Bennell v State of Western Australia & Ors
STATEMENT OF JUSTICE WILCOX
(This statement is intended to provide some information about the proceedings listed for judgment today and the conclusions reached by the Court. The statement does not cover all aspects of those cases and is not a substitute for the Court’s formal orders or its reasons for judgment. These can be found on the internet at www.fedcourt.gov.au)
Before the Court are six native title cases. Each of them concerns land and waters in, or near to, the Perth metropolitan area.
Five of the cases arise out of applications for a native title determination made by Christopher Robert (‘Corrie’) Bodney. Four of the applications concern particular small areas of land, being land at Hartfield Park, Wannerro Road, Burswood Island and Swanbourne respectively. The fifth application claims a larger area of Perth land, and adjoining coastal waters to the twelve nautical mile limit.
The sixth case arises out of a native title application which has been called ‘the Single Noongar application’. It takes this title from the fact that it was brought to the Court by 80 Aboriginal persons who allege that, in 1829 (the date of European settlement in Western Australia), there was a single Aboriginal community throughout the whole of the south-west of Western Australia. The applicants call this the ‘Noongar community’ and claim the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants say the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land.
I will refer to the whole of the land and waters claimed in the single Noongar application as the ‘claim area’.
It will be appreciated that the claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by it.
The Court decided to break up the trial of the Single Noongar application by first dealing with an area, in and around Perth, that had been the subject of several earlier, smaller claims and later aggregated together as the ‘Combined Metro claim’. The Court took this course because of the expressed desire of the State (supported by the Commonwealth) for early finality about the question whether native title still survived, in the Perth area. With the agreement of all parties, the Court created a separate proceeding in relation to the Perth area. With the assistance of the parties, the Court framed a separate question in that proceeding, asking whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included.
On 11 October 2005, I commenced a hearing relating to all issues arising out of Mr Bodney’s five applications and the issues raised by the separate question in the Single Noongar application. The Court took evidence over a period of 20 days. On eleven of those days, the Court sat ‘on-country’ at eight different locations: Jurien Bay, Albany, Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and in Kings Park. The Court heard evidence from 30 Aboriginal witnesses and five expert witnesses: two historians, two anthropologists and a linguistic expert. A considerable volume of written evidence was also received.
After the conclusion of the evidence, most parties prepared and filed written submissions. On 23 June 2006, I conducted a video-link hearing between Sydney and Perth to discuss aspects of those submissions.
The judgment I will deliver today will deal with all issues arising in respect of Mr Bodney’s applications but, in relation to the Single Noongar applicants, only the separate question. Unless resolved by agreement between the parties, all other issues arising out of the Single Noongar application will be determined by another judge.
In order to obtain a Determination of native title, applicants must establish two fundamental matters:
(i) the identity of the community whose laws and customs governed the use and occupation of the land within the claim area at the relevant date of settlement, in this case 1829;
(ii) that this community continues to exist today, and continues to acknowledge and observe those laws and customs, albeit perhaps in an attenuated or somewhat changed form.
These two issues lay at the heart of the hearing conducted by me late last year and the parties’ subsequent submissions.
As I have said, the Single Noongar applicants claim the laws and customs governing land rights and interests in 1829 were those of a single community whose members were scattered throughout the whole claim area. The case put on behalf of the principal respondents (the State and the Commonwealth) was that there were, at that time, a number (perhaps 12 or 13) of separate communities, each with its own set of laws and customs concerning land. Mr Bodney seemed to contend for a much greater number of land-owning units. If either the principal respondents or Mr Bodney is correct, the Single Noongar application would have to be dismissed; that application is premised on the existence of a single community throughout the whole claim area.
An unusual feature of this case is the wealth of material left to us by Europeans who visited, or resided in, the claim area at, or shortly after, the date of settlement. Several maritime explorers visited the south-west coast and left written accounts of their observations, including of the Aboriginal way of life. In 1826, a military garrison was established at King George’s Sound (modern Albany). Three people associated with that garrison became friendly with local Aboriginal people and left accounts of their observations and the information they had gleaned. In addition to this, several early Swan Valley settlers published accounts of the way of life of Aborigines in the Perth district. This material was supplemented, later in the 19th century, by the writings of other settlers. Very early in the 20th century, Daisy Bates carried out an extensive investigation about Aborigines for the Western Australian government. She left numerous writings, the most significant of which was later published as ‘The Native Tribes of Western Australia’. The cumulative effect of these writings is to provide an insight into Aboriginal life, including Aboriginal laws and customs, in and about the date of settlement, which is possibly not replicated elsewhere in Australia.
I have reached the conclusion that the Single Noongar applicants are correct in claiming that, in 1829, the laws and customs governing land throughout the whole claim area were those of a single community. My principal reasons for that conclusion are as follows:
(i) this conclusion best accords with the information left to us by the early writers;
(ii) I am satisfied, on the evidence of Dr Nicholas Thieberger, an expert in Aboriginal languages, that in 1829 there was a single language throughout the whole claim area, albeit with dialectic differences between various parts of that area;
(iii) the evidence establishes some important customary differences between people living within the claim area and those living immediately outside it (Yamatji to the north and Wongai to the north east);
(iv) there is evidence of extensive interaction between people living across the claim area;
(v) there is no evidence of significant differences within the claim area, as regards the content of laws and customs relating to land.
However, I am satisfied the laws and customs observed in 1829 did not extend to rights and interests over the off-shore islands, such as Rottnest and Carnac Islands, or to the sea below low-water mark. It is clear from the early writings that, in 1829, the south-west Aborigines were not accustomed to use any form of boat. Although the coastal people took fish, they seem to have done so from dry land or places accessible by wading. The off-shore islands are important in Aboriginal legend, but the absence of evidence of physical use means there can be no native title over those areas of land and water.
The second question is whether the Noongar community has continued to exist, as a community, and to acknowledge and observe its traditional laws and customs concerning land.
The Noongar community was enormously affected by white settlement. Aboriginal people were forced off their land and dispersed to other areas. Families were broken up. The descent system was affected by the fact that many children were fathered by white men. Probably in every Noongar family there is at least one white male ancestor. Over a long period, mixed-blood children were routinely taken away from their parents. Notwithstanding all this, and surprisingly to me, members of families seem mostly to have kept in contact with each other, and families with other Noongar families. Many, if not most, children learned at least some Noongar language. Many, if not most, were taught traditional skills, such as for hunting, fishing and food-gathering, and learned traditional Noongar beliefs, including in relation to the spirit world. All of this was graphically illustrated by the witnesses who gave evidence in these cases.
A major issue in the Single Noongar case was whether it can be said the present Noongar community continues to acknowledge and observe its traditional laws and customs concerning land. Undoubtedly, there have been changes in the land rules. It would have been impossible for it to be otherwise, given the devastating effect on the Noongars of dispossession from their land and other social changes. However, I have concluded that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement. In particular, contemporary Noongars continue to observe a system under which individuals obtain special rights over particular country – their boodjas – through their father or mother, or occasionally a grandparent. Those rights are generally recognised by other Noongars, who must obtain permission to access another person’s boodja for any traditional purpose. Present day Noongars also maintain the traditional rules as to who may ‘speak for’ particular country.
It follows that the Court should find that native title continues to exist in the area that was made the subject of the separate question. The native title holders are the whole Noongar community, on whose behalf the Single Noongar application was made.
The evidence enables me to identify eight native title rights which have survived and should be recognised. The wording of these rights will need refinement in the light of discussions between the parties or rulings concerning some particular parcels of land. However, I will provide an answer to the separate question that proposes a tentative list.
Mr Bodney’s applications must all be dismissed. I am not satisfied that the Ballarruk and Didjarrak people, through whom he claims, were ever land-holding groups, whether singly or in combination. The better view is that ‘Ballarruk’ and ‘Didjarruk’ were the names of moiety (skin) groups. Also, there is no evidence that the members of Mr Bodney’s claim group are descended from anybody who was a Ballarruk or Didjarruk person alive at or about the date of settlement or that they have continued to acknowledge and observe whatever were the Ballarruk and/or Didjarruk rules about landholding at that time. Finally, Mr Bodney’s claims are inconsistent with my finding that the relevant community in 1829 was the Single Noongar community.
Litigation over native title in the Perth area has gone on for a long time. It has undoubtedly cost much money – mostly taxpayers’ funds. Unless the parties make a determined effort otherwise, it will absorb a lot more money, before it is finished. My answers to the separate question will not themselves end the litigation. There may be an appeal. If there is not, or my finding is sustained on appeal, it would ordinarily be necessary for the State to carry out land tenure searches relating to every one of hundreds of thousands of individual parcels of land in the Perth area. This would be an expensive exercise and take a long time. Any disputes about extinguishment would need to be resolved. It would then be necessary to deal with the remainder of the area covered by the Single Noongar claim, but outside the Perth area which is the subject of the separate question. This also would be an expensive and time-consuming process.
Having regard to these considerations, it seems to me sensible for the parties to discuss the future course of the Single Noongar application, perhaps after disposal of any appeal from my orders but before embarking on land tenure searches or litigation about other matters. It might be preferable for the parties to concentrate their attention on a limited number of larger parcels, in relation to which there is a reasonable likelihood of frequent use by members of the Noongar community. I have in mind areas of undeveloped, or sparsely developed, land; perhaps including national parks. A relatively early determination of rights over those properties may better serve the interests of the Noongar community than a lengthy pursuit of a Determination over every legally available parcel of land; and this course is likely to be both less expensive to the State and conducive to earlier certainty about the status of each particular parcel of land.
It is perhaps important for me to emphasise that a Determination of Native Title is neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted. A Native Title Determination does not affect freehold land or most leasehold land; it cannot take away peoples’ back yards. The vast majority of private landholders in the Perth region will be unaffected by this case.
A Native Title Determination recognises the traditional association of the claimant community with particular land. I recognise the immense symbolic and psychological importance of such recognition. Native Title Determinations have an important part in achieving the reconciliation between indigenous and non-indigenous Australians to which we all aspire. However, a Determination does not give to the claimant community a right that enables them to sell or lease the land or to develop or use it for any non-traditional purpose.
It follows that a Native Title Determination impedes the use of public land only to the extent of the rights listed in the Determination.
I believe it would be worthwhile, in the present case, for the government and local government respondents carefully to consider to what extent, if at all, their proper functions would be impeded by a formal Determination along the lines suggested by the answer to the separate question I am about to announce. On the other side, it would be worthwhile for the Single Noongar applicants to consider how they might assist to ameliorate any genuine problem. In short, it would be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.
The formal orders that I make are as follows:
(i) in relation to each of Mr Bodney’s claims (matters WAD 137, 138, 139, 140 and 149 of 1998) I order the application be dismissed;
(ii) in relation to the Perth Metropolitan part of the Single Noongar claim (Part of WAD 6006 of 2003), I order that:
1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:
As to para (i):
But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;
As to para (ii):
The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;
As to para (iii):
Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:
(a) to access and live on the area;
(b) to conserve and use the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.
