The Binding Agreement Question
201 With these principles in mind, I turn now to the first of the three central questions posed above (at [87(a)]): the Binding Agreement Question. It is convenient to begin by making the following factual findings that are necessary to answer this question.
202 First, the purpose of the 2001 field trip was to bring together senior representatives of the Nyamal, Palyku and Nyiyaparli claim groups to discuss and resolve overlap areas between the Nyamal claim area, on the one part, and the neighbouring Palyku and the Nyiyaparli claim areas, on the other (see [105(5)] and [109] above). With respect to the Palyku and Nyamal claims, that required a determination by the Nyamal representatives whether to exclude certain areas from the southern part of the Nyamal #1 claim area (see [105] above). The field trip was not intended to involve "mapping boundaries or undertaking anthropological research" (see at [109] above). Further, the meeting of the Nyamal and Palyku elders held on 23 March 2001, approximately one month before the field trip, decided that there needed to be a focus on two areas, that is the Abydos/Hillside area and Nullagine and the area east of it (see at [102] above). Hence, the field trip did not focus on the claims the Palyku believed they had to areas to the north and west of Nullagine such as Corunna Downs and Spear Hill. This provides a likely explanation for the observation made by Mr Gallagher in his affidavit that there was no discussion of the Palyku claims to those areas during the field trip (see at [106(31)] above).
203 Secondly, the Palyku Working Group meeting of 20 February 2001 nominated seven Palyku People to participate in the field trip (see at [101] above). However, in her discussion with Mr Gallagher shortly before the field trip, Ms Parkinson, a PNTS lawyer, said that three senior Palyku men had been nominated to attend: Mr Wabbie, Mr Tommy Stream and Mr Christian (see at [105(11)] above). In the end result, only one senior Palyku man participated in the field trip: Mr Christian. I have excluded Mr Lindsay Yuline from this category because the evidence shows that, at the time, he could not be described as a senior Palyku man (see [104], [116(17)] and [138(7)] above). Mr Charlie Coppin has also been excluded because, while he was very knowledgeable about the issues to be considered on the field trip, his role was as a PNTS staff member (see at [104] above). It is immaterial, for present purposes, whether Mr Wabbie's and Mr Stream's absence was occasioned by age and infirmity, or the result of a deliberate decision by them not to attend.
204 Thirdly, I do not accept Mr Stream's assertion that, at the time of the field trip, Mr Christian was suffering from the early stages of dementia (see at [116(16)] above). Instead, I have had regard to the evidence of Mr Gallagher, who dealt with Mr Christian during the field trip, and have relied on the fact that he did not make any critical comments about Mr Christian's mental capacity while he was on the field trip. I do, however, accept Mr Kevin Stream's evidence about which Palyku People could, or could not, speak for Nullagine and the areas north of it.
205 On that aspect, as regards Mr Christian, I accept the evidence of Mr Gallagher that his country was around Hillside Station (see at [110] above). That Station is located south-west of Nullagine. It was originally located in the claim area of the Nyamal #1 claim and was removed from that claim area in 2006 when the Nyamal People withdrew their claim boundary to the north. This was, of course, one of the outcomes of the 2001 field trip. However, having regard to the location of Mr Christian's country and Mr Gallagher's evidence that he tended to defer to others, particularly Mr Billy Dunn, when the discussion turned to Nullagine during the field trip (see at [106(24)] and [111]), I accept Mr Kevin Stream's evidence that Mr Christian could not speak for Nullagine and the areas north of it. Given that Mr Christian was the only senior Palyku man on the field trip, this provides a further explanation as to why there was no discussion of the Palyku claims to that area during the field trip.
206 As for the other two senior Palyku men who were anticipated to go on the field trip, I accept Mr Gallagher's evidence that Mr Wabbie could speak for the country in and around Bonney Downs Station (see at [110] above). Bonney Downs Station or pastoral lease is located to the north-east of Nullagine. With respect to Mr Tommy Stream, Mr Gallagher's evidence was that his country was in and around Corunna Downs (see at [110] above). That evidence is consistent with the evidence of Mr Coppin (see at [112(5)] above). Corunna Downs is located to the north-west of Nullagine. Accordingly, with the qualification that Mr Wabbie may have also fallen into the same category, I am prepared to accept Mr Kevin Stream's evidence that his father, Mr Tommy Stream, was considered by the Palyku People to be a person "who could speak on behalf of Palyku People for Nullagine and the areas north of there" (see at [116(16)]). Finally on this aspect, it should be noted that, from the outset of the Nyamal #1 claim, Corunna Downs fell within the claim area of that claim and it now also falls into the Palyku # 2 claim area.
