Federal Court of Australia

Sampi on behalf of the Koongie-Elvire Native Title Claim Group v State of Western Australia (No 2) [2026] FCA 1564

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) the words “or systems” in paragraph [5(a)] of the further amended statement of facts, issues and contentions, filed by the Tjukawarrinj Respondents on 22 September 2026, are struck out.

2.    Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

overview

1    By interlocutory applications notified on 9 October 2026, in accordance with orders made on 7 October 2026, the Applicant and the Smith/Lawlor Respondents seek to strike out certain paragraphs, and parts of paragraphs, of the Tjukawarrinj Respondents’ further amended statement of facts, issues and contentions filed on 22 September 2026 (FASIC).

2    The strike out applications follow an interlocutory application decided on 18 September 2026, in which I refused the Tjukawarrinj Respondents leave to amend their statement of facts, issues and contentions (SFIC), relevantly, to include an allegation that part of the claim area said to be associated with their apical ancestor (the “Lunga Kitja area”) “was, traditionally, and is currently primarily associated with the Lunga Kitja people and not the Jaru people”: Sampi on behalf of the Koongie-Elvire Native Title Claim Group v State of Western Australia [2026] FCA 1405 at [4(a)] and [9]-[26].

3    The trial of the separate question in the proceeding is to commence on 19 October 2026.

4    The issue on the strike out applications is whether the paragraphs of the FASIC in question leave open the case propounded by the Tjukawarrinj Respondents in their opening submissions in reliance of the evidence of their expert (Dr James Rose), or ought to be struck out as evasive or ambiguous; likely to cause prejudice, embarrassment or delay in the proceeding; or failing to disclose a case appropriate to the nature of the pleading: cf, Federal Court Rules 2011 (Cth), rr 16.21(1)(c), (d) and (e).

relevant backround

5    Much of the procedural history relevant to the strike out applications is detailed in Sampi. These reasons assume that the reader is familiar with that decision and the basis on which leave to amend was refused.

Tjukawarrinj Respondents’ Opening

6    On 29 September 2026, shortly after Sampi was decided, the Tjukawarrinj Respondents filed their opening submissions for the trial. In dealing with the factual background, the opening submissions state:

[10]    The key fact underlying the dispute between the parties, which permeates the lay and expert evidence, is that the claim area is situated in a borderland area between two respective language group areas: Kitja (also spelt Kija or Gija) and Jaru (also spelt Djaru).

[11]    Jaru and Kitja languages emerge from two distinct systems of knowledge, law and custom that function to a degree independently, but still find ways to trade, co-exist, conduct collaborative ceremonies, intermarry and occupy hybrid identities (e.g. in expressions like ‘Jaru/Kija ‘half and half’). The Tjukawarrinj Respondents will adduce evidence of Dr James Rose that elaborates this point.

[12]    The exact location of the border between the Kitja and Jaru language group areas has been the subject of extensive anthropological inquiry and remains hotly debated between Kitja and Jaru claimants. The Applicant’s and KLC’s witnesses essentially place the border outside of the claim area, in the Ngarrawanji Part A determination area (see [14(b)] below), whereas the Tjukawarrinj Respondents place it within the claim area. The Tjukawarrinj Respondents call the Kitja language group area the ‘Lunga Kitja Area’ and have provided a map (filed 9 October 2025) (CB 03.015) showing the area. It is also the subject of evidence of Dr Rose.

(Footnotes omitted, emphasis added)

7    The submissions later set out the Tjukawarrinj Respondents’ “position” in relation to the issues in dispute at trial. This includes “issue 1(b)” which materially concerns whether Tjukawarrinj is an apical ancestor in the sense of being a person who held rights and interests in the claim area at or around effective sovereignty and whose descendants are native title holders for the claim area.

8    The submissions outline:

[51]    The Tjukawarrinj Respondents’ position in relation to the Issues in Dispute is:

    …

(b)    Issue 1(b)(i): the evidence will establish that Tjukawarrinj is an apical ancestor for the claim area. In this regard, the Tjukawarrinj Respondents will rely upon, among other things:

(i)    the October 2025 preservation evidence of Matthew and Anthony Dawson;

(ii)    the lay evidence of Mark Bin Bakar, Helen Brown, Gregory Tait, Josephine Helen Farrer, and Valma Banks;

(iii)    the expert evidence of Dr Rose, as to genealogical records relating to Tjukawarrinj and the claim area, and ethnohistorical materials that indicate that the Lunga Kitja Area was traditionally, and remains, strongly associated with a Kitja identity, consistent with the proposition that the estate of a Kitja man (Tjukawarrinj) extended into the claim area; and

(iv)    the expert evidence of Dr Redmond, as to the likelihood that Tjukawarrinj’s Dowarra estate extended into the claim area.

