The primary judge's reasons
11 As the primary judge explained in his reasons:
1 The Yindjibarndi people inhabited an area of the Pilbara in north-western Western Australia since before British sovereignty or European settlement. They lived on Yindjibarndi country until around the middle of last century. On 9 July 2003, this claimant application was filed. In it the applicant claims, on behalf of the Yindjibarndi, that it is entitled to a determination of native title under s 225 of the Native Title Act 1993 (Cth) over a part of that area (the claimed area).
2 In Moses v Western Australia (2007) 160 FCR 148 [[2007] FCAFC 78], the Full Court of this Court made an amended determination of native title in respect of a large area of land to the north (the Moses land) of the claimed area (the 2007 determination). The Full Court amended the original determination that Nicholson J had made earlier on 2 May 2005 (Daniel v State of Western Australia) [2005] FCA 536) (the 2005 determination). His Honour ordered there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi's native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J had published his substantive reasons for that determination on 3 July 2003 in which he held, relevantly, that the Yindjibarndi held non-exclusive native title rights over the Moses land: Daniel v State of Western Australia [2003] FCA 666.
12 In [4] of his reasons, the primary judge identified six issues, issues (1) and (4) of which were expressed in these terms:
(1) Have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession, over so much of the claimed area in which no extinguishing, or partially extinguishing, act has occurred (the exclusive possession issue)?
…
(4) If yes to issue 1, are the Yindjibarndi precluded from obtaining a determination of native title that they have a right of such exclusive possession because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land (the abuse of process issue)?
13 His Honour answered question (1) in the affirmative at [151] and question (4) in the negative at [390].
14 In [10], the primary judge referred to a map which he described in these terms:
Reproduced below is a map that enables an understanding of the physical locations of the claimed area (enclosed in red), the Moses land to its north (enclosed in purple), the land and waters in the Eastern Guruma consent determinations that the Court made in 2007 and 2012 (enclosed in light blue to the south, on the west of the claimed area) (Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365; Hughes on behalf of the Guruma People (No 2) v State of Western Australia [2012] FCA 1267), and the land and waters that the Court determined as those of Banjima people in 2014 (enclosed in light blue to the south, on the east of the claimed area) (Banjima People v State of Western Australia (No 3) [2014] FCA 201 per Barker J; Banjima People v State of Western Australia (2015) 231 FCR 456 [[2015] FCAFC 84] per Mansfield, Kenny, Rares, Jagot and Mortimer JJ).
15 The map is reproduced below.
16 The primary judge also described the 2005 and 2007 determinations, saying:
11 In the proceeding that resulted in the 2005 determination, Nicholson J heard three separate, overlapping claims, the first was a combined claim made by both the Ngarluma people and the Yindjibarndi people, the second was a claim, that his Honour described as the Yaburara Mardudhunera claim, in respect of land and waters to the north of the Moses land and that has no present relevance (Daniel [2003] FCA 666 at [99]-[103]), and the third was a claim made by a group that called itself the "Wong-Goo-TT-OO" (WGTO) applicant.
12 Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle. In the 2007 determination, the Full Court made some variations to the 2005 determination, which are not material for present purposes.
13 Relevantly, after the appeal, the 2007 determination, that the Full Court made, provided in pars 4 and 7:
4. The native title rights and interests:
(a) do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and
(b) are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).
…
7. Subject to paragraphs 4 and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the [Moses land]:
…
17 The primary judge recorded at [16] that all parties acknowledged that the Yindjibarndi had certain native title rights and interests on a non-exclusive basis, referred to as the non-contentious rights, being:
(a) the right to access and move about the area (including to enter, travel over and remain);
(b) the right to hunt in the area (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan, but not including dugong or sea turtle);
(c) a right to fish in the area;
(d) a right to camp upon and within the area, to build shelters there (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(e) a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(f) a right to take black, yellow, white and red ochre; and
(g) a right to take water for drinking and domestic use.
18 The Yindjibarndi also claimed a right to control access to and exclude others from land within the claim area. As the primary judge recorded at [17], the active respondents denied the existence of these rights. The primary judge said at [17]:
The opposition had two foundations, first, the 2007 determination had the legal effect of precluding the Yindjibarndi asserting an entitlement to, or obtaining, any determination that they had any native title rights and interests different to those decided in the contested trial and appeal that had produced the binding and conclusive judicial order being the 2007 determination, and, secondly, if the first foundation failed, the Yindjibarndi had to prove the existence of any additional rights.
19 At [18] the primary judge explained that the first ground of opposition "…is the nub of the abuse of process issue", because "…if the Yindjibarndi are entitled to a determination that they have the right to control access to the claimed area, that will entitle them to a determination that they have a right equivalent to exclusive possession, which in turn will equate to the full rights of ownership of an estate in fee simple: Banjima 231 FCR [Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456] at 468-473 [27]-[40]; Ward 213 CLR [Western Australia v Ward [2002] HCA 28; 213 CLR 1] at 64-65 [14]".
