Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia

The subgroup issue 14 The YG applicant rejects the strike out ground advanced by the Jurruru respondents and makes the following submissions: (1) The Jurruru submissions incorrectly assert that the YG applicant and claim group members had previously acknowledged "that native title in the YG … Claim area is held communally by the Yinhawangka People". The YG applicant has never acknowledged this. The position of the YG applicant is as set out on the YG Form 1. (2) As for Yinhawangka claim group members who were previously part of the Gobawarrah Minduarra Yinhawangka (GMY) claim group, referred to by the Jurruru respondents: (a) whilst it is correct that a GMY claim group meeting approved a proposal to amend the GMY native title claim to include other apical ancestors, this was subject to further consultations between the elders of Yinhawangka families, anthropological research, and counsel's advice; and (b) the evidence of former GMY claimants referred to in the Jurruru submissions must be considered in context, and in light of the totality of the Aboriginal and expert anthropological evidence given. The evidence of the persons referred to emphasises that it is the descendants of the YG claim apical ancestors who alone have the authority and right to speak for the claim area. (3) It is not contested that the YG claim group comprises only some members of the wider Yinhawangka community. However, it is not a "subgroup" in the sense alleged in the Jurruru submissions. (4) The Jurruru submissions employ the expression "subgroup" in relation to the YG claim to allege that the claim group is comprised of only some of those people who hold the native title claimed, in the context of s 61 of the Act. Applying this meaning, there is no basis in fact or law for the contention put that "The YG … claim is on its face made by a subgroup of the Yinhawangka People" because: (a) the YG claim, on its face, makes clear the basis upon which the claimed native title rights are held and asserts that such rights are held only by the members of the claim group, as described in the Form 1; (b) the Jurruru respondents have not been able to point to any other Yinhawangka people who assert native title rights in the YG claim area; and (c) the materials submitted by the YG applicant to the National Native Title Tribunal (NNTT) for the purpose of the registration test further demonstrate that the claim is, on its face, not a subgroup claim in the sense alleged in the Jurruru submissions. (5) The factual situation contrasts with that in the two cases referred to in the Jurruru submissions. In Velickovic v Western Australia [2012] FCA 782, the claim group comprised only part of a family descent group in circumstances where other members of that family asserted native title rights and interests in the same area, as did other families. In Giggles, the claim group description comprised only a list of 23 people and it was conceded by the claim applicant that the claim was not properly authorised pursuant to s 61 of the Act because the list of 23 names was not a complete list of all the persons who held the native title claimed. 15 The YG applicant also relies on the finding by the delegate of the Native Title Registrar that its native title determination application satisfied the registration test under the Act. 16 The Jurruru respondents maintain their submission that the YG application constitutes a claim by a subgroup and submit the evidence of the named YG applicant supports the proposition that under the traditional law and custom relied upon by the YG applicant, rights and interests in the YG claim area may be held by Yinhawangka people, more generally, who are not the descendants of the apical ancestors listed in the YG application Form 1. Thus, it follows that the claim is a subgroup claim. 17 In my view, there is considerable force in the submissions made on behalf of the Jurruru respondents. But ultimately, I consider that it does not advance the administration of justice before the Court, at this point in the progression of the YG application, effectively to rule on the subgroup question. If I were to uphold the view that the current YG application is, properly understood, an impermissible subgroup claim, because it has not been authorised (as I found in the Giggles decision) then, subject to a successful appeal, the YG applicant would be prevented from proceeding further. 18 The argument put on behalf of the YG claimant is that they are not a "subgroup" but a "subset" of the Yinhawangka people and that, despite the things that some of the members of the YG claim group said previously or in recent times, they do not admit that other Yinhawangka people hold native title rights in the relevant overlap claim area. 19 I accept that is an arguable proposition and not one upon which I should rule at this point. I consider it appropriate that the question, based on full evidence, including anthropological opinion, might go to a trial. I do not accord any particular weight at this point to the material in the recent affidavits of Nancy Tommy and Roy Tommy that are objected to. 20 I should add that I note the submissions made about the evidence of Eric Galby. 21 As I have intimated, it is not for this Court to finally rule on the significance of the evidence led and it is best left to a trial judge to consider the evidence now led and objected to in the context of all the evidence that might be given at a trial.