(Emphasis added)

9    As appears from those extracts, the case propounded by the opening aligns with the allegation the subject of the unsuccessful application for leave to amend the SFIC. The opening contends that within the claim area there exist “distinct systems of knowledge, law and custom” affiliated with the Jaru and Kitja languages “that function … independently” and that the Lunga Kitja area “was traditionally, and remains strongly associated with a Kitja identity”. That bears a strong resemblance to the allegation the subject of the unsuccessful application for leave to amend, namely, that “the Lunga Kitja area was traditionally and is currently primarily associated with the Lunga Kitja people and not the Jaru people”. The only difference is that the opening does not, in terms, state that the Jaru people are not associated with the Lunga Kitja area. That is a difference to which I will return.

10    The reasons for the refusal to include the allegation in the SFIC included that while, in principle, it may be possible for the Tjukawarrinj Respondents to defensively rely upon their asserted native title rights and interests to resist a positive determination in favour of the claimants over the Lunga Kitja area, they ought not be permitted to do so, in the context of the procedural history of this case and in relation to issue 1(b). The reasons for that comprised, in broad compass, that: (a) whether they sought to do so had been a live issue in the proceeding for a substantial period; (b) the Tjukawarrinj Respondents had been given an opportunity in January 2026 to seek to raise it as an issue for the trial, but had elected not to do so; and (c) given that procedural history, it would be inimical to the interests of justice and s 37M of the Federal Court of Australia Act 1976 (Cth) to permit them, so close to trial, to do so and by reference to a definition in their SFIC: Sampi at [17]-[26].

Rose Report

11    On 29 September 2026, the Tjukawarrinj Respondents also filed the amended report of Dr Rose (Second Rose Report). A prior version of this report of Dr Rose was filed on 25 September 2026.

12    The Tjukawarrinj Respondents had earlier filed a report of Dr Rose (First Rose Report) on 2 July 2026. A number of the participating parties objected to the First Rose Report. This included the First Respondent (State) who objected to the entirety of the First Rose Report on the grounds that the opinions there stated were irrelevant to the issues in dispute and, therefore, inadmissible. As appears from the Orders made by Judicial Registrar Morrison on 17 September 2026, those objections were resolved on the basis that the Tjukawarrinj Respondents would not rely on the First Rose Report and were granted leave to file any further expert anthropology report by 25 September 2026.

13    The Applicant, the Smith/Lawlor Respondents and the Kimberley Land Council (KLC) have filed objections to the Second Rose Report. The objections to the Second Rose Report include contentions that aspects of its contents ought not to be admitted because they are irrelevant to the issues the subject of the separate question or, alternatively, its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or result in an undue waste of time: cf, Evidence Act 1995 (Cth), s 55 and s 135.

14    Those objections were foreshadowed at a case management hearing on 6 October 2026. It became apparent during the course of the case management hearing that the objections and the pleadings were intertwined in that the Tjukawarrinj Respondents’ counsel indicated that his clients would argue that the evidence was relevant on the pleadings, and the Applicant and the other participating parties refuted that proposition. Against that background, I made orders requiring any party who sought to strike out part of the FASIC to make an application by notifying the other participating parties and the Court. I listed any such application and the objections to the Second Rose Report for hearing on 13 October 2026.

15    The objections and the strike out application were the subject of argument before me on 13 October 2026. The objections are not ruled on in these reasons. But they are noteworthy in that, consistent with what was foreshadowed on 6 October 2026, the strike out application and objections are intertwined. That is because an issue raised in each is whether the FASIC pleaded the case that the Tjukawarrinj Respondents state in the opening, they will make at trial reliant on the Second Rose Report. Just to give one example, the Applicant presses the exclusion of aspects of passages within the Second Rose Report on the basis that “they go to the alleged existence of a subset of rights holders in parts of the claim area and an assumed society as an aggregate of two distinct communities, each apparently comprised by language speakers, each observing a distinct set of laws and customs, and each associated with discrete areas within the claim area”, which is not relevant to the issues the subject of the separate question. The Tjukawarrinj Respondents resist the exclusion of those paragraphs on the basis that they are made relevant by the parts of the FASIC that are the subject of the strike out application by the Applicant and the Smith/Lawlor Respondents.

strike out application

16    The paragraphs of the FASIC that the Applicant and the Smith/Lawlor Respondents seek to strike out are the words “or systems” in [5(a)] and [5(b)] of the FASIC. The Smith/Lawlor Respondents further seek to strike out [23(d)] and part of [27] of the FASIC.