2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.
3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding, in relation to the said notice of motion.
4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by French J.
5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, French J, for the making of such further orders and directions as may be necessary.
FEDERAL COURT OF AUSTRALIA
Bennell v State of Western Australia [2006] FCA 1243
NATIVE TITLE – Overlapping claimant applications in respect of land and waters in and around Perth – Applications in respect of five areas made on behalf of Bodney Family Group claim based on descent from Ballarruk and Didjarruk ‘clans’ – Whether these were land-holding groups at sovereignty or moiety groups – Lack of evidence of connection between members of claimant group and any Ballarruk or Didjarruk person alive at sovereignty – Lack of evidence of continued acknowledgement and observance of traditional laws and customs – These claims dismissed - Consideration of separate question arising out of application by the Noongar community in respect of an extensive area of south-west Western Australia – Separate questions related only to land and waters in and around Perth, however the claim was that this was part of a greater area in respect of which the Noongar community held native title rights and interests – Whether at sovereignty the normative system governing the whole of south-west Western Australia was that of a single Noongar community or whether there were a series of separate normative systems of smaller communities – Whether the single Noongar community has continued to acknowledge and observe some traditional laws and customs concerning land and waters – Identification of persons entitled to native title rights and interests – Identification of surviving rights and interests – Discussion of, and orders about, belated motion to strike out single Noongar claim for lack of proper authorisation.
Native Title Act 1993 (Cth) ss 61, 84, 84C, 85A, 223, 225
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, followed
Western Australia v Ward (2002) 213 CLR 1 followed
Western Australia v Ward (2000) 99 FCR 316 applied
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 applied
ANTHONY BENNELL v STATE OF WESTERN AUSTRALIA & ORS
PART OF WAD 6006 OF 2003
CHRISTOPHER ROBERT BODNEY vSTATE OF WESTERN AUSTRALIA & ORS
WAD 137 OF 1998
CHRISTOPHER ROBERT BODNEY vSTATE OF WESTERN AUSTRALIA & ORS
WAD 138 OF 1998
CHRISTOPHER ROBERT BODNEY vSTATE OF WESTERN AUSTRALIA & ORS
WAD 139 OF 1998
CHRISTOPHER ROBERT BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS v STATE OF WESTERN AUSTRALIA & ORS
WAD 149 of 1998
WILCOX J
19 SEPTEMBER 2006
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIADISTRICT REGISTRY | PART OF WAD 6006 OF 2003 |
IN THE MATTER OF THE PERTH PORTION OF
THE SINGLE NOONGAR CLAIM NO. 1
| BETWEEN: | ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON, MARTHA BORINELLI, ROBERT BROPHO, GLEN COLBUNG, KEN COLBUNG, DONALD COLLARD, CLARRIE COLLARD-UGLE, ALBERT CORUNNA, SHAWN COUNCILLOR, DALLAS COYNE, DIANNA COYNE, MARGARET CULBONG, EDITH DE GIAMBATTISTA, RITA DEMPSTER, ADEN EADES, TREVOR, EADES, DOOLANN-LEISHA EATTES, ESSARD FLOWERES, GREG GARLETT, JOHN GARLETT, TED HART, GEORGE HAYDEN, REG HAYDEN, JOHN HAYDEN, VAL HEADLAND, ERIC HAYWARD, JACK HILL, OSWALD HUMPHRIES, ROBERT ISAACS, ALLAN JONES, JAMES KHAN, JUSTIN KICKETT, ERIC KRAKOUER, BARRY McGUIRE, WALLY McGUIRE, WINNIE McHENRY, PETER MICHAEL, THEODORE MICHAEL, SAMUEL MILLER, DIANE MIPPY, FRED MOGRIDGE, HARRY NARKLE, DOUG NELSON, JOE NORTHOVER, CLIVE PARFITT, JOHN PELL, KATHLEEN PENNY, CAROL PETPTERSENN, FRED PICKETT, ROSEMARY PICKETT, PHILLIP PROSSER, BILL REIDY, ROBERT RILEY, LOMAS ROBERTS, MAL RYDER, RUBY RYDER, CHARLES SHAW, IRIS SLATER, BARBARA STAMNER-CORBETT, HARRY THORNE, ANGUS WALLAM, CHARMAINE WALLEY, JOSEPH WALLEY, RICHARD WALLEY, TREVOR WALLEY, WILLIAM WEBB, BERYL WESTON, BERTRAM WILLIAMS, GERALD WILLIAMS, RICHARD WILKES, ANDREW WOODLEY, HUMPHREY WOODS, DIANNE YAPPO, REG YARRAN, SAUL YARRAN, MYRTLE YARRAN APPLICANTS
|
| AND: | STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), CHRISTOPHER (ROBERT) BODNEY, NOONGAR LAND COUNCIL, KEVIN MILLER, CITY OF BAYSWATER, CITY OF BELMONT, CITY OF CANNING, CITY OF FREMANTLE, CITY OF JOONDALUP, CITY OF MELVILLE, CITY OF NEDLANDS, CITY OF SUBIACO, CITY OF WANNEROO, SHIRE OF KALAMUNDA, SHIRE OF MUNDARING, SHIRE OF PEPPERMINT GROVE, SHIRE OF SWAN, TOWN OF BASSENDEAN, TOWN OF CAMBRIDGE, TOWN OF CLAREMONT, TOWN OF COTTESLOE, TOWN OF EAST FREMANTLE, TOWN OF MOSMAN PARK, TOWN OF VICTORIA PARK, CITY OF ARMADALE, CITY OF GOSNELLS, CITY OF PERTH, CITY OF SOUTH PERTH, CITY OF STIRLING, SHIRE OF CHITTERING, SHIRE OF NORTHAM, TOWN OF VINCENT, BILLITON ALUMINIUM (RRA) PTY LTD, BILLITON ALUMINIUM (WORSLEY) PTY LTD, DORAL MINERAL SANDS PTY LTD, HEDGES GOLD PTY LTD, QUADRIO RESOURCES PTY LTD, WESFARMERS PREMIER COAL LTD, ADELAIDE BRIGHTON CEMENT LIMITED, BORAL RESOURCES (WA) LTD, COCKBURN CEMENT LTD, DORRINGTON MARINE SERVICES/YENNETT PTY LTD, NHL PTY LTD, FREMANTLE SAILING CLUB INC, AIRSERVICES AUSTRALIA, AUSTRALIAN MARITIME SAFETY AUTHORITY, AUSTRALIAN RED CROSS, BGC CONTRACTING PTY LTD, FREMANTLE PORT AUTHORITY, PERTH DIOCESAN TRUSTEES, ROMAN CATHOLIC ARCHBISHOP OF PERTH, THE SHELL COMPANY OF AUSTRALIA LIMITED, UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (WA), ALOCA OF AUSTRALIA LTD, BLUEGATE NOMINEES PTY LTD, EDITH COWAN UNIVERSITY, LIMESTONE RESOURCES AUSTRALIA PTY LTD, M G KAILIS HOLDINGS PTY LTD, TIWEST JOINT VENTURE, TRONOX WESTERN AUSTRALIA PTY LTD, WESFARMERS KLEENHEAT GAS PTY LTD, WORSLEY ALUMINA PTY LTD, YALGOO MINERALS PTY LTD, OPTUS MOBILE PTY LTD, OPTUS NETWORKS PTY LIMITED, TELSTRA CORPORATION LIMITED RESPONDENTS
|
| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:
As to para (i):
But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;
As to para (ii):
The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;
As to para (iii):
Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:
(a) to access and live on the area;
(b) to conserve and use the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.
2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.
3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding, in relation to the said notice of motion.
4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by French J.
5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, French J, for the making of such further orders and directions as may be necessary.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 137 OF 1998 |
| BETWEEN:
| CHRISTOPHER ROBERT BODNEY APPLICANT
|
| AND: | STATE OF WESTERN AUSTRALIA, SHIRE OF KALAMUNDA, TELSTRA CORPORATION LIMITED, ROBERT BROPHO, ALBERT CORUNNA, GREGORY LAWRENCE GARLETT, KELVIN PATRICK GARLETT, RICHARD WILKES RESPONDENTS
|
| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 138 OF 1998
|
| BETWEEN:
AND: | CHRISTOPHER ROBERT BODNEY APPLICANT
STATE OF WESTERN AUSTRALIA, CITY OF WANNEROO, ROBERT BROPHO, ALBERT CORUNNA, GREGORY LAWRENCE GARLETT, KELVIN PATRICK GARLETT, RICHARD WILKES AND TELSTRA CORPORATION LIMITED RESPONDENTS
|
| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 139 OF 1998
|
| BETWEEN:
AND: | CHRISTOPHER ROBERT BODNEY APPLICANT
STATE OF WESTERN AUSTRALIA, TOWN OF VICTORIA PARK, ROBERT BROPHO, ALBERT CORUNNA, GREGORY LAWRENCE GARLETT, KELVIN PATRICK GARLETT, RICHARD WILKES AND TELSTRA CORPORATION LIMITED RESPONDENTS
|
| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 140 OF 1998
|
| BETWEEN:
AND: | CHRISTOPHER ROBERT BODNEY APPLICANT
STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), FREMANTLE PORT AUTHORITY, TOWN OF CAMBRIDGE, RAYMOND ANDREW YUKICH, PAMELA RAE YUKICH AND TELSTRA CORPORATION LIMITED RESPONDENTS
|
| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | PART OF WAD 149 of 1998
|
| BETWEEN:
| CHRISTOPHER ROBERT BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS APPLICANTS
|
| AND: | STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), AIRSERVICES AUSTRALIA, AUSTRALIAN MARITIME SAFETY AUTHORITY, CITY OF BAYSWATER, CITY OF BELMONT, CITY OF CANNING, CITY OF JOONDALUP, CITY OF MELVILLE, CITY OF NEDLANDS, CITY OF SUBIACO, CITY OF WANNEROO, FREMANTLE PORT AUTHORITY, SHIRE OF KALAMUNDA, SHIRE OF MUNDARING, SHIRE OF PEPPERMINT GROVE, SHIRE OF SERPENTINE-JARRAHDALE, SHIRE OF WANDERING, TOWN OF BASSENDEAN, TOWN OF CAMBRIDGE, TOWN OF CLAREMONT, TOWN OF COTTESLOE, TOWN OF EAST FREMANTLE, TOWN OF KWINANA, TOWN OF MOSMAN PARK, TOWN OF VICTORIA PARK, CITY OF ARMADALE, CITY OF GOSNELLS, CITY OF PERTH, CITY OF SOUTH PERTH, CITY OF STIRLING, SHIRE OF CHITTERING, SHIRE OF NORTHAM, TOWN OF VINCENT, NOONGAR LAND COUNCIL, BORAL RESOURCES (WA) LTD, ADELAIDE BRIGHTON CEMENT LIMITED, COCKBURN CEMENT LTD, DORRINGTON MARINE SERVICES/YENNETT PTY LTD, N H L PTY LTD, AUSTRALIAN RED CROSS, ERNST PETER KALTENBRUNNER, ALAN JOHN RENNER, ROMAN CATHOLIC ARCHBISHOP OF PERTH, UNITING CHURCH IN AUSTRALIA WA SYNOD, FREMANTLE SAILING CLUB INC, THE SHELL COMPANY OF AUSTRALIA LIMITED, ALCOA OF AUSTRALIA LTD, BLUEGATE NOMINEES PTY LTD, EDITH COWAN UNIVERSITY, LIMESTONE RESOURCES AUSTRALIA PTY LTD, TIWEST JOINT VENTURE, TRONOX WESTERN AUSTRALIA PTY LTD, WESFARMERS KLEENHEAT GAS PTY LTD, WORSLEY ALUMINA PTY LTD, YALGOO MINERALS PTY LTD, AND TELSTRA CORPORATION LIMITED RESPONDENTS
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| JUDGE: | WILCOX J |
| DATE OF ORDER: | 19 SEPTEMBER 2006 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
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| WESTERN AUSTRALIA DISTRICT REGISTRY | Part of WAD 6006 of 2003 Part of WAD 149 of 1998 and WAD 137 of 1998 and WAD 138 of 1998 and WAD 139 of 1998 and WAD 140 of 1998 |
IN THE MATTER OF THE PERTH METRO PORTION OF
THE SINGLE NOONGAR CLAIM NO. 1
| BETWEEN:
AND: | ANTHONY BENNELL AND OTHERS APPLICANTS
CHRISTOPHER ROBERT BODNEY BODNEY APPLICANT
|
| AND: | STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
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| JUDGE: | WILCOX J |
| DATE: | 19 SEPTEMBER 2006 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
WILCOX J:
1 These reasons for judgment concern six applications under the Native Title Act 1993 (Cth) (‘the Act’) in relation to land and waters in and around the Perth metropolitan area.
