THE LAW
85 As has been observed in a number of decisions, the starting point for consideration of an application for a native title determination is the NTA: Western Australia v Ward (2002) 213 CLR 1 at [16] and [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Ward HC); Yorta Yorta v Victoria (2002) 214 CLR 422 at [32] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta); and Commonwealth v Yarmirr (2001) 208 CLR 1 at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Although ss 223(1)(a) and (b) of the NTA are in large part based on Brennan J's judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1, it is the provisions of the NTA which establish the criteria for determining an application for a native title determination.
86 Section 225 of the NTA defines what is determined in an application for a native title determination.
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(1) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(2) the nature and extent of the native title rights and interests in relation to the determination area; and
(3) the nature and extent of any other interests in relation to the determination area; and
(4) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(5) to the extent that the land or waters in the determination area are 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.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
87 Section 223 of the NTA defines the expressions "native title" and "native title rights and interests". Relevantly, s 223(1) provides:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
88 For a determination of native title to succeed, all the elements in s 223(1) of the NTA must be "given effect": Yorta Yorta at [33].
89 With respect to s 223(1), in Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at [17]:
…Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; (b) by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and (c) the rights and interests must be "recognised by the common law of Australia".
90 In Barngarla, I sought to give effect to those requirements, expressed at [640] in the following terms.
The task of this Court is to ascertain under which (if any) laws acknowledged and customs observed by the present-day [Aboriginal] society do the claimants have rights and interests in the claimed land. Once ascertained, the Court must ask whether those laws and customs can be said to be "traditional laws" or "traditional customs". The question of whether a particular aspect of [Aboriginal] society as it existed at sovereignty has been lost or retained is relevant only if that question helps determine whether the laws and customs of the present-day [Aboriginal] society can be said to be "traditional". And the concept of traditional is one which should accommodate adaptation of those laws and customs with the evolution of the traditional [Aboriginal] society, if that is found to have occurred.
91 In making a determination of native title, the plurality in the High Court in Yorta Yorta recognised the importance of traditional rights and interests being established at or before sovereignty at [43]-[44]:
…It is important to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown's assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations". But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.
92 The native title claimants have both an evidentiary and an ultimate onus of proof, subject to the issue of extinguishment: Western Australia v Ward (2000) 99 FCR 316; Daniel v Western Australia (2004) 208 ALR 51 (Daniel); Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [339].
93 As discussed in Yorta Yorta by the plurality at [80]:
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
94 Nonetheless, where there are gaps in the historical timeline to the date of the application for a determination of native title, the Court may draw inferences in favour of the claimants in respect of substantial maintenance of connection from sovereignty where there is a proper foundation to do so. That requires the Court to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the evidence available provides some support for the inference of the presence of that connection in the past (traceable by various means such as observations at and after the time of first contact, ancestors, marriage, migration and incorporation and even tribal disputes and wars): De Rose v South Australia [2002] FCA 1342 at [570]. As O'Loughlin J there observed:
To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.
95 Where evidence of Aboriginal presence at sovereignty is unavailable (as is commonly the case), such an inference is more readily drawn where there is a preponderance and weight of available evidence and in the absence of contradictory evidence: see e.g. Yarmirr v Northern Territory (1998) 82 FCR 533. Where it is appropriate to do so, weight should be accorded not only to physical use of the claim area but also to evidence of spiritual connection: e.g. see Griffiths v Northern Territory (2007) 165 FCR 391; [2007] FCAFC 178 (French, Branson and Sundberg JJ) at [127] where spiritual sanctions visited upon unauthorised entry supported a finding of exclusive possession.
96 On occasions, it is appropriate that the Court is assisted in by s 86(1)(c) of the NTA, which provides the Court with a discretionary power to adopt "any recommendation, finding, decision or judgment" from other proceedings as there specified, subject to s 82(1), that is subject to the rules of evidence, except to the extent that the Court otherwise orders. That is an aspect referred to in more detail later in these reasons.
