In this judgment Reeves and White JJ dismissed all three appeals with respect to the area known as Lake Torrens (SAD249/2016, SAD250/2016 and SAD251/2016). Jagot J allowed all three appeals.
Reeves J
[1] Lake Torrens is the second largest salt lake in Australia. It is situated in the mid-north of South Australia. As the primary judge, Mansfield J recorded in the introductory section to his reasons for judgment (Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899) (the Reasons), the surface of the Lake is ‘unsuited to long-term occupation, save for Andamooka Island’, an island ‘which protrudes into the western side of the lake [and is] accessible by a causeway from the west’ (at [2] and [3]).
[2] Lake Torrens is the central object of the three appeals filed by each of the Kokatha People, the Adnyamathanha People and the Barngarla People. Before the primary judge, each of the three appellants made a competing and entirely overlapping native title claim to the land and waters comprising Lake Torrens. At the time of the trial, each of the claimant groups had already achieved a consent determination of native title in its favour under s 87(1) of the Native Title Act 1993 (Cth) (NTA) over a separate area of the shores and surrounding land of Lake Torrens.
To the west and contiguous with the western shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Kokatha Uwankara People: Starkey v State of South Australia [2014] FCA 924 (Kokatha Part A). To the east and contiguous with the eastern shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Adnyamathanha People: Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) [2009] FCA 359 (Adnyamathanha No 1). Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the northern tip of Lake Torrens is a narrow strip of land (approximately 200 m wide at the shoreline) determined to be the southern part of the native title lands of the Arabana people: Dodd v State of South Australia [2012] FCA 519. Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the south-eastern part of Lake Torrens is approximately 6 km of shoreline which forms the northern part of lands determined to be the native title lands of the Barngarla People: Croft v State of South Australia [2015] FCA 9 (Barngarla); Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Barngarla No 2).
The decision at first instance
[4] All three appellants failed in their claims before the primary judge. With respect to the Kokatha appellants, Mansfield J found that it was because their claimed rights and interests were contemporary in origin, rather than traditional, and they did not therefore meet the requirements of s 223(1)(b) of the NTA (at [4]). [5] With respect to the Adnyamathanha appellants (also referred to in the Reasons as the Kuyani People), his Honour concluded that they had not established a continual substantially uninterrupted connection with the claim area under whatever traditional laws and customs they held with respect to that area at sovereignty (at [772]). [6] Finally, for similar reasons as for the Adnyamathanha appellants, but with greater concerns about the credibility of their evidence, his Honour was not satisfied with the claims of the Barngarla appellants.
[7] The primary judge remarked on the ‘counter-intuitive’ nature of these conclusions in the immediately succeeding paragraph of his Reasons. There, his Honour contrasted the anthropological opinion about the likelihood that Lake Torrens ‘would have been subject to traditional rights and interests by an Aboriginal society, or societies, at sovereignty and that it is likely that members of country groups closest to Lake Torrens would likely have had stronger rights and interests in the nearby portions of the Lake, its islands and springs, than others’ (at [207]) with the ‘contemporary significant and credible spiritual connection’ (at [774]) each of the appellants presently had to parts of Lake Torrens. Nonetheless, he concluded each had failed to meet the requirements of s 223(1) of the NTA.
The review role of the Full Court
[8] In their separate notices of appeal, the Kokatha appellants and the Adnyamathanha appellants raised eight grounds of appeal and the notice is set out at paragraphs [8] and [9] respectively of the judgment. The Barngarla appellants raised seven grounds of appeal and their notice of appeal is set out at [10].
Reeves J set out the Court’s review role in the appeals. The appellants had contended that the principles established by the majority in Warren v Coombes (1979) 142 CLR 531 at 551–553 applied. Specifically, they contended that the Court ‘is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’ (at [11]).
[13] The State was the main respondent in each of these appeals. It pointed to the three existing consent determinations of native title described above and agreed that this Court was in as good a position as the primary judge to draw inferences from those determinations. Nonetheless, with respect to most of the Kokatha appellants’ grounds of appeal (1, 2, 2A, 3, 4(a), 5 and 6) and some of the grounds of appeal of the Adnyamathanha appellants (1 and 4) and the Barngarla appellants (1, 5, 6 and 7), the State contended that the challenges concerned sought to overturn the facts as found by the primary judge, or to contest his Honour’s unwillingness to make positive findings of fact. It followed that, to succeed in those challenges, the appellant concerned would need to show that the findings in question were of the kind described in Fox v Percy [2003] HCA 22 at [28]–[29] and Robinson Helicopter Company Inc v McDermott [2016] HCA 22 (Robinson Helicopter) at [43].
[14] Furthermore, the State took particular issue with the Kokatha appellants on the question of the primary judge’s advantage. It contended that, in hearing these three native title claims, the primary judge had a unique advantage over the appeal Court, as explained most recently by the five member Full Court in Banjima People v Western Australia [2015] FCAFC 84 (Banjima) at [57]–[77].
[15] Reeves J found that the State accurately described the review role of the Court in the particular circumstances that gave rise to these three appeals. [16] His Honour also noted that these appeals proceeded by way of rehearing (s 27 of the Federal Court of Australia Act 1976 (Cth) and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75], [128]). [17] Ordinarily, in an appeal by way of rehearing, the Court’s power to interfere with the decision at first instance is exercisable only if it is satisfied that there is error apparent on the part of the primary judge (see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47 at [14]). Nonetheless, in an appeal by way of rehearing, this Court is obliged to:
conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons’ and ‘to determine whether the judge has erred in fact or law’ (Fox v Percy at [25] and Robinson Helicopter at [43] respectively)’;
‘give the judgment which in its opinion ought to have been given in the first instance’ or, to ‘… make its own findings of fact and to formulate its own reasoning based on those findings’ (Fox v Percy at [23] and Robinson Helicopter at [43] respectively);
draw its own inferences ‘from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’ (Fox v Percy at [25] citing Warren v Coombes at 551).
[18] Those principles are qualified when the error in contention concerns the primary judge’s findings of fact. The Full Court should not interfere with findings of that kind ‘unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.