Section 61(4) issue 22 The YG applicant also rejects the proposition that there is any relevant non-satisfaction of the requirements arising under this provision and makes submissions to the following effect: (1) It is difficult to reconcile the making of this alternative submission, which is based on an alternative interpretation of the YG Form 1, with the Jurruru submission that the YG claim is "on its face made by a subgroup of the Yinhawangka People". Running this alternative submission tends to undermine the Jurruru respondents' subgroup argument. (2) The Jurruru submissions correctly indicate that the YG claim is brought on the basis that it is only a subset of the Yinhawangka people, and not all Yinhawangka people, who hold the native title rights claimed. However: (a) It is potentially misleading to suggest that the YG claim was brought "having failed to obtain the authorisation of the Yinhawangka People as a whole". The new claim was brought following the dismissal of the GMY claim, in the absence of any Yinhawangka claim to the claim area. There was no "failure" to obtain the authorisation of the Yinhawangka People as a whole, in the sense that no authorisation meeting was ever held prior to the GMY claim being struck out. The GMY applicant and claimants made a conscious decision not to proceed to an authorisation meeting in the timeframe allowed, for the reasons outlined. Furthermore, the terms of the proposed GMY claim amendment were not set in stone. The GMY applicant and claimants sought consultations between Yinhawangka elders, anthropological research and counsel advice (among other things) prior to making any final decision or holding an authorisation meeting in relation to any GMY claim amendments. (b) It is potentially misleading to say that the YG claim is "now brought on a different basis to that previously pressed in relation to the GMY Claim" (emphasis added). The GMY claim was a claim on behalf of 23 people from the same family descent group (descended from apical ancestors Thurantijinha and Wilga). In response to submissions by the Jurruru respondents, and orders of the Court, the GMY applicant filed a minute of draft proposed amended claim in early 2016. As explained above, the GMY applicant filed that document without having had the benefit of the anthropological research, counsel advice or consultations between elders from the different Yinhawangka families that it subsequently sought. The GMY applicant and claimants resolved that these and other steps were necessary before finalising any amendments or proceeding to a Yinhawangka community meeting. Hence it can be seen that the GMY were not "pressing" for the proposed amendment. They wanted to undertake a series of steps first, which, had they been taken, may have led them to change their mind about the amendment they had proposed. (3) The Jurruru submissions contend that the expression "and have a connection with the land and waters in the application area in accordance with traditional Yinhawangka laws and customs" renders the description of the claim group uncertain and ambiguous, such that the YG application does not comply with s 61(4) of the Act and accordingly, the claim cannot have been properly authorised. This contention has no substance or basis, and is unreasonable. 23 It also relies on the finding by the delegate, for the purposes of the registration test, that this provision was adequately met. 24 This issue is raised by the Jurruru respondents on the alternative interpretation of the YG application Form 1, that the claim is no longer that native title in the claim area is a communal Yinhawangka title, but that it is a group title held by only some of the Yinhawangka people. 25 I do not consider, in light of the observations I have made in respect of the subgroup issue, that I should readily conclude at this point that the YG application Form 1 has failed to define with "sufficient clarity", as contended by the Jurruru respondents, the relevant claim group. 26 This is a matter about which argument could be maintained at a trial, but I do not consider it provides an appropriate strike out point at this pre-trial stage.

The insufficient evidence of authorisation issue 27 The YG applicant rejects the proposition that it has failed to provide appropriate evidence, despite having the time to do so, of proper notification of the meeting and the attendances at it, for the purposes of authorisation, and makes submissions to the following effect: (1) This contention is unusual, and not supported by the Act or by any authority cited by the Jurruru respondents. The YG applicant contends it is untenable, and unreasonable, for the Jurruru respondents to seek dismissal of the YG claim on this basis, all the more so given the longstanding and obvious authorisation defects of the Jurruru #1 and #2 claims. (2) Section 84D(2) of the Act provides an avenue for a party to seek an order for the production of evidence of claim authorisation. The Jurruru respondents have not gone down this path, and instead seek the strike out of the claim forthwith, on the basis of their contention that there is currently insufficient evidence of authorisation before the Court. 28 The YG applicant also relies on the decision of the delegate finding that the registration test had been satisfied. In that regard, reference is made to [170] of the Registration Test reasons: There is nothing before me suggesting that the applicant in this application is not properly authorised by the native title claim group. The authorisation and factual basis material, and the description of the native title claim group support that the claim in relation to the area is specifically brought on behalf of those Yinhawangka people who hold native title rights and interests in the Gobawarrah area under traditional Yinhawangka laws and customs. The information before me discloses that Yinhawangka elders who speak for the area of the proposed claim gave considerable consideration to and discussion of the new claim prior to and at the meeting. I am satisfied that all reasonable steps have been taken for all of the persons of the native title claim group to be provided an opportunity to attend the authorisation meeting and to participate in the decision-making process to choose and authorise the applicant. I am satisfied that the applicant is duly authorised in accordance with s 251(b) to make this application and to deal with all matters arising in relation to it. 29 The Jurruru respondents maintain their submission that the YG applicant has had a reasonable opportunity to provide evidence regarding authorisation but has failed to do so and that the YG application should be struck out for lack of adequate proof of authorisation. 30 This is an issue which may also be debated at some length. There is some force in the submissions made on behalf of the Jurruru respondents but, in the end, it is an issue that can be further agitated at trial. As the YG applicant has emphasised, the authorisation question can finally be dealt, if necessary, at trial under s 84D of the Act. 31 I am not minded to strike the proceeding out on this basis at this stage of the proceeding.

