Barker J
This proceeding results from an interlocutory application brought by the Jurruru respondents (the applicants in WAD6007/2000 and WAD327/2012) to strike out an application for a determination of native title brought by the Yinhawangka Gobawarrah (YG) applicant, filed on 18 October 2016.
Barker J ordered that: (1) the application of the Jurruru respondents dated 7 June 2017 be dismissed and (2) the matter be referred to the Registrar for further case management with a view to holding a trial to determine who holds native title in the relevant area (3) any further orders sought by either the applicant or respondent were to be sought within 28 days of judgment.
The area covered by the YG application overlaps the area subject to the native title determination application of the Jurruru applicant in WAD6007/2000 (Jurruru #1) and WAD327/2012 (Jurruru #2). On 21 June 2016, Barker J dismissed an earlier application filed by the YG group, for want of authorisation on the basis that the applicant had brought an application on behalf of a group of claimants larger than the group which had authorised the application: Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792. The YG application addressed in these reasons was filed on 18 October 2016. The Jurruru respondents then sought to strike out the YG application and the matter first came before the Court on 5 July 2017.
On that day the Jurruru respondents’ filed written submissions in support of their interlocutory application for summary dismissal of the YG application on the following bases:
The YG claim was a subgroup claim and did not comply with s 61 of the Native Title Act 1993 (Cth) (NTA)
The YG claim filed to comply with s 61 (4) of the NTA
There was insufficient evidence of authorisation
The YG claim was an abuse of process and
The TG claim had no reasonable prospects for success
The hearing of the application was adjourned following the hearing of submissions by the YG applicant to allow the opportunity for the YG applicant to file a minute of a proposed amended Form 1 and any supporting affidavits it sought to rely upon in response to the Jurruru respondent submissions. At an adjourned hearing on 13 December 2017, the YG applicant chose not to amend its Form 1 and sought to rely on two further affidavits.
The sub-group issue
The YG applicant rejected the Jurruru respondents’ submissions to strike out their application on the following bases:
The Jurruru submissions incorrectly asserted that the YG applicant and claim group had previously acknowledged the claim area was communally held by the Yinhawangka People. The YG applicants stated that they had never acknowledged this.
As for the Yinhawangka claim group members who were previously part of the Gobawarrah Minduarra Yinhawangka (GMY) claim group, the Jurruru respondents mischaracterised the proposal to amend the GMY native title claim as this was subject to further consultations with the relevant Yinhawangka families and the obtaining of further anthropological research and legal advice. Further, the evidence of former GMY claimants referred to in the Jurruru submissions needed to be considered in context, and in light of the totality of the Aboriginal and expert anthropological evidence given. The evidence of the persons referred to emphasises that it is the descendants of the YG claim apical ancestors, who alone, have the authority and right to speak for the claim area.
It was not contested that the YG claim group comprises only some of the members of the wider Yinhawangka community however it is not a ‘subgroup’ in the sense alleged by the Jurruru respondent submissions.
The Jurruru respondent characterised the YG claim group as a sub-group. While the claim group did only comprise some members of the wider Yinhawangka community, the YG applicant asserted that a subset is not a sub-group as per Jurruru submissions. The YG applicant asserted that the Delegate of the National Native Title Tribunal found that the YG application for a determination of native title determination satisfied the registration test under the Act.
The factual situation contrasts with that in the two cases referred to in the Jurruru submissions. In Velickovic v State of Western Australia [2012] FCA 782 the claim group comprised only part of a family descent group in circumstances where other members of that family asserted native title rights and interests in the same are, as did other families. In Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792 the claim group description comprised only a list of 23 people and it was conceded by the claim applicant that the claim was not properly authorised pursuant to s 61 of the Act, because the list of 23 names was not a complete list of all the persons who held native title claimed.
[16] The Jurruru respondents maintained their submission that the YG application constituted a claim by a sub-group. They argued that on the basis of traditional laws and customs asserted by the YG applicant that the rights and interests in the YG claim area may be held by Yinhawangka people more generally, who are not the descendants of the apical ancestors listed in the YG application.
[17] Barker J held that it was not in the interests of the administration of justice before the Court to progress the YG application or to rule on the subgroup question. If the Court ‘were to uphold the view that the current YG application is, properly understood, an impermissible subgroup claim, because it has not been authorised [as Barker J found in the Giggles decision] then, subject to a successful appeal, the YG applicant would be prevented from proceeding further.’
[18] The argument put on behalf of the YG claimant was that they are not a ‘subgroup’ but a ‘subset’ of the Yinhawangka people and they do not admit that other Yinhawangka people hold native title rights and interests in the relevant overlap claim area. Whilst Barker J conceded that it was an arguable point, he did not consider that he should rule on it before evidence including expert anthropological opinion was tested at a possible trial. Barker J determined that it is not for the Court to rule on the significance of the evidence led and objected to in the context, and that this is a matter properly for the trial judge to consider.
Section 61 (4) issue
The YG applicant rejected the proposition that there was any relevant failure to satisfy the requirements arising under s 61(4) of the NTA and made forceful submissions set out at paragraph [22] of the written reasons for judgment. The YG applicant also relied on the finding by the NNTT Delegate for the purposes of the registration test that this provision was adequately met.
The issue raised by the Jurruru respondents was based upon the alternative interpretation of the YG application Form 1, that the claim is no longer that native title in the claim area is a communal Yinhawangka title, but that it is a group title held by only some of the Yinhawangka people. Barker J did not feel in light of his observations on the subgroup issue that The Court should conclude that the YG application failed to define with ‘sufficient clarity’, as asserted by the respondent, the relevant claim group.
