Significance of the 2012 Arabana Determination - Particulars 7 and 7A
56 By Particular 7A it is alleged that the primary judge erroneously negated the probative force of the 2012 Arabana Determination by wrongly concluding that inferences able to be drawn from it were equally able to be drawn in relation to the claim of the Walka Wani. There were three components to this argument.
57 First, it was submitted that there was a factual error in the conclusion that there existed a native title determination in favour of the Walka Wani in respect of any land or waters immediately adjacent to the Overlap Area. It is to be recalled that the 2006 YA Determination was not made in favour of the same persons who comprised the Walka Wani claim group: the Walka Wani comprising an amalgam of YA and LSA. It is correct to say that LSA do not hold NTRI in any immediately adjacent land or waters. As the Arabana correctly submitted, the nearest area in which the Walka Wani as a composite group hold NTRI is the land subject to the Eringa No 1 Determination, some 25 km to the north.
58 The reasons of the primary judge at [850] (extracted at [38] above) nonetheless disclose that he was alive to the circumstance that Walka Wani claim group did not wholly equate with the persons who hold native title by virtue of the neighbouring 2006 YA Determination. So much is apparent from the phrase "or elements of them". His Honour's reasoning may be fairly understood as recognising that some persons included in the Walka Wani claim group could point to the 2006 YA Determination as proof of a connection within the immediately adjacent area to which it related. The primary judge should not be understood as concluding that the inference of connection with respect to the adjacent area was an inference able to be drawn with respect to any persons included in the description of the Walka Wani who are not native title holders there. The first aspect of the argument is therefore rejected.
59 Secondly, the primary judge is said to have erred by equating the force of the inference that might be drawn in favour of the Arabana to that which might be drawn in favour of the Walka Wani by reference to the respective adjacent determinations.
60 We accept that the language at [850] implicitly suggests that each of the 2012 Arabana Determination and the 2006 YA Determination was at least capable of informing the question of connection in respect of each respective claim group in the same way and with the same force. To that extent the reasoning is incorrect, given the earlier finding that it was the Arabana and not the Walka Wani who had established that their apical ancestors were in occupation of the Overlap Area at the time of effective sovereignty and that, at that time, they held NTRI there in accordance with their traditional laws and customs. However, as will be explained, we do not consider that error to have resulted in error in the assessment of the case of the Arabana on the question of connection, having regard to the reasons for judgment as a whole.
61 Thirdly, it was submitted that by equating the inferences available to be drawn in favour of the Arabana and the Walka Wani by reference to the immediately adjacent determinations, the primary judge effectively negated the probative force of the 2012 Arabana Determination altogether and for that reason refused to draw the compelling inferences that naturally ought to have been drawn from it.
62 That argument is without merit. On a proper reading of the reasons as a whole, the primary judge made no finding inconsistent with the 2012 Arabana Determination and indeed made a number of findings concerning the Overlap Area by a process of inference from the facts and circumstances persisting on the larger area of adjacent land to the south. The primary judge:
(1) set out the traditional laws and customs of the Arabana by which rights and interest in land are possessed;
(2) set out (at [845]) the matters noted by Finn J in Dodd concerning the continuing connection of the Arabana in respect of the area subject to the 2012 Arabana Determination including:
(a) the continued observance of normative rules relating to authority, the transition of Arabana names and kinship terms;
(b) maintenance of knowledge of the traditional dreaming stories (Ularaka) and the normative rules related to them;
(c) the continued residence of Arabana people in the area; and
(d) the Arabana claimant knowledge of the area and their continued engagement in traditional activities including hunting and gathering for food;
(3) expressly stated that whilst connection with the wider region is insufficient to establish NTRI in the Overlap Area, that did not mean that the 2012 Arabana Determination should be ignored (at [848]);
(4) acknowledged that the 2012 Arabana Determination has been obtained "by satisfying the Court that, in contemporary Arabana law and custom, all Arabana country belongs to all Arabana generally" (at [848]);
(5) said that it was pertinent that the possession of NTRI under the traditional laws acknowledged and customs observed by the Arabana generally had been recognised (at [848]);
(6) observed that the Overlap Area comprised a very small fraction of the overall area that had been claimed by the Arabana as Arabana land (at [849]);
(7) recognised that its existence as a separate area was an artefact of colonial decisions (particularly the establishment of the township of Oodnadatta) which bore no relationship with the boundaries of Aboriginal country and that this would make it natural for the Court to have regard to matters bearing on the Arabana connection in the larger area (at [849]); and
(8) expressly accepted a number of matters upon which the Arabana relied arising out of the 2012 Arabana Determination, including the finding that rights to Arabana country are held, under the Arabana system of law and custom, by Arabana society as a whole, with Arabana people and families having localised attachments, and that under Arabana rules, rights in land are based on filiation from known Arabana persons (at [853] - [854]).