97 Nonetheless, the Court must be satisfied that, the traditional rights and interests (once established) relate to the particular area under consideration. In Bennell v Western Australia (2006) 153 FCR 120, the trial judge considered and found in favour of the Noongar People, on the hearing of the separate question of whether native title existed in relation to land and waters in a portion of the claim area, that is the Perth metropolitan area. On appeal, the Full Court in Bodney v Bennell (2008) 167 FCR 84 held that it was not open to the trial judge to find the necessary connection in relation to the Perth metropolitan area from evidence concerning the much wider claim area and where there was no real evidence of connection in relation to the Perth metropolitan area. Relevantly, the Full Court found at [178]-[179] and [187].
It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra v State of Western [2003] FCA 1402 at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants' assertion of connection is to be sufficiently manifest over the claim area as a whole - the more so, in communal claims, if rights and interests are held differentially across the community - though there can be cases where, because of long-standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory (2006) 165 FCR 300 at [561]-[562].
What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs:
(i) to examine the traditional laws and customs for s 223(1)(b) purposes as they relate to that area; and
(ii) to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.
…
If his Honour was to find that native title existed in relation to land and waters of the Perth Metropolitan Area, it had to be proved that the laws and customs that related to that area had continued to be acknowledged and observed without substantial interruption and that connection likewise had been substantially maintained. Those inquiries necessitated a consideration and evaluation of the evidence (historical and contemporary) as it related to that area from sovereignty to the present: cf the approach to these questions by Mansfield J in Risk TJ 240 ALR 74 in relation to the Darwin Area.
98 That decision has particular resonance for the present issues. The necessary connection must be shown in relation to Lake Torrens, or parts of it, notwithstanding its harsh physical features. And, moreover, it will not readily be inferred on any of these three Applications from the existence of adjoining native title rights at sovereignty that such connection, and therefore such rights, extended naturally into Lake Torrens because that inference (without more) would apply equally to the Kokatha People from the west and to the Adnyamathanha (or Kuyani) People from the east, although perhaps not so strongly to the Barngarla People from the south, except to a limited extent into the southern part of Lake Torrens.
99 There is some authority for the proposition that, while the Court may only make one determination of native title per area, where different groups are found to hold native title, subsidiary determinations within the principal determination can be made: Daniel v Western Australia (2004) 208 ALR 51 (Daniel) at [4]-[7]. I shall shortly further consider that decision.
100 There are further provisions of the NTA which also have a particular significance to the present issues.
101 Where there are overlapping claims of native title, the NTA provides for applications over the same area to be dealt with in the same proceedings with only one determination of native title per area. Relevantly, ss 67 and 68 provide:
67 Overlapping native title determination applications
(1) If 3 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications over the same area, they are dealt with in the same proceedings.
Splitting of application area
(2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.
68 Only one determination of native title per area
(1) If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:
(2) conduct any proceeding relating to an application for another determination of native title; or
(3) make any other determination of native title;
(4) in relation to that area or to an area wholly within that area, except in the case of:
(5) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or
(6) a review or appeal of the first determination.
Note: Paragraph 13(1)(a) providers that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.
102 The identification of potentially competing claimants is facilitated by s 66 which requires the Native Title Registrar to give notice containing details of the application to persons or bodies specified in s 66(3)(a), including any person which may be affected by a determination in relation to the application: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 (Badimia) at [61]. As noted earlier, despite that notification of the Kokatha Application and the Adnyamathanha Application, the Barngarla Application was only made belatedly. There are no doubt good reasons for that.