[19] His Honour noted that the reliance on the trial record places some ‘natural limitations’ on the Court sitting as an appellate court. They included: ‘the disadvantage that the appellate court has when compared with the [primary] judge in respect of the evaluation of witnesses’ credibility and the fact that ‘the appellate court does not typically get taken to, or read, all of the evidence taken at the trial’. [20] It follows that, where an appellate court is called on to consider an error concerning findings of fact, it has to ‘resolve the dichotomy’ between its obligations to conduct a ‘real review’ as mentioned above and the need for it to respect the advantages held by the primary judge. Reeves J also noted the ‘significant advantage’ of the trial judge in having heard substantial evidence on country, including the secret aspects taken during closed sessions at trial [28].
Reeves J summarised the applicable principles at [31]: ‘where the alleged error relates to the primary judge’s factual findings, it requires the appellant concerned to establish that the findings in question are “wrong by incontrovertible facts or uncontested testimony” or are wrong because they are “glaringly improbable” or are contrary to “compelling inferences”. Furthermore, where the alleged error involves inferences which the appellant claims were wrongly not drawn, as is the case with all of these appeals, it requires this Court to ensure that, before it draws that inference, it is truly based upon undisputed facts and/or facts that are positively established in the Reasons and it requires this Court to be satisfied that inference is compelling such that the primary judge was wrong not to draw it.’ [emphasis in original]
Kokotha’s grounds for appeal
[62] The primary judge concluded at [713] of the Reasons that ‘it is not possible, on the evidence, to be satisfied that the Kokatha People had extended their country under their traditional laws and customs into the area east of that western boundary of that determination at the time of sovereignty’. [73] Reeves J agreed, concluding that ‘the deficiency in the Kokatha appellants’ case on connection was that their lay evidence did not “take Kokatha occupation or connection to [Lake Torrens] anywhere near sovereignty.”’
Ground 1 – not drawing an inference
[75] The first ground of appeal asserted both that the primary judge erred because he came to the conclusion that the Kokatha appellants did not possess native title rights and interests in any part of the claim area and because he did not come to the conclusion that they did possess such rights and interests in that area. The particulars rely upon approximately 40 paragraphs of the Reasons predominantly selected from the sections where his Honour reviewed the evidence of the Kokatha appellants’ lay witnesses.
[81] Reeves J found that the appellants failed on both criteria for two reasons:
First, on the need for a proper factual foundation, they cannot point to a sufficient body of “positive proved facts” from which an inference can be drawn that they hold native title rights and interests over Lake Torrens. Secondly, in the circumstances of these three competing claims, with each claimant advancing a similar conflicting inference of approximately equal probability, no inference can be drawn in favour of any one of them.
[85] Further, his Honour considered ‘nothing has been advanced by the Kokatha appellants to show why his Honour was wrong in any of this reasoning. That is, no attempt has been made to show that, notwithstanding this reasoning, the inference they sought to have drawn was so well supported by positive proved facts, and so compelling as to its probabilities that his Honour should have drawn it’.
Grounds 2 and 3 – the very significant objects
[89] The Kokatha appellants’ ground of appeal 2 concerns ‘the very significant objects’ shown to the primary judge during the restricted men’s evidence session on Andamooka Island. They claim that his Honour erred in finding that none of those objects was ‘specific to either the Lake generally or to Andamooka Island’. [92] Reeves J observed that ‘while it is difficult to determine what his Honour meant by the words “specific to either the Lake generally or to Andamooka Island”, given all the unambiguous statements I have referred to above and having regard to the advantage he possessed, I am not willing to conclude the former statement is reflective of appealable error on the part of the primary judge.’
Grounds 2A and 3 – the Kokatha Tjukurpa and Crombie Ridge
[93] This ground concerned the ‘Angarta, Urumbulla and Wanampi (sic – Wanambi) stories’ with respect to which the primary judge is alleged to have erred at [609] of the Reasons. According to the Kokatha appellants, the primary judge stated in that paragraph that the stories in question ‘were mentioned only in passing by Michael Starkey and there was no evidence given describing how those stories related to the claim area.’ [114] Reeves J did not consider these grounds to have any merit.
Ground 4 – the 1980s ethnographic surveys
[115] In this ground of appeal, the Kokatha appellants disputed the primary judge’s conclusions at [341] and [724] about the absence of any support for their claim with respect to the claim area in the ethnographic surveys ‘until the relatively recent past.’
[152] Reeves J did not consider that his Honour’s treatment of the 1980s reports by Vachon, Hagen, Fitzpatrick and Gara, or the contents of those reports as particularised by the Kokatha appellants, provided any support for any of the errors raised under this ground of appeal. His Honour was not willing to infer that the primary judge had not considered the Fitzpatrick and Gara 1984 report at [276]–[345] of the Reasons. Even if Mansfield J had not done so, Reeves J did not consider that it would have made any difference to the outcome to the Kokatha appellants’ claim such that it constitutes an appealable error.
The Kokatha appellant also contended that the primary judge erred by failing to consider whether there may have been cultural reasons why particular information about Kokatha interests in Lake Torrens did not emerge from some of the ethnographic surveys carried out in the 1980s. Reeves J found that the primary judge had acknowledged the potential impact of secrecy at [355], and agreed with his Honour that ‘if secrecy and danger explain why there is a dearth of mention of such records in the 1980s, that does not provide the Kokatha appellants with the positive evidence they need to establish the necessary connection to the Lake Torrens claim area’ (at [156]).
Ground 5 of appeal – Drs Vachon and Hagen and the Kokotha stories relating to Lake Torrens
[159] The appellant alleged that the statements made by the primary judge in [719] of the Reasons regarding the absence of Kokatha or Western Desert stories relating to Lake Torrens itself are contrary to the evidence of Drs Vachon and Hagen. Having regard to the observations his Honour made about how the Court should approach the primary judge’s advantage in these appeals, Reeves J was not willing to conclude that the contents of that paragraph demonstrate an appealable error.
Ground 6 – Dr Gara and the Kokotha’s sites on Andamooka Island
[160] Ground of appeal 6 alleges error in [325] of the Reasons where the primary judge stated that ‘if there were significant sites on or immediately adjacent to Lake Torrens, there is no reason why they would not have been identified.’ [163] Reeves J considered this ground unmeritorious for the same reasons as provided above with respect to particular (b) in ground of appeal 4 (see at [155]–[157]).