63 As discussed below, the primary judge went on to have regard to a number of matters affecting the immediately adjacent area and made an assessment of their relevance to the Overlap Area in the context of the evidence as a whole. In our view, the misstatement of the beneficial evidentiary value of the 2006 YA Determination to the Walka Wani Claim was not causative of error in his Honour's nuanced and thorough assessment of all of the evidence bearing on the Arabana's asserted maintenance of connection with the Overlap Area. It is plain that the primary judge did not draw the singular inference from the 2012 Arabana Determination now urged on this appeal. However, his Honour's reasons for not drawing that inference were not related to his earlier statement equating the availability of any such inference with that available to be drawn in favour of the Walka Wani.
64 By Particular 7 it is alleged that in undertaking his assessment of the evidence, the primary judge "erred in failing to appreciate and give effect to the significance and probative force" of the 2012 Arabana Determination. That broader argument must be rejected in light of our findings with respect of the remaining Particulars.
65 In oral submissions the argument went further: it was said that the 2012 Arabana Determination was sufficient in and of itself to establish that the Arabana had maintained a connection with the Overlap Area in accordance with s 223(1)(b) of the NT Act and that the primary judge ought to have so found.
66 The submission that the 2012 Arabana Determination was sufficient evidence to establish the requisite connection with the Overlap Area was not advanced by the Arabana at any time in the course of the trial. Unsurprisingly, there is no discrete attention given to it in the reasons of the primary judge. The reasons reflect the manner in which the Arabana presented their case with respect to s 223(1)(b) of the NT Act at trial, that is, by reliance upon a multiplicity of factual matters that together were said to be sufficient to discharge their onus of proof. The 2012 Arabana Determination was but one of them.
67 Further still it was alleged that the conclusion of the primary judge with respect to the issues under s 223(1)(b) were precluded as a matter of law because they were said to be inconsistent with certain aspects of the 2012 Arabana Determination that were said to be legally binding. When pressed to identify which part of the reasons was affected by error of that kind, Counsel for the Arabana pointed to the following passages (together with [912] and [913] extracted earlier in these reasons):
907 Looked at more generally, a number of matters were absent from the Arabana evidence concerning connection. There is relatively little evidence of ritual associations with sites, or of 'singing of country', and no evidence of the storage of sacred objects on the Overlap Area. In the case of the Arabana witness with the most knowledge of original traditional law and custom (Mr Strangways), there is no evidence of him coming back to the Overlap Area to reconnect with it. His physical presence on the Overlap Area is confined to passage through it. He does not visit sites and it seems has not spent a night in Oodnadatta since the late 1950s or early 1960s. His acknowledgement of Arabana traditional law and observance of Arabana traditional custom in relation to the Overlap Area is now of a spiritual rather than practical kind.
908 The Court was not asked to hear gender restricted evidence from the Arabana and, even though Aaron Stuart had concerns about some of his evidence being heard by women, he did give evidence at one site without any objection to the presence of females and there was no evidence that gender specific division of knowledge is being taught within the Arabana People.
909 The Ularaka relating to the Overlap Area are not being taught to the younger generations. I note again that Aaron Stuart said that he had taught 'a little bit, now and then' to his own children. Leonie Warren acknowledged that she had not been taught any of the Ularaka relating to the Overlap Area and Joanne Warren was unsure about the details of several.