2 The reasons are structured in the following way, paragraph references being stated:
I The proceedings
(i) The 1998 applications 3 - 8
(ii) The Combined Metro application 9 - 10
(iii) The hearing before Beaumont J 11 - 16
(iv) The motion to strike-out the Bodney applications 17 - 21
(v) The Single Noongar application 22 - 27
(vi) Pre-trial orders and directions 28 - 36
(vii) Pre-trial rulings 37 - 48
(viii) The hearing 49 - 56
(ix) The formal issues in the cases 57
II Elements of a native title claim
(i) The source of the elements 58
(ii) The effect of s 223(1) of the Act 59 - 60
(iii) Communal and group claims 61 - 63
(iv) The Applicants’ submissions about legal principles 64 - 73
(v) The respondents’ submissions about legal principles 74 - 82
III The factual issues in these cases 83
IV Was there a Single Noongar community in 1829?
(i) The Applicants’ claim 84
(ii) Source material
(a) Overview 85 - 89
(b) The expert witnesses 90 - 95
(c) The journals of pre-settlement explorers 96
(d) The King George’s Sound writers 97 - 99
(e) The early Perth district writers 100
(f) Late 19th century writers 101 - 103
(g) The early 20th century writers 104 - 105
(h) Some cautionary notes 106 - 112
(i) Late 20th century writers 113 - 115
(j) Marginal matters 116 - 117
(iii) Historical summary
(a) The maritime explorers 118 - 127
(b) The King George’s Sound garrison and settlement 128 - 146
(c) The early post-settlement years 147 - 182
(d) Early 20th century writers 183 - 186
(e) Dr Palmer’s comments on the historical material 187 - 188
(f) Dr Brunton’s response to Dr Palmer’s comments 189 - 190
(iv) Language
(a) Dr Thieberger’s evidence 191 - 216
(b) Aboriginal evidence about language 217 - 252
(c) Dr Palmer’s evidence 253 - 260
(d) Dr Brunton’s evidence 261 - 262
(e) Applicants’ submissions 263 - 264
(f) Submissions for respondents 265 - 272
(g) Conclusions 273 - 280
(v) Laws and customs concerning land
(a) The early writings 281 - 284
(b) Aboriginal evidence about land 285 - 286
(c) Dr Palmer’s evidence 287 - 307
(d) Dr Brunton’s evidence 308 - 324
(e) Applicants’ submissions 325 - 329
(f) Submissions for respondents 330 - 347
(g) Conclusions 348 - 351
(vi) Customs and beliefs
(a) Circumcision 352 - 354
(b) Kangaroo skinning 355 - 357
(c) Spiritual beliefs 358 - 368
(d) Marriage 369 - 376
(e) Sexual transgressions 377
(f) Payback 378
(g) Funeral rites 379 - 380
(h) Tools, weapons and food-getting 381 - 383
(vii) Social interaction
(a) The early writers 384 - 389
(b) The Aboriginal evidence 390
(viii) The expert evidence about the 1829 situation
(a) Dr Palmer 391 - 394
(b) Dr Brunton 395 – 402
(ix) Submissions about the 1829 situation
(a) The Applicants’ submissions 403 - 406
(b) Respondents’ submissions 407 - 423
(x) Conclusions about the 1829 situation 424 - 454
V Has there been a continuation of Noongar laws and customs
from 1829 until the present day?
(i) Preliminary 455 - 459
(ii) Community identification and interaction
(a) The Aboriginal evidence 460 - 595
(b) Comment on the Aboriginal evidence 596 - 601
(iii) Customs and beliefs
(a) Spiritual beliefs 602 - 606
(b) Marriage 607 - 644
(c) Death and funerals 645 - 649
(d) Hunting, fishing and other food-gathering 650 - 684
(iv) Laws and customs concerning land 685 - 700
(v) Submissions about the continuity of acknowledgement
and observance of 1829 laws and customs
(a) The Applicants’ submissions 701 - 706
(b) The State’s submissions 707 - 731
(c) The Commonwealth’s submissions 732 - 744
(d) WAFIC’s position 745
(e) The local government authorities’ submissions 746 – 749
(vi) Conclusions about the continuity of acknowledgement
and observance of 1829 laws and customs
(a) Some peripheral matters 750 – 761
(b) Continuing observance of rules relating to land 762 – 791
(c) Connection with the Perth Metropolitan Area 792 – 799
VI What Noongar native title rights exist today?
(a) Preliminary 800
(b) The geographic limits of any surviving native title
rights and interests 801 – 805
(c) What are the surviving rights and interests?
(i) The Applicants’ claims 806 – 812
(ii) Section 223(1)(c) of the Act 813 – 814
(iii) The claim to a right of occupation, use and
enjoyment of the lands and waters 815 – 841
VII The Bodney applications
(i) Nature of the applications 842 – 843
(ii) Mr Bodney’s evidence 844 – 866
(iii) Other evidence 867 – 868
(iv) Submissions 869– 871
(v) Conclusions 872 – 876
VIII Disposition of proceedings 877 – 883
IX Postcript: the State’s notice of motion of 25 August 2006
(i) Content of the motion 884 -898
(ii) Reaction to the motion 891 - 898
(iii) The State’s submissions in support of the motion 899
(iv) The evidentiary background 916 - 922
(v) The Applicants’ submissions on the strike-out motion 923
(vi) Issues raised by the State’s motion of 25 August 2006 924
(vii) Validity of the order for the separate question 925 - 930
(viii) Is it open to the State to complain about the order for
a separate question? 931 - 934
(ix) Has the separate question order excluded relevant evidence? 935 - 939
(x) Conduct of the strike-out motion 940 - 944
(xi) Disposal of the motion 945 – 951
(xii) Concluding comment 952
I The proceedings
(i) The 1998 applications
3 Between November 1994 and September 1998, 13 applications seeking native title determinations, in relation to land and waters in and around the Perth metropolitan area, were lodged with the Registrar of Native Title pursuant to the Act, as it then stood (‘the old Act’). None of these claims was resolved by mediation. All the claims were referred to this Court, either under s 74 of the old Act, before 30 September 1998, or pursuant to the transitional provisions of the Native Title Amendment Act 1998 (Cth) (‘the Amending Act’) that took effect on that day. Where it is necessary to distinguish between the old Act and the Act, as so amended, I will refer to the latter as ‘the Amended Act’.
4 Application WAG 6009 of 1996 related to Perth airport. In Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; 109 FCR 178, Lehane J held that any native title over this land had been extinguished by its acquisition in fee simple by the Commonwealth of Australia (‘the Commonwealth’) on various dates before 1986. On 13 November 2000, his Honour made a formal order in which he determined that native title did not exist over the airport land. I need not further regard this application.
5 Five of the remaining 12 applications were made by Christopher Robert (‘Corrie’) Bodney. Four of those claims related to small areas of land in the Perth region, being land at Hartfield Park, Wanneroo Road, Burswood Island and Swanbourne respectively. The fifth claim (‘the main claim’) involved a much larger area of land, with its adjoining sea out to 12 nautical miles from the coast. After their transfer to this Court, those applications were numbered, respectively, WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998. I will refer to these five applications as ‘the Bodney applications’.
6 A sixth application (WAG 141 of 1998) (‘the Bropho application’) was lodged by Robert Charles Bropho on his own behalf.
7 The remaining six applications were lodged either by Mr Bropho, on behalf of the ‘Swan Valley Nyungah Community’, or by people associated with Mr Bropho. Four of these applications related only to small areas of land. Two involved substantial areas of land and waters, including sea to the 12 nautical mile limit. The six applications were numbered WAG 142 of 1998, WAG 143 of 1998, WAG 6128 of 1998, WAG 6159 of 1998, WAG 6239 of 1998 and WAG 6283 of 1998. With some looseness of language, these six applications may be called ‘the Swan Valley Nyungah applications’. There was considerable overlap between the Bodney applications on the one hand and the other seven applications on the other.
8 All of these matters have now been given the prefix WAD due to requirements of the Court’s electronic data management system.
(ii) The Combined Metro application
9 On 12 April 1999, the Western Australian District Registrar of the Court made an order for combination of all the Swan Valley Nyungah applications. He further ordered that application WAG 142 of 1998 be the lead application and the parties to the combined application be all the parties to any of the Swan Valley Nyungah applications. The combined application became generally known as ‘the Combined Metro application’.
10 On 7 January 2000, French J made orders for notification, under s 66 of the Act, of the land and waters covered by the Combined Metro application that had not been previously notified: see Bropho v State of Western Australia [2000] FCA 1.