Ground 7 – a catchall ground
[164] Reeves J found that this this ground of appeal is a catchall ground which does not require separate consideration. It falls with all of the other unmeritorious grounds above.
[167] Reeves J found that for the reasons set out above, none of the Kokatha appellants’ grounds of appeal had any merit and their notice of appeal must therefore be dismissed.
Adnyamathanha’s grounds for appeal
[168] The Adnyamathanha appellants alleged that the primary judge made the following errors:
various errors with respect to connection – grounds 1, 2.1 to 2.3 and 3 to 4;
misuses of the prior consent determinations – grounds 5 and 6;
errors on particular evidentiary matters – ground 7;
the failure to make a ruling under s 86 – ground 2.4; and
the rejection of the shared claim with the Barngarla appellants – ground 8.
[171] Except to the extent that the effect of the three consent determinations are considered under grounds of appeal 5 and 6 above, his Honour found it unnecessary to consider the s 86 issue as a separate issue in the appeals. [173] The shared claim issue raised by ground of appeal 8 relied upon the Adnyamathanha appellants and/or the Barngarla appellants succeeding in their appeals and, because of Reeves J’s conclusion that all of these appeals must fail, it was unnecessary to consider that issue. Accordingly, in considering the grounds raised by the Adnyamathanha appellants’ notice of appeal, Reeves J dealt with the three alleged core errors set out in their notice of appeal and then turned to consider the various evidentiary-related errors that are mentioned in the notice. In the latter, Reeves J also included the other evidentiary-related errors mentioned in the Adnyamathanha appellants’ submissions, but not specifically covered by their grounds of appeal.
Error (a): no requirement for occupation or physical connection
[184] In this first core error, the Adnyamathanha appellants alleged that the primary judge focused on the ‘occupation or use of Lake Torrens’, in the sense of physical presence on, or use, and thereby applied the wrong test for connection under s 223(1) of the NTA. In support of this contention, they provided a list of approximately 20 usages in the Reasons of the expression ‘occupation’, some of which they conceded were not reflective of error. However, they claimed that when the whole of the usage of that expression is considered, the identified error emerges from the Reasons. [185] Reeves J did not accept this contention. In his Honour’s view, it was abundantly clear from the Reasons that Mansfield J was well aware that occupation or use for the purposes of s 223(1) of the NTA did not involve western legal concepts of the physical presence, or the use or possession of land, but rather occupation, use, or possession according to the traditional laws and customs of the Aboriginal or Torres Strait Islander Peoples concerned.
Error (b): misuse of the consent determinations
[188] In this second core error, the Adnyamathanha appellants claimed that Mansfield J had misused ‘inferences arising from the prior consent determinations as a “filter” or “yardstick” against which to assess, weigh and reject evidence’. [190] In their submissions, the Adnyamathanha appellants submitted that the three consent determinations described at [4] and [8]–[10] of the Reasons were conclusive as to which groups now hold certain native title rights and interests in the determined areas, but they are not conclusive as to why those groups hold those rights and interests. Nonetheless, they sought to emphasise that they did not seek any findings at the trial ‘which were necessarily inconsistent with’ those three determinations.
Further, they submitted that a judgment in rem ‘is only a basis for drawing inferences, or finding further facts, which flow from the determination itself (rather than facts or findings assumed to underpin the determination)’. Noting that the primary judge had ruled at [54], [57], [171], [364], [479] and [743] that no weight would be given to any lay or expert evidence that was inconsistent with those three determinations, they contended that Mansfield J had erred in making and applying those rulings. In particular, they contended that the primary judge was ‘wrong to rule (at [192]) that it was “a determined fact” that the Kokatha People occupied the area immediately west of the claim area at Sovereignty’.
They also contended that the primary judge was wrong at [194] and [203]–[340] ‘to prefer his own analysis of the ethno-historic record … to the opinions of Mr Ellis, Prof Sutton and Dr Fergie et al’. They further contended that the primary judge was wrong at [205], [235], [250], [274] and [315] to ‘filter’ those materials by reference to the prior determinations and to ‘disregard or de-weight’ those parts of them that did not support Kokatha Part A.
Finally, with respect to the Kokatha Part A determination, they expressly acknowledged that an inference necessarily arose that ‘at some point prior to that determination, [they] ceased to hold [native title rights and interests] in any part of the Kokatha determination area’. They added ‘one may infer this occurred in 2014’.
[191] The Barngarla appellants made submissions to similar effect. They contended that the Mansfield J had erred in failing to attempt to reconcile the three consent determinations, including the Kokatha Part A determination, with the evidence before him, particularly the expert and historical evidence.
[201] Reeves J found that the Adnyamathanha appellants were wrong in their contention that the three consent determinations and, in particular, the Kokatha Part A determination, were not conclusive as to why the Kokatha People hold the native title rights and interests they do in the Kokatha Part A determination area. [202] Reeves J found that this conclusion had adverse consequences for two other contentions the Adnyamathanha appellants made in these appeals. First, as his Honour explained when setting out the principles concerning the connection inquiry above in order to obtain the Kokatha Part A determination, the Kokatha People also had to establish that the acknowledgement and observance of their traditional laws and customs which gave rise to their rights and interests in that determination area had continued, substantially uninterrupted, and their connection with that area under those laws and customs had been substantially maintained, since sovereignty. This continuity of observance and connection was therefore fundamental to their rights and interests in that area.
Accordingly, Reeves J considered that it follows that the Kokatha Part A determination also determined as a fundamental matter, once and for all, that the Kokatha People’s native title rights and interests in that area held that intrinsic continuity element: ‘That is to say, those rights and interests did not come into existence as a consequence of, and from, the Kokatha Part A determination. Rather, that determination recognised as a fundamental matter that those rights and interests had existed continually in that form at all times in the past to at least sovereignty.’
Reeves J found that the Adnyamathanha appellants were wrong in their contention that the Kokatha Part A determination was only conclusive as to the native title rights and interests that the Kokatha People now hold in that area, or at least they have held since it was made in 2014. [203] Secondly, Reeves J’s analysis explains why the Adnyamathanha appellants were also wrong in their contention that the native title rights and interests they purportedly held in the Kokatha Part A determination area inferentially ceased in 2014 at about the time the Kokatha Part A determination was made.