207 Fourthly, the first day of the field trip was spent travelling to, and staying at, Nullagine ([106(15)]-[106(16)]). Thereafter, on the morning of the second day, the party travelled a few kilometres south of Nullagine to a point near Garden Pool, then south-east to Billanooka Station and then north-east to Mount Divide Station where they camped overnight ([106(23)]-[106(26)]). On the third day they travelled generally north-west back to Port Hedland (106]-[106(30)]). While Hillside Station is mentioned in Mr Gallagher's affidavit (see [106(24)], there is no indication that Station was visited during the field trip, or that the party travelled west of Nullagine.
208 Fifthly, during the field trip, a map or maps were used to facilitate at least two of the discussions that occurred (see at [106(16)] and [106(29)] above). On this aspect, I accept the evidence of Mr Coppin that neither he, nor Mr Christian, could read maps (see at [112(4)] above). Accordingly, I do not consider Mr Christian could have properly participated in those discussions. Furthermore, apart from his discussion with Mr Christian mentioned earlier, Mr Gallagher did not record him (Mr Christian) saying anything of note in respect of the issues that were discussed during the field trip (see at [106]-[110] above). Mr Gallagher did, however, specifically record that one of the senior Nyamal men present, Mr Johnson Taylor, "expressed a strong view that Nullagine was Nyamal country" (see at [106(16)] above).
209 Sixthly, I note the following features of Mr Gallagher's evidence bearing on the question whether any relevant agreement was reached during the field trip. First, the only mention in Mr Gallagher's affidavit of any agreement having been reached during the field trip appeared in his description of what occurred on the second day concerning the Nyamal-Nyiyaparli overlap area (see at [106(28)] above). In contrast, he did not speak of any agreement being reached on the first day at Nullagine when the discussion took place with respect to the boundaries of the three claims. Nonetheless, he did record the Nyamal men present during that discussion talking about "pulling the Nyamal boundary back" (see at [106(16)] above). He also recorded Mr Teddy Allen, one of the senior Nyamal men present, expressing his surprise on the second day of the field trip that "the Nyamal boundary had been drawn so far south" (see at [106(29)] above). Finally on this aspect, Mr Gallagher did mention in his affidavit that, on the last day of the field trip, the participants gathered around a map to "confirm the findings of the field trip". However, he did not say what those findings were (see at [106(29)] above).
210 Next, on this aspect, it is to be noted that Mr Gallagher's affidavit stands in stark contrast to the report which he provided to PNTS some time after the field trip. As can be seen from [108] above, in that report he expressly records that "the Nyamal representatives" and "the Palyku representatives" agreed to undertake specific actions. In the case of the Nyamal representatives, it was "to withdraw their southern boundary to a line proceeding roughly in a [sic] east-south-east direction from the vicinity of Hillside Station to the north-east corner of the Palyku claim". In respect of the Palyku representatives, it was "to amend their boundary to ensure that Nullagine fell within the boundaries of the Nyamal claim".
211 Then, on this aspect, it is to be noted that, as with his affidavit evidence, Mr Gallagher did not recall the detail above in his oral evidence. Instead, he merely said that a "deal had already been done" before the field trip and that the Nyamal men "were fairly quick to agree that they could withdraw the southern boundary of the Nyamal back to the northern boundary of Palyku" (see at [109] above). That is, he essentially described what occurred on the field trip as an easily made unilateral concession by the Nyamal representatives concerning the southern boundary to their claim.
212 Finally, on this aspect, there is the evidence of Mr Charlie Coppin, the only other surviving participant on the field trip to give evidence. He said in his affidavit that he did not believe "all the men were agreeing that Palyku country stops at Garden Pool" (see at [112(10)] above). Garden Pool is located "a few" kilometres south of Nullagine (see at [106(23)] above). Mr Coppin added that they did not go to Garden Pool during the field trip. This may be inconsistent with the evidence of Mr Gallagher who said they were "near Garden Pool" on the morning of the second day of the field trip (see at [106(23)] above). If it is, since Mr Coppin was unavailable for cross-examination and Mr Gallagher was, I prefer the latter's evidence on this point. However, nothing turns on this discrepancy.