(iii) The hearing before Beaumont J
11 Numerous orders were later made in preparation for hearing the Combined Metro application, including for joinder of additional parties. On 26 July 2000, Lehane J directed there be a joint trial, in about September 2001, of the Bodney applications, the Bropho application and the Combined Metro application.
12 The joint trial commenced before Beaumont J on 18 September 2001. Between that date and 3 April 2003, evidence was taken spasmodically, over a total of 19 days, at locations in and around the Perth metropolitan area. The hearing was not satisfactory. It suffered from inadequate preparation, and representation, on behalf of the applicants and was bedevilled by lengthy arguments about procedural matters, including access to information.
13 Mr Bodney and Mr Bropho appeared in person throughout the hearing. The Combined Metro applicants were intermittently represented by a succession of lawyers apparently acting on a pro bono basis. They did the best they could, without having the benefit of expert advice or evidence or the opportunity to prepare a coherent case. Some of the respondents were legally represented throughout the hearing.
14 When the trial was adjourned on 3 April 2003, the evidence was still incomplete. On the following day, 4 April 2003, Beaumont J made an order, pursuant to Order 29 rule 2 of the Federal Court Rules, that the following question be decided separately from and before any other questions in the Combined Metro application:
‘1. what are the communal, group or individual rights and interests, if any, of Aboriginal peoples in relation to land or water in the claim area, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples; and
(b) the Aboriginal peoples, by those laws and customs, have a connection with the land or waters;
2. which Aboriginal people, if any, hold those rights and interests.’
15 Shortly after this order was made, Beaumont J found it necessary, on medical grounds, to retire from the matters. At a directions hearing before French J, the parties agreed the hearing would be completed by a different judge, but on the basis that the evidence taken by Beaumont J would not be repeated. On 13 June 2003, French J made the following formal orders:
‘1. There be a new trial of the native title application in WAG 142 of 1998 to be tried together with new trials of the applications WAG 137 – 141 and 149 of 1998 (limited in the latter case to the area of its overlap with the other applications).
2. The transcript of evidence and exhibits etc. in the proceedings before the Court already heard in the above matters be received into evidence at the new trials subject to any objections as to the admissibility of particular evidence which had been made and not ruled upon in the previous proceedings and subject to such restrictions as have been ordered until such restrictions are lifted or varied by the trial judge.
…
4. The transcript of evidence already taken may be supplemented by such site visits and such further oral evidence as the trial judge directs.’
16 Soon after those orders, I was asked to take over the matters. At a directions hearing held by me on 19 August 2003, I indicated I understood the agreement embodied in French J’s orders to require me to read and apply the evidence already given (to the extent that any party relied upon it), along with such further evidence as the parties might adduce. No party disagreed with that understanding.
(iv) The motion to strike-out the Bodney applications
17 At about the time the matters were assigned to me, the Combined Metro applicants filed a notice of motion for orders, pursuant to s 84C(1) of the Act, striking out each of the Bodney applications. It was said these applications did not comply with the requirements of s 61 of the Act.
18 Section 84C(2) of the Act requires the Court to consider a strike-out application under s 84C(1) ‘before any further proceedings take place in relation to the main application’. Mr Bodney did not respond to the strike-out application by seeking to amend any of his applications. Accordingly, on 19 August 2003, I heard argument on the strike-out application.
19 On 25 August 2003, I made orders striking out all the Bodney applications: see Bodney v State of Western Australia [2003] FCA 890. It was my opinion that none of them satisfied the requirements of the relevant version of s 61 of the Act. All of the applications had been made under the old Act, but two of them (WAG 137 of 1998 and WAG 149 of 1998) had been amended since the commencement of the Amending Act. I followed two previous first instance decisions, in holding that s 61 of the Amended Act applied to the amended applications.
20 I held the three applications needing to be evaluated under the old s 61 were defective because of Mr Bodney’s failure to ‘describe or otherwise identify’ the persons on whose behalf the application was made. The two applications that had been amended after the commencement of the Amending Act provided a fuller description of the claimant group but it appeared clear, from evidence given before Beaumont J, that neither of them was authorised by the members of the described group in accordance with s 251B of the Act, as required by the new s 61.
21 On 24 August 2004, a Full Court allowed an appeal against my decision and set aside the strike-out orders: see Bodney v Bropho [2004] FCAFC 226; 140 FCR 77. The Full Court was divided as to whether the new form of s 61 applied to the two amended applications. However, all members of the Court thought Mr Bodney should have a further opportunity to amend his applications in such a manner as to avoid the difficulties raised against them.
(v) The Single Noongar application
22 On 10 September 2003, a new proceeding (WAG 6006 of 2003) was instituted. This proceeding has been referred to as the ‘Single Noongar application’ (or Single Noongar [No 1]), on account of the fact that it was made by 80 named applicants ‘on behalf of all Noongar people’. The filed Native Title Determination Application stated the named applicants ‘are members of the native title claim group and are authorised to make the application, and deal with matters [which] arise in relation to it, by all the other persons in the native title claim group’. The application described the Noongar people in this way:
‘ The descendants of the Noongar apical ancestors listed in Attachment A1;
The members of the Noongar families whose surnames are listed in Attachment A2;
The descendants, of the Noongar ancestors of families whose surnames are listed in Attachment A2;
The members of the Noongar families whose surnames are listed in Attachment A3;
The descendants, of the Noongar ancestors of families whose surnames are listed in Attachment A3; and
All other Noongar people identifying and accepted in accordance with Noongar customs and traditions as understood by Noongar people and handed down by Noongar Elders.
Identification of a Noongar person is through biological descent from a Noongar person but can include people incorporated into the Noongar community through adoption, in accordance with Noongar custom and tradition.
Identification of a Noongar family is through biological descent from a Noongar person but can include people incorporated into the Noongar community through adoption, marriage or defacto marriage and in accordance with Noongar custom and tradition.’
Attachment A1 identified 99 apical ancestors. Attachments A2 and A3 set out some 400 family names.
23 Attachment B to the application contained a detailed description of the external boundary of the claimed area (‘the claim area’). The description was illustrated by a map (Attachment C) which showed that the external boundary of the claim area extends from a point on the western coast of Australia in the Shire of Coorow, just north of Jurien, roughly easterly to a point approximately north of Moora and then roughly south-easterly to intersect the southern coast of Australia at a point slightly west of Esperance. The claim area contained some off-shore islands, including Rottnest and Carnac Islands, and the sea abutting the entire coastal area, and the claimed islands, to the three nautical mile limit. The claim area excluded a relatively small strip of coastal land in the Busselton-Margaret River district. This land is the subject of a separate claim, generally called ‘Single Noongar No 2’. The Single Noongar [No 1] claim area excluded all land and waters that are, or were, subject to a past act attributable to the Commonwealth or the State of Western Australia (‘the State’), including the grant of freehold title.
24 It will be appreciated that the claim area includes the Perth metropolitan area.
25 Schedule E of the application set out the native title rights and interests claimed by the applicants:
‘The applicants claim the right to occupation, use and enjoyment of the lands and waters in accordance with and subject to their traditional laws and customs (or current laws and customs as they have adapted and changed from those traditional laws and customs).
The applicants acknowledge that these rights may co-exist with other statutory or common law rights in relation to some lands and waters, subject to the force and operation of laws of the Commonwealth and the State.
The right to occupation, use and enjoyment of the lands and waters includes the right to:
(a) live on and access the area;
(b) use and conserve the natural resources of the area for the benefit of the native title holders;
(c) maintain, use, manage and enjoy the area for the benefit of the native title holders, that is to:
i) maintain and protect sites of significance to the native title holders and other Aboriginal people within the meaning of that term in the Native Title Act 1993;
ii) inherit, dispose of or give native title rights and interests to others provided that such persons are Aboriginal people within the meaning of that term in the Native Title Act 1993;
iii) right to determine and regulate membership of, and recruitment to, the native title holding group, provided that such persons must be Aboriginal people within the meaning of that term in the Native Title Act 1993;
iv) regulate among and resolve disputes between, the native title holders in relation to the rights of possession, occupation, use and enjoyment of the area;
v) conduct social, religious, cultural and economic activities on the area;
vi) exercise and carry out economic life on the area, including harvesting, fishing, cultivating, management and exchange of economic resources;
(d) conserve, use and enjoy the natural resources of the area, for social, cultural, economic, religious, spiritual, customary and traditional purposes; and make decisions about and to control the access to, and the use and enjoyment of, the area and its natural resources by the native title holders;
(e) the right to control access and use between the native title holders and any other Aboriginal people who seek access to, or use of, the claim area in accordance with the traditional law and custom;
(f) the right to teach and pass on knowledge of the applicant group’s traditional laws and customs pertaining to the area and knowledge of places in the area;
(g) the right to learn about and acquire knowledge concerning, the applicant group’s traditional laws and customs pertaining to the area and knowledge of places in the area.
In relation to:
(a) any areas where there has been no previous extinguishment of native title;
(b) any area of natural water resources that is found not to be tidal;
(c) any areas affected by category C and D past and intermediate period acts;
(d) s47 Pastoral leases held by native title claimants;
(e) s47A Reserves act covered by claimant applications; and/or
(f) s47B Vacant Crown Land Covered by claimant applications,
the applicant claims exclusive possession, occupation, use and enjoyment of those areas.’
26 The application identified the relevant representative Aboriginal/Torres Strait Islander body as South West Aboriginal Land and Sea Council (‘SWALSC’). It also contained considerable additional information, which it is not necessary to set out.
27 On 2 October 2003, French J made directions for mediation and negotiation of the Single Noongar application and a number of smaller claims (outside the Perth area) that overlapped that application. I understand there were discussions between the parties but no substantive agreement was reached.
(vi) Pre-trial orders and directions
28 On 6 October 2003, Christine Cooper, a solicitor employed by SWALSC, filed a notice of motion on behalf of the Single Noongar applicants seeking an order for the combination of the Single Noongar application with the Combined Metro application (WAG 142 of 1998).
29 I heard submissions about the motion on 8 October 2003. It is convenient to explain what happened by reference to paras 6-9 of the Reasons for Judgment delivered by me on the following day:
‘The single Noongar claim covers a significant portion of Western Australia. Its northern boundary is a line running east from a position on the coast north of Jurien. The claimed area then runs south-east to a point on the Great Australian Bight near Esperance. Subject to internal exceptions, the claimed area takes in the whole of the south-west of the State and much, if not all, of the Western Australian wheatbelt. Importantly for present purposes, it includes the whole of the area covered by the Perth Metro claims, except that the single Noongar claim extends only three nautical miles off-shore, whereas WAG 142 of 1998 claims waters to the twelve nautical mile limit.
At a directions hearing on 1 October 2003, I was informed of a proposal to amend WAG 141 of 1998 and WAG 142 of 1998 in such a way as to combine them with the single Noongar claim. I directed that any application to that effect be filed and served not later than 6 October 2003 and be made returnable before me on 8 October 2003. Such an application was made. However, it sought to amend only WAG 142 of 1998, a decision having been taken by Mr Bropho to seek leave to discontinue matter WAG 141 of 1998.