Subparagraphs 5(a) and 5(b) and paragraph 27 of the FASIC

17    Paragraph 5 of the FASIC responds to the following allegations pleaded by the Applicant in their statement of facts, issues and contentions filed on 30 May 2025 (ASFIC) on the topic of “society”:

[5]    At effective sovereignty, there was a normative system or systems of laws and customs in the KE Claim Area.

[6]    At effective sovereignty, the system or systems mentioned in paragraph 5, extended to at least the areas adjacent to the KE Claim Area.

[7]    At sovereignty and effective sovereignty the group of Aboriginal people who used occupied and enjoyed the KE Claim Area formed part of a society that;

(a)    shared a common body of laws and customs pertaining to rights and interests in land;

(b)    had a broadly similar kinship system;

(c)    held significantly shared cosmological understandings, and

(d)    was commonly interrelated through marriage and other social institutions. (Society)

[8]    The laws and customs held by the KE Claim Group, in the present day, are substantially the same as, and are rooted in, the laws and customs held by their predecessors at effective sovereignty.

[9]    The KE Native Title Holders can be accurately described as members of a single Society.

…

[13]    Rights and interests in land are allocated intramurally between the members of the KE Native Title Holders in accordance with the traditional laws and customs of the Society.

18    As appears from that extract, the ASFIC leaves open that at effective sovereignty there existed more than one normative system of laws and customs in the claim area. The Applicant sought to clarify that allegation at [16] of their response to the participating parties’ filed pleadings, which response was filed on 28 February 2025. Paragraph 16 states:

[16]    To be clear, and contra State SIFC [6.3], the reference in ASIFC [5] to “a normative system of systems of laws and customs” is not intended to refer to more than one body of applicable traditional laws and customs (as is plain at ASIFC [7] based on 2019 Experts proposition 4), but rather ASIFC [5] uses the language of 2019 Experts proposition 2, which was modified in 2022 Experts proposition 2 to refer to “a normative system of laws and customs” (singular).

19    With three exceptions, the Tjukawarrinj Respondents admit the allegations made in [5]-[9] and [13] of the ASFIC.

20    The first exception is [5] of the FASIC where it is pleaded:

[5]    As to ASFIC [5], the Tjukawarrinj Respondents:

(a)    admit that, at effective sovereignty, there was a normative system or systems of laws and customs in the claim area; and

(b)    contend that not all the laws and customs of the normative system were uniform across the claim area, in that some laws and customs applied in some areas but not others.

    (Emphasis added)

21    The words in emphasis are those the Applicant and the Smith/Lawlor Respondents seek to strike out.

22    The other two exceptions are:

(a)    Paragraph 7 of the FASIC where, “Subject to [5(b)]”, the Tjukawarrinj Respondents admit the allegations that are made by the Applicant in [7] of the ASFIC; and

(b)    Paragraph 9 of the FASIC where the Tjukawarrinj Respondents admit [9] of the ASFIC and “contend further that the society consists of the Nyining Jaru People and Lunga Kitja People”.

23    Thus, according to its terms, the case pleaded in the FASIC admits the society alleged by the Applicant, save that the Tjukawarrinj Respondents contend that “not all of the laws and customs of the normative system were uniform across the claim area, in that some laws and customs applied in some areas and not others” and its members consist of “Nyining Jaru People and Lunga Kitja People”.

24    The “exceptions” in the FASIC, as referred to above, are not picked up in that part of the pleadings where the Tjukawarrinj Respondents address issue 1(b) for hearing at trial. Their case with respect to the issue of whether Tjukawarrinj is an apical ancestor for the claim area is at [17] of the FASIC as follows:

[17]    As to Issue in Dispute 2(b)(i) and ASFIC [20], the Tjukawarrinj Respondents contend that Tjukawarrinj is an Apical Ancestor for the claim area.