20 The primary judge identified the foundational findings of fact for the 2007 determination in these terms:
19 The key finding that, relevantly, Nicholson J made in determining the Yindjibarndi's claim before him was, in respect of the right to control access, as follows (Daniel [2003] FCA 666 at [292]):
Such evidence as there is as set out on this matter in Appendix B establishes only that within Yindjibarndi land and Ngarluma land some Yindjibarndi first [sic] applicants claim the right to control access to identified portions of Yindjibarndi land. My impression of the evidence was that while there is evidence of surviving practice to seek permission to enter land considered to be Ngarluma or Yindjibarndi land, when that occurs it is a matter of respect rather than in recognition of a right to control. There is no exercise presently of this aspect of right claimed. (emphasis added)
20 In Appendix B to his Honour's reasons he said (Daniel [2003] FCA 666 at [1318], [1319]):
1318 Woodley King identified himself as Ngurrara for Millstream area (T 297). He said that only the right people can speak for Yindjibarndi country (T 288). He said that old people had said that 'Aboriginal coming from other area' must seek permission from the local Ngurrara. A non-Yindjibarndi person would need the permission of the Yindjibarndi Jindawurrina 'mob' to settle in that area (T 225) or to take part in ceremony under the control of the Yindjibarndi (T 165). Dora Solomon said that if the government wanted to build something at Buminji-na they would need to consult Woodley King. He would speak with the other Yindjibarndi people (T 1040-41).
…
1319 Elsie Adams testified to needing Cheedy's permission to enter and camp on Hooley (T 379). Cheedy Ned testified that he 'speaks for' Hooley, and would tell anyone asking about Millstream to talk to Woodley King (T 1231). Any Yindjibarndi person not from Hooley would need his permission to build a house or forage there (T 1233-1234). Pansy Cheedy said if the government wished to develop something on Hooley station they should speak to the person 'who is closer to … belongs to, the land'. She named her sister Sylvia Cheedy, her father, Cheedy Ned. They in turn should talk to all the other Yindjibarndi people (T 1379-80). (emphasis added)
21 The primary judge then said:
21 In the time since Nicholson J characterised this evidence of a "practice" of seeking permission as "a matter of respect rather than in recognition of a right to control", Full Courts have developed the law, commencing with the reasoning of French, Branson and Sundberg JJ in Griffiths v Northern Territory [[2007] FCAFC 178] (2007) 165 FCR 391 esp at 428-429 [127].
22 Thereafter, the primary judge explained why the evidence in the case supported the conclusion that "non-Yindjibarndi or a stranger, called a 'manjangu', needed permission to enter Yindjibarndi land. That explanation was consistent with the concept of spiritual necessity giving rise to a right of exclusive possession": at [23]. This is the issue raised in grounds 2 and 3 of the notice of appeal. Based on these matters the primary judge held that the Yindjibarndi had established a right to exclusive possession of the claimed area: at [151].
23 It is apparent that, in so concluding, the evidence and the primary judge's process of reasoning related to what was described as "Yindjibarndi country" which includes the claimed area and the land the subject of the 2007 determination: see, for example, [1], [40], [85], [86], [113], and [149]-[151]. This fact, it should be noted, is critical to the claimed abuse of process arising from inconsistency between the 2007 determination and the determination made by the primary judge.
24 The primary judge dealt with the abuse of process issue at [303]-[390] of his reasons. In [303] he identified three inter-related issues - the abuse of process issue, the question whether s 86 of the Native Title Act should be construed so as to preclude the use of evidence or findings in Daniel v State of Western Australia [2003] FCA 666, and the question whether the "claim that the Yindjibarndi have a right to exclude others from, or control access to, the claimed area is an abuse of process, or as FMG, but not the State, put is precluded by an issue estoppel arising from the findings in Daniel [2003] FCA 666".
25 The primary judge then identified the procedural history relating to the abuse of process issue. As noted, in their notice of contention, the Yindjibarndi contend that in concluding that there was no abuse of process the primary judge should have taken into account the procedural and historical circumstances set out in [304]-[320] and at [371].
26 The procedural and historical circumstances which the primary judge identified included the following facts.
27 The Yindjibarndi filed their claimant application on 9 July 2003 in which they claimed the "right to possess, occupy, use and enjoy the area as against the world": at [304].
28 Case management orders were made on 9 July 2014 requiring statements of contentions to be filed by the Yindjibarndi and the active respondents by 11 July and 30 August 2014 respectively, with an agreed statement of the issues in dispute to be filed by 29 September 2014: at [305].
29 The Yindjibarndi contended that "[u]nder traditional Yindjibarndi law and custom as presently acknowledged and observed, persons who do not belong to the country and cannot assert rights to it are identified by the use of the word 'manjangu'. Such persons are strangers and should not access and use Yindjibarndi country, including the [claimed area], without the permission of appropriate Yindjibarndi persons who can speak for that country": at [306].
30 The State admitted the facts in the first sentence of the contention of the Yindjibarndi but did not admit the second sentence and said "the [State] does not admit that the Yindjibarndi people possess any native title rights of exclusive possession in the [claimed area], including any right to grant or deny permission to access and use any part of that area": at [307].