[204] Reeves J did not consider that the primary judge committed any error in any of the rulings concerning the effect of the consent determinations and, in particular, with respect to the Kokatha Part A determination. Reeves J found that Mansfield J was correct in ruling that those determinations determined that the three peoples concerned held (and hold) the traditional rights and interests described in them with respect to the area to which they related at sovereignty and at all times since then. [205] ‘It was a matter for his Honour to decide how he proceeded to conduct that review. Choosing to do his own analysis of the evidence was a course that was properly open to him and it certainly does not demonstrate error.’
[209] Reeves J found no validity in any of the Adnyamathanha appellants’ complaints about his Mansfield J’s review of the Historical and Early Ethnographic Evidence with his Honour adding that he did not consider that Mansfield J engaged in any ‘filtering’ of that evidence in any way indicative of error on his part. [211] Reeves J did not consider that any of these statements are inconsistent with Mansfield J’s rulings or that they demonstrated any error on his part.
[214] Reeves J did not consider that the contents of [315] are indicative of any error on Mansfield J’s part adding that ‘the observation at [331] regarding the map in the Encyclopaedia of Aboriginal Australia edited by Horton in 1994 is in the same category. It accurately applies the rulings and is otherwise adverse to the Kokatha appellants’ claims.’
[216] Reeves J found that the rulings made by Mansfield J made in his review of all this evidence had to be considered in the light of the Adnyamathanha appellants’ and Barngarla appellants’ positions before Mansfield J at trial, namely that the Kokatha appellants did not have traditional rights and interests to the land immediately to the west of Lake Torrens. On that assumption, Reeves J considered that all of these comments are entirely consistent with his Honour’s rulings. ‘Even if this assumption were not adopted and these comments are considered in light of the Adnyamathanha appellants’ position in these appeals, that they held traditional rights and interests in the land immediately to the west of Lake Torrens prior to 2014, such that those traditional rights and interests should be taken into account in determining their claim to Lake Torrens, for the reasons I have expressed above I do not consider that contention is valid or correct’ (at [216]). On either approach, Reeves J did not therefore consider that the comments Mansfield J made in this paragraph evidence any error.
Reeves J found at [219] that:
His Honour’s comments in the paragraphs above were consistent with the fundamental premise of the Kokatha Part A determination which Mansfield J identified when making his rulings. The position may have been different if the effect of this evidence was not to mount a direct challenge to the Kokatha Part A determination. The difference may be subtle, but his Honour was in the best, perhaps the only, position to assess the effect of this evidence and whether the Adnyamathanha appellants and the Barngarla appellants were attempting to use it for a proper, or an improper, purpose.
Reeves J did not consider that Mansfield J as the primary judge erred in applying his rulings in any of these paragraphs.
[227] Reeves J considered that the appeal Court should defer to the considerable advantage the primary judge possessed and accept that Mansfield J properly used it. Reeves J therefore rejected the Adnyamathanha appellants’ contention that the contents of this paragraph show that his Honour erred by misapplying his rulings.
[228] The other concerns the Adnyamathanha appellants had about Mansfield J’s review of the lay evidence related to four paragraphs in the evidence of some of the Barngarla appellants’ lay witnesses. For the reasons Reeves J expressed above his Honour did not consider the appeal Court was in a position to gainsay the considerable advantage that the primary judge had in making that assessment. Reeves J therefore did not consider the contents of any of those paragraphs show that his Honour erred by misapplying his rulings.
[231] Finally, for the reasons Reeves J explained above, his Honour considered that all of the references to the Kokatha Part A determination (and all three consent determinations in the case of [763]) in [742]–[744], [758] and [762]–[763] accurately described the effect of a consent determination and/or the Kokatha Part A determination in particular. [232] His Honour found that accordingly, none of the paragraphs in the final Consideration section of the Reasons about which the Adnyamathanha appellants complained shows any error by his Honour misapplying his rulings, or in misusing the effect of the Kokatha Part A determination or the three consent determinations generally.
[233] For these reasons, Reeves J did not consider there was any merit in the Adnyamathanha appellants’ second core error.
Error (c): failing to draw an inference
[235] Reeves J earlier dealt with this issue in considering the similar ground of appeal raised by the Kokatha appellants with respect to these paragraphs of the Reasons above. For the reasons there expressed, Reeves J did not consider that Mansfield J erred in refusing to draw an inference in favour of the Adnyamathanha appellants, or indeed any of the other appellants. Reeves J found that Mansfield J’s conclusions on that issue were entirely consistent with the established principles his Honour there outlined.
For those reasons, Reeves J rejected the Adnyamathanha appellants’ third core error as unmeritorious.
Other errors
[238] Reeves J did not consider any of the Adnyamathanha appellants’ challenges to the factual findings in the Reasons had any merit. His Honour held that this aspect of their appeal, didn’t demonstrate any other error on the part of the primary judge.
[239] For the reasons set out above, Reeves J held that none of the Adnyamathanha appellants’ grounds of appeal, or core errors, had any merit and their notice of appeal must therefore be dismissed.
The Barngarla Appellant’s appeal
[251] His Honour found that from the summary of the dispositive reasoning in the final Consideration section of the Reasons, it could be seen that the Barngarla appellants failed on the evidence to establish a factual foundation for their claim. That was so because, as Mansfield J found, their claim was bereft of credible supporting evidence. He variously described their evidence as ‘impoverished’, ‘not persuasive’, ‘inconsistent’, ‘speculative” and ‘somewhat indecisive’ (see [759] and [763]). While Mansfield J found the witnesses who gave this evidence were truthful, that does not detract from the findings he made about its credibility. Reeves J stated at [251] that ‘It is trite to observe that even truthful witnesses can give evidence that is unreliable or lacking in credibility.’
Barngarla appellants’ grounds of appeal
[254] His Honour dealt with grounds 2 and 3 of the Barngarla appeal relating to the misuse of the consent determinations when dealing with the similar issue raised by the Adnyamathanha appellants. Reeves J disposed of the inference issue raised by ground of appeal 2(b) when considering the similar issue raised by the Kokatha appellants above.