213 Mr Coppin's evidence also raises a query about the accuracy of Mr Gallagher's report. He said he had a "row" with Mr Gallagher about "[s]ome places he didn't put down" and that he wanted to check "the paper" after the field trip (see at [112(10)] above). I take this to be a reference to Mr Gallagher's report. While Mr Coppin's unavailability for cross-examination means this evidence must also be given lesser weight, I note there is some other evidence that also raises a query about the accuracy of Mr Gallagher's report. That appears in the statement Mr Nick Smith, an anthropologist, made at the Nyamal claim group meeting on 28 October 2003 that Mr Gallagher "did not produce a proper report" and that "there was no paper work" (see the first version of the minutes of that meeting at [142] above).
214 Seventhly, having dealt with the evidence about what occurred on the 2001 field trip, it is convenient next to review what happened after that trip commencing with the Palyku Working Group meeting on 4 May 2001. Mr Gallagher's affidavit evidence about that meeting was brief (see at [107(34)] above). Notably, in that passage of his affidavit, he did not mention any agreement having been reached between the Nyamal representatives and the Palyku representatives. Further, he did not, mention the Nullagine Area, or the Palyku People agreeing to do anything in respect to that Area. Instead, he said the "proposed boundary" was uncontentious at the meeting. In this respect, I do not consider his use of the word "proposed" sits well with the definitive agreement described in his report above.
215 However, the minutes of the 4 May 2001 meeting do provide support for the statements in Mr Gallagher's report that there was an agreement reached between the representative/s of the Palyku People and the representatives of the Nyamal People during the 2001 field trip. That is, those minutes refer to a "[f]airly easy agreement that Nullagine is Nyamal" (see at [137] above). As well, they record that "[t]he boundary between Hillside and Nullagine was moved up to be a straight line". However, the resolution passed at that meeting is more ambiguous. It "endorses" the "newly negotiated boundary" and says nothing about the Nullagine Overlap issue or about any agreement having been reached during the field trip.
216 While Mr Jaffrey's evidence about the 4 May 2001 meeting cannot be given much weight, essentially because he does not recall that meeting (see at [139] above), his evidence (see at [138(7)] above) does highlight an important point on a different aspect, namely that Mr Coppin was the only person out of the seven Palyku elders nominated at the Palyku Working Group meeting on 20 February 2001 who participated in the field trip (see at [101] above). This evidence therefore serves to qualify the statement Mr Jaffrey is recorded to have made at the 4 May 2001 meeting about endorsing the actions of "the elders" (see at [137] above).
217 Two other aspects of the minutes of the 4 May 2001 meeting are worth mentioning. That is the advice Mr Ryan is recorded to have given to the meeting that the Palyku Applicant will have to be involved in the process and that its members will have to "agree with the new negotiated boundary" (see at [137] above). This is consistent with the apparent distinction drawn at the Palyku community meeting on 3 February 2001 between the Palyku Working Group and the Palyku Applicant (see at [98] above). It also suggests a view that the Palyku Working Group lacked the authority to confirm any agreement if one had been reached during the field trip. The second concerns the discrepancy between the areas Mr Gallagher said in his affidavit evidence were visited during the field trip (see at [207] above) and the statement in the minutes on that subject, namely "[l]ooked at country to the west of Nullagine over to Hillside Station" (see at [137] above). One of these statements is plainly incorrect. Since the description of the course of the field trip was based on Mr Gallagher's contemporaneous notes, I conclude that it must be the latter. This, in turn, raises a query about the accuracy of the 4 May 2001 minutes.
218 Eighthly, aside from the deliberations at the 4 May 2001 meeting, the following features of the conduct of the Palyku People in subsequent years have a bearing on whether an agreement was reached during the 2001 field trip. First, there is no evidence that the Palyku Working Group, or anyone on their behalf, took any steps to communicate to the Nyamal People the outcome of the 4 May 2001 meeting. Further, there is also no evidence that the Palyku Working Group, or the Palyku Applicant, or the Palyku claim group, took any steps that are consistent with such an agreement having existed, for example, taking any steps to amend the Palyku #1 claim to remove the Nullagine Overlap Area. To the contrary, the dispute about that overlap area remains on foot to this day. On that issue, there is also the evidence that on 18 March 2016, the Palyku People rejected an offer made by the Nyamal People in 2014 to relinquish its claim to the Nullagine Overlap Area on certain terms (see at [184]-[185] and at [179] above respectively).
