Federal Court of Australia

Colbung on behalf of the Karratjibbin People v State of Western Australia (No 2) [2023] FCA 1449

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the Applicant’s Amended Concise Statement in the form of the Further Amended Concise Statement dated 19 October 2023 is refused.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of Reginald Craig Yarran dated 23 October 2023 seeking to be joined as a respondent to the proceeding is dismissed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    These reasons concern an application by the applicant in proceeding WAD 38 of 2022 (Karratjibbin proceeding) to amend further its concise statement.

2    The applicant in the Karratjibbin proceeding claims native title rights and interests on behalf of the Karratjibbin people in respect of an area located in the Western Goldfields region of Western Australia (Karratjibbin claim). The claim area takes in Southern Cross to the south, Mukinbudin and Kalannie to the west and Mt Jackson to the north. The Karratjibbin claim is made on behalf of all those persons who are biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people. The Karratjibbin applicant has subsequently acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledges that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby).

3    The Karratjibbin claim area overlaps the area of a second native title claim made (in proceeding WAD 647 of 2017, the Marlinyu Ghoorlie proceeding) on behalf the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people (Karlamaya Kapurn people) (the Marlinyu Ghoorlie claim). Broadly described, the Marlinyu Ghoorlie claim area takes in Kalgoorlie in the east and extends past Kalannie in the west and Southern Cross to the south. The Marlinyu Ghoorlie claim group comprises those persons: who are descended from one or more of four apical ancestors, being Nellie Champion, Kadee, Warada, and Lucy Sambo, or those persons and their descendants who have been incorporated into the rights-holding group in accordance with its traditional laws and customs; who identify as Kalamaia, Kapurn and/or Kalaako (including alternate spellings of these names, or any combination of them); and who are recognised by other members of that group.

4    When it was first filed, the Karratjibbin claim area was wholly within the Marlinyu Ghoorlie claim area. It shared the western boundary of the Marlinyu Ghoorlie claim area and extended east past Southern Cross to about halfway between Southern Cross and Coolgardie. Broadly, the Karratjibbin claim area can be described as covering the western and central parts of the Marlinyu Ghoorlie claim area, but does not extend to the eastern, the far northern or the far southern parts of the Marlinyu Ghoorlie claim area. On 21 June 2023, the Marlinyu Ghoorlie claim was amended to exclude an area near the north-western boundary of the claim, as part of a settlement with the Badimia people. The Karratjibbin claim continues to cover that area and, in that respect, the Karratjibbin claim area is no longer wholly within the Marlinyu Ghoorlie claim area.

5    A joint trial of the Marlinyu Ghoorlie claim and the Karratjibbin claim commenced on 2 October 2023 in respect of the area covered by the Marlinyu Ghoorlie claim (trial area) and in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the trial area?

(b)    In relation to that part of the trial area where 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?

6    For the purposes of the joint trial, each of the participating parties has filed a concise statement with respect to the separate questions.

7    In the period 2 to 19 October 2023, lay evidence was given in Kalgoorlie and at locations throughout the trial area. Expert evidence will be heard by the Court in the week commencing 11 December 2023.

8    On the first day of the joint trial, the Karratjibbin applicant applied to amend its concise statement. That application was not opposed and leave was granted. Following the hearing of lay evidence, the Karratjibbin applicant now seeks leave to amend further its concise statement. The proposed amendments are set out fully below. In broad terms, the amendments advance an alternative claim to the original claim made by the Karratjibbin applicant that can be divided into two parts as follows:

(a)    The first part of the alternative claim concerns the Karratjibbin claim area. The Karratjibbin applicant acknowledges that other persons may also possess native title rights and interests in that area. Those other persons include, but may not be limited to, the descendants of Kadee and Warada and the descendants of Lucy Sambo (that is, three of the four apical ancestors in the Marlinyu Ghoorlie claim). For convenience, I will refer to this part of the alternative claim as Part A.

(b)    The second part of the alternative claim concerns the balance of the Marlinyu Ghoorlie claim area (that is, the area that does not overlap with the Karratjibbin claim area). The Karratjibbin applicant contends that the Karratjibbin people also hold native title rights and interests in the balance of the Marlinyu Ghoorlie claim area and that these rights are held and exercised in common with other persons holding native title rights and interests within that area. Those other persons include, but may not be limited to, the descendants of Kadee and Warada and the descendants of Lucy Sambo. For convenience, I will refer to this part of the alternative claims as Part B.

9    The application to amend is opposed by the Marlinyu Ghoorlie applicant and the State.

10    The principal question that arises on the amendment application is whether there is a proper basis for the amended claim, and whether it is in the interests of justice and consistent with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to permit the amendment at this stage of the proceeding.

11    In respect of Part B of the alternative claim, if the Court would be otherwise minded to grant leave to amend, a further question would arise: whether the Court would have power to make a determination consistently with Part B of the alternative claim which concerns the balance of the Marlinyu Ghoorlie claim area and which is an area that is not the subject of the Karratjibbin originating application filed under ss 13(1) and 61(1) of the NT Act? Recognising that Part B of the alternative claim raises a question about the Court’s power to grant the relief claimed, Reginald Craig Yarran has filed an interlocutory application seeking to be joined as a respondent to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NT Act). Mr Yarran is one of the named applicants in the Karratjibbin proceeding. Mr Yarran’s application is supported by an affidavit made by him on 21 October 2023.

12    For the reasons given below, I refuse to grant leave to the Karratjibbin applicant to amend further its concise statement in the form of the Further Amended Concise Statement dated 19 October 2023. I also dismiss the interlocutory application of Mr Yarran seeking to be joined as a respondent to the Marlinyu Ghoorlie proceeding.

Background

13    The Marlinyu Ghoolie claim was filed on 22 December 2017. As stated above, the claim group comprises those persons: who are descended from one or more of four apical ancestors, being Nellie Champion, Kadee, Warada, and Lucy Sambo, or those persons and their descendants who have been incorporated into the rights-holding group in accordance with its traditional laws and customs; who identify as Kalamaia, Gubrun, Kapurn and/or Kalaako (including alternate spellings of these names, or any combination of them); and who are recognised by other members of that group.

