Ground 2(a)(ii)
124 In exercising his discretion to dismiss the 2015 proceeding as an abuse of process the primary judge considered the absence of evidence of "spiritual connection". This, the Eastern Guruma applicant submits, was in the context where his Honour was looking at the legal merits/strength of the claim as one relevant factor in the broader exercise of weighing up whether to dismiss the claim as an abuse of process.
125 The Eastern Guruma applicant contends that, in this respect, the primary judge made two errors. First, in treating it as a requirement of s 223(1)(b) of the NTA that an applicant prove its "spiritual connection" to the land claimed. Second, in failing to appreciate that connection is established through proof of traditional laws and customs.
126 It was submitted that where in his reasons [64] the primary judge referred to what the High Court plurality said in Western Australia v Ward at [64] (Gleeson CJ, Gaudron, Gummow & Hayne JJ) he misconstrued its effect.
"In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection" with the land or waters. ... Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs…we need express no view on when a "spiritual connection" with the land …will suffice"
127 The submission in effect was that the primary judge had erroneously read this as meaning that there must be proof of spiritual connection, whereas in Ward at [64] the plurality makes it plain that under certain circumstances spiritual connection may suffice, but this is in no sense making it a requirement.
128 The Eastern Guruma applicant submits that the pre-eminent role that "spiritual connection" assumed in the primary judge's mind is evident from his "dismissive approach" to non-spiritual forms of connection. For example, the applicant referred to [65] where his Honour states:
[65] I find that, because of the consistent evidence, prior to Ms Boyd's affidavit of 27 January 2016, of Eastern Guruma people reporting on the FMG Satellite Spring site that its significance for them was that it was only a camping, hunting or meeting ground and a source of fresh water, and that there is no reasonable prospect of the Eastern Guruma applicant establishing any other significance to them of the site. [emphasis supplied]
129 Other passaged in the Reasons are said to show a similar approach:
[64] …The absence of prior reference to any cultural, spiritual, ceremonial or mythological significance of the FMG Satellite Springs for Eastern Guruma people reinforces that there is no reasonable prospect (for the purposes of s 31A(2) of the Federal Court of Australia Act) that a claim by the Eastern Guruma people, based on Ms Boyd's recent evidence of such significance, would have any prospect of success.
[84] Ordinarily, of course, a Form 1 application for a determination of native title will not be expected to identify matters in support of the claim with the degree of precision necessary at a trial to do so. That is not the function of such a form. But here there was a void of evidence concerning connection of an essentially spiritual nature, other than Ms Boyd's subsequent assertion that FMG Satellite Springs was a sacred site that she belatedly made in her affidavit of 27 January 2016. The balance of the evidence and anthropological material before me in support of this last minute claim is bereft of any such material.
[142] Moreover, the Eastern Guruma applicant has given no intelligible or specific explanation as to the way in which it asserts native title rights and interests of a spiritual nature over the vast expanse of overlap land and waters. That dearth of evidence is especially significant in relation to their central claim over the FMG Satellite Springs: Ward 213 CLR at 64 [14]. Prior to Mr Coldrick's September 2009 visit to the FMG Satellite Springs, no Eastern Guruma person had referred to the rock art there. Both before and after that visit, with the exception of Ms Boyd's 27 January 2016 affidavit, no Eastern Guruma person, including her father and brother, suggested that the FMG Satellite Springs had any significance beyond being a hunting area, a meeting or camping ground, and a water source.
[143] The Eastern Guruma applicant brought the 2015 proceeding knowing that doing so inevitably would interfere with the conclusion and final hearing of the 2003 proceeding. Despite that, it did not make a properly articulated claim that identified any spiritual connection that would suffice to establish a claim for native title. The evidence on which the Eastern Guruma applicant relied is bereft of details of such spiritual connection (other than Ms Boyd's recent assertions) or any explanation, other than in respect of the location of the FMG Satellite Springs, as to why such a very large area of land had been overlooked in its earlier claims in the 1998 proceeding.
130 These paragraphs, it was submitted by the Eastern Guruma applicant, demonstrate that his Honour determined that spiritual connection to the area under claim was indispensable to the ultimate success of the 2015 proceeding for a determination of native title and that his Honour's view about the weakness of the claim (due to lack of evidence of spiritual connection) formed an important part of the weighing exercise his Honour undertook to conclude the application was an abuse of process.
131 This error was said to be an error of law.
132 The Eastern Guruma applicant referred to the following cases as authority that connection was a multifaceted concept.