910 Much of this is explicable given the movement of the Arabana away from Oodnadatta to which I have referred earlier.
911 Section 223 requires not just that the traditional laws and customs be known but that rights in land in this case the Overlap Area, be possessed by the acknowledgement and observance respectively of those laws and customs. It is by that acknowledgement and observance that the connection with the Overlap Area must be shown. Knowledge of what used to be the case is insufficient. Mr Strangways plainly has knowledge of Arabana traditional law and custom, and he would acknowledge and observe Arabana law and custom in the Overlap Area. Aaron Stuart's evidence showed some knowledge of Arabana traditional law and customs but relatively little by way of actual acknowledgement and observance of them giving rise to a connection with the Overlap Area.
(emphasis in original)
68 We do not otherwise consider the conclusions in those paragraphs to be contrary to any legal principle concerning the binding nature of the 2012 Arabana Determination. The relevant principles were briefly summarised by the primary judge at [54] (extracted at [34] above) by reference to what the Full Court said in Starkey v South Australia (2018) 261 FCR 183. As identified by Reeves J (with whom White J agreed at [401]), that statement of principle may be enlarged upon as follows:
(1) a native title determination is commonly described as a judgment in rem that is binding on all of the world: Starkey (at [198]), and see Wik Peoples v Queensland (1994) 49 FCR 1 (at 8); Dale v Western Australia (2011) 191 FCR 521 (at [92]);
(2) the particular matters of which a native title determination dispose once and for all are to be ascertained according to the provisions of the NT Act, particularly s 223(1) and s 225: Starkey (at [198]);
(3) section 225 requires that a determination of native title in relation to particular land and waters identify who holds the rights comprising the NTRI concerned, the nature and extent of those NTRI in relation to that area, the nature and extent of other interests in relation to that area, and the relationship between those two sets of rights: Starkey (at [199]);
(4) the NTRI referred to in s 225 are those defined by s 223(1): Starkey (at [200]);
(5) the traditional laws and customs from which those NTRI derive are fundamental to that definition: Starkey (at [200]);
(6) the NTRI recognised in a determination are those having their origin in the traditional laws acknowledged and the traditional customs observed by the native title holders: Starkey (at [200]);
(7) accordingly, one of the most fundamental matters disposed of once and for all in a determination is that the NTRI possessed in the area covered by the determination are of a traditional nature, that is, they are NTRI having pre-sovereignty origins: Starkey (at [201]);
(8) in addition, to obtain a determination of native title the native title holders must establish that their connection with the area by those traditional laws and customs has been maintained: Starkey (at [202]); and
(9) accordingly, the determination recognises as a fundamental matter that the NTRI possessed in relation to the area have "that intrinsic continuity element": Starkey (at [202]).
69 It is an abuse of process for a party to seek to re-litigate a fundamental matter expressly or necessarily encompassed within an earlier determination, and to do so may otherwise give rise to an issue estoppel: Dale (at [90] - [93]), CG v Western Australia (2016) 240 FCR 466 (at [46]). In addition, a party to a native title determination application cannot lead evidence that is inconsistent with a conclusion upon which an existing native title determination is based: Starkey (at [240]); Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 (at [612] - [613]).