Particulars

(A)    Tjukawarrinj was a senior Lunga Kitja law man and his estate extended into the claim area, including Caroline Pool.

25    The “exception” in [5(b)] is, however, reflected in [27] of the FASIC. Paragraph 27 addresses order 2 of the Orders made by Judicial Registrar McGregor on 28 February 2025. The order required the participating parties to file a pleading in response to the ASFIC, “including in relation to the traditional law and custom by which [the Tjukawarrinj Respondents] assert that native title rights and interests are held in the application area, and clearly identifying the persons who thereby hold native title rights and interests in the application area”.

26    Paragraph 27 of the FASIC pleads:

[27]    The laws and customs of the claim area are those acknowledged and observed by the Kitja and Jaru people. There are some variations in the laws and customs acknowledged and observed by these two language groups which are differentially expressed across the claim area.

27    The Smith/Lawlor respondents seek an order that the words in emphasis in paragraph 27 be struck out insofar as those words can be taken to replicate or repeat the content of [5(b)] of the FASIC.

28    The strike out application is made because the Tjukawarrinj Respondents contend that [5] and [27] of the FASIC leave open the case they opened, as outlined above. That case, as further clarified during the hearing of the strike out application, is that there is a “distinct body of laws and customs for the Lunga Kitja area”, but not a separate society as that expression is understood in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422.

29    I pause to note that a “society” is defined in Yorta Yorta as a “body of persons united in and by its acknowledgement and observance of a body of law and customs”: at [49] (Gleeson CJ, Gummow and Hayne JJ). It is apt to emphasise that the laws of principal concern in s 223 of the Native Title Act 1993 (Cth) are those giving rise to rights and interests in land and waters: Yorta Yorta at [87].

30    The Applicant and the Smith/Lawlor Respondents refute that the FASIC leaves open that case. But given that the Tjukawarrinj Respondents rely on the allegations as the “pleading gateway” to such a case at trial, including, materially, to make relevant aspects of the Second Rose Report they have objected to, they have sought orders striking out the passages of the FASIC to which I have referred. As outlined by the Applicant, in essence, that relief is sought out of an abundance of caution and on the basis that the allegations have the capacity to give rise to confusion and cause embarrassment in the pleading sense.

Subparagraph 23(d) of the FASIC

31    The Smith/Lawlor Respondents also seek to strike out [23(d)] of the FASIC. That paragraph addresses “issue 1(c)” for trial which, essentially, concerns whether native title in the claim area may be obtained solely on the basis of recognition by descendants of the apical ancestors, as opposed to descent.

32    Subparagraph 23(d) of the FASIC is as follows:

[23]    As to ASFIC [27] read with the Applicant’s Particulars [3(f)(ii)] and [3(f)(iii)], the Tjukawarrinj Respondents:

    …

(d)    contend that biological descent from Apical Ancestors (including by adoption) who held rights and interests in the Lunga Kitja Area at or around effective sovereignty is the only means by which a person can gain rights and interests in land in the Lunga Kitja Area under the traditional laws and customs of that area.

(Strike out in the original)

33    Subparagraph 23(d) is pleaded as an alternative to the Tjukawarrinj Respondents’ principal contention with respect to issue 1(c), being that “descent from Apical Ancestors (including by adoption) is the only means by which a person can hold or possess rights and interests in relation to land in the claim area under the traditional laws and customs of the claim area”: cf, FASIC at [27(c)].

34    The Smith/Lawlor Respondents contend that [23(d)] of the FASIC must either be referring to the intramural allocation of native title rights and interests or contending for a separate native title holding community for the Lunga Kitja area, one comprised solely of descendants of the apical ancestors. Irrespective, the Smith/Lawlor Respondents submit that the allegation ought to be struck out. That is because if the allegation contends for an intramural allocation of rights, that is not relevant to the issues for determination by the Court: cf, Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 459 at [63] (Mansfield J). And if it contends for a separate native title holding group for part of the claim area, that is not permissible given the findings made in Sampi.

relevant principles

35    The Court has power, on application by a party under r 16.21 of the Rules, to make an order striking out all or part of a pleading on the ground that it is likely to cause prejudice, embarrassment or delay in the proceeding, fails to disclose a case appropriate to the nature of the pleading, or is otherwise an abuse of process of the Court: Rules, rr 16.21(1)(c), (d) and (e).