133 First, Bodney v Bennell (2008) 167 FCR 84 at [164], where the Full Court noted that:
[164] As cases in this Court on s 223(1) clearly demonstrate, the connection concept is multifaceted, with differing aspects of it being emphasised in differing factual contexts'
134 Second, State of Western Australia v Graham (Ngadju People) [2013] FCAFC 143 at [41] where the Full Court confirmed that 'not every right or interest enjoyed by every Aboriginal has to have a "spiritual" aspect to it and ... cultural and social connections may also be sufficient'. Their Honours also made the following observations.
[36] The requirement that claimants "have a connection" is not qualified by any adjective or adverb that suggests the connection should be of any particular qualitative or quantitative nature. ...
[37] There is nothing in the use of the expression "have a connection" to suggest that the connection must be physical, although plainly it can be that. There is every reason to accept, having regard to authority, that the connection may well be, or also be, religious or mythological in nature, but it need not necessarily be so. [emphasis supplied]
[38] There is no requirement that connection be made out by reference to any particular features within the land or waters or activities in respect of the land or waters. Indeed, the authorities disclose that the laws and customs, and facts and circumstances of each claim, will guide the connection judgment to be made.
[43]...recognition of native title rights was not to be limited only to those places where the evidence showed they are currently exercised: [2013] FCAFC 143
135 It was submitted for the Eastern Guruma applicant that frequently native title rights will be 'merely' usufructuary where the area is part of the group's traditional country but this particular area or use is to go camping, hunting, fishing, obtain water, or forage. Here, as the Eastern Guruma applicant contends, the primary judge found that, for the Eastern Guruma people, Satellite Spring's 'significance' included it being 'a source of fresh water'. This was said in the context of the arid Pilbara obviously to have been a matter of extreme importance.
136 The Eastern Guruma applicant referred to the reasons of the primary judge at [34] - [36] where passages are quoted from the anthropologists Mr Coldrick and Dr McDonald in order to draw adverse conclusions that the Eastern Guruma people did not regard the site of Satellite Springs as having "spiritual" significance. However, the Eastern Guruma applicant points out that each of those paragraphs contains positive evidence of entitlement to camp at and use the resources of that area and that it was of "major significance" to the Eastern Guruma.
137 This foregoing evidence, it was submitted, was plainly an assertion that the traditional law and custom of the Eastern Guruma entitled them to possess and use the resources of the application area, and that the use of Satellite Springs as an area for camping, hunting or as a meeting ground, and a source of fresh water, should be understood as evidence that the Eastern Guruma people were entitled to do this. The Eastern Guruma applicant submitted that the primary judge erred in law in treating those uses as inconsistent with, or even a negation of, having a connection with and native title rights in the area in question.
138 The Eastern Guruma applicant submits that the primary judge in effect imposed an additional requirement of proving 'spirituality' which involved impermissibly modifying how Parliament has explicitly defined native title and native title rights in the NTA, particularly ss 223 and 225. Thus it was contended that the primary judge determined the case upon wrong principle and allowed an irrelevant matter to affect his discretion: House v King.
139 The Eastern Guruma applicant's submissions in this respect were supported by both the State of Western Australia and the FMG parties.
140 I do not accept these submissions for two distinct reasons.
141 First, because his Honour's consideration of native title rights and interests of a spiritual nature were subsequent to his then concluded view, in the exercise of his discretion, that the 2015 proceeding was an abuse of process by reason of delay and relevant prejudice to the Yindjibarndi applicant as is evident from his conclusionary reasons at [141]. The conclusions concerning spiritual connection were but additional criticisms. The conclusion as to abuse of process was one which was also discrete from the further conclusion of the primary judge, that the 2015 proceeding had no reasonable prospects of success.
142 I accept the submission of the second respondent (the Yindjibarndi) that the primary judge properly articulated the abuse of process inquiry as a question of "whether the use of the Court's procedures, having regard to the Eastern Guruma applicants' delay, is oppressive to the Yindjibarndi applicant, or will bring the administration of justice into disrepute". His Honour correctly noted that abuse of process determinations require "a weighing process involve[ing] a subjective balancing of a variety of factors and considerations". The primary judge exercised his discretion based on findings of delay and prejudice, and on issues of credit that related to the findings of delay, supported by detailed evidence.
143 As the Yindjibarndi correctly submit, the primary judge made multiple credit-based findings that are not challenged and which are therefore entitled to deference upon these leave applications.