His Honour stated at [252] that:
Putting aside the two matters which I have dealt with separately below, as to the balance of their grounds of appeal, in essence they are confined to challenging findings his Honour made which were, in my view, to a substantial degree based upon the credibility of their witnesses. In this respect, it is important to record that the decision in Warren v Coombes, upon which the Barngarla appellants placed reliance, does not stand for the proposition that this Court can simply ignore those credibility findings and set about drawing inferences from facts which they carefully selected from the Reasons.
[254] In the final Consideration section of the Reasons where his Honour explained why he rejected the Barngarla appellants’ claims, Reeves J found that Mansfield J had in his view, more than adequately explained why he came to that conclusion.
[256] For those reasons, Reeves J did not consider any of the Barngarla appellants’ grounds of appeal has any merit. On that basis Reeves J found that the appeal must therefore be dismissed.
Conclusions and orders on all three appeals
[257] For these reasons, Reeves J considered that each of the appeals failed and were therefore dismissed.
White J
His Honour [401] agreed with the reasons and orders proposed by Reeves J with respect to each appeal.
At [402]: ‘In order to succeed on the appeal, the appellants had to demonstrate error by the primary judge. It was not sufficient for them to show that other inferences or conclusions may have been open on the evidence if the inferences drawn, or conclusions reached, by the primary judge were reasonably open. The task of this Court was to conduct a real review of the trial and of the primary judge’s findings with a view to determining whether error was established: Fox v Percy [2003] HCA 22 at [25]. In doing so, this Court had to recognise the advantages of the primary Judge, arising, amongst other things, from his Honour having seen and heard the evidence given. Even when the judge’s findings were credibility based, this Court could intervene if those findings were inconsistent with “incontrovertible” evidence, “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy at [28][29]).’
[403] White J reviewed all of the evidence, particularly the evidence to which the parties referred the Court, with those principles in mind. On that basis White J concluded by stating that: ‘for the reasons given by Reeves J, I consider that none of the appellants has demonstrated error of the kind warranting (or permitting) appellate intervention.’
Jagot J (dissenting)
[261] Jagot J found that the appeals should be allowed and the matters remitted to a single judge.
Circumstances confronting the primary judge
[267] At [98] the primary judge said this:
The necessary connection must be shown in relation to Lake Torrens, or parts of it, notwithstanding its harsh physical features. And, moreover, it will not readily be inferred on any of these three Applications from the existence of adjoining native title rights at sovereignty that such connection, and therefore such rights, extended naturally into Lake Torrens because that inference (without more) would apply equally to the Kokatha People from the west and to the Adnyamathanha (or Kuyani) People from the east, although perhaps not so strongly to the Barngarla People from the south, except to a limited extent into the southern part of Lake Torrens.
Jagot J found that [268] [w]hile this was subject to challenge by the appellants, [98] represented nothing more than a formal statement of logic which is beyond dispute. Her Honour found that the point being made was that, at least as between the Kokatha and Adnyamathanha Peoples, no inference could be drawn from their native title rights and interests in relation to the land adjoining the western and eastern boundaries respectively of Lake Torrens, as each such inference would be defeated by the other: ‘This is necessarily correct given that both had native title rights and interests up to the boundary of the lake, those native title rights and interests related to the whole of the land on each side of the lake, and both claimed native title rights and interests over the whole of the lake exclusive of any other claimant. Given this, the primary judge’s observation in [98] involves a logical necessity beyond reproach. It also said nothing about what inferences should otherwise be drawn on all of the evidence.’
Adnyamathanha and Barngarla Peoples’ appeals
[270] The Adnyamathanha and Barngarla Peoples contended that the primary judge misused the native title determinations in favour of those groups and the Kokatha people and, in so doing, disregarded or wrongly discounted the weight given to many aspects of their evidence. The State of South Australia and the Kokatha People denied this contention.
Jagot J observed at [279] that the native title determinations of each group determined as a juridical fact a past (from sovereignty) to present (to the date of the determination) state of affairs. [280] ‘It may also be accepted that each determination recognises that no Aboriginal peoples other than the Kokatha, Adnyamathanha and Barngarla peoples possessed rights and interests under their traditional laws and customs by which those people had a connection to any of the determination areas. In this respect, however, the determinations determine as a juridical fact only a present and future (on and from the date of determination) state of affairs. They say nothing about the possibility, as a matter of historical fact, of rights and interests of any other Aboriginal people under traditional laws and customs by which those people had a connection to any of the determination areas before the date on which each determination was made.
At [281]: ‘It is this possibility, of the Adnyamathanha People and the Barngarla People having had rights and interests under their traditional laws and customs by which those people had a connection to the Kokatha determination area before the Kokatha determination was made, which the Adnyamathanha and the Barngarla Peoples said the primary judge wrongly discounted by reason of the Kokatha determination.’
[282] Her Honour found that consistent with these propositions, ‘it was fundamental to the cases of the Adnyamathanha and the Barngarla Peoples that their evidence of rights and interests under their traditional laws and customs by which they had a connection to the Kokatha determination area before the Kokatha determination was made had to be weighed along with all other evidence to determine their claims to native title to Lake Torrens. It could not be disregarded or devalued because of the Kokatha determination. On their cases, if the Adnyamathanha and the Barngarla Peoples could establish, as a matter of historical fact, the existence of their traditional laws and customs under which they had rights and interests in relation to the Kokatha determination area before the Kokatha determination was made this would support their current claim to native title in relation to Lake Torrens because they would have proved connection under traditional laws and customs to both the east and the west of Lake Torrens, it being common ground between the anthropologists that Lake Torrens itself must have been the subject of traditional rights (even if such rights were shared between Aboriginal peoples).’