36    The discretionary power to strike out is to be exercised sparingly and only in a clear case lest the Court deprive a party of a case which it ought to be able to bring: Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 at [20] (Gilmour J); Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 (Sheppard J, with whom Jenkinson and Drummond JJ agreed).

37    In Sampi I found that a statement of facts, issues and contentions in a native title proceeding is a “pleading” within the meaning of the Rules: at [12]; see also, Ward v State of Western Australia [2013] FCA 281; cf, Australian Securities and Investments Commission v Kyriackou [2010] FCA 9; (2010) 76 ACSR 428 at [35] (Goldberg J) in relation to O 11, r 16 of the Federal Court Rules 1979 (Cth).

38    An allegation will be liable to be struck out as embarrassing if it is susceptible to various meanings, or contains inconsistent allegations, or makes irrelevant allegations that tend to increase expense: Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) [2004] FCA 1393 at [18] (Tamberlin J). An allegation that raises a false issue may also be liable to be struck out as failing to disclose a reasonable defence and, additionally, causing prejudice to the applicant in having to contest such a false issue resulting in unwarranted delay in the resolution of the real issues: Radisich at [33]. A relevant consideration in the latter circumstance is whether the “false issue” can be dealt with by way of objections to evidence on the grounds of relevance or probative value at trial, or whether it is preferrable to strike out because the consequence of the former approach will mean an increase in costs for both parties in preparation for trial: Radisich at [34].

disposition

39    It is deeply regrettable that it has become necessary to adjudicate on the Tjukawarrinj Respondents’ pleading on the eve of the trial. The outcome of the hearing of the separate question will have profound consequences for all concerned because the determination made will resolve the question of the persons holding native title rights and interests in the claim area and bind the world at large: see Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 at [92] (Moore, North and Mansfield JJ). But the claim has been on foot now for over 25 years. And as the procedural history recorded in Sampi reveals, whether the case that the Tjukawarrinj Respondents wish to advance is open on their pleading, and the separate question as currently framed, has been a live issue in this proceeding since, at least, January this year: see Sampi at [19]-[25].

40    The Tjukawarrinj Respondents were given the opportunity at that time to squarely raise the issue by way of an application to amend the separate question. They elected not to do so. The parties then proceeded to file the bulk of their expert and lay evidence for the trial. The only substantive evidentiary steps that had occurred before January 2026 was a preservation of evidence hearing (at which two of the Tjukawarrinj Respondents gave evidence) and expert conclaves and preservation of evidence hearings before the separate question had been ordered. It was only subsequent to the case management hearing in January, and in the context of objections to the evidence of Dr Rose, that the Tjukawarrinj Respondents took steps to seek to amend their pleading.

41    The Tjukawarrinj Respondents argue that the case they wish to advance is open at law because the authorities are clear that one can have variation in laws and customs, potentially even significant laws and customs across a claim area, but the group still forms part of a single “society”. They rely, in that regard, on Akiba v Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1 at [168] (Finn J). Justice Finn there observed that the views expressed in Yorta Yorta as to the defining characteristics of a particular society are not to be taken as suggesting that “it laws and customs may admit of considerable diversity in the groups constituting the society and of differential application”.

42    One cannot cavil with the Tjukawarrinj Respondents’ contention that the law admits of a single society with variations, even significant variations, in its laws and customs. But the present inquiry is focused on not what the law admits of as a possibility, but what case the Tjukawarrinj Respondents can permissibly, as respondents, and have, in fact, advanced on their pleading. It is apt to emphasise in this respect that in Akiba Finn J went on to make a determination reflecting the existence of distinct rights holding groups whose members in aggregate form part of a single “society”: at [482] and [636]-[638].

43    As was made clear in Sampi, while in principle it may be open to the Tjukawarrinj Respondents to defensively rely on their asserted native title rights and interests to resist a positive determination in favour of the Applicant, that would have required, at the least, an application to amend the separate question, which was not made: Sampi at [17]-[26]. Conversely, and unlike Akiba, it is not permissible for the Tjukawarrinj Respondents to seek a positive determination in their favour and to the exclusion of the other claimants because they have not brought a native title determination application: Commonwealth of Australia v Clifton [2007] FCFCA 190; (2007) 164 FCR 355 at [1],[2] and [57] (Branson, Sundberg and Dowsett JJ). In any event, at the hearing of the strike out application the Tjukawarrinj Respondents’ counsel expressly disavowed that their case is that there existed a separate Lunga Kitja rights holding group within the claim area.