31 The appellant adopted the State's position: at [308].
32 The parties filed the agreed statement of issues in dispute on 20 October 2014. The statement identified an issue as whether "as a matter of fact and law, the Applicant has any right to control access to the claim area": at [309]. It also recorded, as the primary judge put it, that "the Yindjibarndi did not challenge in the appeal in Moses [v Western Australia [2007] FCAFC 78;] 160 FCR 148 the parts of the 2005 determination that reflected Nicholson J's finding that they had only non-exclusive rights and interests in the Moses land": at [312].
33 The Yindjibarndi filed an expert report by Dr Palmer, anthropologist, on 22 October 2014 which said that the system of rights to country "is 'exclusive' and that the Yindjibarndi possessed the right to exclude others who are not Yindjibarndi and are consequently identified as manjangu": at [313].
34 On 31 July 2015, during an interlocutory hearing before the primary judge, the State said that it proposed to argue at the final hearing that "…the Yindjibarndi were estopped from seeking, or would be engaging in an abuse of process if they sought to claim, an exclusive right to control access to the claimed area": at [314].
35 The primary judge recorded:
315 I questioned how that could occur, given that no such issue had been set out in the State's contentions or the agreed issues which had merely not admitted the existence of the asserted native title right. That led to the State filing its interlocutory application that sought leave to amend its statement of contentions by, relevantly, adding the following to par 12 (set out in [307] above):
The [State] contends further that if and to the extent these statements of Yindjibarndi law and custom are said to (a) reflect the same laws and customs as apply in the [Moses land], and (b) sustain native title rights of exclusive possession in the [claimed area], then these statements amount to an abuse of process by reason of re-litigation of issues decided against the Yindjibarndi people in Daniel (see also [22]-[27] below).
316 The State then set out contentions, in proposed new pars 22-27, as to what it asserted was an abuse of process by relitigation of the finding that Nicholson J had made in Daniel [2003] FCA 666 at [292]. It contended that the Yindjibarndi could not assert, whether by leading evidence or otherwise, that they held exclusive native title rights in the claimed area on the basis of the same laws and customs as those that exist in relation to the Moses land and that to do so would amount to an abuse of process by relitigating the exclusive possession issue that Nicholson J had determined against them.
317 On 11 August 2015, FMG filed its interlocutory application seeking leave to amend its contentions by adding nine new paragraphs that, in substance, contended that:
• the findings in Daniel [2003] FCA 666 determined that the rights identified in (m), (n), (o), (p) and (q) in the schedule to the agreed issues were non-exclusive and applied to laws and customs observed by the Yindjibarndi on all Yindjibarndi country, including both the Moses land and the claimed area;
• the applicant had given notice that the Yindjibarndi proposed to tender, pursuant to s 86(1)(a) of the Native Title Act, evidence given in the proceedings before Nicholson J at the then forthcoming hearing before me;
• the Yindjibarndi had filed Dr Palmer's expert report that opined that they had the right to exclude others from Yindjibarndi country based on, among other matters, evidence given on that issue in the proceedings before Nicholson J;
• the applicant had filed evidence and advanced contentions in this proceeding that asserted that they had the right to exclude others from Yindjibarndi country, including the claimed area;
• s 86(1)(a) and (c) did not permit the Court to draw conclusions of fact or adopt findings from earlier proceedings, namely the hearing before Nicholson J and his Honour's judgment in Daniel [2003] FCA 666, that were, or were intended to be used contrary to, or departed from, his Honour's findings that the Yindjibarndi did not have the right to control access;
• alternatively, if s 86(1) did permit such a course, were the Yindjibarndi to do so, that conduct would be an abuse of process and hence they ought be precluded from being able to rely on the earlier findings and evidence for that purpose;
• the effect of the Yindjibarndi's statement of contentions and proposed evidence (as at 11 August 2015) in substance was to seek to have determined differently, by this proceeding, essentially the same issue, as to their having the right to exclude others from Yindjibarndi country, that Nicholson J decided adversely to the Yindjibarndi, and that conduct involved an abuse of process.
318 Kenneth Green, FMG's solicitor, said, in his affidavit of 11 August 2015 in support its interlocutory application, that until 9 July 2015 he was unaware that "the applicant disputed that the issues in dispute in this proceeding include issues of potential abuse of process flowing from [the] effect of findings in Daniel v Western Australia [2003] FCA 666". However, Mr Green did not identify where the agreed issues or contentions had raised "the issue[ ] in dispute [of] potential abuse of process".
319 I am not satisfied that, prior to 9 July 2015, any suggestion of abuse of process or issue estoppel had been identified by any respondent as an actual or potential issue for resolution at the trial. I had understood during the directions and case management hearings held after 11 May 2015, when I first dealt with the proceeding after it entered my docket, until 31 July 2015, that the State's non-admission in par 12 of its contentions, that FMG had adopted in par 5 of its contentions (see [307] and [308] above), was intended merely to put the Yindjibarndi to proof of the facts to establish their asserted exclusive right, and did not raise any issue of abuse of process or issue estoppel.