14    There are two groups of Aboriginal respondents to the Marlinyu Ghoorlie proceeding who contest the Marlinyu Ghoorlie claim.

15    The first is Elizabeth Sambo who identifies as a member of the Kapurn people and who falls within the Marlinyu Ghoorlie claim group through her ancestor, Lucy Sambo. Nevertheless, Ms Sambo opposes the Marlinyu Ghoorlie claim in two respects: first, she contests the extent and boundaries of the area the subject of the Marlinyu Ghoorlie claim; and secondly, she disputes the composition of the claim group as constituted in the Marlinyu Ghoorlie application.

16    The second group of Aboriginal respondents comprises Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper (together, the Cooper respondents). The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the Marlinyu Ghoorlie claim area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna, and that the Marlinyu Ghoorlie claim group do not hold any such native title rights and interests in that area. The area in which the Cooper respondents assert native title rights and interests is outside the Karratjibbin claim area. The Cooper respondents contend that they acquired native title rights and interests in respect of the relevant area by descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear is said to be a member of a pre-sovereignty society, the “original tribe of Kalgoorlie”, that held native title rights and interests in the eastern part of the trial area at the time of effective sovereignty. That society is separate and distinct from those which are asserted by the Marlinyu Ghoorlie and Karratjibbin applicants respectively, as well as from the peoples, laws and customs of the Western Desert. That society occupied part of an “interstitial zone” where, at effective sovereignty, the societies of the Western Desert peoples to the east, northeast and north met the societies to the west, southwest and south, which included the Kapurn, among others.

17    The Karratjibbin claim was filed on 18 February 2022. The Karratjibbin claim is made on behalf of all those persons who are biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people. As noted earlier, the Karratjibbin applicant has subsequently acknowledged that Polly and Eva are not known to have any current living descendants, and that Nimmo was the son of Toby and therefore is not strictly an apical ancestor.

18    On 5 October 2022, Bromberg J made the following orders in (relevantly) each of the Marlinyu Ghoorlie and Karratjibbin proceedings:

(a)    That the following separate question be listed for hearing and heard separately from any issues of extinguishment of native title:

Who are the holders of native title rights and interests in accordance with s 223 of the Native Title Act 1993 (Cth) in relation to the land and waters covered by the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017)?

(b)    That the Marlinyu Ghoorlie native title determination application and the Karratjibbin native title determination application be heard together as one proceeding in relation to the separate question.

19    On 22 December 2022, timetabling orders for the hearing of the separate question were made in each of the proceedings. Relevantly, the orders provided for:

(a)    the hearing of opening submissions and Aboriginal and other lay evidence in October 2023, followed by the hearing of expert evidence and closing oral submissions in early 2024;

(b)    the filing of concise statements describing the facts and issues in relation to the identity of those persons who hold common or group rights comprising the native title in the land and waters of the trial area and the nature and extent of those rights and interests by mid-March 2023 (in respect of each applicant) and by the end of March 2023 (in respect of the State and any other participating respondent);

(c)    the filing of expert witness reports by the end of May 2023 (in respect of the applicants’ expert evidence) and by the end of September 2023 (in respect of the participating respondents’ expert evidence); and

(d)    the filing of lay witness statements of evidence and other documents to be tendered through each lay witness by the end of June 2023 (in respect of the applicants’ evidence) and mid-July 2023 (in respect of the participating respondents’ evidence).

20    In February 2023, Bromberg J received oral and written preservation evidence from (relevantly) two individuals. Those individuals were Brian Champion Snr (the former lead applicant in the Marlinyu Ghoorlie proceeding) and Gary Sambo (the brother of Elizabeth Sambo). The preservation evidence was heard on country in Kalgoorlie over 4 days.

21    The trial of the separate questions in the Marlinyu Ghoorlie and Karratjibbin claims has now reached the following stage:

(a)    Pleadings, in the form of concise statements, were filed in April and May 2023 on behalf of each of the five participating parties in the trial of the separate questions: the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, Ms Sambo, the Cooper respondents and the State of Western Australia.

(b)    Lay evidence was filed and, between 2 and 19 October 2023, the lay evidence was heard in Kalgoorlie and other locations across the trial area.

(c)    Expert anthropological evidence was filed between June and September 2023, with supplementary expert evidence following the hearing of the lay evidence filed in the first week of November 2023. Expert reports have been filed by: Fiona Powell, Nell Taylor and Raymond Wood on behalf of the Marlinyu Ghoorlie applicant; Brendan Corrigan on behalf of the Karratjibbin applicant; and Daniel Leo on behalf of the Cooper respondents. A conference of experts will occur in the week commencing 20 November 2023. Expert evidence will be heard in the week commencing 11 December 2023.

The laws and customs of a particular Aboriginal society

22    Before considering the Karratjibbin concise statement and the proposed amendments, it is necessary to state some matters of principle that will become relevant to the disposition of the present application to amend. The principles concern the definition of native title rights and interests and whether and to what extent groups of Aboriginal people, subsidiary groups and individuals may be recognised as holding native title rights and interests in a particular area.

23    Section 223(1) relevantly defines the expressions “native title” and “native title rights and interests” in the same manner as follows:

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

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

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

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

24    As explained by the High Court majority in Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta), the phrase “traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders” in s 223(1)(a) is a reference to laws and customs having a normative content, being a body or system of normative rules that existed before the assertion of British sovereignty (Yorta Yorta at [38]-[40] and [46]). To speak of rights and interests possessed under an identified body of laws and customs is to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs (Yorta Yorta at [50]). Laws and customs and the society which acknowledges and observes them are inextricably linked (Yorta Yorta at [55]).

