposed.

223    In a supplementary submission to the Court dated 10 September 2021, the MESL Applicant acknowledged that the MESL Claim “piggybacks” on the determination in KD No 4 and the 2013 Determination. The MESL Applicant foreshadowed that it would seek to amend the Original MESL Form 1, presumably to address the circumstance that the document did not appear to advance the “distinct society case” and was inconsistent with allegations made in the MESL SFIC filed by the MESL Applicant in that respect.

224    The amendment application was filed on 20 September 2021, after judgment on the strike out applications were reserved.

225    The Court communicated with the parties concerning the time at which the amendment application should be heard. The Court initially indicated that it would hear submissions before proceeding to judgment on the strike out application. However, that approach was reconsidered. The parties were informed that the amendment application would not be set down for hearing, and that the Court would proceed to judgment on the reserved strike out applications. The parties were informed that the strike out applications would be determined by reference to the Original MESL Form 1, albeit having regard to the circumstance that an amendment application had been filed. The parties were told that in the event that the Court considered that there was an argument about a defect in the originating process in its present form that was capable of being resolved by a grant of leave to amend in the terms proposed, the Court would then determine whether it would be appropriate to hear further from the parties on that issue. The parties were told that it if the Court determined it to be unnecessary to hear further from the parties on the question before proceeding to judgment on the strike out applications, then that conclusion would be explained in the reasons for judgment.

226    The amendment application has been filed in circumstances where the Court has heard argument in respect of subgroup and authorisation issues affecting the Original MESL Form 1 and reserved judgment on the strike out applications in which those issues arose. The arguments on those issues have been resolved against the MESL Applicant and I do not consider it to be in the interests of justice to reopen argument on any question of law or fact in respect of which the MESL Applicant has been already heard. In addition, I do not consider it to be in the interests of justice to afford the MESL Applicant an opportunity to file any further evidence for the purposes of addressing the deficiencies or ambiguities in the evidence affecting the disposition of the strike out applications, particularly evidence relating to what occurred at the Meeting and the evidence relied upon to support the submission that the MESL Claim group is a distinct traditional society.

227    The supporting affidavit of Ms Sparrow affirmed on 20 September 2021 is short. It is necessary to extract it in full:

 1.    I am one of two persons who jointly comprise the Applicant in this action.

2.    This affidavit is made to support the Applicant’s application for leave to amend its Form 1.

3.    I depose this affidavit from my own knowledge and experience. Where I depose to a belief or opinion, I have set out the basis for doing so.

Background

4.    At the authorisation meeting on 8 May 2021 held at Port Lincoln, the claim group recognised that for decisions concerning the making of a native title claim, the traditional process which must be followed is for the claim group elders to hold a nwalgakn (traditional meeting) and make decisions at that meeting.

5.    This is set out in the affidavits of Alana Miller deposed 30 July 2021 and 12 August 2021.

Nwalgakn held 14 September 2021

6.    On 14 September 2021 the claim group elders recognised at authorisation meeting held a nwalgakn. I am one of those elders. I was present and participated.

7.    The elders decided at the nwalgakn to authorise and direct the MESLC Applicant to seek to amend the Form 1 for the MESL claim in terms earlier provided to the claim group elders. Now annexed hereto marked MCS-2 are those amendments, which were provided to the claim group elders prior to the nwalgakn.

Amended Form 1

8.    Mr Cameron Miller and I are now directed by the claim group, by decision of its elders in nwalgakn, to seek leave to amend the Form 1 in the terms now annexed hereto marked ‘MCS-3’.

228    As can be seen at [8], the source of the MESL Applicant’s authority to file the amendment application is said to be the same source of authority to file the Original MESL Form 1: a decision made at a meeting of the same Elders selected at the Meeting.

229    No amendment is sought to be made to the claim group description. It remains a description incorporating each of CRITERION A, CRITERION B and CRITERION C with its multiple undefined references to the “Mirning People”. It continues to contain the opening words:

Under the traditional laws of the Mirning people, the native title holders are those living Aboriginal people who:

…

230    As with the Original MESL Form 1, that description invites the question as to how the phrase “Under the traditional laws of the Mirning People” is to be understood.