144 It is important to appreciate that whilst there was no cross-examination of Michael Hughes or Susanne Boyd, this was by reason of certain concessions made before the primary judge at the hearing. I have set out these exchanges between his Honour, senior counsel for the Yindjibarndi (Mr Hughston) and for the Eastern Guruma applicant and Mr Hughes (Mr Neal):
MR HUGHSTON: Your Honour will recall that we wanted to cross-examine Mr Hughes and Ms Boyd really for procedural fairness because we intended to make submissions that their evidence should not be accepted, that it was internally inconsistent and it was inherently not to be believed, particularly based upon various objective facts that have been ascertained elsewhere in the evidence.
And the response of the Eastern Guruma is to say that they don't require those allegations or assertions to be put to the witnesses. There will be no objection to us making submissions.
And they then go on to say that as far as they're concerned that we can make adverse submissions in relation to inherent incredibility, illogicality, or internal inconsistency about their evidence.
MR NEAL: if you can demonstrate on the face that the affidavits are inconsistent, illogical, or inherently implausible, then you're at liberty to do so; we can't complain that you didn't, by a conventional trial method, put those propositions.
It's a question of what they can demonstrate on the face of the documents. That's the position that we say would not justify. It's not a question of fairness because we can't be heard to say, "Your criticism of our affidavits is something that you didn't put to the witnesses. If you can demonstrate it on the affidavit, you can demonstrate it on the affidavit."
HIS HONOUR: So am I correct in understanding, Mr Neal - yes or no - you do not require Mr Hughston to attempt to persuade me that I should allow cross-examination of these witnesses; he can make these criticisms without seeking to cross-examine and me deciding that he shouldn't be allowed to?
MR NEAL: Yes.
145 I have set out his Honour's reasons concerning delay and prejudice above at some length. They demonstrate a very careful and detailed exegesis of the evidence bearing on these issues.
146 The prejudice to the Yindjibarndi applicant as a result of delay is both general and particular. It is distracting to attempt to compartmentalise what are multifactorial aspects of such prejudice. The proper approach, employed by the primary judge, was to weigh the mix of factors together.
147 An illustration of such compartmentalising of separate ingredients of prejudice may be seen in the consideration of ground 2(a)(viii) below. This deals with whether the 2015 proceeding could have been accommodated together with the 2003 proceeding with less resultant prejudice to the Yindjibarndi applicant than was assessed by the primary judge. Even were this the case it does not alter the fact that to have allowed the 2015 proceeding to be prosecuted would likely have resulted in the completion of the trial not being completed, as his Honour found, before the end of 2017 and possibly not until 2018.
148 It is to be remembered that the 2003 proceeding has been a foot for approximately 13 years. The Yindjibarndi applicant has, until last year, had the reasonable expectation that the confined issues in their claim would be resolved sometime this year. To have allowed the 2015 proceeding, the subject of such lengthy delay, to be prosecuted, with attendant further delay, would have dashed those expectations.
149 Delay was foundational to his Honour's conclusion that there was an abuse of process. At [148], his Honour states that "[e]ven if the Eastern Guruma applicant had made a mistake, that has had the consequence that, since the 2003 meeting, the Yindjibarndi applicant has pursued the 2003 proceeding to the point of a part-heard hearing without any knowledge of, or participation in, such a mistake. In those circumstances, it would be an unfair and unjust use of the Court's procedures to allow the Eastern Guruma applicant, to maintain, the 2015 proceeding".
150 Where abuse of process is engaged in through unacceptable and unexplained (in this case falsely explained) delay with attendant relevant prejudice it is no answer merely to demonstrate that the party against whom that finding is made nonetheless has some arguable claim. Indeed, it will ordinarily be the case that such an arguable claim exists. The relevant question is whether that claim should be dismissed, not as having no merit, but on the basis that its prosecution constitutes an abuse of process.
151 Significantly, the primary judge was satisfied, upon that evidence, not only that there was no acceptable explanation for the delay, but that the explanations given were "palpably false". They are not attended with sufficient doubt to warrant intervention by a Full Court.
152 The primary judge at [113] - [119] paid important and necessary regard to the principles and the statutory requirements found within Pt VB of the Federal Court of Australia Act 1976 (Cth) within the framework of caution, as I have described, governing the conduct of litigation, as it now prevails, generally in the Common Law countries including Australia and particularly as they apply to this Court.