When the motions came before me yesterday, it immediately became apparent that there was no opposition to the application for leave to discontinue WAG 141 of 1998, except by Mr Bodney. However, Mr Bodney was not able to show the discontinuance would prejudice him in any way. I granted leave. This left only WAG 142 of 1988, of the seven applications transferred to the Court on 30 September 1998. That matter was subject to a strike-out application by Mr Bodney which I then heard and dismissed.
I turn to the applicants’ motion to amend WAG 142 of 1998. A companion motion was filed in the single Noongar claim, by solicitors acting for the South West Aboriginal Land and Sea Council (‘SWALSC’). At the hearing of the motions, it became apparent there was no real opposition to the proposed amendments. The real issue was what should happen next.’
30 Counsel for the Combined Metro applicants and counsel for SWALSC had submitted it was unnecessary for me to do more than to make a combination order, leaving further pre-trial steps to be governed by the general Single Noongar directions that had already been made by French J. However, counsel for some of the respondents, including the State and the Commonwealth, had disputed that view. At para 14 of my Reasons, I summarised their position in this way:
‘These counsel express concern at the prospect of further prolonged delay in the Court determining whether native title exists over land and waters in and around Perth. They point out that the first application in respect of the Perth metropolitan area, the claim that became matter WAG 141 of 1998, was lodged as long ago as November 1994. They rightly say that prosecution of the claims has been attended with considerable delay and they contend that there is a substantial public interest in their early resolution. The respondents say that, if WAG 142 of 1998 becomes part of the vast single Noongar claim, without being subject to any special measures to ensure its early determination, then resolution may be postponed for years.’
31 I went on:
‘There is considerable force in the matters put by the respondents. It had been my intention to take evidence in relation to the Perth Metro claims during the next two weeks; that is, the weeks commencing 13 and 20 October 2003. The evidence would not necessarily have concluded within that period; but it would have been substantially complete. It should have then been possible to complete the hearing with little further delay. The filing of the single Noongar claim has made it impractical to take that course. Section 67(1) of the Act requires that, if two or more proceedings relate to the same area (in whole or in part), the Court must ensure they are dealt with in one proceeding. Given that the single Noongar claim has yet to be notified under s 66 of the Act, it cannot properly proceed to hearing during the next two weeks.
Although none of the respondents mentioned any particular problem that might be caused by delay in finalising the Perth Metro claims, they understandably feel frustrated and concerned about the delay occasioned by cancelling the projected hearing. I think they are right to suggest it is important that every effort be made to minimise further delay. However, this must be done in such a way as to be consistent with the scheme and policy of the Act, and to be fair to the single Noongar claimants.’
32 Counsel for the State suggested it would be practicable, and desirable, to hear that aspect of the Single Noongar claim which related to the land and waters within the Combined Metro claim in advance of any hearing concerning the balance of the Single Noongar area. I thought there was merit in that suggestion and, after discussing various practical issues, I expressed the hope that it would be possible to hear the Perth section of the single Noongar claim in about October 2004. On 9 October 2003, I made orders in WAG 142 of 1998 that included the following:
‘1. The applicants be granted leave to amend Native Title Determination Application WAG 142 of 1998 pursuant to s 64 of the Native Title Act 1993 (Cth), so that it is combined with and included in Native Title Determination Application WAG 6006 of 2003.
2. The amended application be in the form of WAG 6006 of 2003 as filed on 10 September 2003 in accordance with the Minute of Proposed Amended Native Title Application attached to the affidavit of Albert Corunna dated 6 October 2003.
3. Both of these applications be now conducted as one application.
4. Application WAG 6006 of 2003 be the lead application.
...
6. Subject to any contrary order by a Judge, that part of the combined application as relates to the land and waters covered by application 142 of 1998 (“the Perth claim”) shall be heard in a separate proceeding to commence during the first week of October 2004 …
7. The evidence already given in respect of matters WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998, WAG 141 of 1998, WAG 142 of 1998 and WAG 149 of 1998 is to be evidence in the hearing to commence in October 2004 subject to relevance and all just objections, including any new objections taken by any person who was not a party to any of those seven matters.
8. Subject to the above, the directions made by French J on 2 October 2003 in relation to matter WAG 6192 of 1998 are to apply to the Perth section claim as if they were set out seriatim herein.
9. All parties have liberty to apply to me, by arrangement with my associate, in relation to any matter connected with the separate hearing of the Perth section claim.’
33 In matter WAG 6006 of 2003, I made orders corresponding with the first four of the above orders.
34 On 9 October 2003, the Bropho application (WAG 141 of 1998) was discontinued. The only surviving applications affecting any part of the Perth metropolitan area were then the Single Noongar application (insofar as it did affect that area) and the five Bodney applications (after they were reinstated by the Full Court on 24 August 2004).
35 On 28 November 2003, Ms Cooper filed a further notice of motion seeking an order to combine the Single Noongar application with ten overlapping claims. On 15 June 2004, French J dismissed that motion. The ten claims remain in existence but none of them relates to the area with which these reasons are directly concerned.
36 It gradually became apparent that it would not be practicable to commence the hearing of the Perth claims in October 2004. SWALSC suffered delay in procuring a promise of the funding that was necessary for it to engage experts. Once experts were retained, they endeavoured to prepare their reports as quickly as possible. However, it became obvious that satisfactory reports could not be finalised in time for an October 2004 hearing. Accordingly, on 22 July 2004, I abandoned the idea of an October 2004 hearing and made new directions designed to enable a hearing in 2005.
(vii) Pre-trial rulings
37 Between 22 July 2004 and the commencement of the trial, on 11 October 2005, I made rulings regarding several interlocutory applications. I need not deal with them all. However, I mention five matters.
38 First, despite the reference, in order 6 made on 9 October 2003, to a ‘separate proceeding’, no formal order was made splitting WAG 6006 of 2003. Nor was a separate file number assigned to the ‘separate proceeding’. In retrospect, it would have been desirable for me to take, or direct, those steps at that time. Instead, after hearing submissions from the parties, on 1 April 2005, I directed the trial of a separate question. The form of this question, as later amended, is set out at para 47 below.
39 Second, it will be recalled that the Full Court adverted to the possibility that Mr Bodney might amend his applications in order to overcome the perceived authorisation problems. Although Mr Bodney had previously not shown interest in taking this course, I drew his attention to the Full Court’s position. On 1 April 2005, I made the following order:
‘Leave be granted to the applicant, in each of matters WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998, and WAD 149 of 1998, to file an amended application, if the applicant so wishes. Any such amended application is to be filed and served not later than 31 May 2005. Each of these applications, and the strike out motions in relation to them, shall be heard in conjunction with the Perth Metro part of the Single Noongar claim (WAD 6006 of 2003).’
40 I subsequently extended the date for filing any amended application to 1 July 2005. However, Mr Bodney did not amend any of his applications. Nor did he seek any further extension of time. In the hearing that was subsequently conducted by me, he cross-examined most witnesses; but he did not adduce evidence additional to what he had given before Beaumont J.
41 In their closing written submissions, counsel for the Single Noongar applicants expressed in the following way their clients’ attitude to the Bodney applications:
‘The Single Noongar claimants acknowledge that Mr Bodney and those represented by him are members of the Noongar people as described in the Single Noongar claim. The Single Noongar claimants do not, however, acknowledge, that Mr Bodney and some members of his family have exclusive connection with or rights and interests in relation to, the land and waters claimed in the various Bodney claims.’
42 Third, on 15 February 2005, I ordered that: ‘[i]f any party wishes to challenge the authority of the Applicants to make claim WAD 6006/03, that party is to file a strikeout motion with supporting affidavit evidence by 31 March 2005’. The only party who chose to take that course was the Noongar Land Council Aboriginal Corporation (‘NLC’), the former representative body for the area. On 13 May 2005, NLC filed a notice of motion seeking an order striking out the Single Noongar application. The motion was supported by an affidavit of Frank Peter David, who described himself as ‘the Registered Public Officer and acting chief executive officer’ of the NLC. The affidavit made many assertions of fact, and some allegations of misconduct, but it did not challenge the material about authorisation that was set out in the Single Noongar application. Nor did it raise any other ground for striking out that application. However, having in mind the requirement of s 84C(1) of the Act, I listed the motion for hearing on 5 August 2005. On that day, Mr David appeared on behalf of NLC, accompanied by Mr R Yarran. He developed the matters set out in his affidavit but put no argument to me relevant to a strike-out order. Accordingly, I dismissed the strike-out motion.
43 Fourth, on 19 August 2005, a notice of motion was filed by Blake Dawson Waldron, solicitors, seeking an order for the joinder as respondents of some 40 persons (individuals and companies) who were said to hold interests in pastoral leases over land that was situate in the area covered by the Single Noongar claim, but outside the area which was the subject of the ‘separate proceeding’ and separate question.
44 I considered this motion at a hearing on 23 August 2005. The argument put by the applicants for joinder was that, although they did not have an interest in any land within the area that was subject to the ‘separate proceeding’ and separate question, the determination of the separate question was likely to have a significant effect on the fate of that part of the Single Noongar claim that concerned land and waters outside that area, including land in which they did have interests.
45 I accepted this possibility: see s 86 of the Act, noting particularly para (c). However, it seemed to me this did not mean the applicants for joinder fell within the class of persons referred to in s 84(3) of the Act in relation to the land and waters which were the subject of the ‘separate proceeding’ and separate question. Although s 84(3)(a)(iii) refers to a person whose ‘interests may be affected by a determination in the proceedings’, it is necessary there be a direct interest, not an interest that is indirect or remote: see Chapman v Minister for Land and Water Conservation (NSW) [2000] FCA 1114 at [10]. The word ‘interests’ ought not to be read narrowly. However, it seemed to me insufficient that a person be able to show that the decision in respect of the separate question might have a flow-on effect to the wider Single Noongar claim. Accordingly, I did not accede to the application for these people actively to participate in the hearing of the separate question. I directed that the notice of motion, insofar as it concerns WAD 6006 of 2003 generally, be considered by French J (who retained general responsibility for the Single Noongar application) at a date to be advised. I also suggested that a representative of the pastoral lessees might wish to attend the forthcoming trial as an observer. A solicitor representing those persons did attend for much of the time.
46 Fifth, during the trial, the solicitor for the State applied for an order repairing my omission formally to establish the proposed separate proceeding in respect of the area described in the separate question. I indicated I would accede to that application and invited the parties to consult regarding the form of the order. On 21 December 2005, I made the following substantive orders:
‘1. Pursuant to Order 78 rule 6(5) of the Federal Court Rules:
(a) application WAD 6006 of 2003 be divided into two parts, being Part A (as delineated in the attached Map 1) and Part B being the balance; and
(b) Part A of the application be considered separately and prior to Part B.