25    There is a necessary communal dimension to native title rights and interests, as the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by an Aboriginal community. In Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo), Brennan J explained (at 61):

… so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

26    Similarly, Deane and Gaudron JJ said (at 109-110):

Ordinarily, common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group. It is so with Aboriginal title in the Australian States and internal Territories. Since the title preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality, the contents of the rights and the identity of those entitled to enjoy them must be ascertained by reference to that traditional law or custom.

27    It is well recognised that, within a geographic area in which native title rights and interests are possessed by a particular Aboriginal society that is united in their acknowledgement and observance of particular laws and customs, individuals or subsidiary groups within the society may have rights and interests in particular parts of that area by those laws and customs, although the native title is still recognised as being communal. This was discussed by the Full Court in Western Australia v Ward (2000) 99 FCR 316 (Ward). In that case, Beaumont and von Doussa JJ said (at [179]) in respect of the reasoning of Brennan J in Mabo at 51-52:

Brennan J contemplated that under the laws and customs of a community holding communal native title there could be within that community smaller groups, even individuals, that enjoyed particular rights (and responsibilities) in relation to different parts of the land in relation to which the native title rights and interests existed.

28    In respect of the particular facts in Ward, Beaumont and von Doussa JJ said (at [200]-[202]):

200    The evidence led by the applicants in support of their claim for a determination in favour of the Miriuwung and Gajerrong as a composite community identified within the claim area separate estate groups who treated as their “country” discreet areas within the claim area. Within the State the evidence showed that there were the Yirralalem, Yardanggarlm, Wiram, Ngamoowalem, Mandangala, Gulalawa and Nganalam estate groups and in the Territory there were the Bindjen, Damberal and Nyawamnyawam estate groups. It is clear, however, that his Honour treated those estate groups as subgroups of either the Miriuwung or Gajerrong communities. Further, while his Honour treated the territory of the Gajerrong community as adjacent to and separate from the territory of the Miriuwung community, he held that they shared economic and ceremonial links which were reinforced when the extensive depletion of Gajerrong people after European settlement saw the Miriuwung and Gajerrong “become regarded as a composite community with shared interests” (at 541). This finding is criticised by the State because his Honour did not say by whom they had “become regarded” as a composite community, but we think it is clear that his Honour meant that the members of each of the communities so regarded themselves. The effect of his Honour’s findings is that the composite community, which had ancestral connection with the Aboriginal community or communities which occupied the claim area at the time of sovereignty, observed in common traditional laws and customs, in the observance of which subgroups, whether described as estate groups, families or clans, had responsibility for and control of discreet areas of “country” within the claim area.

201    In our opinion, those findings, assuming that they are justified by the evidence, support a finding that the native title rights and interests existing in the area were possessed by the Miriuwung and Gajerrong community. The enjoyment of particular rights or responsibilities and control for different areas of “country” followed from the observance of the traditional laws and customs of that community.

202    … s 225 requires the Court to determine the nature and extent of native title rights and interests in relation to the determination area. Within that area, however, the NTA does not require the determination to specify precisely which members of the community that is the common law holder of the native title rights and interests, have or may exercise particular rights in relation to particular areas of land. The enjoyment of the communal rights or some of them is a matter which is left for the common law holders to determine among themselves in accordance with the traditional laws and customs as currently acknowledged and observed.

29    It has also been recognised that, within a broader society that acknowledges particular laws and customs, there may be individuals or subsidiary groups who can be recognised as holding native title rights and interests in specific areas, notwithstanding that they acknowledge the laws and customs of the broader society. As explained by the Full Court (Wilcox, French and Weinberg JJ) in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr) (at [79]-[80]):

79    The determinations which may be made under s 225 cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v Western Australia [2005] FCA 777. The relevant community in that case was geographically confined to the Dampier Peninsula. Lawmen had global responsibilities encompassing law grounds in each of the clan estates. There was an area accessible to all members of the community and regency arrangements in relation to vacant estates. The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership.

80    If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw. In De Rose v South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.

30    Further, it has also been recognised that two or more different groups of persons may hold native title rights and interests in the same area under different traditional laws and customs acknowledged and observed by each group. As the majority (Mortimer and Colvin JJ) explained in Drury v Western Australia (2020) 276 FCR 203 (Drury) (at [36]):

… it is now well established that there may be circumstances that support a finding of overlapping native title. They were found to exist after the final hearing in Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254, upheld on appeal in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148. They appear to have been recognised in Banjima People v Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 at [48]-[55].

31    Section 94A stipulates that an order in which the Court makes a determination of native title must set out details of the matters mentioned in section 225. Section 225 provides as follows:

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

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

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

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

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

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

32    The Full Court in Alyawarr explained the requirements of s 255 in the following manner (at [78]):

The elements of a determination of native title are set out in s 225. It requires a determination of “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a “society” in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is “a body of people forming a community or living under the same government” — Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. …

33    In these reasons, I use the word “society” in the same manner as used in Yorta Yorta and as explained in the above passage in Alyawarr – as a convenient description of an Aboriginal community united by its acknowledgement and observance of traditional laws and customs.

34    To enable the Court to consider and determine native title claims made under the NT Act, particularly in proceedings that involve overlapping and competing claims, it is necessary for the claimants to state their claims in a manner that enables the requirements of s 94A to be fulfilled. This requires the claimants to address in their originating application, pleadings and evidence the fundamental questions raised by ss 223 and 225 of the NT Act, including:

(a)    whether at the time of the assertion of British sovereignty there was an identified society united in and by its acknowledgement and observance of a body of law and customs giving the members of the society rights and interests in the claim area;

(b)    whether the identified society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs;

(c)    whether the laws and customs acknowledged and observed by the identified society today can be seen to be traditional notwithstanding adaptations that may have been made as a result of the effects of European settlement on the society;

(d)    what is the content and nature of the laws and customs of the identified society that are acknowledged and observed today;

(e)    whether the claimed rights and interests in the claim area are possessed by the identified society under those laws and customs that are acknowledged and observed today; and

(f)    whether the identified society has a connection to the claim area by those laws and customs that are acknowledged and observed today.