Abuse of process issue 32 The YG applicant submits that this ground is unsustainable and unreasonable and should be rejected for the following reasons: 33 In the recent Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 proceedings, the Court (McKerracher J) considered at length a wide range of abuse of process arguments made by the State of Western Australia in relation to the Yilka claim and the Sullivan Edwards claim respectively. It is submitted that the case for summary dismissal of the YG claim is considerably weaker than it was in relation to the Yilka and Sullivan Edwards claims, where the Court rejected the State's multi-pronged abuse of process application. 34 By way of background to the Yilka decision the YG applicant says: (a) The Yilka claim was preceded by a full trial and judgment, in relation to the former Cosmo Newberry claim, which was brought by exactly the same applicant (HM) over exactly the same claim area as the subsequent Yilka claim. (b) The Cosmo Newberry claim was dismissed on a jurisdictional basis, in that it was held not to have been properly authorised pursuant to the Act. Nevertheless, having heard all the evidence, Lindgren J went on to make substantive findings in relation to the merits of the Cosmo Newberry claim. (c) The Yilka claim group description included the members of the Cosmo Newberry claim, plus some additional claimants who had been on the former Wongatha claim which overlapped the Cosmo Newberry claim and which was also dismissed by Lindgren J for lack of authorisation. (d) The Cosmo Newberry claim pleadings were changed on numerous occasions by the Cosmo Newberry applicant. (e) All the members of the Sullivan Edwards claim group had been included in the former Wongatha claim group (along with various other people). Also, the members of the Sullivan Edwards claim group had made another claim prior to the Wongatha claim. (f) The Cosmo Newberry and Wongatha claims were pleaded and argued on the basis that native title rights were held on a group basis, by way of an aggregation of ngurra ("my country") rights. Lindgren J held that this model was not consistent with traditional Western Desert Cultural Bloc laws and customs, but exercised his discretion to dismiss the claims only, rather than make a negative determination of native title. His Honour expressly foreshadowed the possibility of new claims being brought on a different basis. (g) The Yilka claim was subsequently pleaded and argued on a different basis than the Cosmo Newberry claim. In essence, the Yilka claim was argued on the basis of native title rights being held at an individual level, rather than at a group level. (h) Likewise, the Sullivan Edwards claim was pleaded and argued on a different basis than the Wongatha claim. It was contended that native title rights are held at an individual level, rather than at a group level. 35 It also refers to what McKerracher J said in Yilka at [2232]-[2239]. 36 It says that there are factual inaccuracies in the Jurruru respondents' submissions to the following effect. The submissions incorrectly point to two and only two possible inferences said to reasonably be open. The first suggested inference (subgroup of the people who hold native title rights) is not open. This is addressed above, under the subgroup and s 61(4) issues. The second suggested inference wrongly implies some element of improper purpose. The Jurruru submissions ignore all alternative explanations unhelpful to the Jurruru respondents' argument, and obfuscate the position of the YG applicant. The submissions do not admit the possibility that the claim is both properly brought under the Act and on the basis of a proper understanding of traditional laws and customs. They fail to take account of the legitimate contention that it is only those Yinhawangka who fall within the claim group description who hold the native title rights claimed. It is noteworthy that the Jurruru respondents have been unable to point to any other Yinhawangka people who are asserting native title rights in the claim area. 37 It also submits that the Jurruru abuse of process submissions fail to take into account the context of the pleadings and evidence about this issue given in the GMY proceedings; the events leading to the formulation and authorisation of the YG claim; and the evidence that explains and justifies the claim group description and the valid authorisation of the YG claim on the basis of the claim group description in the Form 1. These matters are discussed in more detail in its submissions. 38 Further, the YG applicant submits, by reference to the affidavit of the anthropologist, Dr Vachon, filed for the purpose of this proceeding, that prima facie its claim has merit and that the claim group description may well be anthropologically sustainable under Yinhawangka laws and customs. 39 In these circumstances, the YG applicant submits that it is not endeavouring to relitigate a native title claim which is, in substance, the same as that which was previously struck out for want of authorisation. 