103 It is clear enough that, consistently with those provisions, the Court on the present hearing could conclude that one or other of the Applicants has established native title over some part or parts of Lake Torrens. Indeed, as later noted the Third Applicant has acknowledged that the claim by the Barngarla People in relation to the northern part of Lake Torrens is not made out, so the primary determination sought is only to an area over the southern part of Lake Torrens. It is then accepted that the Second Applicant should be recognised as holding native title over the northern part of Lake Torrens. Although I have not mentioned there the First Applicant, one available conclusion would be that the Kokatha People hold native title over only part of Lake Torrens.
104 However, the Second and Third Applicants in final submissions put a further contention that, in respect of what might be described loosely as the middle third of Lake Torrens, that there should be a determination that each of the Adnyamathanha People and the Barngarla People together as one native title claim group have shared common rights. The proposed determination then describes the native title holders together as the Adnyamathanha People (as described on the Adnyamathanha Application) and the Barngarla People (as described on the Barngarla Application) with the same specified rights in the "Shared Area" to be exercised in accordance with the traditional laws and customs of the (collective) native title holders.
105 I have significant reservations that, on the three Applications before the Court, it would be either within power or alternatively appropriate, to make such a determination, having regard to s 67 and 68 of the NTA as well as other provisions in the NTA.
106 As noted there is some foundation for such an approach in Daniel.
107 Nicholson J earlier in Daniel v Western Australia [2003] FCA 666 had found that two groups of persons (Ngarluma and Yindjibarndi Peoples) held native title in the claim area. Their joint application had apparently been authorised by each group, as separate persons were nominated on behalf of each group to constitute the composite applicant: see at [41].
108 To put the conclusions into context, that primary decision concerned the hearing of three competing claims. The second and third applicants' claims were unsuccessful: see at [501, [527] and [528]. The first applicant's claim on behalf of the Ngarluma People and the Yindjibarndi People jointly succeeded to a limited degree: see at [510] and [525]-[526].
109 In the case of the applicants, said to comprise a composite group of Ngarluma and Yindjibarndi People, the primary judge at [338]-[339] concluded that it was not necessary to make a specific finding as the areas over which group, or subgroup, claimed native title were different. There was a consistent focus on the Ngarluma People's claim area and the Yindjibarndi People's claim area separately, concerning the native title rights and interests claimed: see at [93] and [118]-[129] and variously elsewhere in the reasons. It appears the areas or sub-areas were physically separated by a significant ridge of hills. After the reasons were published, the parties were given an opportunity to address the appropriate form of the determination.
110 The primary judge then, in Daniel, decided that, in the circumstances, there could be one determination which in effect comprised two subsidiary determinations separately for each of those groups of people: at [4]-[23]. Although there is reference to "separate and overlapping determinations", it appears from the determination that that there was slight overlapping of the separate areas of the Ngarluma and Yindjibarndi claim areas in the area of the ridge of hills. There was one determination that the Ngarluma People held native title over part of the claim area, and the Yindjibarndi People held native title over a different part of the claim area: Daniel v State of Western Australia [2005] FCA 536. A reference to the attached map does show some overlap of the separately coloured hatched areas to depict the two areas of determination along the ridge of hills.
111 It does not appear to have been considered whether s 68 precluded the "subsidiary determinations" which, to some extent, overlapped. However, it is apparent in any event from the reasoning in Daniel that the critical step in the reasoning was addressing the determination area in the application, in two separate steps, namely by asking over what part of the claim area had native title been shown to exist so that there should be a determination; and separately addressing s 225(a)-(e).
112 In Daniel, Nicholson J said at [4]-[9]
[4] In the draft determination attached to the July reasons it was proposed, as being consistent with the reasons, that the determination should provide as follows:
"8. Non-exclusive native title rights and interests exist in relation to the Determination Area and are held by the Ngarluma and Yindjibarndi peoples as the common law holders of the native title rights and interests as follows:
• Native title held by Ngarluma peoples is held in relation to the Ngarluma claim area (excluding the area of the sea beyond low water mark) or such lesser portion as may be referred to below in respect of any particular right and interest;
• Native title held by Yindjibarndi peoples is held in relation to the Yindjibarndi claim area or such lesser portion as may be referred to below in respect of any particular right and interest."