35    If relevant, it is also necessary for the claimants to address questions such as:

(a)    whether the claimants are members of a broader society that is united in and by its acknowledgement and observance of a body of law and customs, but the claimants are a subsidiary group within that broader society holding rights and interests in a particular area; or

(b)    whether the claimants’ native title rights and interests overlap with the native title rights and interests held by a different Aboriginal society.

The Karratjibbin concise statement and the proposed amendments

36    The amendments proposed by the Karratjibbin applicant to its concise statement must be understood against its existing pleaded case.

Initial concise statement

37    The Karratjibbin applicant filed its initial concise statement on 14 April 2023. Amongst other things, the Karratjibbin concise statement alleged that:

(a)    There were traditional laws and customs acknowledged and observed by the Karratjibbin people which was taught from one generation to the next.

(b)    The Karratjibbin people have their own language and are not associated with previously considered language groups known as Kalamaya in earlier research.

(c)    The Karratjibbin people, in accordance with the laws they acknowledge and customs they follow, inherit rights to the claim area through parents and other ancestors who had a strong connection to the area.

(d)    The Karratjibbin people historically followed a system of social organisation based on endogamous alternate generation divisions and had no section system. Those of one generation belonged to one division and married within the same division. Their children belonged to a second division, being the same division as their grandparents.

(e)    The Karratjibbin people historically followed initiation practices which differentiated them from their Western neighbours.

38    Despite alleging that the Karratjibbin people were a distinct society (in the sense of a people united in their acknowledgment and observance of distinct laws and customs), the initial concise statement contended that the issues in contest between the Karratjibbin and Marlinyu Ghoorlie applicants included:

(a)    whether a native title exists in relation to only the area claimed by the Karratjibbin application or a larger area contained within or comprising the area of the Marlinyu Ghoorlie claim area; and

(b)    whether the native title holders for the area claimed in the Karratjibbin application were the Karratjibbin claim group to the exclusion of the Marlinyu Ghoorlie claim group or along with the Marlinyu Ghoorlie claim group.

39    The basis on which the Karratjibbin applicant contended that those issues arose on its application is not clear. As to the first issue, the Karratjibbin application is, of course, made in respect of the area defined in the originating application, and does not extend to the Marlinyu Ghoorlie claim area that is outside the Karratjibbin claim area. As to the second issue, there was no allegation made in either the Karratjibbin initial concise statement or the Marlinyu Ghoorlie concise statement that the Karratjibbbin people and the Kapurn people formed part of the same society as that term is used in Yorta Yorta. It was not otherwise clear what was meant by the proposition that the native title holders for the Karratjibbin claim area might comprise the Karratjibbin claim group “along with the Marlinyu Ghoorlie claim group”.

Amended concise statement

40    The questions that arose from the initial Karratjibbin concise statement were addressed, to some extent, by its amended concise statement.

41    On 27 September 2023, shortly before the commencement of the trial of the separate questions, the Marlinyu Ghoorlie applicant requested the Karratjibbin applicant to respond to certain questions in respect of its claim and concise statement. On 2 October 2023, on the opening day of the trial, the Karratjibbin applicant sought leave to file a response to the Marlinyu Ghoorlie questions (the Karratjibbin Response) together with an amended concise statement (Amended Concise Statement), such that both the Karratjibbin Response and the Amended Concise Statement would constitute pleadings on behalf of the Karratjibbin applicant. There was no opposition and leave was granted.

42    The Karratjibbin Response includes the following statements (at para 4):

… the Karratjibbin Applicant says that the Karratjibbin People held, and continue to hold, rights and interests in ancestral estates within their claim area, to the exclusion of other traditional owners. Those rights and interests in ancestral estates were held by virtue of laws and customs which had application across the claim area but were not by necessity limited in normative force by the extent of the Karratjibbin claim area. That is, the Karratjibbin People held some laws and customs in common with rights holders in respect of some neighbouring estates. For example, the Karratjibbin Applicant recognises that rights and interests in neighbouring country was, and continues to be, held by Kaparn people who are the descendants of Lucy Sambo and Kadee and Warada …

43    That statement lacks clarity and precision. In particular, it is not clear what is meant by the reference to rights and interests held by virtue of “laws and customs which had application across the [Karratjibbin] claim area but were not by necessity limited in normative force by the extent of the Karratjibbin claim area”. It is also not clear what is meant by the statement that “the Karratjibbin People held some laws and customs in common with rights holders in respect of some neighbouring estates”. In accordance with the statutory definition of native title in s 223 of the NT Act, laws and customs are not “held”, far less “held in common”, but are acknowledged and observed. As the High Court majority explained in Yorta Yorta, to speak of rights and interests possessed under an identified body of laws and customs is to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. The Karratjibbin Response suggests that the traditional laws and customs under which the Karratjibbin claim group claim to possess native title rights and interests in the Karratjibbin claim area are laws and customs acknowledged and observed by a broader Aboriginal society as that term is used in Yorta Yorta. However, the Karratjibbin applicant does not clearly identify or define that society, nor explain the manner in which the Karratjibbin people claim to be members of that society, and united with other members of that society in the acknowledgement and observance of the traditional laws and customs. While the Karratjibbin Response states that “the Karratjibbin Applicant recognises that rights and interests in neighbouring country was, and continues to be, held by Kaparn people who are the descendants of Lucy Sambo and Kadee and Warada”, there is no clear statement that the broader society of which the Karratjibbin claim to be members is the Kapurn people.

44    Later, in response to a question concerning the existence of a distinct Karratjibbin society, the Karratjibbin Response states (at paras 6 and 7):

… The expert evidence filed in this matter on behalf of various parties suggests that at the time of effective sovereignty, the Karratjibbin claim area was occupied by estate groups who were clustered around specific site locations and whose rights in country were largely transmitted on a patrilineal basis .... Although the impacts of colonisation appear to have resulted in an adaptation toward cognatic transmission … the Karratjibbin Applicant contends that the holding of estate-based rights and interests remains largely intact. The normative referent points for the laws and customs underpinning these rights and interests in country extend beyond the boundaries of the Karratjibbin application area, but the Karratjibbin Applicant contends that it is not necessary for the Karratjibbin Applicant to establish the precise extent of that normative system (Alyawarr at [80]; De Rose v South Australia (2003) 133 FCR 325; [2003] FCAFC 286 at [275]-[283]).