2. Pursuant to section 67 of the Native Title Act 1993 (Cth) and Order 29 rule 5 of the Federal Court Rules, Part A of application WAD 6006 of 2003, and application WAD 149 of 1998 to the extent it overlaps with the land and waters hatched on the attached Map 2, and all of native title determination applications WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, and WAD 140 of 1998 be heard together in a separate proceeding (‘the separate proceeding’).
…
4. Save for the orders made by French J on 22 September 2005 in application WAD 6006 of 2003, all orders made, all documents filed and all evidence received in applications WAD 6006 of 2003 and WAD 149 of 1998, WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998 shall be taken to also be orders made and documents filed and evidence in the separate proceeding.’
47 By order 5, I further amended the form of the separate question so as to make it read:
‘But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA):
(i) does native title exist in relation to land and waters in the area of the separate proceeding:
(a) that part of the area the subject of application WAD 6006 of 2003 which was the subject of application WAD142 of 1998 immediately prior to that application being combined with and included in application WAD 6006 of 2003; and
(b) that part of the area the subject of WAD 149 of 1998 which lies seaward of the area the subject of WAD 6006 of 2003 and does not overlap the area claimed in WAD 192 of 1998 (YUED).
(ii) if the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title; and
(iii) what is the nature and extent of the native title rights and interests in relation to the area?
The land and waters referred to in this question included the whole of the land and waters claimed by Mr Bodney. Although the land referred to in the question includes substantial areas of non-urban land, it is convenient to use the term ‘Perth Metropolitan Area’ to refer to all the relevant land and waters.
48 The effect of those orders was to make Part A of the application the ‘separate proceeding’ envisaged on 9 October 2003. I append to these reasons copies of Maps 1 and 2, referred to in these orders. Map 1 shows the relationship between the Perth Metropolitan Area and the remainder of the claim area. Map 2 is a larger scaled map of the Perth Metropolitan Area.
(viii) The hearing
49 The hearing of the separate proceeding commenced in the Commonwealth Law Courts, Perth on Tuesday, 11 October 2005. The Single Noongar applicants (hereafter ‘the Applicants’) were represented throughout by Mr V B Hughston SC and Ms T L Jowett, the State by Mr S Wright and Mr G Ranson, the Commonwealth by Ms R Webb QC and the Western Australian Fishing Industry Council (‘WAFIC’) by Mr M McKenna. Mr P Wittkuhn appeared for various local government authorities but participated in the hearing only intermittently. Mr Bodney appeared on his own behalf, as applicant in the Bodney applications and a respondent to the Single Noongar application. Mr David sought and obtained leave to appear for the NLC, a respondent to the Single Noongar application, for the limited purpose of cross-examining expert witnesses and making submissions at the end of the case. Mr Kevin Miller, a respondent, appeared for himself. Although there were also respondents who did not participate in the hearing, it is convenient to use the expression ‘the parties’ to refer only to the parties identified in this paragraph.
50 After opening addresses were made on behalf of all the parties, Mr Hughston tendered documentary material, including expert reports, and called Dr John Host, an historian. Over a period of three days, Dr Host and a linguist, Dr Nicholas Thieberger, were cross-examined on their written reports.
51 On Friday, 14 October, the Court commenced a total of 11 days ‘on-country’ hearings. The Court sat at Jurien Bay, Albany, Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and Kings Park. While ‘on-country’, the Court heard the evidence of 30 Aboriginal persons and inspected a number of sites. At Kings Park, counsel for the Applicants also called two anthropologists who had assisted Dr Kingsley Palmer, the applicants’ consultant anthropologist, by interviewing people within the claim group.
52 The procedure adopted by counsel in relation to the Aboriginal witnesses worked well. Prior to the hearing, written statements of these witnesses had been filed and served. When each witness was called, he or she confirmed the statement (often after making minor amendments) and then Mr Hughston or Ms Jowett asked a brief series of questions, to bring out the main points of the witness’ statement, before the witness was cross-examined. The ‘on-country’ hearings ran very smoothly, thanks to excellent organisation by the Court’s remote hearings staff and the constant co-operation of the parties and their representatives.
53 After completion of most of the Aboriginal witnesses’ evidence, Dr Palmer gave evidence, over three days, in the Commonwealth Law Courts Building in Perth. At the end of that time, on 2 November 2005, the hearing was adjourned until 5 December 2005. On that day, the third anthropologist who assisted Dr Palmer was cross-examined. Thereafter, over that day and the succeeding two days, two expert witnesses called by the State were cross-examined. They were Dr Ron Brunton, an anthropologist, and Ms Debra Fletcher, an historian.
54 At the conclusion of this evidence, on 7 December, the hearing was adjourned to enable counsel, and the unrepresented parties, to prepare and file written submissions.
55 The last written submissions were filed on 18 May 2006. On 23 June 2006, the Court held a video-link hearing between Sydney and Perth for the purpose of oral discussion of some of the matters raised in these submissions. At the conclusion of that hearing, I reserved judgment in the case.
56 I have been informed that, sadly, two of the Aboriginal people who gave evidence before me have since passed away. Accordingly, it would be inappropriate for me to use their names. In these reasons, I will refer to them as ‘Mr WW’ and ‘Mr MW’ respectively. Both these people were named applicants in matter WAD 6006 of 2003. I have directed their names be removed from the Court record.
(ix) The formal issues in the cases
57 Having regard to the above events, the issues now before the Court are as follows:
(a) In relation to each of Mr Bodney’s five applications: first, whether the application is properly authorised and, second, whether it succeeds on the merits. As will appear, I have reached a conclusion adverse to Mr Bodney on the merits of each application. I will therefore not need to deal with authorisation.
(b) In relation to Part A of the Single Noongar application, what answers should be given to each of the issues raised by the separate question set out at para 47 above. There being no extant strike out motion in respect of this claim, there is no issue about authorisation.
II Elements of a native title claim
(i) The source of the elements
58 More than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] (‘Yarmirr’), Western Australia v Ward (2002) 213 CLR 1 at [16] (‘Ward HC’), Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [32] (‘Yorta Yorta’). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: ‘Native title, for present purposes, is what is defined and described in s 223(1)’ of the Act. That subsection reads as follows:
‘(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.’
(ii) The effect of s 223(1) of the Act
59 Gleeson CJ, Gummow and Hayne JJ analysed the effect of s 223 (1) in Yorta Yorta at [33] – [35]. They said:
‘ “Native title” means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. It will be necessary to return to this characteristic.
Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law.
Thirdly, the rights and interests in relation to land must be "recognised" by the common law of Australia ... Three separate strands of argument about this element of the definition of native title will require consideration. First, does this element of the definition permit, even require, consideration of any aspect of the general law as it stood after the decision in Mabo v Queensland [No 2] (1992) 175 CLR 1 [‘Mabo’] but before the enactment of the Native Title Act? Secondly, does this element of the definition carry within itself any rule or principle relating to extinguishment, abandonment, or loss of native title rights, by which it can be decided whether native title rights which existed at sovereignty may no longer be the subject of a determination of native title under the Native Title Act? Thirdly, what, if anything, does this element of the definition of native title say about the significance that is to be attached to the identification of what traditional law or custom may have said, at the time sovereignty was first asserted, about the rights and interests of peoples in the land or waters in which native title is now claimed?’ (Original emphasis, footnotes omitted).
60 It is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants:
‘In the joint judgment in Yorta Yorta, Mabo … is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo … proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs.
As the definition in s.223(1) refers to traditional laws acknowledged “and” (as opposed to “or”) traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom. The Full Court in Alyawarr has stated … that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of “rules” having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty.
In Yorta Yorta, the High Court noted that the reference to a normative “system” of traditional laws and customs may be distracting if undue attention is given to the word “system”, particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of “property” or of “normative systems” is likely to mislead:
“The rights and interests under traditional laws and customs will often reflect a different conception of ‘property’ or ‘belonging’. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener.”’ (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442.)
(iii) Communal and group claims
61 All of the present claims are communal or group claims, as distinct from individual claims. The concepts of communal and group rights and interests are not defined or explained by the Act. However, it is legitimate to draw on what Brennan J said about such interests in Mabo: see Alyawarr at [69]. His Honour said at 62:
‘A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.
The recognition of the rights and interests of a sub-group or individual dependent on a communal native title is not precluded by an absence of a communal law to determine a point in contest between rival claimants. By custom, such a point may have to be settled by community consensus or in some other manner prescribed by custom.’
62 His Honour had previously observed (also at 62) that sub-group and individual rights ‘are, so to speak, carved out of the communal native title’. Gummow J expanded on that idea in Yanner v Eaton (1999) 201 CLR 351 at [73]:
‘The term “native title” conveniently describes “the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants”. The native title of a communityof indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community's traditional laws and customs. Each collective right, power or other interest is an “incident” of that indigenous community's native title.’ (Footnotes omitted)
63 As might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward (2000) 99 FCR 316 (Ward FC1, first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 (‘Neowarra’) at [393] and Alyawarr at [69] – [71]. In Alyawarr, the Full Court drew attention to the form of the declaration made in Mabo. Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared ‘that the Meriam people’ are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’.
(iv) The Applicants’ submissions about legal principles
64 As counsel for the Applicants submitted, it is difficult to separate questions about the relevant society from questions about laws and customs. The two are interdependent. Counsel referred to an important statement, in Yorta Yorta at [49], by Gleeson CJ, Gummow and Hayne JJ:
‘Laws and customs do not exist in a vacuum … Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.’
65 In a footnote, their Honours disclosed they had chosen the word ‘society’, rather than ‘community’, ‘to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group’. Counsel for the Applicants commented:
‘In this respect, the term “society” is clearly not used in its common or usual sense but nor is it used as a scientific or anthropological term of art. It is submitted that the [State’s] anthropological expert, Dr Brunton, despite being instructed to adopt for the purposes of his evidence the meaning of “society” as specified in the joint judgment in Yorta Yorta … has clearly not done so.’
66 Counsel developed the submission about Dr Brunton’s approach. I will return to it later. However, it is appropriate immediately to note the Applicants’ further submission that the effect of the Yorta Yorta explanation of the meaning of ‘society’ is that it is sufficient ‘that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a “society”’.
67 Counsel went on:
‘In Alyawarr the Full Court noted that “society” is not a word which appears in the [Act], rather it is a conceptual tool for use in its application. In particular, it does not introduce into the judgments required by the [Act] any technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. What a determination of native title requires, is a consideration of whether the persons said to be the native title holders, are members of a society or community which has existed from sovereignty to the present time, as a group, united by its acknowledgment of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty.’ (footnotes omitted)
68 In relation to the last matter, counsel noted something said by Brennan J in Mabo, at 61:
‘Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally-based laws and customs as currently acknowledged and observed.’