231    Schedule F is not the subject of any proposed amendment. It maintains an allegation that the predecessors of the claim group had an association with the area and an allegation that there exist traditional laws and customs that give rise to the claimed native title, and directs the reader to Attachment F. Attachment F contains marked-up amendments. The opening paragraphs are as follows:

1.    The There are Mirning people who are recognised native title holders:

1.1.    in relation to particular apical ancestors, for an area of land in Western Australia:  see the orders made in KD on behalf of the Mirning People v Western Australia (No 4) [2017] FCA 1225; and

1.2.    in relation to other particular apical ancestors (some of which are also apical ancestors in Western Australia), and subject to certain pre-conditions, for an area of land in South Australia:  see the orders made in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285.

2.    Necessarily, these determinations mean that these Mirning people have traditional laws and customs which give rise to native title.

232    The amendments do not mention (nor can they alter) the incontrovertible circumstance that the people encapsulated in the phrases “There are Mirning people” and “these Mirning people” must necessarily include the descendants of Tjabilja, Maggie, Gumillya “Carmelia” Button and Sally Broome. They are the people who hold the native title recognised in KD No 4, derived from the traditional laws and customs of the society known as the Mirning People. Paragraph 2 can only be interpreted to mean that those persons hold the same communal native title in the KD No 4 determination area as each other. The same may be said of the Mirning People who hold native title rights and interests recognised in the 2013 Determination. It is incontrovertible that those persons include (at least) the descendants of Tjabilja and Maggie (and so incorporate the whole population of persons who attended the Meeting). It is incontrovertible that members of the MESL Claim group hold native title in immediately adjacent areas in accordance with the traditional laws and customs of a group broader than themselves (the Mirning People), as recognised in the prior determinations. It remains incontrovertible that they hold that particular native title in those adjacent areas in common with other persons who were excluded from attending the Meeting, whether or not they identified as Mirning in accordance with CRITERION B.

233    The next amendments are the inclusion of new [2A] and [2B]:

2A.    These determinations also mean that there is not one single group of ‘Mirning people’ who hold native title, whether alone or with others.

2B.    In relation to the claim area, the Mirning people who are descendants of the apical ancestors identified by the claim group, and who acknowledge the claim group’s connection to the claim area under traditional Mirning laws and customs, are native title holders.

234    A new [15.4] asserts that “knowing and teaching the country in which claim group members have rights and interests was essential” as an aspect of the traditional laws and customs giving rise to the native title.

235    The proposed amendments culminate in proposed new [16] and [17] as follows:

 16    The native title claimed is possessed by the claim group as a native title society.

17    In the alternative, the native title claimed is possessed by the claim group as a group within a broader native title society.

236    I have already identified that a claim in the nature advanced in [17] may well be brought on behalf of a validly constituted native title claim group, provided that the claim is properly authorised under the traditional laws of the “broader native title society” from which the claimed native title is derived. However, the supporting affidavit of Ms Sparrow is incapable of establishing that a claim of that kind has been so authorised. The asserted authorisation runs up against the same problems concerning the traditional laws in relation to decision-making in respect of the whole of the “Yinyila Nation” referred to in Mr Lawrie’s affidavit. I do not consider it to be in the interests of justice to permit the MESL Applicant to re-agitate that discrete issue.

237    Considered together, the allegations in [2A], [2B], [15.4] and [16] may be interpreted as alleging that the MESL Claim group is a validly constituted “native title claim group” as defined in the NT Act, so as to anticipate and overcome any adverse finding the Court may make in connection with the authorisation and subgroup issues. It will be understood as an assertion that the traditional laws and customs of the claim group are distinct from those recognised in the prior determination so as to define a distinct society. Ms Sparrow’s affidavit also proceeds on an assumption that the claim group comprises a distinct society capable of holding a different native title in relation to the whole of the MESL Claim area. The authorisation given by the selected Elders is asserted to have been given in accordance with the traditional laws and customs of that distinct society.