70 However, it remains that the factual matters essential to a valid determination of native title are geographically specific, so that, for example, an existing determination of the nature of NTRI held by a group over one area will not preclude a party from contending for a rights of a different nature over an adjacent area of land. As the Full Court said in Fortescue Metals Group v Warrie (2019) 273 FCR 350 (at [112]):
The exercise of judicial power in Daniel/Moses created, to use the language in Tomlinson at [20], a 'new charter by reference to which [the question of native title in the Daniel/Moses land and waters] is in future to be decided as between' those who were parties to that claim, and a new charter in rem, in relation to that land and waters. That included a wide range of existing proprietary interest holders, as the Moses and Daniel determinations demonstrate, whose proprietary rights and interests were either adjusted, or preserved, upon the recognition of the Yindjibarndi People's and the Ngarluma People's native title in the Daniel/Moses land and waters. It also included a range of future proprietary interest holders who would be required to recognise the native title of the Yindjibarndi and Ngarluma Peoples, to the extent set out in the determination. However the 'charter' was as to that land and waters, and as to all existing and future interest holders in that land and waters. In terms of then existing proprietary interest holders, this did not include the appellant. The Daniel/Moses determinations 'quelled' the controversy about native title in relation to that land and waters. A determination under s 225 could not reach beyond the land and waters which were the subject of the claim, and any non-native title proprietary interests in that land and waters. Again, we do not accept this outcome has any automatic or inevitable impact on the claim to the Warrie land and waters, or on the myriad of (different) sets of persons who have, or may have in the future, proprietary interests in the Warrie claim area.
(emphasis in original)
71 An in rem order may otherwise serve as prima facie evidence of the facts that are essential to its validity: Harvey v The King [1901] AC 601 (at 611); Hill v Clifford [1907] 2 Ch 236 (at 244 - 245).
72 The authorities summarised above are based on two distinct bodies of principle. The first is concerned with the implications of a determination of native title being a judgment in rem as it affects rights and interests in land. In that respect it is enforceable against all of the world. The second is concerned with the conduct of litigation and the consequences of issues being raised (or not) by the parties and resolved (or not) by the Court in an earlier proceeding.
73 With respect to the principles concerning judgments in rem, it will be necessary to identify those facts that are essential to the validity of the 2012 Arabana Determination and those that are not. In the performance of that task, care should be taken to distinguish between the orders that together comprise the determination (and the factual preconditions to their validity) and other facts that might be referred to in the published reasons for making the orders.
74 A determination of native title may be made under s 13 and s 61 of the NT Act, as was the case at first instance. Alternatively, a determination of native title may be made by consent under s 87 or s 87A of the NT Act, as was the case with respect to all of the consent determinations surrounding the Overlap Area.
75 Reasons for judgment delivered after a contested trial of the issues arising on a native title claimant application will contain factual findings, based on evidence and established to the civil standard of proof. Those findings may supply factual detail as to how the elements of the definition of native title were fulfilled in the particular case and may give rise to an issue estoppel or found an argument as to abuse of process as against parties to that action. The persons comprising the Walka Wani claim group were not party to the proceeding culminating in the orders in Dodd constituting the 2012 Arabana Determination. Such persons are of course bound by the 2012 Arabana Determination by virtue of its characterisation as a judgment in rem. But it is not correct to treat all factual matters referred to in the reasons for judgment in Dodd as having the same character.
76 Determinations of native title made by consent are, of course, judgments in rem having the same force as those made after a contested trial. However, it does not follow that all factual matters referred to in the reasons accompanying a consent determination necessarily have the status of a finding that may give rise to an issue estoppel or an abuse of process, nor that they are "findings" essential to the validity of the judgment. The factual matters essential to the validity of a consent determination must be determined by reference to the NT Act itself.
77 A determination of native title must set out details of the matters mentioned in s 225 (which defines the expression "determination of native title"): NT Act, s 94A. Except in cases where the power under s 87 or s 87A is exercised, it is a precondition to the making of a determination that the Court be satisfied that all of the essential elements of a determination of native title are established on the evidence to the civil standard of proof. By contrast, the Court may make a determination of native title without conducting a hearing to resolve disputed questions of fact, if the criteria under s 87 or s 87A of the NT Act are met.