40 The YG applicant submits that furthermore, and importantly, the YG claim is a new claim, prepared on the basis of fresh instructions and authorised following a careful and thorough process. It is not an amended version of the GMY claim. It has been brought by a different applicant on behalf of a different claim group than the GMY claim. The YG applicant has been properly authorised to bring the claim, and has been found to be so for the purposes of the registration test, in contrast to the GMY claim, which was conceded, and found, not to be properly authorised pursuant to s 61 of the Act. 41 It further contends that the YG claim is based on the application of traditional Yinhawangka laws and customs. Rights are held in accordance with the application of those laws and customs. It is not simply a question of whether rights are characterised as "local" or "communal", or "group" or "societal". One has to consider carefully distinctions between the basis for the possession of rights and the manner of their holding and exercise. The YG claim is put on the basis outlined at some length in the Form 1. It is contended that Yinhawangka traditional law and custom sees the possession of rights and interests as based on particular attributes of a person and his or her relevant ancestor(s), and as extending over an area associated with those attributes. 42 The YG applicant provides the following brief comments against the Stenhouse abuse of process criteria (see State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089)) put against it, as follows: (1) The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue: The ultimate issues between the GMY and YG applicant are different as the GMY applicant proposed (but did not finalise) a wider Yinhawangka claim model, whereas the YG applicant is seeking the recognition of rights on behalf of only some Yinhawangka people, being those people who meet the criteria set out in the Form 1. (2) The opportunity available and taken to fully litigate the issue: The GMY claim was not litigated and determined, and moreover it did not include many of the YG claim group. The only opportunity for the YG claimants to litigate their claim to native title rights and interests is through the application. (3) The terms and finality of the finding as to the issue: As the GMY matter was decided summarily on authorisation, there was no finality of issues in terms described in (2) above. (4) The identity between the relevant issues in the two proceedings: There are clear differences between the GMY claim and the YG claim, discussed above. Differences include: (a) Different parties. The applicant groups are different. (b) The claim groups are different in description, and in size. The fact that some members of the YG claim group were members of the GMY claim group is of no moment. (c) The nature and basis of the proposed amended GMY claim was different to that of the YG claim. (d) The rights and interests claimed are expressed differently. (5) Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings: There is no plea of fresh evidence, however the current proceedings provide the YG applicant the opportunity to fully canvass the evidence relating to their particular claim for native title rights and interests to this area. (6) The extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice: There is no risk to the principle of finality of judicial determination, as the GMY decision was as to jurisdiction and not on the merits. ln relation to public confidence in the administration of justice, bearing in mind the evidence establishing the prima facie merit of the YG claim and the recent decision to accept the claim for registration, it is submitted that it would undermine confidence if the YG claimants are prevented from having the opportunity to present their case fully and have it decided on its merits. Furthermore, any alleged oppression and unfairness to the Jurruru respondents needs to be considered in light of the serious authorisation defects of the Jurruru #1 and #2 claims. If the YG proceeding is determined, rather than struck out, as sought, this will bring finality of litigation, as no further application for native title over the claim area will be able to be brought (s 61A(1)). (7) An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process: The application by the YG claimants is not only an application for themselves, but for future generations. Although some of them were members within the GMY claim group, many of them were not, and they did not have the carriage of that claim. It is submitted that it would not be just for them to now be barred from having their claim determined based on the actions/inactions of the GMY applicant given that the GMY applicant was found not to be authorised. Summary dismissal of the claim would prevent, for all time, the opportunity of the YG claimants to have their native title rights considered on the merits by the Australian legal system. This would, in the circumstances, be contrary to the interests of justice. 43 The Jurruru respondents maintain their submission regarding abuse of process, saying that the affidavits which have been now put on, on behalf of the YG applicant, are an attempt to avoid the effect at law of the deponents' previous evidence. The Jurruru respondents say this supports the inference that the YG applicant has brought the YG application in its present form merely to overcome the effect in Giggles, but otherwise to prosecute essentially the same claim which has already been dismissed. 44 In my view, while there is obvious force in this submission, for the reasons I have given above, it may be contended that a new claim has been formulated on behalf of a "subset", as distinct from a "subgroup" of the Yinhawangka people. Whether or not that claim can ultimately be made out at a trial remains to be seen. But, I do not consider that this is an obvious case of abuse of process and I accept generally the submissions made on the Stenhouse abuse criteria on behalf of the YG applicant set out above.