153 His Honour, for example, at [118] - [119] said:
[118] French CJ, Kiefel, Bell, Gageler and Keane JJ emphasised this in relation to interlocutory proceedings in Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51]. They said that in Aon 239 CLR at 211 [92]-[93], 213 [98]:
… it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. (emphasis added)
154 The application for leave to appeal fails at the threshold in relation to the finding of abuse of process as a result of delay and prejudice.
155 Second, for reasons I will explain, I am of the opinion that, in any event, his Honour did not fall into the error contended for by the Eastern Guruma applicant. It is apparent that the applicant has seized upon passages from his Honour's reasons out of context and misconceived their meaning and effect.
156 The first relevant context was the primary judge's consideration of the belated claim by Ms Boyd in her affidavit evidence in the 2015 proceeding that the FMG "Satellite Springs" was not in the Eastern Guruma determined area but in the Yindjibarndi claim area that is in the overlap area.
157 The primary judge had made a number of critical findings concerning Ms Boyd's evidence in a number of respects. He rejected her evidence that she had not known prior to 2014 that the FMG Satellite Springs was within the Yindjibarndi claim area. He found that she had known since at least May 2010. A similar conclusion was reached by the primary judge in rejecting Michael Hughes' evidence as to this crucial matter of knowledge.
158 The primary judge did not accept that Ms Boyd and other Eastern Guruma people would have done nothing between 2010-2015 to protect the FMG Satellite Springs site if they believed they had native title rights in it. He did not accept that the Eastern Guruma applicant had given any credible explanation for leaving the FMG Satellite Springs site unprotected during that period. He rejected their explanation as false that they believed that FMG and Dr McDonald had been asked to protect it.
159 Importantly, in a contextual sense, the primary judge, as I mentioned above, observed that Ms Boyd was the only claim group witness who had given any evidence about the asserted spiritual significance to the Eastern Guruma people of the FMG Satellite Spring, which she did for the first time in her affidavit of 27 January 2016, employed before him on the interlocutory application. There, she made various assertions about it being a sacred site protected by a water serpent. However, as the primary judge found, there was no record of any other Eastern Guruma person asserting information to that effect, including her father, her brother (Michael Hughes), or others such as the elders, Lindra Camille, Dennis Hicks Senior and Judith Hughes.
160 The rejection of the evidence of Ms Boyd and Michael Hughes on these crucial matters was not, as the Eastern Guruma applicant submits, the rejection of plausible evidence. It is quite apparent from the reasons that the primary judge rejected their evidence as false. For the first time, in reply, the Eastern Guruma applicant sought to counter this finding as being irrelevant to the "corporate" mind of the Eastern Guruma people. That some Eastern Guruma people were in a "state of confusion" as to the whereabouts of Satellite Springs or that "they" had "laboured" under a mistake until about 2014/early 2015 as was submitted on behalf of the Eastern Guruma applicant, even assuming this to be so, does not answer the primary judge's findings as to delay.
161 I have referred to these variously in these reasons. However, it bears repeating as his Honour found in reasons at [41] that by March 2010 at least 13 members of the Eastern Guruma claim group including elders and persons connected to WGAC, the prescribed body corporate holding the land and waters by then the subject of the 2007 consent determination of native title, knew of the location of the FMG Satellite Spring site. So too is the case with paragraphs [42] and [45] of the reasons which state:
[42] Next, in May 2010, Mr Coldrick and Dr McDonald prepared a report for both WGAC and FMG as an ethnographic survey had occurred between 9 and 12 March 2010 with the participation of Michael Hughes and Peter Stevens junior. It noted that Nelson Hughes had participated in earlier heritage surveys of the study area, having once commented to Dr McDonald that: "No-one can tell him [sic] anything about that country." The report said that Satellite Springs [sic] had been an ongoing concern for the Eastern Guruma people, in particular, Nelson Hughes, since FMG first began operating in the area:
… largely due to the fact that its precise location had been lost for some time … [and that it had been] finally relocated by the Eastern Guruma Native Title Holders in August 2009.
…
… the site is actually located outside the Eastern Guruma Native Title determination area within the adjacent Yindjibarndi native title claim. (emphasis added).
[45] By May 2010, WGAC and, I infer, the Eastern Guruma claim group, were well aware that the FMG Satellite Springs was located outside their determination area and within the area claimed by the Yindjibarndi applicant in the 2003 proceedings. Yet, no Eastern Guruma person did anything about that matter until they began dialogue with the Yindjibarndi claim group through solicitors in March 2015.