219 Further on this aspect, the record shows that, from time to time since 2001, the Palyku People have reiterated their claims over the Nullagine Overlap Area and/or the area to the north and west of Nullagine, including, for example, Corunna Downs (see, for example: the 18 May 2005 letter at [150] above; the 8 July 2005 Palyku Working Group meeting at [151] above; the 24 August 2005 letter at [153] above; the 15 and 16 September 2006 Palyku claim group meeting at [156] above; the 19 November 2007 Palyku community meeting at [159] above; the 28 and 29 August 2008 Palyku claim group meeting at [163] above; the 23 and 24 July 2009 meeting of the Palyku at [169] above; and the 13 March 2014 and 21 March 14 letters at [175] and [176] above).
220 Finally on this aspect, the record also shows that the Palyku Working Group waited for the Nyamal People to amend the Nyamal #1 claim boundary to give effect to their decision to act to "pull back" the boundary of their claim and then, once that finally occurred in 2006, decided to make a claim over the area so removed (see the 19 April 2002 Palyku Working Group meeting at [146] above and the 19 November 2007 Palyku community meeting at [159] above respectively). This provides further support for the conclusion mentioned above about the Nyamal representatives on the field trip having made a unilateral concession with respect to the location of the southern boundary of their claim area.
221 Ninthly, I turn to the Nyamal People's conduct after the 2001 field trip and what it may evidence about whether any agreement was reached during that trip. It is convenient first to consider the Nyamal meetings held since April 2001 where the issues of the 2001 field trip and the proposed boundary changes to the Nyamal #1 claim boundary were discussed.
222 First, while Mr Gallagher (at [107(36)] above) and Ms Eaton (at [114] above) gave evidence that there was a Nyamal working group meeting in May 2001, there is no reliable evidence as to what occurred at that meeting. That meeting aside, in the following four years, there were at least three minuted meetings where the 2001 field trip and the proposed boundary changes to the Nyamal #1 claim were discussed. Each of those meetings appears to have been a meeting of the Nyamal claim group. That appears on the face of the minutes of the last two meetings. With respect to the first meeting, I infer that to be so from the items that were discussed at that meeting, for example the claim group description.
223 The minutes of the first of those meetings (on 5 December 2001) merely refer to the Nyamal People agreeing to "pull back" their claim boundary "to remove the overlap" (see at [141] above). There is no mention of the Palyku People having to do anything in return, much less of any agreement having been reached.
224 Both versions of the minutes of the second of those meetings (on 27 and 28 October 2003) are to substantially the same effect. They both record that the boundary was agreed to by all the relevant parties and that it was correct (see at [141] and [142] above). This provides better evidence that an agreement was reached during the field trip, but it is equivocal as to what action the Palyku People were required to take by that agreement. Further, both sets of minutes imply some uncertainty about the outcome of the field trip because they record that PNTS was required to speak to those who were on the field trip to confirm the boundary.
225 The minutes of the third of those meetings (on 23 May 2005) record that the Nyamal claim group were happy with certain "proposed amendments" which, among other things, "substantially reduc[ed] the overlap with Palyku" (see at [144] above). Again, there is no indication from those minutes that the Palyku People were required to take any steps in return for the reduction referred to, much less of any agreement having been reached. Further, the reference to "substantially reduc[ed]" implied that some overlap would remain, namely, one must assume, the Nullagine Overlap Area.
226 The only other pertinent item of conduct of the Nyamal People in this period after the 2001 field trip is that already mentioned above, namely the lack of any attempt by the Nyamal People to enforce the alleged agreement with the Palyku People relating to the withdrawal of their claim over the Nullagine Overlap Area. Since this was, on the Nyamal Applicant's case, the express term of the agreement allegedly reached, it is telling as to the existence or non-existence of that agreement that the Nyamal Applicant has taken no action to enforce it.