At [287] According to the Adnyamathanha and the Barngarla Peoples, Mansfield J proceeded on the incorrect basis that the Kokatha determination meant that he was bound to accept that from sovereignty to the date of determination no Aboriginal people other than the Kokatha People possessed rights and interests under traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples which, by those laws and customs, have a connection with the determination area. According to the Adnyamathanha and the Barngarla Peoples, whether they had proved such a connection or not was required to be assessed in the usual course having regard to the whole of the evidence. If, by that process, it was found that the Adnyamathanha and the Barngarla Peoples did have a connection under their traditional laws and customs to the Kokatha determination area from sovereignty until some time before the Kokatha determination was made, then that fact would itself be relevant to the assessment of their claim to the immediate adjoining land, Lake Torrens, particularly when weighed along with their own determinations in relation to the land immediately to the east and south of Lake Torrens. This opportunity, however, was said to be denied to them by a process of reasoning which miscarried.
Jagot observed that:
[288] The question in the present case is, what is it that a determination determines? … Section 223 supports the contention of the Adnyamathanha and the Barngarla Peoples about the effect of a determination under s 225. … The Kokatha determination itself also necessarily established that as at and from the date of determination no Aboriginal people other than the Kokatha People could claim any native title in the Kokatha determination area (subject only to the capacity for an application to be made to revoke or vary an approved determination of native title as provided for in s 13(5) which, under s 61(1) may be made by a limited class of persons, not including a native title claim group). The Kokatha determination did not establish, however, that the Adnyamathanha and the Barngarla Peoples did not have rights and interests under their traditional laws and customs by which they had a connection with the Kokatha determination area pre-sovereignty or at any time thereafter until the date of the determination itself.
[299] The Adnyamathanha and Barngarla Peoples also argued that the primary judge had confused (at [189] and [190]) the concepts of native title rights and interests (which may not involve the occupation of land in the Western sense of that term) and occupation. Her Honour did not agree, stating that the primary judge refers in [189] only to the premise of the Kokatha not being ‘in’ the land to the west of Lake Torrens as being inconsistent with the Kokatha determination. Jagot J considered the primary judge to be dealing with the concept of mere physical ‘presence’ and not occupation.
[301] Jagot J found that it was not necessary to decide the appeals of the Adnyamathanha and the Barngarla Peoples on the basis of what was said by the primary judge at [189] and [190], but her Honour accepted that it is possible these parts of the primary judge’s reasons went too far. Jagot J concluded that Mansfield J must be understood as having decided that no weight could be given to Professor Sutton’s opinions as recorded at [178] because they were inconsistent with the Kokatha determination:
The main thing which Professor Sutton said which was inconsistent with the Kokatha determination is that the area of the Kokatha determination to the immediate west of Lake Torrens still remains Kuyani and Barngarla country. By reason of the Kokatha determination, at least insofar as native title rights and interest are concerned, that land is Kokatha country. By ‘Kokatha country’ all that is meant is that, as the determination recognised, the Kokatha People had maintained a pre-sovereignty connection under their traditional laws and customs with that land from which they derived rights and interests in relation to that land. This did not mean, however, that the land was not also Adnyamathanha and Barngarla country at sovereignty or that the land did not continue to be Adnyamathanha and Barngarla country until some time before the Kokatha determination. Nor did the Kokatha determination make the pastoral history of the area or the work history of Kokatha People irrelevant or inappropriate to be given weight, to the extent that history could inform the existence or otherwise of a pre-sovereignty connection to Lake Torrens which had continued. The Kokatha determination did not mean that such evidence from Professor Sutton should or could be disregarded or discounted.
[304] It was alleged that the confusion regarding occupation was also evident in the primary judge’s reference to the Kokatha having ‘occupied’ the Kokatha determination area. Jagot J found that: ‘This reference is in error but, standing alone, it cannot be characterised as material. The primary judge knew that he was dealing with native title rights and interests, not occupation.’ [308] Her Honour found this to be of importance because it indicates that if Mansfield J did make an error when dealing with the ethnographic material the error may be material because he placed significant weight on his interpretation of the material. Her Honour did not consider that Mansfield J was bound to adopt the anthropologists’ interpretation of the ethnographic material (which was suggested by the Adnyamathanha and the Barngarla Peoples) in preference to his own interpretation, but in applying his own interpretation he was bound to give effect to the determinations only to the extent required by s 223 of the NTA.
[323] Her Honour considered the primary judge’s interpretation of the ethnographic evidence involved potential ambiguity. Her Honour found that:
The potential ambiguity is that, as noted, the ethnographic record before the 20th century consistently shows the Adnyamathanha and the Barngarla Peoples surrounding Lake Torrens. Accordingly, the statement in [272] that the “the ethnographic observations to that time [the 1930s] do not record any instance or observations indicating in any persuasive way who those traditional owners might have been” is wrong if it means that the observations did not involve the Adnyamathanha and the Barngarla Peoples surrounding Lake Torrens. If, however, the statement means that the observations showed the Adnyamathanha and the Barngarla Peoples surrounding Lake Torrens but are not persuasive because, given the Kokatha determination, the Kokatha People must also have had a presence in the same area, then the statement is not wrong.
At [333] her Honour stated that Mansfield J was in error if his Honour chose not to consider or refuse to give weight to evidence of the pattern of Aboriginal presence and language to the immediate west of Lake Torrens ‘because it supported or tended to support the connection of the Adnyamathanha and the Barngarla Peoples under their traditional laws and customs to that land from sovereignty until some time before the Kokatha determination merely because of the Kokatha determination. It effectively doomed the claims of the Adnyamathanha and the Barngarla Peoples in relation to Lake Torrens to fail’.
Jagot J considered that if a proper understanding of the evidence meant that:
the pattern of Aboriginal presence and language indicates a pre-sovereignty connection of the Adnyamathanha and the Barngarla Peoples to all of the land surrounding Lake Torrens;
the Kokatha determination recognises the Kokatha connection to the land to the west of Lake Torrens;
the Kokatha determination establishes that any connection of the Adnyamathanha and the Barngarla Peoples to the land to the west of Lake Torrens did not exist as at and from the date of the determination;
the Adnyamathanha and the Barngarla determinations recognise the Adnyamathanha and the Barngarla connection to the east and south of Lake Torrens and establish that any connection of other Aboriginal Peoples (including the Kokatha) to that land did not exist as at and from the determinations;
the anthropologists agreed, as they did, that it was very unlikely that there were not pre-sovereignty rights and interests under traditional laws and customs in relation to Lake Torrens and that proximity of presence to the lake was likely to be related to the existence and the strength of those rights and interests (see [207], [272] and [386]), ‘then it is possible that the claims of the Adnyamathanha and the Barngarla Peoples to Lake Torrens might have been inferred to be stronger than those of the Kokatha, at least if there was no evidence of pre-sovereignty Kokatha presence to the east of Lake Torrens in the determination areas of the Adnyamathanha and the Barngarla Peoples. By giving the Kokatha determination the effect of excluding from consideration the evidence of the presence of the Adnyamathanha and the Barngarla Peoples and of their language to the west of Lake Torrens from sovereignty or from settlement, the main planks of the claims of the Adnyamathanha and the Barngarla Peoples to Lake Torrens were removed’ (at [333]).