The first respondents submit that, in respect of the overlap area, the preferable conclusion on the Court's reasoning is that two distinct native titles are held severally by the two groups rather than one native title held collectively by the two groups.
[5] To consider this aspect it is necessary first to turn to the relevant provisions in the NTA. Section 94A of the NTA requires a determination to set out the details of the matters mentioned in s 225. Section 225 provides that a determination of native title 'is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters'. It further provides that if it does exist there has to be a determination of, among other things, 'who the persons, or each group of persons, holding the common or group rights comprising the native title are'. This supports the view that there should be a determination in relation to the determination area, which will include within it a determination of who holds common or group rights. There are thus two levels of determination: the principal determination being a determination of whether native title exists in relation to the particular area, and the subsidiary determinations being a determination of the matters set out in pars (a) - (e) of s 225. Where different groups are found to hold different native titles, necessarily there is a requirement for more than one subsidiary determination. Those paragraphs require determination of who holds native title and the nature and extent of the native title rights and interests. This statutory language accommodates variations in entitlement to rights between applicants and groups of applicants.
[6] This is supported by reference to s 61 which provides that persons who may make application for native title are authorised persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Therefore, the application is directed to 'the particular native title claimed' even though not all the claimants claim the same rights. As the July reasons state at [60], the first applicants initially brought a claim that there was a single composite community known as the Ngarluma and Yindjibarndi peoples but subsequently abandoned that claim in favour of one that there were two groups, namely, the Ngarluma peoples and Yindjibarndi peoples holding rights comprising native title rights. The findings in the July reasons accepted that position subject to exclusions and issues of extinguishment and any other qualifications set out in the text of each finding.
[7] A plain reading of ss 61, 223 and 225 supports the view that the determination should be approached on the basis that the Court should make a single principal determination in which subsidiary determinations are made on the issues raised in pars (a) - (e) of s 225. That approach may, in appropriate evidentiary circumstances, lead to a finding that different persons or groups of persons hold common or group rights comprising the native title. The statute requires the subsidiary determinations to be made in relation to each group: the focus is to be on the holder group rather than a geographical area (such as an overlap area). Importantly s 225 directs attention, in respect of a particular determination area, to who holds native title and to the nature and extent of the rights and interests so held. Looked at from the perspective of each group, the fact of overlap in a geographical area is relevant only to the extent of rights of each group and does not support the making of a determination in respect of a so-called overlap area of a determination of one native title held by two groups.
[8] As has been already stated, that, however, does not mean that there should be two principal determinations. What the Court is required by s 225 is to make 'a determination of native title'. That determination is required in subsidiary determinations to identify the persons or group of persons holding common or group rights comprising the native title. Each subsidiary determination may vary as to its terms depending on the findings of fact concerning the native title rights and interests held by each claimant group. Nevertheless, there will still be one principal determination in respect of the determination area.
[9] This view is supported by the use of the description 'the determination area' as it appears in s 225(b) and s 225(c). That description is a reference to the particular area of land and waters in relation to which the claim was made and a determination is required; it does not require a focus only on the area where any native title is found to exist. Furthermore, the underlying rationale of ss 13, 67 and 68 of the NTA is that the issue of whether native title exists in any particular area is to be determined once only in respect of a determination area (i.e. in the one proceedings; subject to any revision application or appeal). For that reason the principal determination must relate to the determination area. Variations in native title holding by groups within the area are matters to be addressed in subsidiary determinations.
113 I do not, with respect, consider that that separation of the two steps is appropriate. Where there are, as here, competing applications over the same area, it is proper that - depending on the findings - there may be a determination of one application in favour of the applicant over part of the claim area, and a determination on another application in favour of the second applicant over a different part of the claim area, and each claim may be unsuccessful over part or all of the claim area, whether or not a separate claim, heard together, itself succeeds in part. But the step taken in reliance on s 61, in [6] of those reasons, is predicated upon a particular native title claim group making the claim by an applicant authorised by s 251B of the NTA. And that, in turn, enlivens the considerations in s 225(a)-(e). I consider the steps are an integrated process of the one inquiry.