78 Section 87 applies if, at any stage of a proceeding after the end of a prescribed period the parties reach an agreement on the terms of the determination, the agreement is signed by all of the parties and the agreement is filed in the Court: NT Act, s 87(1). The purpose of the power in s 87 is to give effect to the parties' agreement without the need to conduct a trial to resolve substantive factual questions. As North J explained in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474:
37 In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660; Ward v Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. …
38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. …
79 See also Nelson v Northern Territory (2010) 190 FCR 344 (at [8] - [13]).
80 It is not uncommon for reasons accompanying a consent determination to set out some of the materials to which the State party has referred in discharging its responsibilities and the factual matters referred to in those materials. The reasons of Finn J in Dodd are illustrative (at [5]):
I have had the benefit of joint submissions filed by the applicant and the State. As will be seen they demonstrate why the State is satisfied that the agreed determination is an appropriate and proper one. The submission itself provides considerable reassurance to the court in the present application. I will refer to the material it traverses at some length, beginning with a description of the Determination area itself which is of no little significance to Australians generally.
81 However, the factual matters informing the State party's position are not matters about which the Court has conducted a trial. The reasons in such cases should not be understood to contain "findings" of a kind to which the principles relating to issue estoppel or abuse of process might readily apply, other than findings to the effect that the essential preconditions for the making of a consent determination are met. In the exercise of the powers conferred by s 87 and s 87A the Court does not concern itself with a factual enquiry as to how the elements of the definition of native title are satisfied. Rather, the Court's role is to satisfy itself that the draft determination put forward by the parties is one that sets out the matters referred to in s 225 of the NT Act, as required by s 94A. It is neither necessary nor appropriate in that legal context to make findings about (for example) the content of Aboriginal law and custom under which NTRI are possessed, nor as to how the requisite connection under s 223(1)(b) has been maintained, nor as to intermural matters concerning relationships between particular native title holders vis a vis each other in relation to the land and waters.
82 Accordingly, when it is said on this appeal that the findings of the primary judge were impermissibly inconsistent with the 2012 Arabana Determination, it is necessary to identify precisely what is meant by the submission. It should not be presumed that Finn J in Dodd enquired into the facts asserted by the applicant party in its dealings with the State, nor that his Honour made factual findings on the balance of probabilities. To the extent that Finn J's reasons for judgment are expressed in language suggesting that "findings" had been made by the Court, for the most part the findings were not essential to the resolution of the application before him and do not enliven the principles summarised above with respect to judgment in rem on issue estoppel.
83 It was further submitted that the primary judge's conclusion that connection in accordance with s 223(1)(b) had not been established necessarily involved a denial or contradiction of fundamental matters established in Dodd because it involved a rejection of the contention that the Arabana continue to be a society defined by their acknowledging a normative system of laws and observance of customs having continuing vitality today. In written submissions the Arabana articulated the "essential elements" of their recognition of native title in Dodd in the this way (at [13]):
The determination of native title in Dodd determined that the Arabana People were a society that has continued to observe and acknowledge the pre-sovereignty laws and customs of the Arabana People, under which NTRI were and are still possessed and by which they have connection to the land and waters of the Arabana 1 Determination area. Moreover, it determined (implicitly or expressly) inter alia: the normative rules for membership of the Arabana People; that the laws and customs of the Arabana People, while different in some respects from the classical laws, are still properly characterised as being 'tradition' in the relative sense; that the members of the Arabana People are the descendants and/or successors of the Arabana People who at sovereignty held rights and interests to the area; that these laws and customs have been observed and acknowledged substantially uninterrupted since pre-sovereignty times by the Arabana People (including their forebears); and that the laws and customs are of a kind that are capable of and did generate rights and interests in the land, being rights and interests originally held by the at-sovereignty Arabana and now held by the current members of the Arabana People. These are all essential elements to the positive finding of native title in the Arabana 1 Determination.
84 It may be accepted that one of the matters disposed of once and for all by the 2012 Arabana Determination was that the NTRI described in that determination were of a traditional nature in the sense that they owed their existence to law and custom that existed pre-sovereignty and that had continued to be acknowledged and observed to the present day: Starkey (at [201]). Also decided once and for all was the fact that traditional laws and customs that gave rise to a connection in the determination area had continued to exist, substantially uninterrupted, since sovereignty: Starkey (at [202]). Those matters are essential for the validity of a determination of native title, whether made by consent or upon a contested trial. The reasons of the primary judge (at [54]) recorded a proper understanding of those matters.