Jagot J observed that:
[334] The effect of the primary judge excluding evidence from consideration on the inferences he drew is also exposed in [365] where his Honour inferred that the absence of the Kokatha language to the west of Lake Torrens, given the Kokatha determination, was more likely to be a result of the confidentiality of word use in Western Desert society than to advance the cases of the Adnyamathanha and the Barngarla Peoples. Given that the Kokatha determination did not mean that the Adnyamathanha and the Barngarla Peoples did not have rights and interests in the land to the west of Lake
Torrens from before sovereignty until the date of the Kokatha determination, the evidence of Barngarla language use in that area and lack of evidence of Kokatha language was capable of advancing the cases of at least the Barngarla People and, possibly, the Adnyamathanha People as another group of the Lakes society.
[336] Her Honour found that: ‘the same error is apparent in the way in which the primary judge dealt with the evidence of Michael McKenzie, an initiated Adnyamathanha man, who gave evidence of mura (stories) he had learned about what he considered to be Adnyamathanha country which included Lake Torrens (at [478]). [337] The evidence was devalued by the primary judge on the basis of an erroneous approach to the effect of the Kokatha determination.’
[346] Further, ‘by reason of the Kokatha determination, which was made in 2014, the primary judge gave no weight to the evidence of Adnyamathanha people of their relationship to and use of land to the west of Lake Torrens up to the 1970s. This approach involves error for the reasons already given, but also discloses why the response of the State and the Kokatha People cannot be accepted. The response was that any error the primary judge made about the effect of the Kokatha determination was immaterial because the Adnyamathanha and Barngarla Peoples’ claims failed by reason of lack of continuity up to the present day. If, as is the case, the evidence of the use of and relationship to the land to the west of Lake Torrens by any people other than the Kokatha People from sovereignty was wrongly disregarded or discounted because of the Kokatha determination, then it necessarily follows that the conclusions of lack of continuous connection with Lake Torrens must have been infected by that error.’
[349] Her Honour found that the Kokatha determination said nothing about the rights and interests of the Adnyamathanha and Barngarla Peoples under their traditional laws and customs in relation to the land to the west of Lake Torrens from sovereignty to immediately before the making of the determination. As such, it cannot have been relevant to the state of affairs for 60 years from sovereignty. Jagot J held at [350]:
In [763] and also [764] the primary judge repeated that, in respect of the claim of the Barngarla People, he has “not placed any weight on material to the extent that the anthropological evidence is inconsistent with the Kokatha Part A and Adnyamathanha No 1 determinations”. Given those earlier parts of the reasons for judgment, in which it is apparent that the primary judge took an over-expansive view of the effect of the determinations and thus the scope of any inconsistency between the evidence and the determinations, this discloses that the error had a material effect on the conclusions his Honour reached about the Barngarla People’s claim.
[351] Jagot J found that at various places in [728] to [773] the primary judge also recorded his conclusions that the claims of the Adnyamathanha and Barngarla Peoples failed because they had not proved the continuity of their connection to Lake Torrens under their traditional laws and customs. Her Honour observed that this must have been affected by the primary judge’s view that the Kokatha determination meant that evidence of the Adnyamathanha and Barngarla Peoples’ connection to the land to the west of Lake Torrens under their traditional laws and customs had to be disregarded or discounted.
Her Honour found that there were other difficulties with the approach of Mansfield J to this issue: ‘Of themselves, the second, third and fourth of these matters, as discussed below, might not justify appellate intervention but, taken with the effect on the process of reasoning that the primary judge’s views about the effect of the determinations must have had, they provide a further foundation for the conclusion I have reached that these appeals must be allowed’ (at [351]).
[363] Despite the appeals having raised other issues, Her Honour considered that only one other contention by the Adnyamathanha and Barngarla Peoples should be assessed – the contention that the primary judge erred in refusing to countenance a determination that both the Adnyamathanha and Barngarla Peoples had native title rights and interests in Lake Torrens. In Jagot J’s view, Mansfield J was in error in refusing to countenance this possibility on the basis that it was precluded by the NTA: ‘Undoubtedly, the possibility gave rise to case management considerations given the positions of the Kokatha People and the State, but the primary judge rejected the possibility on the basis that it was not open to consider it because of the NTA’ (at [364]).
[368] The primary judge did not consider that this further alternative was open because no such claim by any such claim group had been made under s 61 of the NTA and thus none of the procedural requirements in the NTA for claimant applications had been satisfied in respect of such a claim (see the reasons at [105] to [127]). Jagot J considered that this was in error because the claims made by the Adnyamathanha and Barngarla Peoples did not exclude the possibility that another Aboriginal people might have native title rights and interests in relation to the claim area.
At [369]: ‘Accordingly, it is not the case that to support a conclusion of a part of Lake Torrens being subject to shared rights and interests of the Adnyamathanha and Barngarla Peoples there had to be a new native title claim group constituted and applicant authorised to make a new native title claimant application. The claim groups would remain the Adnyamathanha and Barngarla Peoples. Their claims would remain the claims as authorised. It is merely that the determination made under s 225, if the evidence supported it having regard to s 223, would be a determination that native title exists in relation to the relevant part of Lake Torrens and that the persons, or each group of persons, holding the common or group rights comprising the native title are the Adnyamathanha People as identified in the Adnyamathanha claim and the Barngarla People as identified in the Barngarla claim. As the submissions for the Adnyamathanha People put it, the NTA does not require a single application by a conjoined claim group for a determination to be made under s 225 of the NTA that more than one claimant group holds native title rights and interests in the relation to the same area. “Native title” is not necessarily unitary. It is “the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters” (s 223). Nothing in the NTA suggests that only one group of Aboriginal people may hold such rights and interests in one area. To use a Western concept, a determination of native title under s 225 may be a determination of native titles held by more than one group of Aboriginal people.’