69 Counsel also mentioned three points made in the Yorta Yorta joint judgment (at [85] and [87]):
(i) evidence that, at some time since sovereignty, some of those who now assert a native title right or interest (or some of those through whom those persons claim) have not exercised those rights or interests ‘does not inevitably answer the relevant statutory questions’; those questions ‘are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question’;
(ii) ‘account must no doubt be taken of the fact that’ both pars (a) and (b) of s 223(1) are cast in the present tense; the questions are ‘about present possession of rights and interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant’ (original emphasis);
(iii) Notwithstanding point (ii), acknowledgment and observance of the laws and customs ‘must have continued “substantially” uninterrupted since sovereignty’. Their Honours went on to explain, at [89], the effect of the qualification ‘substantially’:
‘It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.’
70 Counsel for the Applicants made the additional point that it is not necessary that the relevant rights and interests be communally enforceable. In Yarmirr at [16], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
‘Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.’ (Original emphasis)
71 Counsel for the Applicants submitted:
‘A right is a non-mandatory entitlement. It exists independently of its exercise and certainly independently of the existence of any present opportunity or capacity to exercise it. The existence of a right does not presuppose any power to enforce it or to have it recognised outside those who acknowledge and observe the laws and customs from which it derives.’ (original emphasis)
72 Counsel cited from Sundberg J in Neowarra at [310], Mansfield J in Alyawarr at first instance, [2004] FCA 472 at [156], and Merkel J in Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 at [115] (‘Rubibi’).
73 Finally, counsel for the Applicants made the general point that:
‘[i]t is a mistake to approach native title on the basis that it is a unitary concept that equates to a common law or Western concept of the “ownership” of land. Native title is sui generis and the use of words like “owner”, “ownership” and “title” is apt to mislead. The nature and the incidents of native title must be ascertained as a matter of fact in each case by reference to the relevant traditional laws and customs. There is no impediment to the recognition of usufructuary or non-proprietary rights that derive from a community’s laws and customs. As Gummow J explained in Wik Peoples v Queensland (1996) 187 CLR 1 at 169, a particular native title right or interest may comprise no more than a personal or communal right to access an area of land to hunt for or gather food, or to perform traditional ceremonies.’ (Original emphasis)
(v) The respondents’ submissions about legal principles
74 None of the respondents challenged the statements of principle set out above. However, some respondents’ counsel made clear that they took a different approach to the Applicants in relation to identification of the relevant society. Those counsel focused attention on the Perth Metropolitan Area, as distinct from the whole area claimed in the Single Noongar application. For example, counsel for the State said:
‘The [Applicants’] Submissions do not address connection to the Perth Metropolitan Area specifically, but rather appear to invite the Court to find that a Noongar community has a communal native title throughout the whole of the “country in which the Noongar people hold a communal native title” and then to find that because the Perth Metropolitan Area falls within that area, native title exists in the Perth Metropolitan Area. The [State] submits that this approach is legally and procedurally wrong, and that a connection to the Perth Metropolitan Area by particular individuals or families or groups must be demonstrated.’ (Original emphasis)
75 Counsel for the State conceded that, if the Applicants established ‘that there was at sovereignty a single Noongar society’, ‘there are persons alive today who are descendants of the members of that society at sovereignty’. However, they said, that does not mean that issues of descent are irrelevant to the Applicants’ case; the Applicants would need to ‘demonstrate that there are claimants with a descent connection to the Perth Metropolitan Area’.
76 Counsel for the State submitted that the Court must undertake the following steps in assessing the separate question:
‘(a) First, it must identify the relevant “traditional laws and customs”. This requires the identification of the society or societies to which the traditional laws and customs belong.
(b) Secondly, it must identify the extent to which the identified traditional laws and customs have been continuously “acknowledged” and “observed” from sovereignty to the present day. It must also be satisfied that the relevant society or societies have continued to exist.
(c) Thirdly, it must identify whether, by or under those traditional laws and customs which have continued to be acknowledged and observed, the native title claimants have a “connection” to the Perth Metropolitan Area.
(d) Fourthly, if it is satisfied as to each of (a) to (c) above, the Court must identify the rights and interests “possessed” under the traditional laws and customs as presently acknowledged and observed.
(e) Finally, if (a) to (d) above are satisfied, a further step, required by s.225 of the [Act], is that the Court must identify who the persons, or each group of persons, who hold the native title rights are.’
77 The Commonwealth also did not quarrel with the Applicants’ broad submissions, but focused on the concept of ‘society’. In submissions prepared jointly with her instructing solicitor, Ms Webb said:
‘The “society” must be a body of persons united in and by its observance of a body of law and custom. It does not necessarily follow that the society is the native title holding group. Within any identifiable society, there may be lesser groups or communities which hold the communal native title in respect of particular areas. That is to say, not all members of an identifiable society will hold native title in respect of an entire area with which the “society” as a whole identifies. This is not a matter which can be left to intramural considerations by the society itself; it is the essence of a determination of native title under the [Act] which requires the Court to make a determination as to who holds native title (if it exists).’
78 This submission may be accepted. However, its limitations should be noted. In any communal native title case, it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area. However, it is not necessary (and it would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area, in relation to which native title has been established. The Court leaves it to the community to determine those issues. Alyawarr illustrates the point: see [81], [110]-[112] and paras 2 and 6 of the formal determination, which is set out at 504-505. See also Ward [FC1] at [202]. Of course, if the applicants have no communal native title rights or interests over any identifiable part of the claimed area, but only if the position is that other people have rights over parts of it, the claim will fail.
79 WAFIC supported the position of the State and the Commonwealth. Mr McKenna said:
‘It is entirely clear that a central aspect of the claim for native title is identification of a normative system (of traditional laws and customs) under which the native title rights and interests are derived and in respect of which those rights and interests are held by a community, group or individual. It is suggested that the rights that may arise from the different connections in this case give rise to different rights in different areas being held by different people. That is not necessarily a bar to all or some of those people holding all or some of the rights claimed, but it does require a more specific approach than the Applicants advocate.’
80 At a later point in his submissions, while discussing a supposed distinction between proprietary and usufructuary rights, counsel said:
‘It is not to the point that the native title rights and interests are characterised as proprietary or usufructory [sic]. The key issue, from WAFIC’s perspective, is the traditional law under which those rights (whether proprietary or usufructory [sic] or both) arise and:
(a) the group of persons who have those rights under traditional law and custom; and
(b) the area over with [sic] the traditional laws and customs mandate the existence of such rights and interests.’
81 Mr Wittkuhn expressed the issue in similar terms.
82 I accept the submission of the State, which is supported by other respondents, that the Applicants must establish a connection with the area that is the subject of the separate question; that is, the land and waters included in Part A (as delineated on the map attached to the order of 21 December 2005 and the appended map 2), the Perth Metropolitan Area. However, I do not accept the submission, expressly or implicitly made by the State and other respondents, that the Applicants must demonstrate this connection in a manner that is specific to the Perth Metropolitan Area and divorced from their asserted connection to the whole claim area. The Perth Metropolitan Area is part of the claim area. If the Applicants succeed in demonstrating the necessary s 223(1) connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. The whole includes its parts.
III The factual issues in these cases
83 Against the background of these principles and issues, several matters should be noted:
(a) It is common ground amongst all parties, and clear on the evidence, that the whole of the land within the claim area (including, of course, the land claimed by Mr Bodney, but excluding the off-shore islands and waters below low-water mark) was inhabited by Aboriginal people at the date of settlement of Western Australia, 1829. This date is also often called ‘the date of sovereignty’.
(b) Although there is some dispute between the parties as to the proportion of the Applicants who can trace their ancestry back to people who were living in the claim area at date of settlement, it is common ground that some can do so. Under those circumstances, the parties agreed it was unnecessary for me to determine the precise number.
(c) There is an issue as to whether this tracing is sufficient. The respondents contend the Applicants must establish that at least some of them are descended from people living in the Perth Metropolitan Area at date of settlement. I do not accept that contention. If members of the community, on behalf of whom the Applicants make their claim, have native title rights and interests, within the meaning of s 223(1), over the Perth Metropolitan Area, the Applicants are entitled to recognition of that claim, by an appropriate native title determination, regardless of the birthplace and/or residence of the ancestors of the particular people who make the communal claim.
(d) The Applicants and the NLC assert that, in 1829, there was a community of people, spread throughout the claim area, who were bound together, and distinguished from other Aboriginal peoples, by various factors, including common acknowledgement and observance of a body of laws and customs, including in relation to land. The Applicants and the NLC refer to these people as ‘Noongars’; however, all parties agree the name is not critically important.
(e) The State, the Commonwealth, WAFIC, the local government respondents and Mr Bodney each dispute that, in 1829, there was a single community occupying the whole claim area. They say that, in 1829, there were a number of smaller, disparate groups in the claim area; common acknowledgement and observance of laws and customs (including in relation to land) operated only within the confines of those groups. Although none of them adopted an unambiguous position, as best I can understand them, the State, the Commonwealth and WAFIC suggest these groups corresponded, at least broadly, with eleven dialect groups identified in a map of south-western Western Australia produced in 1974 by Professor Norman Tindale. Mr Bodney seems to contend for a greater number of even smaller groups.
(f) If any of the respondents are correct, the Applicants’ claim must fail. Their application is not brought on the basis of their continuity with any or all of the smaller groups. Identification of the relevant 1829 community is, therefore, the first major factual issue.
(g) The Applicants concede that, since 1829, there have been enormous changes in the lifestyle of the people they call Noongars. Many traditional practices have disappeared, including initiations and ‘corroborees’. However, the Applicants claim the Noongar community has continued to exist, in the sense that members of that community have continued, and still continue, to define themselves as Noongars, to share a body of beliefs and to acknowledge and observe some traditional laws and customs, including in relation to land and waters. They say this behaviour sets them apart from other Aboriginal people and Australian society generally; it means the Noongar community, on behalf of whom the Applicants claim, has a ‘connection’ with the claim area within the meaning of s 223(1) of the Act.
(h) The State and the Commonwealth dispute the asserted connection. They agree that many Aboriginal people describe themselves as ‘Noongar’, but they argue the degree of departure from traditional laws and customs has been so great that it is not possible to say that ‘Noongars’ continue to observe traditional laws and customs. This is the second major factual issue for determination. It involves consideration, not only of the situation now, but of the question whether there has been continuity of acknowledgement and observance from the date of settlement until now.
(i) The third issue will arise only if the Applicants are successful in relation to the first two issues: what native title rights and interests have survived since 1829? This question has two elements:
(i) what were the rights and interests that attached to land and waters in 1829?
(ii) which of those rights and interests have survived to the present time?
(j) Finally, it will be necessary to consider, pursuant to s 223(1)(c) of the Act, whether the identified surviving rights and interests ‘are recognised by the common law of Australia’.