The Karratjibbin Applicant acknowledges however the continuing rights and interests of neighbouring Kaparn people whose rights in country have been passed down to them via the apical ancestors Lucy Sambo and Kadee and Warada. The Karratjibbin Applicant acknowledge and assert that these Kaparn people hold their rights and interest in country by virtue of laws and customs that share a normative commonality with the laws and customs via which the Karratjibbin People hold their own rights and interests in country.

45    Again, many of the above statements lack clarity and precision. In particular, it is not clear what is meant by the reference to “laws and customs that share a normative commonality with the laws and customs via which the Karratjibbin People hold their own rights and interests in country”. The statement suggests (but does not state expressly) that the Karratjibbin people are a sub-group who hold native title rights and interests in the Karratjibbin claim area under the traditional laws and customs of a broader society or community of which they are part, analogous to the facts found in De Rose v South Australia (2003) 133 FCR 325 (De Rose). While it might be correct, as alleged by the Karratjibbin applicant, that it is not necessary for the Karratjibbin applicant to establish the precise extent of that normative system (broader society), neither Alyawarr nor De Rose support the contention that it is unnecessary for the applicant to identify the broader society or define the laws and customs of that broader society. In De Rose, the applicant relied on the normative system acknowledged and observed through the Western Desert region (see at [275]). The Full Court observed (at [276]):

In order to succeed, the appellants had to show, among other things, that at sovereignty the traditional laws and customs of the Western Desert Bloc provided for those who were Nguraritja to possess rights and interests in relation to land. They also had to show that Western Desert Bloc society has had a “continuous existence and vitality since sovereignty”: Yorta Yorta (HC) at [47].

46    It is not clear from the Karratjibbin Response whether the Karratjibbin applicant alleges that the broader society of which the Karratjibbin are a sub-group is the Kapurn people, or some broader (undefined) group of which both the Karratjibbin and the Kapurn are members.

47    In light of those responses, the Karratjibbin amended its concise statement, but failed to plead the identity of any broader Aboriginal society of which the Karratjibbin people formed part. Indeed, the Amended Concise Statement continued to allege the content of laws and customs acknowledged and observed by the Karratjibbin people, without any suggestion that those laws and customs were the laws and customs of a broader society. Despite that, the Amended Concise Statement stated that the issues in contest between the Karratjibbin and Marlinyu Ghoorlie applicants were as stated in the Initial Concise Statement. At para 19, the Amended Concise Statement stated (amongst other things):

(a)    At sovereignty, the Karratjibbin people were united by their acknowledgement and observance of a body of laws and customs through which their rights and interests in the land and waters of the claim area was held. The normative force of those laws and customs, particularly as they relate to rights and interests in land, extended beyond the claim area and was consistent with rights of neighbouring people such as the Kapurn people and their ancestors Lucy Sambo and Kadee and Warada.

(b)    The language of the Karratjibbin people was the Karratjibbin dialect (as part of a wider Kalamaia language group), which covered the whole of the claim area.

(c)    The laws and customs through which the Karratjibbin People are connected to their land and waters is distinct from the Noongar society and Western Desert society but shares commonalities with some peoples who are attributed with the Kapurn label.

48    By those allegations, the Karratjibbin applicant appears to deny that the Karratjibbin people belong to a broader normative society, but allege that the laws and customs of the Karratjibbin people had “commonalities” with those of the Kapurn. I understand that allegation to be that the laws and customs of the Karratjibbin people are similar to the laws and customs of the Kapurn people, but they are distinct societies.

Further Amended Concise Statement

49    The application to amend concerns a Further Amended Concise Statement dated 19 October 2023. The proposed amendments add the following alternative claims (which are reproduced in full):

AND IN THE ALTERNATIVE, THE KARRATJIBBIN APPLICANT SAYS THAT:

23.     The Karratjibbin Applicant restates paragraphs [1], [4]-[5] and [8]-[12] above.

24.     The Karratjibbin People have inherited, through descent from their apical ancestors, rights and interests within the claim area. At the time of effective sovereignty, the Marlinyu Ghoorlie claim area (“the MG claim area”) including the claim area was occupied by estate groups who were clustered around particular locations and whose rights in country were largely transmitted on a patrilineal basis. Rights and interests transmitted to the Karratjibbin People from their ancestors within the claim area (but not in the part of the MG claim area that lies outside the claim area (“balance of the MG claim area”)) include, subject to paragraph [28], the right to speak for country and decide how country is looked after, used and occupied, and rights to decide how resources are utilised (“exclusive rights”). The Karratjibbin People accept that in parts of the claim area and in the balance of the MG claim area, other persons may also possess those rights. Those other persons include, but may not be limited to, the descendants of Kadee and Warada and the descendants of Lucy Sambo. Karratjibbin people do not claim to possess those rights in the balance of the MG claim area.

25.     The Karratjibbin People have also inherited, through descent from their apical ancestors, other rights and interests in the claim area, and also within the balance of the MG claim area. These other rights and interests are held and exercised in common with other persons holding native title rights and interests within the claim area and the MG claim area. These other persons include, but may not be limited to, the descendants of Kadee and Warada and the descendants of Lucy Sambo. These other persons acknowledge and observe shared laws and customs, particularly in relation to how rights and interests in land and waters are passed down from generation to generation, with the Karratjibbin People.

26.     Whether individuals or groups identify as Karratjibbin People, or Gubrun People, or Kalaako People, or otherwise, is not an essential determinant of whether or not those individuals or groups have rights and interests within the claim area or the balance of the MG claim area.