320 On 12 August 2015, when the State's and FMG's interlocutory applications to amend came before me, I suggested to the parties that those applications should be argued at the time of final address when the issues would be clear and that, by then, the evidence would be on and the uses to which the Yindjibarndi wished to put that evidence would be explained. The State and FMG did not suggest that they would suffer any prejudice or would have conducted this proceeding differently (other than that they and, as I have noted, all participating respondents, probably would have entered into a consent determination on the same terms as the 2007 determination). I made that suggestion because I considered that the interlocutory applications raised substantive issues and that it was not appropriate, less than a month before the on country hearing was to begin on 7 September 2015, to attempt to deal with and determine those issues. No party suggested that this course would lead to any prejudice. Indeed, the applicant, the State and FMG accepted that this was a convenient course.
36 There is no challenge to the primary judge's conclusion in [319] that there had not been any suggestion of abuse of process or issue estoppel by any respondent before 9 July 2015.
37 There is also no challenge to the primary judge's decision that the State and the appellant should be granted leave to amend their contentions to raise the abuse of process issue: see reasons at [325]-[332]. In so deciding, the primary judge said at [331] that:
Had I found that there was an abuse of process in the Yindjibarndi claim for the exclusive right to control access, I would have asked for submissions as to why I ought not to have ordered each of the State and FMG to pay the Yindjibarndi's costs of the preparation of all their evidence on that question, other than, perhaps, Dr Palmer's initial version of his report that was filed on 22 October 2014, two days after the filing of the agreed statement of issues.
38 Further, there is no challenge to the primary judge's rejection of the appellant's argument that s 86(1) of the Native Title Act did not permit the Yindjibarndi to tender or rely on portions of the transcript of the hearing before Nicholson J in order to seek a finding contrary to his Honour's adverse finding on the issue of their right to exclude others from, or control access to, the claimed area: see the reasons at [333]-[341].
39 Finally, there is no challenge to the primary judge's rejection of the appellant's issue estoppel contention on the basis that the appellant was not a party or privy of a party to the proceedings before Nicholson J.
40 The primary judge identified the arguments of the State and the appellant as to the existence of an abuse of process. The primary judge recorded this:
342 Both the State and FMG argued that the alleged abuse of process consisted in the Yindjibarndi seeking here inconsistent findings of their native title rights and interests, as to their right to exclude others from Yindjibarndi country, from those that Nicholson J had found and that the 2005 and 2007 determinations had concluded. FMG adopted the State's arguments and added further ones on this contention.
343 The State contended that the Yindjibarndi relied in this proceeding on the very same laws and customs on which they had relied before Nicholson J. Indeed, the State noted, the Yindjibarndi's amended statement of contentions asserted, the subsequently admitted, facts that the Yindjibarndi consisted of a society that had continued to exist, since before sovereignty in 1829, as a body of persons united in and by its acknowledgment and observance of traditional laws and customs under which they possess native title rights and interests. The State argued that since Nicholson J had found, as reflected in the 2005 and 2007 determinations, that the Yindjibarndi did not have the right to exclude others, it must follow that under those laws and customs, the Yindjibarndi cannot now contend in this proceeding for an inconsistent finding, namely, that they do have the right, as I have found above, to exclude others from Yindjibarndi country. The State argued that the Yindjibarndi's claim for a finding of the right to exclude amounts to the category of abuse of process in which the Court's procedures are sought to be used in a way that would bring the administration of justice into disrepute, following Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 [[2006] HCA 27] at 267 [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
344 In essence, the State contended that the Yindjibarndi were seeking to relitigate the issue of exclusive possession that Nicholson J had determined against them. It argued that the Yindjibarndi were the same native title claim group in both proceedings and could not claim that their laws and customs were different, or operated differently, in this proceeding from the findings in Daniel [2003] FCA 666 and the 2005 and 2007 determinations, based on Walton v Gardiner [[1993] HCA 77] (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ and Tomlinson v Ramsey Food Processing Pty Ltd [[2015] HCA 28] (2015) 256 CLR 507 at 518-519 [25] per French CJ, Bell, Gageler and Keane JJ.
345 The State contended that, if Griffiths 165 FCR 391 had changed the law (a proposition which the State did not appear to accept had been the case), the Yindjibarndi had not applied, in the nine years since that decision, under s 13(1)(b) of the Native Title Act to vary the 2007 determination to recognise a right to exclude others in respect of the Moses land. The State noted that there was limited evidence put before Nicholson J as to the presence and effect of spirits on Yindjibarndi country, but, the State accepted, that evidence was not put as supporting a right to exclude, that the Full Court subsequently identified in Griffiths 165 FCR 391.
346 FMG argued that a determination of native title under s 225 of the Native Title Act operated as a decision in rem, as Drummond J had held in Wik Peoples v State of Queensland (1994) 49 FCR 1 at 8D-E (in respect of the provisions of the Act in their form before the Parliament enacted, in 1998, amendments to deal with, among other matters, issues arising from the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1). FMG relied on the preclusive effect of a judicial decision as preventing a person bound by it, in the position of the Yindjibarndi here, relitigating an issue of fact or law decided against the person in later proceedings, as explained in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, Butterworths, London, 1996) at [15]-[19]. (FMG did not explain how it could rely on a res judicata when it was not a party in Daniel [2003] FCA 666 and the claim the subject of this proceeding, namely that the Yindjibarndi had native title to the claimed area, could not have merged in the earlier judgments.)