162 Accordingly, the primary judge made adverse findings on the issue of delay referrable not only as to the knowledge of Ms Boyd and Hughes but also as to the Eastern Guruma claim group.
163 Moreover, the evidence of Ms Boyd, who is an elder of the Eastern Guruma people and a member of the Eastern Guruma native title claim group in the 2015 proceedings, was tendered on behalf of the Eastern Guruma native title claim group. The position in relation to Hughes is exactly the same. His evidence was tendered on behalf of the Eastern Guruma native title claim group in the 2015 proceeding. He too is an Eastern Guruma elder and a named applicant.
164 In their affidavits about the significance of the site, those persons, like Mark Lockyer, who was a Western Guruma elder said that in the late 1960s to 1970s they went to "Satellite Spring" with Nelson Hughes when he took his family there to camp, and others, such as Linda Camille, added that they also went dogging. They also said that Nelson Hughes had told them that the site was in Eastern Guruma country. None of those persons, as his Honour found, referred to the engravings at that site that Mr Coldrick had noted, as at September 2009 had been "previously unreported" (see [43] above). And when Mr Coldrick visited the site and completed the Aboriginal site recording on 3 September 2009, his informants had said nothing to him about the sacred or other spiritual significance of the site or the engravings, despite them having said it was an important site.
165 The passages in the judgment ([64], [84], [141] and [143]) dealing with "spiritual connection" relied upon by the applicant have to be seen in this light. The primary judge was not concerned with what was required to prove connection but rather with an analysis of the evidence of Ms Boyd that the FMG Satellite Springs site had spiritual significance. In effect he concluded that it was only she who had made this claim. No other Eastern Guruma person made such a claim nor did anything written by Dr McDonald. His Honour, for this reason, rejected Ms Boyd's evidence on this issue. It was not based on a conflict between her evidence and that of Michael Hughes on the one hand with that of the Yindjibarndi on the other. Rather, it was that the evidence of Boyd and Hughes was glaringly inconsistent with evidence from within the Eastern Guruma people as well as other sources over many years.
166 This is why the primary judge in each of the identified paragraphs relied upon by the Eastern Guruma applicant expressly distinguished between what Ms Boyd had claimed and the lack of evidence from any other source.
167 It is instructive to repeat [64] - [65] of his Honour's reasons:
[64] The Eastern Guruma applicants' evidence (other than Ms Boyd's 27 January 2016 affidavit) was devoid of any reference or mention of there being some cultural, spiritual, ceremonial or mythological significance of the site. Had Nelson Hughes, or anyone else, said that the site had such significance or engravings on earlier visits in the 1970s or at any later time, that fact would have been impressed on those persons at that time. The absence of prior reference to any cultural, spiritual, ceremonial or mythological significance of the FMG Satellite Springs for Eastern Guruma people reinforces that there is no reasonable prospect (for the purposes of s 31A(2) of the Federal Court of Australia Act) that a claim by the Eastern Guruma people, based on Ms Boyd's recent evidence of such significance, would have any prospect of success.
[65] I find that, because of the consistent evidence, prior to Ms Boyd's affidavit of 27 January 2016, of Eastern Guruma people reporting on the FMG Satellite Spring site that its significance for them was that it was only a camping, hunting or meeting ground and a source of fresh water, and that there is no reasonable prospect of the Eastern Guruma applicant establishing any other significance to them of the site.
168 Paragraphs [35] and [38] of the primary judge's reasons also bear on this analysis:
[35] Thus, as at September 2009 when the site was located by Mr Coldrick and members of the Eastern Guruma claim group, they attributed no spiritual, mythical, ceremonial or cultural significance to the FMG Satellite Spring(s) site at all. In particular, Mr Coldrick had not been given any information at that time of any stories that had been passed on by their ancestors or their elders about its significance as a spiritual, mythological, ceremonial or similar site. Rather, as Mr Coldrick noted, his informants had described the site as only being a meeting and camping place with a water source.
[38] Indeed, at no point until Michael Hughes swore his affidavit of 1 December 2015, is there any evidence of anyone in the Eastern Guruma claim group ever saying to anyone else that any place named Satellite Springs had any spiritual, mythological or cultural significance for them at all.