114 It may be that the particular way in which that claim was made, as noted, diverted attention from the requirement of authorisation in the terms specified. It may be that there was no focus on the significance of the finding that "the native title claim group" was not found to be the group who brought the claim. It may be that s 225(a) does accommodate the recognition of more than one group of persons holding the common or group rights comprising the native title in certain circumstances.
115 The decision in Banjima People v State of Western Australia (2015) 231 FCA 456 (Banjima FC) appears to have proceeded on the basis that there can be only one native title group which holds the native title rights and interests over a particular section of country. The Full Court (Mansfield, Kenny, Rares, Jagot and Mortimer JJ) said at [54]:
Assume that the primary judge, as the State contended, had found shared rights in respect of a part of the Banjima claim area. On the basis of his other conclusions discussed in the context of grounds 1(a) and 1(c) above, it would necessarily be the case that Banjima rights and interests, at sovereignty, would be exclusive of all persons other than those who had the benefit of the shared rights and interests. The point the primary judge was making at [308], [312] and [691] was what the evidence did disclose was that the people who may have had the benefit of those shared rights did not continue to assert them. Accordingly, insofar as those shared rights are concerned, there had been no continuity of connection with the part of the land over which the (presumed) shared rights had been enjoyed at sovereignty. The primary judge was saying no more than that, in such a case, the remaining native title rights and interests, those of Banjima People, would be exclusive. There is no error in this reasoning. If there is no person who can presently assert the existence of continued shared rights in any part of Banjima country, then the Banjima People's otherwise exclusive rights and interests in the whole of their country remain and can be asserted against the world. The State's contention to the contrary wrongly assumes that if his Honour had found shared rights at sovereignty (which he did not) then the rights and interests of the Banjima People were not now exclusive as against any person. This is not the logical concomitant of the primary judge's reasoning. Banjima rights and interests, on that assumption, would be subject only to the shared rights of the particular persons who held them. As the primary judge correctly said at [317]:
Whether or not other language groups - such as the Palyku or the Yindjibarndi - also had interests at sovereignty becomes irrelevant for present purposes. If there is no other group that presently asserts any such interests, either exclusively or on a shared basis, and the evidence shows that on the balance of probabilities the Banjima traditionally had rights and interests in that area, then there is no adequate basis to deny the claimants' claim that the traditional boundaries of the Banjima extend to where they currently assert that they extend, for native title purposes.
116 That decision also informs the nature of the rulings now to be made on the contentious sections of the expert reports and other evidence. That is because it recognises that a favourable finding in an application for the recognition of native title does not necessarily mean that at an earlier point in time there may not have been other Indigenous people with some form of rights over that country but who no longer assert them. It also accommodates the recognition of different groups over different areas within a claim area if the circumstances (including the procedural circumstances) warrant that.
117 The procedural requirements are important.
118 In Commonwealth of Australia v Clifton [2007] FCAFC 190, the Full Court (Branson, Sundberg and Dowsett JJ) considered the question of whether the Federal Court may make a determination of native title in favour of a person who has not made a native title determination application under s 61 in relation to the area in question, but who is a respondent to such an application brought on behalf of a claimant group which does not include him. The Full Court affirmed that the Court did not have the power to do so. Relevantly, at [57] their Honours said:
Section 213(1) of the Act discloses a legislative intent that a determination of native title should only be made by the Court in accordance with the procedures set out in the Act. In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Part 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1).
