Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752

FEDERAL COURT OF AUSTRALIA

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 File numbers: WAD 297 of 2008 WAD 498 of 2011 WAD 303 of 2013

Judge: MCKERRACHER J

Date of judgment: 29 June 2016

Catchwords: NATIVE TITLE – identification of persons who hold the rights and interests comprising the particular native title claimed – native title rights arising from connection between a person or persons and country – multiple pathways to connection – relationship between different categories of native title rights holders NATIVE TITLE – whether native title rights and interests can be possessed on an individual or group basis – whether inferences can be drawn regarding entire claim group where native title rights and interests are possessed on an individual or group basis NATIVE TITLE – persons who hold the rights and interests comprising the particular native title claimed – bases for possessing native title rights – multiple pathways to connection – requirement for claim group membership not limited to descent from particular ancestors – requirement of recognition by others of relevant connection event – whether there needs to be a clear mechanism for recognition – whether exclusion from native title claim group constitutes lack of recognition under traditional laws and customs NATIVE TITLE – overlapping native title claims – whether two native title claims can be successful over substantially the same land – where possession of native title rights and interests is on an individual or group basis – whether two native title claim groups over the same area can both said to be authorised under s 61 of the Native Title Act 1993 (Cth) NATIVE TITLE – previous native title claim over the same area which was unsuccessful and has been appealed – whether the Court should adopt findings or evidence from separate but similar proceedings – whether expert witnesses can rely on evidence and material from separate but similar proceedings – whether similarities with previous unsuccessful native title claim is relevant to whether a native title claim has been made out NATIVE TITLE – identification of the relevant society – traditional laws and customs – informing principles – acknowledgement and observance of those traditional laws and customs – connection with land and waters by traditional laws and customs – laws and customs relating to the possession of rights – other laws and customs which show continuing existence of a normative system – whether historical changes in circumstances including migration since sovereignty impede inferences of continuity of acknowledgement and observance of law and custom NATIVE TITLE – identification of the native title rights and interests possessed under traditional laws and customs – distinction between existence of a right and manner of exercise of a right – distinction between non-existence of a right and rules governing exercise of a right – manner of exercise of rights and concomitant responsibilities is provided for under laws and customs NATIVE TITLE – extinguishment – what non-native title rights and interests exist – whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests – whether extinguishment required to be disregarded NATIVE TITLE – extinguishment – extinguishment by roads – whether roads constitute public works – whether roads can be created at common law over reserves for the use and benefit of Aboriginal people – whether extinguishment by roads as public works is to be disregarded under s 47A of the Native Title Act 1993 (Cth) NATIVE TITLE – application to re-open case to adduce further evidence – primary consideration is interests of justice – considerable duration of the proceedings a relevant consideration – where prejudice suffered is minimised by order as to costs NATIVE TITLE – application for summary dismissal of native title claims – application for summary dismissal adjourned and heard in closing submissions – impact of any delay in filing abuse of process application – proceedings the subject of the abuse application where two of the three claims not referred to in the abuse of process application – burden of establishing an abuse of process NATIVE TITLE – claim area substantially overlapped area of land the subject of previous decision of the Court – contention that certain central families in the claimant groups in the present proceedings were all represented in the previous proceedings – contention that the rights and interests claimed in the present proceedings are indistinguishable from those claimed in the previous proceedings – contention that the laws and customs claimed in the present proceedings are indistinguishable from those claimed in the previous proceedings – whether the claims in the present proceedings and an appeal from the previous judgment are fundamentally different – same applicant in the present proceedings and in an appeal from the previous proceedings – no fresh field work undertaken specifically for the purpose of the present proceedings NATIVE TITLE – Power of the Court to prevent abuses of process in native title proceedings – overarching principles guiding the exercise of the power of the Court to prevent abuses of process – non-exhaustive list of factors relevant to the determination of whether there is an abuse of process in connection with an issue to be litigated in a second proceeding – whether previous judgment involved the effective and final determination of critical factual issues on the merits – whether the subject matter and issues in the claims could reasonably have been agitated in the earlier claims – whether there was finality and a determination on the merits where the Court determined that it did not have jurisdiction in the previous judgment – the applicants in the previous proceedings were not authorised to make the native title applications – absence of a determination of no native title in previous proceedings – significant advances in jurisprudence concerning proof, formulation and extinguishment of native title rights since the previous proceedings – whether a departure from the ratio in the previous decision of the Court is required to permit the present applications to proceed NATIVE TITLE – Legal principles relevant to a res judicata claim – whether res judicata operates in the context of the present claims NATIVE TITLE – Legal principles relevant to an issue estoppel claim – whether the doctrine of issue estoppel has any operation in applications for native title determination NATIVE TITLE – Legal principles relevant to Anshun estoppel – whether the present claims are so relevant to the subject matter of the first action that it is unreasonable not to have relied on it – whether there is unreasonable conduct on the part of the applicants in the present proceedings