85 As the High Court said in Yorta Yorta (at [50]) "if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality". The 2012 Arabana Determination recognises that the Arabana acknowledge and observe traditional laws and customs, that is, laws and customs comprising a normative system.
86 The 2012 Arabana Determination recognised the essential fact that connection with the land and waters subject to that Determination has been maintained. All of that is accepted so far as it relates to the requirement of connection in s 223(1)(b) of the NT Act. All of it is geographically specific.
87 It was then submitted that the question of whether the Arabana have maintained a normative system that gives rise to NTRI since sovereignty was answered decisively in Dodd and that "there was nothing left to find" on that topic with respect to the Overlap Area. Again, that submission overstates the legal effect of the 2012 Arabana Determination.
88 The conclusion of the primary judge that the requisite connection with the Overlap Area had not been proven did not involve a denial that the Arabana are a group of Aboriginal people united in a body of traditional laws and customs that continues to have vitality today and that gives rise to NTRI in neighbouring land. The undeniable connection with the neighbouring land by those laws and customs did not constitute proof that the Arabana continued to maintain a connection with the Overlap Area by those same laws and customs. The primary judge had regard to the 2012 Arabana Determination as relevant, as identified earlier in these reasons. However, his Honour did not err in failing to find that it provided the complete answer to the disputed questions before him (noting that no such submission had been made).
89 It was then submitted that the failure of the primary judge adopted an erroneous "parcel by parcel" approach to the determination of NTRI in the Overlap Area. In that regard it was emphasised that the Overlap Area was but a small portion of a much larger region in respect of which the Arabana had claimed NTRI (and the only portion left to be determined) such that a parcel by parcel analysis was not called for. As we understand it, that argument was another way of asserting that the 2012 Arabana Determination was sufficient evidence in and of itself to compel the inference that the requisite connection had been maintained in the Overlap Area. It was also another way of saying that the primary judge erroneously confined his search for evidence of physical and tangible activities evidencing the acknowledgment of traditional laws or observance of traditional customs specifically within the boundaries of the Overlap Area. We do not accept either argument for reasons that will become clear in the disposition of the remaining Particulars.
90 The statement of the primary judge that it was necessary for the Arabana to adduce evidence going to the requirement for connection in the particular case was entirely orthodox and undoubtedly correct. If that constituted a "parcel by parcel" approach it may be because the Arabana commenced separate proceedings for native title over separate parcels of land, the Arabana Claim being one that was opposed by the State and tried by way of an adversarial process in which the rules of evidence applied. The Arabana were put to proof on all aspects of the Arabana Claim, so requiring that the test for connection be established with respect to the particular land and waters comprising the Overlap Area. Any failure to draw an inference of connection solely by reference to the matters determined conclusively in Dodd did not offend the principles stated in the authorities cautioning against a parcel by parcel approach.
91 The circumstances may be different in the case of a native title claimant application under the NT Act where there is no opposition in relation to any particular geographical aspect of it on the question of connection. In cases of that kind, for the purposes of s 223(1)(b), inferences concerning connection with respect to the whole of the claimed area may be readily drawn where they are reasonably available, and particularly where no defence case is erected against them. However, it is always open to a respondent in native title proceedings to defend the claim (including by reference to s 223(1)(b)) insofar as it relates to a part of the area to which the claim relates. When that occurs it is the duty of the trier of fact to consider the evidence as it relates to the discrete contested parcel.
92 Here, the primary judge had regard to a body of evidence that weighed against the inference of connection that might otherwise have been drawn by reference to the 2012 Arabana Determination. Critically, that evidence included historical circumstances supporting a finding that the Arabana had moved generally south and east from the Overlap Area progressively after sovereignty (at [539]). As discussed below, the primary judge was aware that physical dislocation from the relevant land and waters did not necessarily make proof of connection in accordance with s 223(1)(b) of the NT Act impossible, but it was nonetheless a significant factual consideration against which the evidence of connection adduced by the Arabana fell to be assessed.
93 Particulars 7 and 7A are accordingly rejected.