347 Next, FMG relied on Dale v Western Australia [[2011] FCAFC 46] (2001) 191 FCR 521 at 554 [110]-[111] to support (in a more orthodox way) its contention that the Yindjibarndi's claim to exclusive possession in this proceeding was an abuse of process because, by bringing that claim, they sought to relitigate the contrary findings in Daniel [2003] FCA 666.
348 FMG argued that Griffiths 165 FCR 391 did not effect a change in the law and that, even if it did, this was not a proceeding of a kind in which it would be appropriate to allow the Yindjibarndi to seek different findings of fact under ss 223 and 225 of the Native Title Act. FMG submitted that Nicholson J had considered aspects of the spirituality of both Ngarluma and Yindjibarndi land in Daniel [2003] FCA 666 at e.g. [1324], [1334], [1339], [1344], [1347], [1371], [1382], [1552], [1650] and [1667]. FMG argued that his Honour found that some recognition should be given in the 2005 determination about those matters, but not so as to reflect any right of the Yindjibarndi to exclude others from the Moses land. FMG submitted that the conclusion of Lord Keith of Kinkel, in Arnold v National Westminster Bank PLC [1991] 2 AC 93 at 110G-111C, that a change in the law, by a decision of the House of Lords, occurring after a decision that created an issue estoppel between parties on a rent review clause, enlivened an exception to the principle of finality of an issue estoppel, did not apply here because Nicholson J had made findings of fact not law. FMG noted that in O'Toole v Charles David Pty Ltd [[1991] HCA 14] (1990) 171 CLR 232 at 258, Brennan J had expressed doubts as to the reasoning of the English Court of Appeal, that the House of Lords subsequently upheld in Arnold [1991] 2 AC 93. FMG contended that, in any event, because Nicholson J had found that the Yindjibarndi's traditional laws and customs, as a matter of fact, did not give them a right to exclude others from Yindjibarndi country, any change in the law wrought in Griffiths 165 FCR 391 was of no present consequence to that finding of fact.
41 The primary judge acknowledged at [359] that the inconsistency between the non-exclusive rights in the 2007 determination and his conclusion that the Yindjibarndi had proved a right to control access to or exclude others from parts of the claimed area "raises a prima facie conflict between two judicial determinations of the native title rights and interests of the Yindjibarndi people over Yindjibarndi country" as:
That country comprises the Moses land, where the Yindjibarndi's rights are non-exclusive, and the parts of the claimed area where their rights include the right to exclude others. In ordinary circumstances, an inconsistency of that nature would be decisive in attracting a conclusion that a determination in this proceeding, that the Yindjibarndi have that exclusive right, would constitute an abuse of process on the basis that the subsequent determination, if made, "would … bring the administration of justice into disrepute among right-thinking people": Walton [[1993] HCA 77] 177 CLR at 393 per Mason CJ, Deane and Dawson JJ citing from Lord Diplock's speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536C-D.
42 The primary judge, however, reasoned that no abuse of process arose in the circumstances of the present case. It is apparent that eight key considerations led to his Honour's conclusion.
43 First, the primary judge started from the foundational fact that a determination of native title under s 225 of the Native Title Act is essentially declaratory of what the Court has found to be the factual and legal position as to what interests exist in the determination area, and that neither an application under s 13(1) nor a determination under s 225 "…initiate a process to create or extinguish native title or other rights or interests": at [349]. Rather, as the primary judge said at [350]:
Any native title rights and interests that exist are rights and interests that the processes under the Act will cause to be recognised in a determination under s 225. That is because ss 4(1), 10 and 11(1) provide that, first, the Native Title Act recognises and protects native title and, secondly, native title cannot be extinguished contrary to the Act: Yorta Yorta 214 CLR [Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422] at 453 [75]-[76] per Gleeson CJ, Gummow and Hayne JJ, McHugh J agreeing at 467 [127]-[128], 468 [134].
44 His Honour continued at [351]:
…a determination of native title under s 225 is a statutory form of declaratory order that has the purpose of identifying the rights and interests of all persons that exist in land and waters in the determination area. A claimant application that is made to the Court under ss 13(1) and 61(1) of the Act seeks a determination of native title under s 225 in accordance with the Act. The determination under s 225 that the Court makes in resolving the controversy raised in a claimant application involves, and is confined strictly to, what Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ held, in Precision Data Holdings Ltd v Wills [[1991] HCA 58] (1991) 173 CLR 167 at 188, was "a classical instance of the exercise of judicial power", namely:
the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct.
45 Second, his Honour considered the character of a determination of native title to be relevant. At [354] he said:
Moreover, an order making a determination of native title "has an indefinite character which distinguishes it from a declaration of legal right as ordinarily understood": Ward 213 CLR at 71-72 [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. They explained that this "indefinite character reflects the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of 'native title' in s 223(1) of the [Native Title Act]".