Barker J found that the respondent had not sufficiently met the evidentiary burden warranting a strike out of the YG application at this pre-trial stage.
The insufficient evidence of authorisation issue
[27] The YG applicant rejected the submission that it had failed to provide proper evidence of meetings to facilitate authorisation.
It made the following submissions:
To seek summary dismissal of their application on this basis was not supported by any legal foundation in legislation or case law. The YG applicant also alleged defects in the Jurruru #1 and #2 applications with respect to authorisation.
Section 84 (D)(2) of the NTA provides an avenue to seek an order for the production of evidence of claim authorisation, however the respondent party did not pursue this avenue, and therefore summary is unwarranted.
[28] The YG applicant also relied on the registration test decision of the delegate referring specifically to paragraph [170] of the Registration Test decision.
The Jurruru respondents maintained that the YG applicant had had reasonable opportunity to provide evidence in support of adequate authorisation, but had failed to do so and that summary dismissal was warranted on that basis.
Barker J found that these were matters appropriate for the trial Judge pursuant to section 84D of the NTA if the matter eventuated to trial.
The abuse of process issue
The YG applicant submitted that a finding of an abuse of process was unreasonable and unsustainable for the following reason: In Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, the Court considered a range of abuse of process arguments. It was submitted that the case for summary dismissal of the YG claim is considerably weaker than it was in the Yilka and Edwards claims considered in Murray. In Murray the Court rejected the State’s multipronged abuse of process application.
[34] By way of background to the Yilka decision the YG applicant asserted that:
The Yilka claim was preceded by a full trial and judgement in relation to the former Cosmo Newberry claim, which was brought by exactly the same applicant over the same claim area.
The Cosmo Newberry claim was dismissed on a jurisdictional basis on the grounds that it had not been properly authorised, nevertheless Lindgren J after hearing all of the evidence, went on to make substantive findings in relation to the merits of the Cosmo Newberry claim.
The Yilka claim group description included the members of the Cosmo Newberry claim, plus some additional claimants on the former Wongatha claim which overlapped the Cosmo Newberry Claim, which was also dismissed by Lindgren J for lack of authorisation.
The pleadings in the Cosmo Newberry claim were changed on numerous occasions by the Cosmo Newberry applicant.
All members of the Sullivan Edwards claim group had been included in the former Wongatha claim group and the members of the Sullivan Edwards claim group had made another claim prior to the Wongatha claim.
The Cosmo Newberry and Wongatha claims were pleaded and argued on the basis that native title rights were held on a group basis - or an aggregation of ngurra country rights. Lindgren J held that this was not consistent with traditional Western Desert Cultural Bloc laws and customs, but exercised his discretion to dismiss the claims only, rather than make a negative determination of native title.
The Yilka claim was pleaded on a different basis to the Cosmo Newberry claim – on the basis that native title rights were held on an individual not group basis.
Likewise the Sullivan Edwards claim was pleaded on a different basis to the Wongatha claim.
[36] The YG applicant asserted factual inaccuracies in the Jurruru respondent submissions to the following effect:
The first suggested inference (subgroup argument) and invalidity pursuant to s 61(4) is not open as addressed earlier.
Secondly there are no grounds open that the application is brought for an improper purpose.
The Jurruru submissions fail to take into account the legitimate arguments made by the YG applicant.
The Jurruru respondents have been unable to point to any other Yinhawangka people asserting native title rights in the same claim area.
Jurruru respondent submissions failed to take into account the nature of GMY proceedings
The YG applicant affidavits and expert anthropological evidence of consultant anthropologist Dr Vachon demonstrate that prima facie the claim group description may be sustainable under Yinhawangka law.
[40]–[42] The YG Applicant further submitted:
There was no intention to relitigate a native title claim which was previously struck out.
The YG claim is based on a new claim prepared with reference to new instructions and authorisation.
The YG claim is based on the application of traditional Yinhawangka laws and customs.
The YG applicant did not breach the criterion established in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81–423 in relation to the abuse of process issue as set out in paragraph [42].
[43] The Jurruru respondents maintained an abuse of process allegation, asserting that the affidavits submitted by the YG applicant, were an attempt to override the legal implications of previous evidence and findings in Giggles, while essentially seeking prosecution of the same claim.
Barker J ruled that a ruling as to whether the new claim had been brought by a ‘subset’ as distinct from a ‘subgroup’ of the Yinhawangka People is for consideration by the trial judge and no abuse of process could be made out in this proceeding.
The no reasonable prospects of success argument
[45] The YG applicants submitted that the affidavits filed contained cogent evidence which weighed in favour of the applicant’s submission.
The YG applicant criticised the Jurruru respondent submissions as flawed further observing that: [46](5) ‘Questions regarding the level at which native title rights are held in particular Aboriginal societies are often complex and contentious, anthropologically and legally. Claim groups, applicants, Native Title Representative Bodies and of course the Courts have grappled with this issue in a number of native title cases over the years. It is not uncommon for claims to have been pleaded one way, then another, or for claims to have been superseded by later claims pleaded on a different basis. Many claims have ultimately been successfully determined despite having a history of prior claim incarnations, pleaded on a different basis, and/or prior evidence that on its face may have been criticised as being inconsistent, but which ultimately was understood and accepted in a broader context in light of the totality of evidence in the case.’
The Jurruru respondents submitted that the YG application had unreasonable prospects of success and therefore should be dismissed under s 31A(2) Federal Court of Australia Act 1976.
[51] Barker J dismissed the strike out application dated 7 June 2017 brought by the Jurruru respondents, referring the matter to case management by the Registrar with a view to setting the proceedings down for trial, noting that any further orders sought by the parties were to be brought within 28 days of judgment.