Gilmour J
This matter concerned two applications seeking leave to appeal the decision in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553. The first was filed on behalf of the Eastern Guruma people seeking to appeal the summary dismissal of their application (the 2015 Eastern Guruma application) for a native title determination on two grounds: that it constituted an abuse of process, and that it had no reasonable prospects of success. The second application sought to challenge a cost order in relation to a joinder application made by Michael Hughes with respect to the Yindjibarndi native title claim (the 2003 Yindjibarndi application). Gilmour J dismissed both applications with the exception of one of two orders in relation to the 2003 Yindjibarndi application.
Background
In 2007 and 2012, the Eastern Guruma people’s native title rights and interests were recognised over an area of land southwest of the 2003 Yindjibarndi application in Hughes (on behalf of the Eastern Guruma people) v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People v the State of Western Australia (No 2) [2012] FCA 1267. The 2015 Eastern Guruma application was filed over an area that overlapped the centre of, and bifurcated the area claimed by, the Yindjibarndi people in the 2003 application. It was submitted that this later application was made because the Eastern Guruma had discovered that a site of significance to the group, known as the FMG Satellite Springs, was not located within the boundaries of their earlier determinations of native title as previously thought. That application was summarily dismissed by the Court in March 2016 in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553.
In 2003, the Yindjibarndi people lodged a native title claim that overlapped the first claim made by the Eastern Guruma people. Elders from both the Yindjibarndi claim group and the Eastern Guruma claim group attended a meeting held that year to discuss their respective claims. The boundaries of each claim were decided at that meeting, and the overlapping Yindjibarndi claim was withdrawn as a result.
The decision at first instance
The primary judge dismissed the 2015 application on two grounds: firstly, that the delay in its filing and the delay its continuance would cause to the Yindjibarndi claim amounted to an abuse of process, and secondly that it had no reasonable prospects of success.
The Eastern Guruma applicant had filed evidence alleging that members of the group had not learned of the site’s location within the area claimed by the Yindjibarndi people until November 2014. The primary judge found this assertion to be false. His Honour held that the Eastern Guruma claim group had known for at least six years before commencing the 2015 application that the FMG Satellite Springs was not in the Eastern Guruma determination area, yet had done nothing to assert their claims at any earlier time. Further, his Honour held that the group had been aware of the Yindjibarndi applicants’ claim over that area since at least the 2003 meeting.
Members of the Eastern Guruma claim group had visited the site in 2009 in order to record details about it for listing on the Register of Aboriginal sites. That group reported that it was probably a camping place and meeting place due to its proximity between the upper and lower Guruma groups, but did not ascribe any spiritual significance to the site. His Honour held that the evidence as to the spiritual significance of the site given in the 2016 affidavit of Ms Boyd was inconsistent with the 2009 evidence, and the claim therefore had no reasonable prospects of success.
The primary judge held that in light of the 2003 meeting of the two groups to settle their claim boundaries, and the re-discovery of the location of FMG Satellite Springs by members of the Eastern Guruma group in 2009, the subsequent delay in filing the 2015 application on grounds of mistake was not adequately explained on the evidence and amounted to an abuse of process. His Honour concluded that the delay in bringing the 2015 application was unreasonable and found that it was ‘calculated to cause significant disruption and expenditure of significant costs by the Yindjibarndi, by reason of the interruption to its preparation of its case for the imminent hearing’.
The appeal decision
The Eastern Guruma applicant challenged the inference drawn by the primary judge that the reason the group members ‘did nothing’ to protect the FMG Satellite Springs site until 2015 is that the 2003 settlement of the boundary issue was being respected by them. The applicant submitted that this inference was inconsistent with the evidence that they were actively reviewing the omission of FMG Satellite Springs from their claim area from at least November 2014 onwards.
Gilmour J found that the inference was not material to the primary judge's conclusions on abuse of process in the sense that it was not an essential or necessary step in the primary judge's reasoning process. His Honour found that the primary judge's conclusions were based primarily upon the delay between May 2010, when an anthropological report on the site’s location was provided to the group’s prescribed body corporate, and the commencement of the 2015 proceeding. The primary judge noted that even if the applicant had made the claimed mistake about its boundaries, since the 2003 meeting, the Yindjibarndi applicant had pursued their native title claim to the point of a part-heard hearing without any knowledge of or participation in such a mistake. In those circumstances, it would be an unfair and unjust use of the Court's procedures to allow the applicant to maintain the 2015 proceeding.
Gilmour J noted that in circumstances where abuse of process is engaged in through unacceptable and unexplained (in this case falsely explained) delay with attendant relevant prejudice, this is not addressed by asserting an arguable claim. His Honour considered the relevant question to be whether the claim should be dismissed, not as having no merit, but on the basis that its prosecution constitutes an abuse of process.
Gilmour J agreed with the approach taken by the primary judge to the issue of abuse of process, affirming that the continuation of the 2015 application, including the delay in its filing, had been shown to have a sufficiently burdensome effect on the Yindjibarndi applicant that it should not be permitted to continue.
Spiritual connection
The Eastern Guruma applicant contended that the primary judge made two errors in holding that the claim had no reasonable prospects of success as the evidence did not establish that the FMG Satellite Springs are of cultural, spiritual, ceremonial or mythological significance to the group. First, by treating it as a requirement of s 223(1)(b) of the NTA that an applicant prove its ‘spiritual connection’ to the land claimed. Second, in failing to appreciate that connection is established through proof of traditional laws and customs.
The applicant submitted that the primary judge misconstrued the effect of what the High Court plurality said in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [64]. They contended that the primary judge took that paragraph to mean that there must be proof of spiritual connection, whereas the plurality makes it plain that under certain circumstances spiritual connection may suffice, but this does not make it a requirement. The applicant argued that the evidence put on their behalf proves an entitlement to camp at and use the resources of that area and that it was of ‘major significance’ to the Eastern Guruma. Gilmour J rejected these submissions on the basis that the primary judge had found that evidence to be false. His Honour considered that the primary judge was not concerned with what was required to prove connection but rather with an analysis of the evidence of Ms Boyd that the FMG Satellite Springs site had spiritual significance. The primary judge had found that Ms Boyd’s evidence was inconsistent with the significance placed on the site by other members of the group, and as such the application had no reasonable prospect of success.