27.     The other rights and interests referred to at paragraph [25] above (“non-exclusive rights”) are the rights:

28.     To be clear, the Karratjibbin Applicant says that the exclusive rights as referred to in paragraph [24] above are exercisable in accordance with the shared traditional laws and customs of the MG claim area (including the claim area); which laws and customs stipulate that the right to make decisions about the MG claim area (including the claim area), or to exclude a person other than a person who possesses a right referred to in paragraph [27] above, are exercisable collectively by the Karratjibbin People and any other persons possessing the traditional rights in the MG claim area (including the claim area), but recognising that persons who possess exclusive rights in relation to particular locations may have more authority to speak for those locations.

50    As is made clear from the text, paras 24 and 28 of the proposed Further Amended Concise Statement are to be read together. The new allegation is that, at the time of effective sovereignty, there were “shared traditional laws and customs” throughout the Marlinyu Ghoorlie claim area and that, under those shared laws and customs, smaller “estate groups” held rights and interests in particular areas. I understand this to be an allegation, made effectively for the first time through the proposed Further Amended Concise Statement, that at the time of effective sovereignty there was a single Aboriginal society in the Marlinyu Ghoorlie claim area who acknowledged one set of traditional laws and customs, which society included the apical ancestors of the Karratjibbin claim group. I have earlier referred to that allegation as Part A of the alternative claim.

51    Paras 25 and 27 of the proposed Further Amended Concise Statement are also to be read together. The new allegation is that, under the shared laws and customs throughout the Marlinyu Ghoorlie claim area, the Karratjibbin claim group holds native title rights and interests in the balance of the Marlinyu Ghoorlie claim area (ie, the area that is not overlapped by the Karratjibbin claim). Those rights and interests are defined in para 27 as non-exclusive rights: to enter and remain on the land and waters for any purpose (including camping, erecting shelters and travelling); to hunt, fish, gather and take resources; and to engage in cultural activities. This is the first time that the Karratjibbin applicant has advanced an allegation that the Karratjibbin claim group possess native title rights and interests in the balance of the Marlinyu Ghoorlie claim area. I have earlier referred to that allegation as Part B of the alternative claim.

Consideration

Applicable principles

52    The trial of the separate questions has been conducted on the basis of concise statements that have been filed by each participating party. As stated in the Court’s Central Practice Note, the purpose of a concise statement is to enable each party to bring to the attention of the other parties and the Court the key issues and the key facts at the heart of the dispute, as well as the essential relief sought from the Court. The concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, and is typically drafted in a narrative form.

53    The Court has said on many occasions that a concise statement is not a pleading: see for example Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170 at [185] per Allsop CJ; Nona v Queensland [2020] FCA 1353 at [23]-[28] per Mortimer J (as her Honour then was); and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388 (Allianz Australia) at [148] per McKerracher and Colvin JJ. It follows that the specific provisions of Part 16 of the Federal Court Rules 2011 (Cth) governing pleadings, including Div 16.5 which governs the amendment of pleadings, are not strictly applicable to concise statements. It also follows, as observed by McKerracher and Colvin JJ in Allianz Australia at [144], that concise statements are not conceived as a comprehensive statement of all the matters that must be established in order for a claim to succeed; the concise statement serves a broader function of providing a fair disclosure of the nature of the case to be advanced with more precise issues being disclosed by other means and to the extent considered to be appropriate in the interests of fairness. Nevertheless, their Honours also observed (at [149]):

If a claim that is at the heart of the case that a party seeks to advance at the final hearing is not to be found in the concise statement then there will need to be an application for leave to amend that will be dealt with in accordance with the established procedural law as to late amendments to alter a case.

and that (at [153]):

… a concise statement is not an excuse for laziness in analysis or vagueness or imprecision in expression.

54    To ensure procedural fairness, it remains necessary for the Court to assess whether and to what extent the concise statement, read with other documents filed in the case (including evidence), has defined the issue to be determined with sufficient clarity to enable the parties to understand, and have the opportunity to meet, the case brought by each other party: cf Dare v Pulham (1982) 148 CLR 658 at 664; Banque Commercial SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. The Court’s discretionary power to allow a party to amend its concise statement is guided by the overarching purpose of civil litigation stated in s 37M of the FCA Act and discussion of those principles in the cases, including particularly Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon) (in the context of analogous provisions in the rules of the Supreme Court of the Australian Capital Territory). As explained by the plurality in Aon (Gummow, Hayne, Crennan, Kiefel and Bell JJ), the just resolution of the proceedings remains the paramount consideration, but a just resolution requires consideration of other factors including particularly the minimisation of delay and expense (at [98]). In exercising the discretion to allow amendment, the plurality in Aon stated (at [102]) that relevant considerations include:

(a)    the nature and importance of the amendment;

(b)    the explanation for the failure to include the matter at the outset; and

(c)    the effect of the amendment on other parties and whether and in what manner any prejudice can be remedied.

Part A of the alternative claim

55    Part A of the alternative claim involves a significant shift in the case sought to be made by the Karratjibbin applicant in respect of the Karratjibbin claim area. By the proposed amendment, the Karratjibbin applicant continues to allege that the Karratjibbin people hold native title rights and interests in the Karratjibbin claim area, but do so under “shared traditional laws and customs” throughout the Marlinyu Ghoorlie claim area. As stated above, I understand this to be an allegation that at the time of effective sovereignty there was a single Aboriginal society in the Marlinyu Ghoorlie claim area who acknowledged one set of traditional laws and customs, which society included the apical ancestors of the Karratjibbin claim group.

56    The allegation proposed to be made through Part A of the alternative claim differs from the allegations made in the Amended Concise Statement. In that document, it is alleged that the laws and customs of the Karratjibbin people had “commonalities” with those of the Kapurn. As stated above, I understand that allegation to be that the laws and customs of the Karratjibbin people are similar to the laws and customs of the Kapurn people, but that they are distinct societies.

