NATIVE TITLE - Native Title Act 1993 (Cth) - application under s 225 for determination of native title of land or waters in claimed area - where applicant claims right to control access to or exclude others from claimed area equivalent to right of exclusive possession - evidence of practice of non-claim group member, or "stranger", needing to seek permission from claim group elder before entering or carrying out activities on claimed area - whether current practice substantially reflects traditional laws and customs or is a mere matter of courtesy or respect - where claim group's land redolent with spirituality - where traditional laws and customs made access without permission punishable by both death and spiritual harm - where current traditional laws and customs only recognise spiritual harm as consequence of access without permission - whether changes and or adaptations in observance and acknowledgement of traditional laws and customs amount to substantially continuous observance since sovereignty
NATIVE TITLE - Native Title Act 1993 (Cth) - s 47B(1)(b)(ii) - extinguishment of native title - where miscellaneous licence and exploration licences granted under Mining Act 1978 (WA) over certain land and waters in claimed area - whether any of licences is "permission or authority" under which the whole or any part of the licensed land or waters is to be used "for a particular purpose"
NATIVE TITLE - Native Title Act 1993 (Cth) - ss 24OA and 28 - where State originally gave applicant notice of proposed grant of exploration licence under s 29(2) - where State subsequently gave fresh notice under s 29(7) that it considered proposed grant to be act attracting the expedited procedure under s 32 but State failed to give such notice to applicant - licence subsequently granted - whether ss 24OA and 28 rendered licence invalid to the extent it affected native title because of failure of State to give notice to applicant under ss 29(7) and 32 that it considered that the act of the proposed grant attracted expedited procedure
NATIVE TITLE - Native Title Act 1993 (Cth) - ss 47A(1)(c) and 47B(1)(c) - whether one or more members of claim group occupied particular areas in claimed area - meaning of "occupied the area" - where members of claim group visited, but did not reside on, relevant area - whether applicant's evidence demonstrated assertion of "being established" over areas in issue - whether evidence of activities at one site in relevant area could reasonably be inferred to have amounted to occupation of whole of larger area - whether regular maintenance of spiritual connection to country relevant to finding of occupation
ESTOPPEL - abuse of process by relitigation of issue - issue estoppel - Native Title Act 1993 (Cth) - where applicant claims exclusive native title rights to control access to claimed area adjacent to area over which the Court made prior determination under s 225 that applicant had non-exclusive native title and no right to control access to that other area - whether applicant's subsequent claim for exclusive native title attempt to relitigate earlier adverse determination and would produce conflicting determinations of native title - whether claim for determination of exclusive native title abuse of process or subject to issue estoppel arising from earlier determination that applicant had only non-exclusive native title rights that did not include a right to control access to its country - whether a determination under s 225 of Native Title Act is final - where s 13(1)(b) and (5)(b) enabled revocation or variation of original determination on the ground that "the interests of justice require the variation or revocation of the determination" - whether s 13(1)(b) is statutory exception to general law principles of issue estoppel, abuse of process or res judicata
EVIDENCE - Native Title Act 1993 (Cth) - whether s 86(1) prohibited applicant from tendering or relying on transcript of hearing for earlier determination of native title in order to seek finding contrary to finding in earlier determination - whether Court can receive or use evidence from other proceedings to arrive at finding contrary to what earlier Court had found
PRACTICE AND PROCEDURE - amendment of pleadings - whether leave be granted to respondents to amend, shortly before trial, statement of contentions to raise new contention that applicant is estopped from, or would be engaging in abuse of process by, seeking determination under s 225 of Native Title Act 1993 (Cth) that it has exclusive right to control access to land and waters - whether in interests of justice to grant leave to amend - where respondents had not previously raised abuse of process or issue estoppel as issue in dispute
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