119 As noted, that judgment was further considered by the Full Court Badimia. The primary judge had made a determination that native title did not exist in response to a claimant application made on behalf of the Badimia People. The primary issue before the Full Court was whether the NTA, properly construed, authorised the making of a determination that native title does not exist in response to a claimant application. The Full Court concluded that it did. Importantly for present purposes, one of the reasons for doing so was the reliance on the decision in Clifton and the need for compliance with the particular procedures required by s 213(1). The plurality (North, Mansfield, Jagot and Mortimer JJ) at [41] said that Clifton recognised that, where there is more than one native title claim group seeking a determination over a particular claim area, each group must follow the procedures prescribed in the NTA, and referred specifically to authorisation, the making of an application, and the provision of the information specified by s 62.
120 In this matter, the proposed joint determination is not within the scope of either the Adnyamathanha Application nor the Barngarla Application. Although the two Applicants in those matters no doubt instructed their solicitors to present that proposal, there is no evidence - indeed no suggestion - that a combined claim group as asserted has authorised the making of such a claim. I do not know whether or not they would. If they were minded to do so, they might have been expected to have brought first such a claim rather than the competing claims presented. The history of claims concerning Lake Torrens provides no basis for being confident that such a claim has been, or would be, authorised by such a combined claim group. Unlike the circumstances in Daniel, there is no joint application.
121 In those circumstances, I do not consider it proper to proceed to consider making such a determination. It is therefore not necessary to fully explore the significance of the approach in Daniel or to consider whether, in the circumstances, the other procedural requirements for a claimant application under s 61 to result in a determination of that character have been, or should have been, complied with by the two separate applications.
122 There is, of course, much to be said for the alternative conclusion. That is a contention developed, in particular by the First Applicant, albeit to recognise common, rather than joint, rights, of more than one group in the same area of land or waters.
123 The steps in that contention are first, that s 225 of the NTA defines a "determination of native title" as a determination of whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of, inter alia:
(1) who the persons, or each group of persons, holding the common or group rights comprising the native title are.
124 In its terms, the NTA contemplates that the relevant native title may be held as either "common" or "group" rights by more than one group of persons.
125 By way of factual background, supporting the contention, it is then said that there have been a number of cases that have recognised that "Aboriginal society does not mark out boundaries to land in western style": De Rose v South Australia [2002] FCA 1342 at [908] per O'Loughlin J. So much is almost self-evident. I remarked in Barngarla at [778] that Aboriginal cultural groupings are not and were never, political entities and so there was never any need for them to be geographically demarcated with the precision one expects of nation states. In Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [182], Barker J made the observation that, in some circumstances, particularly where the country of one group begins to run out and the country of another starts, there may well be a basis for concluding that both groups have rights and interests and in that sense "share" that area of country.
126 At a more interpretative level, it is pointed out that the NTA has as one of its main objects in s 3(a) "to provide for the recognition and protection of native title": Yorta Yorta HC at [76] per Gleeson, Gummow and Hayne JJ.
127 However, even accepting that the NTA is clearly remedial and beneficial legislation and must be construed accordingly: Yarmirr at [124] per McHugh J, I do not consider that those submissions properly have regard to the particular procedural prescriptions in the NTA, and the authorities addressing them.
128 I have separately, and later, in these reasons explained why, on the evidence, I have not been able to conclude, as an alternative to the competing claims of the three Applicants, that Lake Torrens, excluding Andamooka Island, was a transitional zone where the rights and interests of Western Desert and Lakes Groups people co-existed at sovereignty, and that those rights and interests remain in existence today, so that there should be a determination that identifies the rights and interests of each of the groups involved over Lake Torrens or parts of it.
129 However, I should record at this point, that I am firmly of the view that no such accommodation would be consistent with the evidence of the Kokatha witnesses, in the practical sense of there being an acceptable and accommodating sharing of country in the manner suggested, and secondly (and perhaps even more firmly) in the procedural sense that any joint resolution of the three (or two: Barngarla and Adnyamathanha) Claim Groups to support such a claim of shared rights and interests would be supported.