57    The only explanation for the proposed amendment proffered by the Karratjibbin applicant is that questions arose during the lay hearing as to whether the Karratjibbin pleadings were broad enough to encapsulate a potential determination that included members of the Karratjibbin claim as well as members of the Marlinyu Ghoorlie claim as part of one system of law and custom. That is not a compelling reason to allow the amendment. It is notable that the Karratjibbin applicant does not submit that it always intended to claim that the Karratjibbin and Kapurn people are “part of one system of law and custom”, and that the amendment was to clarify its claim in that respect. The proposed amendment is made in the alternative; it is not in substitution for the primary claim. The primary claim remains that the Karratjibbin claim group acknowledge and observe laws and customs of the Karratjibbin, while stating that those laws and customs have “commonalities” with the laws and customs of the Kapurn. It is only by Part A of the proposed amendment that the Karratjibbin applicant contends that the Karratjibbin and Kapurn people are “part of one system of law and custom”.

58    The Karratjibbin applicant also submitted that, in determining separate questions as to the identity of the persons, or group of persons, who hold native title rights in the trial area and the nature and extent of those rights, the Court is not strictly bound by the positions adopted by the respective parties (referring to Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 per Mortimer J at [1640]). The Karratjibbin applicant argued that, in a matter such as this, where there are two applicant parties and three active respondents, each with differing positions, it would be overly inhibitive if the Court were bound to either reach a result that had been articulated by one or more of the parties or otherwise dismiss the proceedings.

59    Those submissions may be accepted, but they do not provide a reason to allow the amendment. The question raised by the application to amend is not the breadth of the Court’s power to answer the separate questions based on the evidence adduced. The question is whether a party should be given leave to alter its case, and put an alternative case, midway through a trial.

60    The Karratjibbin applicant further submitted that the Court might benefit from a party refining its pleadings to take into account evidence proffered by other parties or to better confine the issues in dispute. The alternative claim does not confine the issues in dispute; it broadens the issues. The reference to evidence proffered by other parties seems to get to the heart of the matter. The application to amend appears to have been made to keep options open for the Karratjibbin applicant. Counsel for the Karratjibbin applicant acknowledged that the proposed amendment is, at least in part, a response to the opening submission of the State at the trial of the separate questions, which was to the effect that the Marlinyu Ghoorlie claim and the Karratjibbin claim are in conflict and both could not be accepted. The alternative claim is intended to keep open the possibility of the Court concluding that the Marlinyu Ghoorlie claim group and the Karratjibbin claim group are members of the same society (acknowledging and observing the same traditional laws and customs). I infer that the Karratjibbin applicant would wish to advance that contention against the possibility that the Court would otherwise find for the Marlinyu Ghoorlie applicant.

61    The difficulty with the Karratjibbin applicant seeking to amend its concise statement to put that alternative case is that it is not a case that is embraced by the Karratjibbin claim group. As pointed out by the State, the evidence given by the lay witnesses on behalf of the Karratjibbin applicant contradicts the alternative case:

(a)    Reginald Yarran denied that Karratjibbin people possessed native title rights and interests with the descendants of Warada and Kadee and Lucy Sambo and denied that the Karratjibbin claim area is Kapurn country (T768.39-T769.39). Mr Yarran also gave evidence that he believed that Warada and Kadee were “Wongi” people (T800.30-33).

(b)    Gail Yarran gave evidence that she did not know any Kalamaia or Kapurn people, she was unsure whether Elizabeth Sambo was a Kapurn person and that of the one or two Dimer people she knows, she is unaware of where they come from. Ms Yarran did not consider herself to be Kapurn and did not know whether the Kapurn people were the same as Karratjibbin people (T839.32-T841.16).

(c)    Jason Colbung gave similar evidence that he did not know who Kapurn people were, and that he did not consider his country included Kalgoorlie or Coolgardie nor did he have an understanding of whose country those places were (T886.27-T887.25).

(d)    Norman Pickett gave evidence that he does not know where Kapurn country is, he does not know anything about the laws and customs of Kapurn people, he could not say he is a Kapurn person and he did not believe that Kapurn was a part of him (T941.12–T941.35).

62    The further difficulty with Part A of the alternative claim is that the amendment states a bare conclusion. No facts are stated in support of a conclusion that the Karratjibbin and Kapurn people are “part of one system of law and custom”. It would have been possible for the proposed amendment to refer to evidence adduced in the trial to date in support of such a conclusion, but the amendment is entirely devoid of any basis for the conclusion. As already noted, the evidence given by the lay witnesses on behalf of the Karratjibbin applicant generally conflicts with the alternative case. The proposed amendment does not identify any evidence given by any other witness in the trial to date that might be said to support Part A of the alternative claim.

63    Having regard to the above matters, I consider that it is not in the interests of justice to allow the amendment in respect of Part A of the alternative claim. It is not a sufficient justification for the proposed amendment that the Karratjibbin applicant wishes to keep its options open. The effect of the proposed amendment is to raise a new issue after the close of the lay evidence and before the hearing of the expert evidence. The allegation that the Karratjibbin and Kapurn people are “part of one system of law and custom” is not supported by the lay evidence adduced by the Karratjibbin at trial, and the Karratjibbin applicant has not pointed to any evidence given on behalf of any other party that is supportive of the allegation. Further, the proposed amendment pleads a bare conclusion without any allegations of material fact in support. On the basis of the present form of the proposed amendment, and the arguments advanced in support of it, I refuse leave for the amendment to be made.

Part B of the alternative claim

64    The matters discussed above apply with even more force with respect to Part B of the alternative claim. By the proposed amendment, the Karratjibbin applicant alleges that, under the shared laws and customs throughout the Marlinyu Ghoorlie claim area, the Karratjibbin claim group holds native title rights and interests in the balance of the Marlinyu Ghoorlie claim area (ie, the area that is not overlapped by the Karratjibbin claim).