227 Having regard to these factual findings, I consider the question posed at [87(a)] above must be answered in the negative. If no such agreement was reached, it self-evidently cannot found this aspect of the Nyamal Applicant's abuse of process case. My reasons for this conclusion are as follows. It is convenient to begin with the strongest evidence of an agreement having been reached during the 2001 field trip and endorsed at the 4 May 2001 meeting. That is contained in Mr Gallagher's report about the actions the representatives of each group agreed to undertake (see at [108] above), together with the statement in the 4 May 2001 minutes: "Fairly easy agreement that Nullagine is Nyamal. The boundary between Hillside and Nulligine [sic] was moved up to be a straight line" (see at [137] above). Against that evidence, there are the matters summarised below which, on balance, lead me to conclude that no such agreement was likely to have been reached. Instead, it is most likely, in my view, that the senior Nyamal men present on the field trip agreed among themselves to "pull back" the boundary of their claim as a unilateral concession to the traditional realities that confronted them, namely that, in the process of lodging their nine claims between 1995 and 1997 (see at [5(4)] above), they ended up with a boundary of their combined claim, the Nyamal #1 claim, which was located too far to the south.
228 First, and perhaps most importantly, the traditional country of Mr Christian, the sole senior Palyku man present on the field trip, was in and around Hillside Station to the south-west of Nullagine. He could not, as I have found above, therefore, speak for the country north of Nullagine. This is partly reflected by the fact that, during the field trip, he deferred to Mr Billy Dunn in respect of the country around Nullagine. It is, therefore, most unlikely, in my view, that he said anything of moment about the Nullagine Area during the field trip, much less that he made an agreement to withdraw the Palyku claim over that area. Furthermore, I think it is even less likely that he made a "[f]airly easy agreement that Nullagine is Nyamal", as the 4 May 2001 minutes seem to suggest.
229 The other matters that I have had regard to in reaching this conclusion, in summary, include the following. First, that the particular purpose and focus of the 2001 field trip was the southern boundary of the Nyamal #1 claim, not the Nullagine Overlap Area, nor the areas north of Nullagine including Corunna Downs. Secondly, the doubt about the accuracy of Mr Gallagher's report raised by Mr Charlie Coppin in his evidence, which is supported by Mr Nick Smith's statement at the Nyamal claim group meeting on 28 October 2003. Thirdly, the ambivalence in Mr Gallagher's written and oral evidence about whether an agreement was reached during the field trip. Fourthly, the ambiguities in the minutes of the post-field trip meetings, including the 4 May 2001 meeting of the Palyku Working Group and the three Nyamal claim group meetings, and the inaccuracy in the minutes of the former. And finally, the fact that, in the months and years after April/May 2001, neither the Palyku People nor the Nyamal People acted in a way that was consistent with an agreement having been reached of the kind described in Mr Gallagher's report, or in the 4 May 2001 minutes. Instead, the Nyamal People gave effect to the unilateral concession they had made about the boundary of their claim being "too far south" and the Palyku continued to assert their claims to the Nullagine Overlap Area and/or the areas north of Nullagine.
230 Since there was no agreement to the effect alleged by the Nyamal Applicant at [79] above, it necessarily follows that there could not have been any express term of that non-existent agreement that required the Palyku People to withdraw their claim over the Nullagine Overlap Area. Moreover, since there was no such agreement and no such express term to that effect, it follows that there was no warrant to imply a term which restricted the Palyku People from making any future claim over the area now covered by the Palyku #2 claim. Furthermore, even if there had been such an agreement reached, it is difficult to see how commercial contractual concepts such as "business efficacy" should be employed to imply a term into a relationship between two native title claim groups with respect to their native title rights and interests to an area of land under the NTA. Finally, it is worth noting one of the ironies of the Nyamal Applicant's present application. It is that, even if it succeeded in this application to have the Palyku #2 claim summarily dismissed, that would not result in a final determination of the longstanding dispute between the Palyku People and the Nyamal People with respect to the Nullagine Overlap Area.
231 It follows from this conclusion that there is no occasion to consider a number of other issues raised by the parties in connection with this agreement question. That includes the Nyamal Applicant's peculiar non-binding agreement contention. It also includes the contentions relating to the authority of the Palyku Working Group, and/or the separate authority of the Palyku Applicant under s 62A of the NTA, to enter into an agreement that would have been binding on the then present and future generations of the Palyku People; or, relatedly, whether such an agreement had to take the form of a registered ILUA under the NTA for it to achieve that binding effect. On these questions, I would simply refer to my discussion in QGC Pty Limited v Bygrave (No 2) (2010) 189 FCR 412; [2010] FCA 1019 at [64]-[69] and observe that the Nyamal Applicant's contentions on these aspects are fraught with difficulty.