The no reasonable prospects of success argument 45 The YG applicant submits finally that the evidence contained in the affidavits filed by the YG applicant in response to the Jurruru submissions contains an abundance of cogent Aboriginal and expert evidence that weighs heavily against this submission by the Jurruru respondents. See for example: (1) Affidavit of Nancy Tommy dated 1 December 2016. Note also her preservation evidence given in the GMY proceedings in May 2016. (2) Affidavit of Roy Tommy dated 1 December 2016. (3) The 1999 ethnographic research materials annexed to the affidavit of Ambrose Cummins dated 21 June 2016. These materials include highly relevant video recordings of senior Yinhawangka elders, M Tommy (now deceased), Jambu Giggles and A Smith (now deceased), which provide detailed and persuasive evidence supportive of the YG claim. (4) Affidavit of Dr Vachon dated 20 June 2017. 46 The YG applicant further says that in the Jurruru submissions it is argued that "it is inconceivable that other members of the claim group would give evidence which would lead to the Court rejecting the evidence of Ms Tommy and the other members of the applicant as outlined above (concerning the native title in the claim area being a communal Yinhawangka title), and instead finding in favour of the alternative case referred to above (that the only persons with native title rights in the claim area are members of a subgroup of the Yinhawangka people)". This submission, it says, is flawed for the following reasons: (1) It is misleading to state that Ms Tommy and other members of the applicant have given evidence that native title in the claim area is a communal Yinhawangka title. The evidence put forward by the Jurruru respondents does not support this proposition. (2) There is other evidence before the Court that puts into context the evidence highlighted by the Jurruru respondents, and which supports and explains the Yinhawangka claim model, for example the affidavit of Roy Tommy affirmed 1 December 2016 and the affidavit of Dr Vachon affirmed 20 June 2017 (see especially [24]-[29] of that affidavit). (3) Dr Vachon has opined that further anthropological research and expert evidence in relation to this issue would assist the court. (4) In contrast, the Jurruru respondents are, in effect, contending that further evidence (Aboriginal or expert anthropological evidence) on this issue would not assist the Court and that the evidence presently before the Court is conclusive on this point. This contention is misplaced and without force in the circumstances of this case. (5) Questions regarding the level at which native title rights are held in particular Aboriginal societies are often complex and contentious, anthropologically and legally. Claim groups, applicants, Native Title Representative Bodies and of course the Courts have grappled with this issue in a number of native title cases over the years. It is not uncommon for claims to have been pleaded one way, then another, or for claims to have been superseded by later claims pleaded on a different basis. Many claims have ultimately been successfully determined despite having a history of prior claim incarnations, pleaded on a different basis, and/or prior evidence that on its face may have been criticised as being inconsistent, but which ultimately was understood and accepted in a broader context in light of the totality of evidence in the case. Good recent examples are the Yilka and Sullivan Edwards claims, both successfully determined despite the prior prosecution of inconsistent claims based on, at times, inconsistent evidence. Just as the Court refused to summarily dismiss those ultimately successful claims, so should the Court reject the application to summarily dismiss the YG claim. 47 The submission of the Jurruru respondents is that for all of the reasons advanced under the above issues, the YG application has no reasonable prospects of success and should be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). 48 It follows, in my view, that because I am not satisfied that the YG applicant should be summarily dismissed on any of the grounds discussed above, that the s 31A(2) ground also cannot succeed.

Conclusion and order 49 For the reasons given above, the Jurruru respondents' application for strike out of the YG claimant application should be dismissed. 50 This proceeding and the related Jurruru proceedings, which overlap, should be the subject of further case management with a view to the conduct of a trial as to who holds native title in the relevant claim area, at the earliest opportunity. 51 I will therefore make the following orders: (1) The application of the Jurruru respondents dated 7 June 2017 be dismissed. (2) This application be referred for further case management before a Registrar of the Court, with a view to a trial being conducted as to who holds native title in the relevant claim area at the earliest possible date. (3) If either of the YG applicant or the Jurruru respondents consider the Court should consider making any other consequential orders, they may propose any further such orders within 28 days, supported by written submissions, to which the other party may respond within seven days and the Court will determine, on the papers, whether any consequential orders should be made. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

SCHEDULE OF PARTIES WAD 490 of 2016 Respondents Pastoral Interest Respondents: BARKLEY MARSHALL DAY, ZANE BRADLEY DAY, JOAN ELIZABETH DAY, RICHARD ERNEST DAY, ANDREW NICHOLAS GLENN, DONALD RAYMOND HAMMARQUIST, WENDY RUTH HARVEY, JASON GARY HASTIE AND DANIEL JOHN HASTIE