44    The FASIC does not, in my view, leave open a case that there is “a distinct body of laws and customs for the Lunga Kitja area” within the claim area and affiliated with speakers of the Kitja language. Firstly, that is not what the pleading says. As outlined above, the FASIC admits the existence of a “society” in the claim area save that the Tjukawarrinj Respondents contend that “not all of the laws and customs of the normative system were uniform across the claim area”, in that some laws and customs applied in some areas and not others, and its members consist of “Nyining Jaru People and Lunga Kitja People”. That is a very different case from one in which it is said that a specific group of language speakers within the claim area acknowledge and observe a distinct body of laws and customs from another group of language speakers.

45    Second, while it may be accepted that the Yorta Yorta conception of “society” allows for “considerable diversity” and “differential application”, the case propounded in the opening is not one of mere diversity or differential application in the laws and customs of a single society, but of a distinct body of laws and customs that are acknowledged and observed by Kitja speaking people and a separate but distinct body of laws and customs that are acknowledged and observed by Jaru speaking people.

46    What consequence does that have for the strike out application?

47    I will strike out the words “or systems” in [5(a)] of the FASIC. It is unfortunate that the concept of “normative … systems of laws and customs” in the claim area was introduced by the Applicant in its ASFIC and that, once the issue was raised by the State, the Applicant only dealt with it in the response, rather than also seeking leave to amend the ASFIC to remove those extraneous words. Nonetheless, when read as a whole, it is clear that the Applicant alleges the existence of a single “normative system” in those paragraphs of the ASFIC to which I have referred. The FASIC at [5(a)] merely repeats, as part of an admission, the words used in the pleading to which it responds. Materially, when the Tjukawarrinj Respondents go on in [5(b)] to make a positive contention with respect to that allegation, it is framed in terms of a single “normative system”. Given that context, it is appropriate to exercise the discretion to strike out the words “or systems” in [5(a)] because it is inconsistent with the positive case advanced in [5(b)] and is, in that sense, “embarrassing”: Shelton at [18].

48    I will not strike out [5(b)] and the second sentence of [27] of the FASIC. For the reasons already outlined, those allegations do not leave open the case propounded by the Tjukawarrinj Respondents of a “distinct body of laws and customs for the Lunga Kitja area” acknowledged and observed by members of the Kitja, but not the Jaru language group. In that sense, [5(b)] raises a “false issue” of the type described by Gilmour J in Radisich. But that can be dealt with as part of the objections to the Second Rose Report, which have already been filed and argued. Indeed, the Applicant suggested as much in the submissions advanced at the hearing. And given the consequences of the orders that will ultimately be sought to be made in this proceeding, I am not persuaded that this is a sufficiently clear circumstance that would warrant striking out [5(b)] and, thereby, precluding a case that “some laws and customs” of the society comprised of Nyining Jaru people and Lunga Kitja people “applied in some areas and not others” should that be supported by the evidence.

49    I will not strike out [23(d)] of the FASIC. The effect of the “alternative contention, if it succeeds, is that there would be two rights holding groups for the claim area including, relevantly, an area where possession of native title rights and interests is dependent on descent. But, unlike Sampi, the contention is squarely raised in the context of responding to issue 1(c). Further, it is not framed as a contention that Lunga Kitja people, and not Jaru people, would have rights in that area. Rather, it is a contention that only those who are descended from the named apical ancestors would have those rights. The Applicant addressed, but did not put in issue in their response, that it was permissible for the Tjukawarrinj Respondents to advance that contention, and they have not moved for its strike out before me. Given those matters, and while I accept that if the contention refers to an intramural allocation of rights that is beyond the purview of the Court, I am not satisfied that it is a sufficiently clear case that would warrant the strike out of the allegation. But, again, the refusal to exercise the discretion to strike out [23(d)] does not carry with it an acceptance that it is open to the Tjukawarrinj Respondents, on the pleading, to advance a case in support of that contention of the existence of a distinct body of laws and customs acknowledged by Kitja and not Jaru speaking peoples in the area to which [23(d)] of the FASIC refers.

50    For all of those reasons, I will make an order striking out the words “or systems” in [5(a)] of the FASIC. The Applicant seeks an order that costs be reserved. I consider that appropriate in the circumstances.

Associate:

Dated:    21 October 2026

SCHEDULE OF PARTIES