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
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