46 At [360] he expanded on the "indefinite character" of a determination of native title, referring to the fact that such a determination may be revoked or varied under s 13(1)(b) of the Native Title Act "not only because of the occurrence of subsequent events that have caused the original determination no longer to be correct (s 13(5)(a)), but also because, critically, on the ground in s 13(5)(b) that 'the interests of justice require the variation or revocation of the determination'". The primary judge continued at [360]:
The ground for variation or revocation in s 13(5)(b) is both protean in nature and substantive. It is available as an alternative to, and its use is not conditional on, the occurrence of subsequent events. Of course, in assessing the interests of justice, the Court is exercising a judicial discretion and must therefore act judicially. But the subject matter, scope and purpose of the criterion of "the interests of justice" must be considered in light of the whole of the Act and the facts, matters and circumstances that the Court has before it in considering the proposed variation or revocation: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [[1979] HCA 62] (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.
47 Third, the primary judge considered that the nature of the litigation was relevant. He said this at [361]:
… as Allsop CJ, Marshall and Mansfield JJ noted in Western Australia v Fazeldean (No 2) [[2013] FCAFC 58] (2013) 211 FCR 150 at 156 [34] "litigation under the Native Title Act is not ordinary private inter partes litigation". They explained that the issues in litigation under the Act involve the public interests of both the Government(s) of the jurisdiction(s) in which the land and waters are claimed in the proceeding, as well as of the native title claim group which seeks to vindicate "rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia". And, their Honours noted that the result could affect not only the present but past and future members of the claim group. Of course, the private rights of other persons with, or with a claim to, interests in land and waters for which a determination under s 225 is sought, will often also be involved (211 FCR at 156-157 [34]-[35]).
48 Fourth, the primary judge referred to the fact that native title was first recognised in this country only 25 years ago and the law has continued to develop subsequently. He said at [362] and [363]:
It has been only 25 years since the High Court decided, in Mabo v Queensland [No 2] [[1992] HCA 23]; (1992) 175 CLR 1, that the radical title that the Crown acquired when it claimed sovereignty over parts of Australia did not extinguish native title. That decision led to the enactment of the Native Title Act and amendments to it have now brought about the position that the law will recognise the native title rights and interests of persons or a claim group who, by a normative system based on their traditional laws and customs, had and continue to have particular rights and interests in land and waters: cf. Yorta Yorta 214 CLR at 440-441 [33]-[38] per Gleeson CJ, Gummow and Hayne JJ, McHugh J agreeing at 467 [126]-[128].
…
Over the course of the last 25 years, the Courts have developed a body of law as to what native title rights and interests in land or waters are recognised by the common law of Australia, in accordance with s 223(1) of the Native Title Act, and what factors are relevant to prove that, by the traditional laws acknowledged and the traditional customs observed by a claim group, they have or do not have a connection with the land or waters or a legal entitlement to the recognition and enforcement of any native title where it exists.
49 Fifth, the primary judge considered the function of a determination of native title to be relevant. He noted that because "…a determination under s 225 expresses a conclusion about rights and interests that exist over particular land and waters, but does not express any necessarily binding conclusion about the general rights and interests (including native title) of any persons with particular rights and interests in land and waters other than those the subject of the determination": at [366]. The primary judge expressed the same conclusion in this way at [366]:
The function of a determination under s 225 is to express a legal conclusion about the actual rights and interests of all persons concerned, including, but not limited to, any native title that exists in only land and waters the subject of the determination.
50 The primary judge gave an example of this as follows at [364]:
Experience has shown that it is not unusual for a claim group of an indigenous people to make a claimant application for a determination of native title in respect of only part of their traditional land or waters and later to bring another claimant application for different part, or the balance, of the land or waters. As in this case, the evidence and, sometimes, the nature of the claimed rights and interests in the two proceedings may be different.
51 If a claim is made in respect of land the subject only of the grant of a pastoral lease, "a determination under s 225 that native title existed over those lands and waters necessarily could only recognise the existence of non-exclusive native title rights and interests": at [364]. This, however, "could not create a reason, in separate proceedings, to preclude the claim group from asserting, or the Court determining under s 225, that exclusive native title rights and interests existed over neighbouring land and waters, if it were established that no other inconsistent right or interest had been interposed since sovereignty between those native title rights and interests and the Crown's radical title": at [365].
52 The primary judge identified in [367] that various provisions of the Native Title Act reinforced the fact that a determination of native title operates only in relation to the particular land the subject of the determination, saying:
Indeed, the provisions of Div 6 of Pt 2 of the Native Title Act, and in particular ss 55-57, evince the legislative purpose that once a determination is, or is about to be, made that native title exists, namely an approved determination of native title, the Court must also determine how and by whom the native title is held, namely by a new legal person, being a prescribed body corporate, as trustee, or by the claim group as common law holders of the native title. But, the determinations under ss 55, 56, 57 and 225 do not identify, for example, any traditional laws or customs of the claim group. Rather, those determinations express what the native title rights and interests are that the common law, as affected by the Act, recognises to exist in the particular land and waters. Native title rights and interests may continue to exist over other land, even though they cannot be recognised by the common law in accordance with the Act, because they are inconsistent with an intervening governmental act that extinguished native title in respect of particular land and waters.