65    Part B of the alternative claim represents a very significant change in the case sought to be made by the Karratjibbin applicant in that, for the first time, the Karratjibbin applicant alleges that the Karratjibbin claim group holds native title rights and interests in the balance of the Marlinyu Ghoorlie claim area. The explanation proffered by the Karratjibbin applicant for Part B of the alternative claim is even less convincing than in respect of Part A. No real explanation was proffered for the fact that, since its originating application was filed, the Karratjibbin claim group has claimed that their country only extends as far east as about halfway between Southern Cross and Coolgardie, but Part B alleges rights and interests across the entire Marlinyu Ghoorlie claim area. Nor has any explanation been proffered for the fact that each of the witnesses for the Karratjibbin applicant denied that they held rights and interests in the balance of the Marlinyu Ghoorlie claim area:

(a)    Reginald Yarran gave evidence that the areas of Kalgoorlie and Coolgardie were not his country and he was told by his father that it was “Wongi” country (T799.31-T800.22).

(b)    Gail Yarran gave evidence that, to her understanding, the areas of Kalgoorlie and Coolgardie were not her country and were “Wongi” country (T.843.34-T843.44).

(c)    Jason Colbung gave evidence that he did not consider his country included Kalgoorlie or Coolgardie, and nor did he have an understanding of whose country those places were (T.886.27-T887.25).

(d)    Norman Pickett gave evidence that he made no claim to the country around Coolgardie and Kalgoorlie (T965.39-T966.1) and that he knew nothing about that country (T966.38-40).

66    In connection with the amendment application, an interlocutory application was filed on behalf of Reginald Yarran to be joined as a respondent to the Marlinyu Ghoorlie application. I understand that the application was filed out of an abundance of caution, in case it was necessary for there to be a respondent to the Marlinyu Ghoorlie proceeding making the allegations that are sought to be made by the Karratjibbin applicant by Part B of the alternative claim. The interlocutory application was supported by an affidavit affirmed by Mr Yarran. In that affidavit, Mr Yarran stated:

I believe that the traditional laws and customs that are in force across the Karratjibbin claim area are part of a system of laws and customs that extend into and across areas of the Marlinyu Ghoorlie claim that are not overlapped by the Karratjibbin claim. I believe that those laws and customs are part of a normative system of law and customs exercised by persons including, but not necessarily limited to, the descendants of: Billy Yambinut; Toby; Kadee and Warada; and Lucy Sambo.

67    I am unable to reconcile those statements with the evidence given by Mr Yarran on oath at the trial of the separate questions, extracts of which have been reproduced above. For that reason, I give the evidence no weight.

68    Having regard to the above matters, as well as the matters referred to in the context of Part A of the alternative claim, I consider that it is not in the interests of justice to allow the amendment in respect of Part B of the alternative claim.

69    Given that conclusion, it is strictly unnecessary to consider whether, if leave were to be given to the Karratjibbin applicant to amend its concise statement to include Part B of the alternative claim, the Court would have had power to make a native title determination consistently with the allegation that constitutes Part B, given that the alternative claim concerns an area that is not the subject of the Karratjibbin originating application filed under ss 13(1) and 61(1) of the NT Act. Nevertheless, it is appropriate to record that I consider that the Court would have had power in that event, a conclusion that is consistent with the submissions made to the Court by the State and the Marlinyu Ghoorlie applicant. The following paragraphs briefly explain that conclusion.

70    If the Karratjibbin applicant wished to amend its concise statement to allege (in the alternative) that the Karratijibbin claim group, as a distinct society that acknowledges and observes the traditional laws and customs of the Karratjibbin people, holds native title rights and interests in the balance of the Marlinyu Ghoorlie claim area, it would be necessary for the Karratjibbin applicant to file a new native title determination application in respect of that area. In Commonwealth of Australia v Clifton (2007) 164 FCR 355 (Clifton), the Full Court concluded (at [57]-[58]) that:

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

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

71    By reason of s 64(1) of the Act, it would not be permissible for the Karratjibbin applicant simply to amend its existing originating application to expand the geographic area of its claim. It would be necessary for the Karratjibbin applicant to file a new originating application.

72    Conversely, if (as is the case here) the Karratjibbin applicant wished to amend its concise statement to allege (in the alternative) that the Karratjibbin claim group holds native title rights and interests in the balance of the Marlinyu Ghoorlie claim area under the shared laws and customs of an Aboriginal society that includes the descendants of the Marlinyu Ghoorlie and the Karratjibbin apical ancestors, the Court would be empowered to make that determination in the Marlinyu Ghoorlie proceeding. As expressly recognised by the Full Court in Clifton (at [37]), the resolution of disputes as to the true membership of a native title claim group is an inherent aspect of the determination of an application made under s 13(1). As I observed in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 at [45], the Court has the power to make a determination of native title on terms that differ from the terms of the application made under s 61 of the Act, including a determination that reduces the boundaries of the claim area or alters the composition of the claim group (including, relevantly, the identity of apical ancestors): Ross v Queensland [2021] FCA 1464 at [41]-[43] (Mortimer J, as her Honour then was); see also Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 (Mortimer J, as her Honour then was); State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143; 305 ALR 452.

73    For the reasons given earlier, however, I refuse leave to the Karratjibbin applicant to amend its concise statement to advance Part B of the alternative claim. It also follows that the interlocutory application made by Mr Yarran seeking to be joined as a respondent to the Marlinyu Ghoorlie proceeding will be dismissed.

Conclusion

74    In conclusion, I refuse to grant leave to the Karratjibbin applicant to amend further its concise statement in the form of the Further Amended Concise Statement dated 19 October 2023, and I dismiss the interlocutory application of Mr Yarran dated 23 October 2023 seeking to be joined as a respondent to the Marlinyu Ghoorlie proceeding.

Associate:

Dated:    21 November 2023

SCHEDULE OF PARTIES

No: WAD38/2022

Federal Court of Australia

District Registry: Western Australia

Division: General

SCHEDULE OF PARTIES

No: WAD647/2017

Federal Court of Australia

District Registry: Western Australia

Division: General