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Precedent (Australian Lawyers Alliance) |
ABUSE OF PROCESS AND EXCLUSIVE POSSESSION
FORTESCUE METALS GROUP v WARRIE ON BEHALF OF THE YINDJIBARNDI PEOPLE [2019] FCAFC 177
The recent Full Federal Court decision in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 (FMG v Warrie) (Jagot, Robertson, Griffiths, Mortimer and White JJ) has given definitive guidance on the application of the doctrine of abuse of process to native title claims and the evidentiary focus for native title applicants when proving exclusive possession native title.
FMG’s appeal unsuccessfully contended that it was an abuse of process for the Yindjibarndi People to make a claim for the recognition of a right of exclusive possession in circumstances where, in an earlier native title claim to adjoining land, the Federal Court had rejected a claim for exclusive possession and found that the Yindjibarndi People possessed only non-exclusive rights and interests.
The Full Court rejected a strong challenge from FMG to earlier Full Court decisions that held that in order to establish a native title right of exclusive possession, it was not necessary for native title claimants to demonstrate that under their traditional laws and customs, they had been able to prevent everyone, including non-Aboriginal people, from accessing their traditional lands. Following the Full Court’s decision, FMG challenged this point even further, initiating an application for special leave to appeal to the High Court. However the High Court dismissed FMG’s application on 29 May 2020, leaving the Full Court decision undisputed and intact. If FMG’s challenge succeeded, it would have made it virtually impossible for native title claimants anywhere to obtain recognition of a right of exclusive possession.
BACKGROUND
FMG v Warrie was an appeal from Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia[1] (Warrie), which determined that the Yindjibarndi People held a native title right of exclusive possession in an area within Western Australia’s Pilbara region.
An earlier native title claim made on behalf of both the Ngarluma and Yindjibarndi People was heard in 2005 by Nicholson J in Daniel v Western Australia[2] (Daniel). In Daniel, his Honour found that the Yindjibarndi People held only non-exclusive native title rights and interests over a large area of land and waters immediately to the north of the Warrie claim area (Moses land). The Daniel decision was appealed to the Full Court on unrelated grounds and Nicholson J’s findings regarding non-exclusive native title were not disturbed: Moses v Western Australia[3] (Moses).
Justices Jagot and Mortimer said that critical to their conclusion in rejecting this ground of appeal was the primary judge’s reasoning about the nature of a determination of native title as the recognition of existing rights over a specific area of land and waters.[4] Therefore, it was in the interests of the administration of justice to allow the Yindjibarndi People to seek recognition of their rights and interests in the Warrie claim area over a distinct geographical area, which is different to the land and waters considered in the Daniel/Moses determinations.[5] Their Honours noted that the way in which Yindjibarndi law and custom operates to give rise to rights and interests is likely to vary because it is different land and waters, even though the same normative system is involved.[6] They noted that ‘all will depend on the evidence’ specific to the land and waters over which recognition is sought.[7]
Furthermore, their Honours said that they did not consider that the text, context and purpose of ss223 and 225 of the Native Title Act 1993 (Cth) (NTA) requires rigidity or inflexibility.[8] The way traditional law manifests itself in rights and interests in a particular area may vary across the traditional country of a group.[9] Expanding on this point, their Honours said that the uniqueness of the processes for which the NTA provides should inform the resolution of an allegation of abuse of process.[10] They said that the ‘considerations of finality and fairness’ which inform the common law doctrine of estoppel in relation to judicial determinations and are also at work in the wider and more flexible concept of abuse of process, will need to be applied rather differently in the context of the NTA.[11]
The two touchstones for abuse of process, to which the High Court referred in Tomlinson, are that the use of the Court’s procedures would:
(a) be unjustifiably oppressive to a party; or
(b) bring the administration of justice into disrepute.[12]
Their Honours noted that FMG was not a party to the Daniel proceeding and did not have any proprietary interests in the Daniel/Moses land.[13] Therefore, there was no oppression in terms of being differently or inconsistently affected or ‘vexed’ by the Daniel/Moses determination and as a party to the Warrie claim.[14] Moreover, if unjustifiable delay, additional cost and inconvenience flowed from anything, it was from the fact that it was not until after all the Yindjibarndi evidence-in-chief was filed that the State and FMG first raised the abuse of process argument, yet the possibility of FMG’s proprietary interests being affected by the exclusive possession claim should have been apparent from the application filed in July 2003.[15] Furthermore, FMG had a full opportunity to rebut the exclusive possession proposition at trial.[16] Hence, there was no oppression, let alone unjustifiable oppression, in FMG being bound by the outcome in Warrie.[17]