53 His Honour also noted in [368] that the fact that a determination of native title related to specific land and such land might be subject to different kinds of extinguishment depending on the grants affecting it means that the Native Title Act itself contemplates apparently inconsistent determinations in respect of the one claim group. As the primary judge put it in [368]:
… there would be no necessary inconsistency between two determinations of native title over different land and waters where the same claim group had exclusive rights over one determination area, but only non-exclusive ones over another. The inconsistency, in such a case, would arise not because of a difference in the claim group's acknowledgment and observance of their traditional laws and customs by which they had a connection with the land or waters in the two separate determination areas, but because of the governmental acts creating partial or complete extinguishment of native title in one of the areas but not in the other.
54 His Honour gave another example at [369] in these terms:
It is also not difficult to envisage a situation where an earlier determination of native title recognised that the claim group had exclusive native title rights and interests but a new party, with an interest in land or waters, only in the second claimant application determination area, succeeds in proving that the claim group did not have any exclusive native title rights or interests that were possessed under the traditional laws acknowledged or customs observed by them. Such a situation might arise where the rights or interests found in the first proceeding are found, in the second proceeding, either not to have existed or to have ceased to be exercised …
55 Sixth, the primary judge identified the Preamble to the Native Title Act as an important part of the statutory context, particularly when read with the terms of ss 13(1)(b), (4), (5) and 86(1) of the Native Title Act: at [372]. The Preamble identifies that:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
…
The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
…
56 Section 13(1)(b) enables an application to be made to the Federal Court "to revoke or vary an approved determination of native title on the grounds set out in subsection (5)".
57 Section 13(4) provides that if "…an approved determination of native title is varied or revoked on the grounds set out in subsection (5)" then the determination as varied becomes an approved determination of native title in place of the original or, in the case of a revocation, the determination is no longer an approved determination of native title.
58 Section 13(5) provides that the grounds for variation or revocation of an approved determination of native title are "that events have taken place since the determination was made that have caused the determination no longer to be correct" or "that the interests of justice require the variation or revocation of the determination". The primary judge made these points about s 13(5):
374 The interests of justice can be engaged because a subsequent proceeding for a determination, using, in part, evidence or findings from earlier proceedings pursuant to s 86(1)(a) and or (c), show that the earlier determination was not correct when it was made. After all, that must be a consequence that the express words of s 13(5)(b) contemplate. That follows because that provision empowers the Court to make an order revoking or varying the earlier determination even though nothing, within the meaning of s 13(5)(a), has occurred subsequently to cause it to be incorrect.
375 It follows that s 13(1)(b) is a statutory exception to the general law principles of res judicata, issue estoppel and abuse of process. Ordinarily, a final order cannot be revoked or varied except on appeal or, in the case of other Federal Courts, by the High Court under s 75(v) of the Constitution, even if a superior court of record made the order without jurisdiction: Burrell v The Queen [[2008] HCA 34] (2008) 238 CLR 218 at 224-225 [19]-[22] per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.
376 Absent a statutory provision, once a court makes a final order (leaving aside situations in which the slip rule applies to accidental slips or omissions), it has no power to reopen that order. Yet, that power is expressly conferred on this Court under s 13(1)(b) of the Native Title Act in respect of approved determinations of native title, which include determinations by the High Court (s 13(7)).
377 …The Native Title Act itself is structured on the basis that, by reason of the power to revoke or vary an approved determination of native title, such a determination is not necessarily final, even though, ordinarily, it will be.
59 Section 86(1) provides that the Federal Court may receive into evidence the transcript of any proceedings before (amongst others) the Court and "draw any conclusions of fact from that transcript that it thinks proper" and "adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of" ss 86(1)(a)(i) to (iv).
60 Seventh, the primary judge noted that the 2007 determination in Moses was made on 27 August 2007, nearly three months before the Full Court decided Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391. His Honour said this at [378]:
The State and FMG did not suggest that any evidence that the Yindjibarndi led in the proceedings before Nicholson J was inconsistent with, or contradictory of, the additional evidence that that they adduced at the trial in this proceeding. Rather, the evidence and argument before Nicholson J proceeded on an understanding of the facts and law that did not address the Full Court's development or exposition of the law in Griffiths 165 FCR at 428-429 [127]-[128]. There French, Branson and Sundberg JJ said (at 429 [127]):
It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is "their country". If control of access to country flows from spiritual necessity because of the harm that "the country" will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive … It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. (emphasis added.)