169 It may be seen, clearly, that the primary judge was dealing with evidence, integral to his fact finding exercise, not a construct of s 223(1) of the NTA. His Honour's conclusion was that because of this "a claim by the Eastern Guruma people, based on Ms Boyd's recent evidence of such significance (i.e. FMG Satellite Springs having spiritual significance) would not have any prospect of success": [64].
170 Again, dealing with this conflict of evidence, internal to the Eastern Guruma applicant, the primary judge found in effect that the only reasonable prospects they had of establishing any significance attaching to the FMG Satellite Springs site was as a place of camping, hunting, meeting, and a source of fresh water.
171 This was a positive finding that native title rights and interests may be constituted by such use. His Honour was not dismissive of those uses in this context. Rather, the opposite was the case.
172 The second relevant context is where the primary judge considered the factual question of spiritual connection in relation not merely to FMG Satellite Springs, but to the whole of the overlap area.
173 The passage at [83] of the reasons is referring to the whole of the overlap area claimed by the Eastern Guruma people in August and then in December of 2015. It is important to bear in mind that the overlap area claimed was approximately 720 square kilometres, whereas the FMG Satellite Springs site, to be generous, was no more than approximately an area within a 3 kilometre radius of the actual Springs.
174 I have set out again below [83] of the reasons of the primary judge:
[83] The absence of any articulated, essentially spiritual or religious connection between the Eastern Guruma people and any identified part of the large area the subject of the 2015 Form 1 claim is significant, having regard to the very late making of the new claims, their knowledge by that time of what they were claiming, and because some time since at least 3 March 2015, as appears in Castledine Gregory's letter of that date to Mr Irving, they knew that the final hearing on country for the Yindjibarndi application had been set down for later in 2015.
175 The use of the expression "essentially spiritual or religious connection" was not used by his Honour to exclude uses such as hunting, camping, meeting or water extraction. Rather, he was employing the conceptual language of the plurality in Western Australia v Ward at [14] found in the passage excerpted by his Honour in the previous paragraph [82] of his reasons, which I have set out below:
[82] As is now well recognised, the connection which Aboriginal peoples have with "country" is essentially spiritual. In Milirrpum v Nabalco Pty Ltd [(1971) 17 FLR 141 at 167], Blackburn J said that: "the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". It is a relationship which sometimes is spoken of as having to care for, and being able to "speak for", country. "Speaking for" country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a "non-exclusive agricultural lease" or a "non-exclusive pastoral lease", whether the native title rights and interests "confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others". (emphasis added)
176 These observations are descriptive of native title in a conceptual and generic way.
177 The fundamental spiritual or religious relationship between Aboriginal people and their "country" has been identified in other cases, e.g. Yanner v Eaton (1999) 201 CLR 351 at 37; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; Griffiths v Northern Territory (2007) 165 FCR 391 at [127]; Banjima People v Western Australia (2015) 231 FCR 456 at [32].
178 When one has regard to the passage at [14] from Western Australia v Ward, and his Honour's use, in his reasons at [82], of the opening conceptual phrase as to the connection which Aboriginal people have with the land as being essentially spiritual, this has to be understood by reference to the way this phrase was explicated by the plurality thereafter, and in particular, in the second part of the emphasised text. This is to the effect that native title rights and interests, such as, in this case, camping, hunting, meeting and as a fresh water source, emanate from and are a legal expression of the overarching spiritual connection in the way that phrase was utilised. As the plurality said in Western Australia v Ward at [14] "(t)he difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interest is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal."
179 There was, as his Honour found, no articulation of such manifest rights and interests beyond what had been asserted and accepted by the primary judge, other than as to Ms Boyd's belated claims concerning FMG Satellite Springs. In circumstances where the Eastern Guruma applicant commenced the 2015, proceeding knowing that doing so inevitably would interfere with the conclusion and final hearing of the 2003 proceeding, it was not an arguable error on his Honour's part to expect there to have been "a properly articulated claim that identified any spiritual connection that would suffice to establish a claim for [exclusive possession] native title": reasons [143].
180 This conclusion, concerning the whole of the overlap area, was revisited by the primary judge at [142], referring as he did to the "vast expanse of overlap land and waters". His Honour there also repeats the evidentiary conflict concerning the significance of FMG Satellite Springs as between Ms Boyd and other Eastern Guruma persons or experts.
181 I would for these reasons reject the submission that the primary judge arguably erred in law in the way contended for by the Eastern Guruma applicant, the State of Western Australia, and the FMG parties. Accordingly, I reject this proposed ground of appeal.