[370] Her Honour disagreed with Mansfield J and did not consider that Banjima People v State of Western Australia [2015] FCAFC 84 proposes that there may be only one native title group which holds the native title rights and interests over a particular section of country. Her Honour found at [370] that:
‘To the contrary, the reasoning in Banjima, including at [54], recognised that there may well be more than one Aboriginal group that has native title rights and interests in relation to an area of land. In Banjima, the issue was whether those rights were exclusive of any other non-Aboriginal rights and interests. In circumstances where the rights and interests of other Aboriginal people in relation to the area (if they existed) were no longer asserted, it was held that there was no error in concluding that the rights and interests of the Banjima People were exclusive.’
At [354]-[355]: ‘The basis upon which the primary judge considered that there was an evidentiary gap for the 60 years from sovereignty to settlement is unclear. But the relevant point is that there was no such evidentiary gap. … Given this, the conclusion that the claims of the Adnyamathanha and Barngarla Peoples should fail because there was an evidentiary gap between sovereignty and settlement involves error in the sense described in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] (references omitted) that the conclusion was “wrong by ‘incontrovertible facts or uncontested testimony’, or …‘glaringly improbable’ or ‘contrary to compelling inferences’”.
[360] Her Honour disagreed with the submissions for the State, stating that these matters cannot be explained by the primary judge having been confined by the fact that much of the evidence was subject to a gender restriction and confidential. ‘That does not explain why the primary judge considered that only two stories of the many on which the Adnyamathanha People relied concerned Lake Torrens when all of the stories related to the Lake.’ [362] Jagot J found that with respect to paragraph [772] of Mansfield J’s reasons for judgment that His Honour was side-tracked by a concern that he was being required to ‘prioritise one set of spiritual beliefs over the other’, which Jagot J concludes cannot be the case having regard to the criteria for native title established by s 223 of the NTA.
Her Honour observed that: [371] ‘There may well have been other reasons which would have made it inappropriate for such a determination in favour of the Adnyamathanha and Barngarla Peoples to be made, including fairness to the Kokatha People and the State or inadequate evidence, but the NTA itself did not prevent the making of such a determination by reason of the nature of the claims made, their authorisation, or otherwise. The determination was a matter for the Court. In a case involving competing claims dealt with under s 67 of the NTA, nothing but the evidence and the dictates of fairness in the particular case prevents the making of a determination in which the competing claimants simultaneously succeed and fail (that is, succeed because they are found to have native title in relation to an area but fail because another Aboriginal group is also found to have native title in relation to the same area or part thereof). In such an event, it is the terms of the determination under s 225 which must identify the persons holding the rights comprising the native title(s) and the nature and extent of the native title rights and interests in relation to the determination area. The potential for inconsistency is to be resolved through the determination. As such, it is not necessary to consider s 84D of the NTA because there was no defect in the authorisation of the claims.’
[372] Jagot J concluded that the appeals of the Adnyamathanha and Barngarla Peoples must be allowed: ‘In accordance with the agreement of the parties given the grounds on which the Adnyamathanha and Barngarla Peoples have succeeded, the appropriate order is that these matters be remitted to a single judge (the primary judge having retired) for rehearing on the papers together with any further evidence that judge may allow.’
Kokotha People’s appeal
[373] As the Kokatha People’s appeal did not involve any suggestion that the primary judge misused the native title determinations her Honour determined that the Kokatha appeal had to be dealt with separately.
[374] Her Honour dismissed one ground of the Kokatha appeal immediately being the contention that the primary judge, despite having heard evidence on a place called Crombie Ridge on Andamooka Island which was significant to all of the claims, mistakenly thought that the Kokatha witnesses placed Crombie Ridge outside of and to the west of the claim area. This was said to result from various paragraphs in the reasons for judgment which, on first reading and with no context, are ambiguous.
[379] Her Honour considered that other alleged errors by Mansfield J reveal that the worst that might be said is that the primary judge’s reasons have been expressed in a potentially ambiguous manner or the primary judge has reached a conclusion about certain evidence contrary to that for which the Kokatha People contend, but which cannot be said to be other than reasonably open given that the primary judge had the benefit of seeing and hearing the evidence be given.
[380] Nonetheless Jagot J was satisfied that the appeal of the Kokatha People must also be allowed:
As with the claims of the Adnyamathanha and Barngarla Peoples, it is apparent that some of these contentions by the Kokatha People are accurate, the State’s answer being effectively that any such error or misunderstanding was immaterial. While this may be true in relation to some matters if considered in isolation, the overall number of such matters and the importance of some of them to the claims which the primary judge dismissed make me more inclined to characterise these matters as material than might otherwise have been the case.
Jagot J accepted at [385] that the primary judge overlooked the Fitzpatrick and Gara 1984 report. Her Honour concluded that if his Honour considered the 1984 report he could not have reached the conclusion he did in [325]. [394] ‘In assessing the importance of the erroneous conclusions of the primary judge about the oral evidence, regard must also be had to the fact that at [405] he rejected a challenge to the credibility of the main Kokatha witnesses, the Starkey brothers, finding that there was no reason to doubt their honesty. The primary judge was undoubtedly right at [406] when he observed that there are a “range of reasons why evidence honestly given, and forcefully given, may not ultimately be found to prove all the critical fact or facts to which the evidence was directed”. However, this does not authorise an appellate court to disregard conclusions as to a lack of evidence of critical matters which are demonstrably wrong.’
[399] Her Honour did not consider it necessary to address the Kokatha People’s contention that Mansfield J ought to have considered making a determination in their favour at least in respect of Andamooka Island. Her Honour found that partial success is a possibility inherent in any native tile claimant application, however Mansfield J was not bound to advert to that possibility unless it was expressly sought by the Kokatha People.
In conclusion Jagot J allowed all three appeals and made orders for remittal.