McKerracher J
In this case, McKerracher J recognised that the Yilka and Sullivan claimants hold native title rights and interests over the Cosmo Newberry Reserve, 100km north-east of Laverton in Western Australia. A collection of similar claims, including the Cosmo claim, were dismissed in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 (Wongatha). In response, the first Yilka claim was lodged on 15 December 2008 and a second claim was lodged on 1 August 2013. The Court ordered in August 2013 that the two claims should be heard together as they partially overlap. The Sullivan claim was lodged on 7 December 2011. On 1 March 2012, the Court ordered that the Sullivan and Yilka claims should also be heard together as they also overlap. The claimed area includes the Cosmo Newberry Aboriginal Community, a number of large reserves for the use and benefit of Aboriginal people, some small reserves of other kinds, some small areas of unallocated Crown land (UCL), and a pastoral lease. The sole respondent was the State of Western Australia (the State).
The State opposed the Yilka and Sullivan claims on the basis that continuous connection cannot be asserted by only a small group of individuals purporting to represent the rights and interests of the wider society. They further contended that historical changes in circumstances, including migration, since sovereignty impede inferences of continuity. McKerracher J held that there were multiple ‘pathways to connection’ which can be established through birth, long association and the holding of ritual status rather than just common ancestry. His Honour said this enabled the recognition of tenurial adjustments in response to long term movements of people as well as accounting for diversity in the claimant group due to the sparse population and harsh, unpopulated desert environment.
His Honour rejected the state’s argument that s 61 of the NTA requires claimed rights to be ‘common or group rights’ rather than individual rights. His Honour accepted the Yilka applicant’s submission that the State’s construction of s 61 is strained and inconsistent with the object and intent of the NTA, stating that ‘s 61 does not impose a taxonomical requirement for either ‘group’ or ‘common’ rights, as the contradistinction with ‘individual, group or communal’ rights in s 223(1) NTA makes clear’. The Court held that s 61 does not preclude the bringing of a representative claim by individuals for their rights in individual areas within an artificially bound claim area.
The State contended that there needs to be a ‘clear mechanism’ for finding asserted native title rights, such as through an adjudicative process. McKerracher J considered that the State was merely searching for a conventional European style mechanism to assist in the recognition process. His Honour said the substance of the evidence presented by the claimants and the anthropologists ensures that there is a process which produces results and is relied upon. But His Honour said this is not particularly amenable to being more precisely defined in a non-customary context.
Abuse of process
The State argued that given the Yilka and Sullivan claim’s similarity to the Wongatha case, it would be an abuse of process for the court to relitigate the matter. The State argued that the principle of res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which is merged into a judgment in a prior proceeding. The State argued that a party can be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment, and furthermore, the Wongatha and Cosmo claims covered the whole of the area claimed by the Yilka and Sullivan applications and the rights and interests claimed in the Cosmo claim are, insofar as exclusive possession is claimed, indistinguishable from those claimed in the Yilka claim. Moreover, the State asserted that the applicants in the Cosmo claim and the Wongatha claim relied upon the traditional laws and customs of the people of the Western Desert, as is the case in the Yilka claim and the Sullivan claim. The State further submitted that the expert anthropological reports filed in the Yilka claim rely heavily on evidence that was given in the Wongatha proceedings and, particularly, in the reports of Dr Sackett.
His Honour accepted on the Yilka claimants’ submissions that there are a number of important differences between the present claim and the issues decided in the Wongatha case, meaning it does not amount to relitigation. These include the difference between the claimant groups in the two cases; the differences between the native title rights and interests sought; and the fact that the Wongatha and Cosmo claim were decided on jurisdictional grounds, meaning the ultimate merits issue was not decided, and the case is therefore not determinative of the issues relevant in the Yilka and Sullivan claims. His Honour rejected the res judicata and estoppel arguments, stating that ‘no departure from the ratio in Wongatha is required in permitting the Yilka claim and the Sullivan claim to proceed and be determined on its substantive merits’ [at 2477]. His Honour said that there was no risk of conflicting judgments or improper purpose, and there would be manifest unfairness in the merits of the Yilka and Sullivan claim not being determined.
Extinguishment
Both parties agreed that native title rights and interests are partially extinguished by the gold mining leases, mineral leases and petroleum interests granted before 31 October 1975, as well as the pastoral leases and unvested reserves in the claimed area. The roads within the area were an issue of contention between the parties. While the Yilka applicant accepted that two roads created under the Road Districts Act 1919 (WA) extinguished native title, the State submitted that other roads in the claimed area shown on maps and diagrams also extinguished native title as they also constituted public works. The Yilka applicant objected to any generalised submission about extinguishment for which the specific area is not identified and for which there was no specific evidence as to the status of the area of a road or otherwise. The Yilka applicant said it is unconscionable for the State to suggest that the claim area should, in effect, be regarded as open to access by any trafficable route by any person.
The Court found that the weight of authority favoured the State’s submission that the roads constitute public works pursuant to s 253 of the NTA. His Honour considered that the more difficult question was whether, on the assumption that a road about which there is no evidence of construction is a public work, the interests of the Crown in the public work is a ‘prior interest’ within the meaning of s 47A(2), which must be disregarded. His Honour held that the roads do not involve the creation of a prior interest in members of the public and in the relevant Road Board. As the acts do not involve works, there is nothing else to protect by failing to disregard extinguishment. His Honour said that to refuse the application of s 47A in the circumstances would lack utility and be contrary to the beneficial intent of the provision. Moreover, the Court accepted the applicant’s submission that when read with s 47A(3)(a)(iii) which preserves the interests of the Crown in any capacity in any public works, the intention of the parliament in s 47A(2)(b) of the NTA was that public works fall within the category of interests in respect of which extinguishment is to be disregarded.
McKerracher J considered that both the Yilka and Sullivan applicants made out their claims, and recognised that they possess and hold native title rights and interests in the claimed area together, subject to the extinguishment to be confirmed.