Their Honours said that once the structure and purposes of the NTA are taken into account, the administration of justice was not brought into disrepute when the Yindjibarndi People sought recognition of their rights of exclusive possession, having exposed their lay and expert evidence to testing and contradiction, and with the findings in Daniel being available to all parties and to the Court.[18] Their Honours said that the considerations to which the Full Court referred in Western Australia v Fazeldean (No.2)[19] of ‘informed recognition of the deep importance of the vindication of proven historical connection affecting generations past, present and future’, are important in considering where justice and injustice lie and how public confidence in the administration of justice and ‘contemporary values’ inform the decision on whether the exclusive possession claim in the Warrie proceedings constitutes an abuse of process.[20] In the present circumstances, those considerations weigh in favour of the conclusion that there is no abuse of the processes of the Court.[21]
Justices Robertson and Griffiths also dismissed the abuse of process ground, though for somewhat different reasons than the other members of the bench. Like Mortimer and Jagot JJ however, their Honours did consider that each case should be approached in the context of all relevant circumstances, adding that the ‘lodestar for a court’s assessment of what constitutes an abuse of process and the appropriate remedy that should follow is the proper administration of justice, informed by the need to avoid injustice or unfairness’.[22] They said that those relevant circumstances included the effect of the Full Court decisions in Griffiths v Northern Territory[23] (Griffiths) and Banjima People v Western Australia[24] (Banjima), and the Yindjibarndi People’s explicit reliance on ‘spiritual necessity’.[25]
Griffiths and Banjima
The decisions in Griffiths and in Banjima were handed down subsequent to the making of the Daniel/Moses determination. Their Honours stated that the primary judge was correct to attach the significance that he did to the effect of Griffiths and Banjima in clarifying the relevance of ‘spiritual necessity’ to a claim of exclusive possession, drawing a broad analogy with the House of Lords’ decision in Arnold v National Westminster Bank PLC[26] (Arnold). Arnold illustrated that a change in a previously settled understanding of the law may give rise to a circumstance in which the finding of an abuse of process will be avoided notwithstanding the presence of inconsistent judgments.[27]
Griffiths and Banjima clarified the law with respect to the sufficiency of evidence of ‘spiritual necessity’ in demonstrating exclusivity of native title rights and interests. The Daniel/Moses determinations were made prior to Griffiths and Banjima. They were ‘made in a different era, by reference to different evidence and without a proper appreciation’ of the correct focus on ‘spiritual necessity’.[28] Even if Griffiths is not appropriately described as a change in the law as was the case in Arnold, the analogy is appropriate because of its authoritative clarification as to the correct focus in addressing exclusive possession.[29] Therefore, the significance of what was said in Griffiths and Banjima provides a sufficient basis for the conclusion that there was not an abuse of process in Warrie because any inconsistency with the Daniel/Moses determinations should not erode public confidence in the administration of justice.[30]
Justice White also dismissed this ground of the appeal. His Honour began by echoing Jagot and Mortimer JJ’s summation of the case law on abuse of process, noting also the late introduction of the abuse of process argument by FMG in the proceeding.[31] He concluded, for similar reasons, that the proceedings were not oppressive or vexatious to FMG, not least because they were not parties to the proceedings in Daniel and did not raise abuse of process ‘for some 12 years after the commencement of the application and then only one month before the commencement of the hearing’.[32] His Honour also considered that it was not possible for there to be a direct inconsistency between the Daniel/Moses determinations and the Yindjibarndi People’s application as that application ‘self-evidently related’ to a different claim area than that considered in Daniel.[33]
Justice White said that the issue could have been addressed by FMG as a matter of admissibility and use of evidence, rather than abuse of process, as the exclusive possession issue was raised in the Yindjibarndi People’s pleading.[34] His Honour cited Mansfield J’s statement in Lake Torrens Overlap Proceeding (No. 3)[35] (Lake Torrens Overlap), that was upheld on appeal in Starkey v South Australia,[36] to the effect that a party may not, in later proceedings, seek to contradict a determination of native title or the findings which were essential to that determination.[37]
THE EXCLUSIVE POSSESSION ISSUE
The leading judgment on this issue was that of Jagot and Mortimer JJ with whom Robertson, Griffiths and White JJ agreed. Justices Jagot and Mortimer noted that FMG had accepted that at sovereignty and effective sovereignty, the evidence justified the conclusion that the claimants had, under their laws and customs, a right of exclusive possession.[38] This concession by FMG accepted the primary judge’s findings about Yindjibarndi traditional law and custom at sovereignty, and at effective sovereignty, and the basis for it.[39] Justices Jagot and Mortimer said that FMG must therefore be taken to accept the primary judge’s findings that under those laws and customs, the Yindjibarndi People in the past did not permit a manjangu (stranger) to enter on or to exploit Yindjibarndi country without a Yindjibarndi Elder having first given permission to and introduced the stranger to the spirits in the country and taken steps to protect the stranger from spiritual harm.[40] FMG challenged whether the Yindjibarndi traditional law about the need for a manjangu to seek permission had continued to be observed by the Yindjibarndi People up to the present day because they had not enforced that law against non-Aboriginal people.[41]