61 The primary judge also noted that Nicholson J's crucial finding in Daniel at [292] reflected an understanding that the claimed right to control access and evidence of seeking permission to access the land "…is a matter of respect rather than in recognition of a right to control". Griffiths at [127], however, recognised that spiritual necessity could found a right of exclusive possession and Nicholson J's finding "did not negate or deny the existence of a spiritual or gatekeeper dimension to the assertion of an exclusive right: indeed, that dimension was not in issue or articulated before Nicholson J in the way in which Griffiths 165 FCR 391 subsequently identified would support a determination of, effectively, a native title right and interest equivalent to exclusive possession": at [380]. In the primary judge's view at [382]:
… had his Honour been invited, as Griffiths 165 FCR 391 subsequently established, to consider that, what he termed, the 'surviving practice' of 'respect' reflected the importance that that those indigenous people who showed that 'respect' attached to the ability of the Yindjibarndi to open the spiritual gates, it is possible, indeed probable, that his Honour would have come to the same findings" as the primary judge.
62 Eighth, at [389] the primary judge identified the relevance of the revised native title determination application filed by the Yindjibarndi Aboriginal Corporation RNTBC (YAC) on 15 May 2017 in respect of the 2007 determination. As his Honour said at [29]:
On 15 May 2017, after I had reserved my decision on 14 September 2016, YAC filed a revised native title determination application in respect of the 2007 determination under s 61(1) of the Act in proceeding WAD 215 of 2017. There, YAC seeks orders that, in effect, would give it exclusive, rather than non-exclusive, native title over the Moses land.
(Original emphasis.)
63 Further, as noted by the primary judge at [339], the Yindjibarndi could not make this application. As his Honour said at [339]:
… there is now a registered native title body corporate that holds the Moses land on trust, namely YAC, and only it, as statutory trustee for the Yindjibarndi, can make that application on their behalf. YAC is not a party to this proceeding but has now filed an application under ss 13(1)(b) and 61(1) for a revised determination in respect of the Moses land.
64 The primary judge identified the applicable principles concerning abuse of process in uncontentious terms including:
(a) The categories of abuse of process are not closed: at [370] citing Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [9] and [14].
(b) The issue is to be resolved recognising that "notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case": at [370] citing Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at 74-75, as referred to in Batistatos at [14].
(c) Because considerations of both public policy (to ensure that the administration of justice is not brought into disrepute) and private rights (to ensure no party is unfairly oppressed by the conduct of another party) underlie the doctrine, what is required is a "…broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court": at [387] citing speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31; 1 All ER 481.
65 The primary judge also referred to Arnold v National Westminster Bank PLC [1991] 2 AC 93; 3 All ER 41 in which, as his Honour put it:
383 Often a subsequent change in the general, or statute, law will not permit the reopening of past judicial decisions because of the importance of the common law principle of finality. In Arnold [1991] 2 AC 93, the House of Lords considered whether the doctrines of res judicata, issue estoppel or abuse of process should preclude parties reopening a final decision of Walton J as to the construction of a rent review clause in a lease with a term of many years that provided for regular rent reviews, where subsequent decisions, including appellate ones, endorsed a different construction (see [1991] 2 AC 102B-103D). Lord Keith (with whom Lords Griffiths, Oliver of Aylmerton, Jauncey of Tullichettle and Lowry agreed) said (at 110D-E) that:
I consider that anyone not possessed of a strictly legalistic turn of mind would think it most unjust that a tenant should be faced with a succession of rent reviews over a period of over 20 years all proceeding upon a construction of his lease which is highly unfavourable to him and is generally regarded as erroneous.
(emphasis added.)
384 His Lordship said that, were the tenant held to the erroneous construction of the clause in the subsequent rent reviews, "abuse of process would be favoured rather than prevented by refusing the plaintiffs permission to reopen the disputed issue" (at 110G). He endorsed the reasons of Sir Nicolas Browne-Wilkinson V-C (the trial judge in Arnold v Nat-West Bank plc [1989] Ch 63) when he said ([1989] Ch at 70-71):
In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case.
(bold emphasis added, italic emphasis in original).
66 At [385] the primary judge acknowledged that in O'Toole v Charles David Pty Ltd [1990] HCA 44; (1991) 171 CLR 232 at 258 Brennan J said that this reasoning rested on "an uncertain foundation" but noted that the "general law power (or, more accurately, lack of power) of a court subsequently to reopen a point decided by a final judicial order binding the parties or their privies in respect of their legal rights" is a different situation from "that which obtains under the Native Title Act by reason of the statutory power to revoke or vary an approved determination under s 13(1)(b) on a ground in s 13(5), particularly s 13(5)(b)".
67 The primary judge expressed his ultimate conclusion about the abuse of process issue at [389] in these terms:
… in all of the circumstances, including YAC's revised native title determination application, together with the statutory scheme of the Native Title Act, including the Preamble and the power under s 13(1)(b) to revoke or vary an approved determination of native title, I am of opinion that the Yindjibarndi are not engaged in an abuse of process in seeking to vindicate in this proceeding their right to control access that I have found. For these reasons I will allow the Yindjibarndi to rely on their unextinguished native title right to control access despite its potential inconsistency with Nicholson J's finding in Daniel [2003] FCA 666 at [292] and the 2007 determination, particularly since that inconsistency can be cured by the new proceeding under s 13(1)(b) in respect of the earlier findings and the 2007 determination.