After referring to some of the evidence of the Yindjibarndi witnesses and the anthropologist, Dr Palmer, their Honours said that the primary judge’s findings were plainly open to him. The evidence was capable of proving the continuing content of Yindjibarndi law about asking permission and demonstrated that the granting or withholding of permission has the purpose of controlling access to Yindjibarndi country. Although ‘white man’s law’ now precludes serious physical punishment for transgression of Yindjibarndi law, this does not negate the existence of the normative rule under Yindjibarndi traditional law, including the normative rule of punishment. Control of access with consequences for transgression is the kind of traditional law which is capable of being characterised as the right to possess the land exclusively.[42]
Whether enforcement was or was not possible in a practical sense against ‘Europeans’ was not a matter precluding a conclusion that the traditional law continued to be observed.[43] The question will always be whether any change has been so significant that the law has been ‘lost’, or can no longer be described as ‘traditional’. Their Honours said that the only ‘adaptation’ was the need for the Yindjibarndi People to comply with non-Indigenous laws and refrain from imposing physical punishment, and the powerlessness felt by Yindjibarndi People in insisting that their traditional law and custom be respected by non-Indigenous people.[44]
Their Honours said that neither Banjima nor Griffiths held that the responses of a claim group to the conduct of non-Aboriginal people entering or exploiting their country are ‘necessarily irrelevant’.[45] However, both cases made it clear that it was an inevitable consequence of European settlement that Aboriginal people were frequently unable to enforce their traditional law.[46] It was the changes in the law in Mabo v Queensland (No. 2)[47] and then in the NTA which gave Aboriginal people the legal armoury to do just that. The relevance of such evidence, and how it might be employed, will be fact-dependent.[48]
Their Honours said that it is a well-established proposition that the focus of s223(1) of the NTA is on the content of traditional law and custom, and to what rights that law and custom gives rise to, if any. The task of ascertaining that content must be informed and determined by an Aboriginal perspective only.[49]
Justices Jagot and Mortimer said that the assessment and determination of the content of the traditional laws and customs of any given claim group, and the rights and interests relating to land to which those laws and customs give rise, is an exercise performed within the universe of traditional law and custom. It is not dependent on proof of enforcement against non-Aboriginal people.[50] Their Honours considered that the authorities make clear that it is more usual for traditional law to be treated as ineffectual, and that is what the NTA is designed to remedy.[51]
Justices Jagot and Mortimer stated that s223(1)(a) and (b) provide that native title rights and interests derive from traditional Indigenous laws and customs, not the common law.[52] They concluded that as the Banjima Full Court explained, if what the Court finds, on the evidence, is that traditional laws require permission to be granted to strangers to enter or exploit country, with the purposes of those laws being both to protect country and to protect transgressors from harm, then this may properly be characterised as a right to control access, which is the essence of exclusive possession.[53]
Vance Hughston SC and Tina Jowett are barristers practising from 6 Floor Windeyer Chambers, Sydney. Vance and Tina appeared for the Yindjibarndi People at the trial, in the appeal to the Full Federal Court, and in the High Court special leave application that was dismissed by the High Court. PHONE (02) 9235 3100 EMAIL vance.hughston@windeyerchambers.com.au and jowett@windeyerchambers.com.au.
[1] [2017] FCA 803; 365 ALR 624.
[3] [2007] FCAFC 78; (2007) 160 FCR 148.
[4] Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 (FMG v Warrie), [80].
[5] Ibid, [123].
[6] Ibid, [81].
[7] Ibid, [80]–[81].
[8] Ibid, [105].
[9] Ibid, [105]; and see too [81].
[10] Ibid, [109].
[11] Ibid, [111].
[12] Tomlinson v Ramsey Food Processing [2015] HCA 28; 256 CLR 341.
[13] FMG v Warrie, [112], [115].
[14] Ibid, [115].
[15] Ibid, [116].
[16] Ibid.
[17] Ibid.
[18] Ibid, [123].
[19] [2013] FCAFC 58; (2013) 211 FCR 150.
[20] FMG v Warrie, [140].
[21] Ibid.
[22] Ibid, [380].
[24] [2015] FCAFC 84; (2015) 231 FCR 456 (Banjima).
[25] FMG v Warrie, [382].
[27] FMG v Warrie, [393].
[28] Ibid, [386].
[29] Ibid, [393].
[30] Ibid, [390].
[31] Ibid, [533].
[32] Ibid, [583].
[33] Ibid, [589].
[34] Ibid, [592].
[36] [2018] FCAFC 36; (2018) 261 FCR 183.
[37] FMG v Warrie, [594].
[38] Ibid, [197].
[39] Ibid, [200].
[40] Ibid, [197]–[198].
[41] Ibid, [203]. FMG argued this point in its special leave application to the High Court following the Full Federal Court judgment. The special leave application was dismissed on 29 May 2020.
[42] Ibid, [321].
[43] Ibid, [359].
[44] Ibid.
[45] Ibid, [360].
[46] Ibid, [360].
[47] [1992] HCA 23; (1992) 175 CLR 1.
[48] FMG v Warrie, [360].
[49] Ibid, [285].
[50] See Banjima, [21] and [43]–[44]; FMG v Warrie, [230].
[51] FMG v Warrie, [286].
[52] Ibid, [241].
[53] Ibid, [363].
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2020/50.html