IV Was there a single Noongar community in 1829?
(i) The Applicants’ claim
84 In their final written submissions, counsel for the Applicants put their clients’ case in this way:
‘The Noongar people claim a communal native title to a large area of the State’s southwest, of which the Perth Metropolitan claim area forms but a part. Their case is that, at sovereignty, the Single Noongar claim area was occupied and used by Aboriginal people who spoke dialects of a common language and who acknowledged and observed a common body of laws and customs. Those Aboriginal people recognised local and regional names within the broader society but shared a commonality of belief, language, custom and material culture, which distinguished them from neighbouring Aboriginal groups or societies. Responsibility for and control of, particular areas of land or waters, were exercised by sub-groups or families, but the laws and customs under which the sub-groups possessed those rights and interests were the laws and customs of the broader society.’ (Footnotes omitted)
(ii) Source material
(a) Overview
85 The present case is unusual in regard to the number of surviving writings in which European visitors and settlers recorded observations, before and soon after the time of settlement, of Aboriginal society and practices within the relevant geographical area. There are also writings based upon information provided by Aborigines who were alive at, or born shortly after, the time of settlement. Of course, the writers did not make all the observations, inquiries and notes that the present parties (and the Court) would have wished; nonetheless, their works provide a rich resource in addressing the 1829 situation.
86 The evidence also contains extracts from some 20th century anthropological writings.
87 The written material is supplemented, to a minor extent, by evidence given by Aboriginal witnesses in these cases as to oral traditions passed to them about the situation in earlier years.
88 The two professional historians who gave evidence, Dr Host and Ms Fletcher, provided information about the history of black-white relationships in the south-west. This information was necessarily broad and is mostly uncontroversial. Although I found it to be of great interest, it unfortunately provides little direct assistance, in terms of making the findings necessary for resolution of this portion of the case.
89 My discussion about the nature of Aboriginal society in 1829 will draw mostly on the work of the early writers, and the comments about that work that were made by the expert witnesses, especially Dr Host, Dr Palmer and Dr Brunton, with linguistic material derived from Dr Thieberger.
(b) The expert witnesses
90 It is time to introduce the five expert witnesses.
91 Dr Host is an historian. In 1990, he graduated from the University of Western Australia as Bachelor of Arts (First Class Honours). In 1996, the same university awarded him the degree of Doctor of Philosophy with Distinction in History and the UWA Robert Street Prize for the most outstanding Doctorial thesis across all disciplines. Dr Host was employed by the University of Western Australia between 1993 and 2003, including as a tutor and lecturer. During this time, he published a book on Victorian labor history, co-edited a book about Western Australian history and wrote two refereed articles, including in relation to Aboriginal history. Since he left the university in 2003, Dr Host has practiced as a consultant historian. Dr Host provided a report (exhibit A) and a volume of appendices, maps and plates (exhibit B).
92 The other historian, Ms Fletcher, is Principal Research Officer in the Office of Native Title in the Western Australian Department of Premier and Cabinet. Ms Fletcher graduated as a Bachelor of Arts (Double Major in Australian History and English Literature) from the University of Queensland in 1989. She was awarded the degree of Master of Arts in 1996 for a thesis dealing with female criminality in the hearings of the Western Australian Supreme Court between 1890 and 1914. After spending some time in research positions for other governments, she became Senior Research Historian in the Land Claims section of the State Solicitor’s Office of Western Australia from January 2001 to January 2003. She was then appointed Senior Historian in the Land Claims section of the State Solicitors Office of Western Australia. Ms Fletcher took up her present position in July 2004. Ms Fletcher prepared a genealogy report (exhibit S 15), a history report (exhibit S 17) with appendices (S 18) and a supplementary report (exhibit S 19).
93 Dr Palmer obtained his early degrees from English universities: an Honours Bachelor of Arts degree at Sheffield University and the degree of Master of Philosophy from the University of Leeds. He was awarded the degree of Doctor of Philosophy by the Department of Anthropology at the University of Western Australia for a thesis entitled Aboriginal Religion and the Orders of Social Relations. During the period 1977-1982, Dr Palmer held university posts. Apart from that period, since 1973 he has worked continuously in positions, or on projects, concerned with Aboriginal anthropology. He has carried out field work in a number of locations (mostly in Western Australia and the Northern Territory) and published extensively. Dr Palmer has given evidence in several previous native title cases. Dr Palmer’s anthropological report (‘Dr Palmer’s report’) in this case was marked as exhibit C, with appendices (exhibit D) and a genealogical report (exhibit E). A subsequent document, Applicants’ Comments on Dr Brunton’s Expert Report, prepared by Dr Palmer, is exhibit BB.
94 Dr Brunton obtained the degree of Bachelor of Arts, with a major in anthropology and sociology, from Monash University in 1968 and the degree of Master of Arts (First Class Honours) from Sydney University in 1974. In 1988, Dr Brunton was awarded the degree of Doctor of Philosophy by the Department of Sociology, La Trobe University, for a thesis relating to cultural instability in Melanesia. Dr Brunton was employed by the Institute of Public Affairs (‘IPA’) between 1990 and 2001. During that time, he wrote a paper Mabo and Oral Traditions, which was tendered in evidence in these cases, and a number of short, unrefereed papers, published by IPA. At least two of them – Implementing native title: the Government’s response to Mabo (1993, co-authored with Peter Durack) and The human wrongs of indigenous rights (1997) - concerned the concept of native title. Between 1993 and 1999, Dr Brunton held an honorary appointment as Senior Fellow in Anthropology in the Department of Geography and Environmental Studies in the University of Melbourne. From time to time, he held other university positions, as a tutor or lecturer. He also has published widely and written reports for use in litigation, including for legally aided respondents in the Yorta Yorta native title claim. Dr Brunton’s principal report in this case (Dr Brunton’s report) is exhibit S 12. His supplementary report was marked as exhibit S 13, and his witness statement as S 14.
95 Dr Thieberger obtained degrees of Bachelor of Arts (Honours) and Master of Arts (Linguistics) from La Trobe University in 1981 and 1988 respectively. He was awarded the degree of Doctor of Philosophy by the Linguistics Department of the University of Melbourne in 2004. Dr Thieberger has worked as a linguist since 1982, generally in academic positions but including extensive field work, mostly with Australian Aborigines, and then mostly in Western Australia. Between 1990 and 1994, as a Visiting Research Fellow at the Australian Institute of Aboriginal and Torres Strait Islander Studies (‘AIATSIS’), Dr Thieberger was engaged in the construction and maintenance of an electronic database that included dictionaries of Australian indigenous languages. In 2000-2001, Dr Thieberger acted as a consultant to AIATSIS in connection with a report issued by the federal government, The State of Indigenous Languages. Dr Thieberger is currently Project Manager for the Pacific and Regional Archive for Digital Sources in Endangered Culture, a project run by a consortium of three universities. This project aims to establish an archive of digital material in languages of the Pacific, Papua New Guinea and Indonesia. Dr Thieberger’s report was marked as exhibit F.
(c) The journals of pre-settlement explorers
96 The south-western corner of Australia attracted the attention of many maritime explorers (Dutch, French and English) in the years before settlement. Their journals provide fragments of information relevant to the present case.
(d) King George’s Sound writers
97 The evidence includes writings of three people who served, between 1826 and 1832, at King George’s Sound (modern Albany). This was the first European settlement in Western Australia. The three writers were:
(i) Isaac Scott Nind, who was Assistant Surgeon at King George’s Sound from the establishment of a military garrison at that place, in December 1826, until October 1829. After returning to England, Dr Nind wrote a paper (including a vocabulary) Description of the Natives of King George’s Sound (Swan River Colony) and Adjoining Country, which was published in 1831 in the Journal of the Royal Geographical Society of London;
(ii) Collet Barker, who commanded the garrison from December 1829 until March 1831. During much of that period, Captain Barker kept a journal which included observations of ethnographic interest; and
(iii) Alexander Collie, a naval surgeon who became Government Resident at King George’s Sound in March 1831, after the garrison was withdrawn and Barker departed. Dr Collie remained at the Sound until late 1832. In 1834, The Perth Gazette and Western Australian Journal published a long article by him, Anecdotes and Remarks-Relative to the Aborigines of King George’s Sound.
98 Nind, Barker and Collie each befriended Mokare, a young man whose family held special rights over the land upon which the garrison, and later the settlement, was constructed. Mokare died of a fever during Collie’s time at the Sound. Some years later, whilst en route back to England, Collie died at the infant town of Albany. In compliance with his wish, he was buried alongside Mokare.
99 The articles by Nind and Collie were republished in 1979 by Dr Neville Green in Nyungar – The People; Aboriginal customs in the southwest of Australia (‘Nyungar – The People’). Barker’s journal was republished, by Dr John Mulwaney and Dr Green, as Commandant of Solitude – the Journals of Captain Collet Barker 1828-1831.
(e) The early Perth district writers
100 The evidence also includes material from three people who resided in Perth in the first years of that settlement:
(i) Robert Menli Lyon, who arrived in Perth in the year of settlement (1829) and remained until 1834. In 1832, Lyon spent several weeks on Carnac Island with Yagan and two other Perth Aborigines. In the following year, he published a paper, A Glance at the Manners and Language of the Aboriginal Inhabitants of Western Australia; with a Short Vocabulary. This was republished by Dr Green in Nyungar – The People.
(ii) Francis Armstrong, who also arrived in Perth in 1829. He was then only 16 years of age. In 1834, Armstrong was put in charge of the Aboriginal Institution. He held that position for four years and, subsequently, other official positions relating to Aborigines. Armstrong became fluent in at least five south-west Aboriginal dialects. In 1836 an article was published in the Perth Gazette and Western Australian Journal, Manners and Habits of the Aborigines of Western Australia – From Information collected by Mr F Armstrong (republished in Nyungar – The People). Armstrong conducted a census of Aborigines in 1837.
(iii) George Fletcher Moore, an Irish lawyer who arrived in Perth in 1830 and took up land in the Upper Swan area. He wrote A Descriptive Vocabulary of the Language in Common Use Amongst the Aborigines of Western Australia (first published in 1842 and republished in Nyungar – The People) and Diary of Ten Years Eventful Life of an Early Settler in Western Australia, first published in 1884 and republished in 1978 by University of Western Australia Press.
(f) Later 19th century writers
101 There is mention in the evidence of three writers who arrived in Western Australia within a few years after settlement. They are:
(i) Sir George Grey, an ex-army officer who made some exploratory expeditions in the Perth region, after an earlier expedition to the north-west of the Colony. His expedition journals, titled Journals of Two Expeditions of Discovery in North-West and Western Australia, were published in 1841;
(ii) Charles Symmons, who was appointed Protector of Aborigines in 1840 and conducted a census that year;
(iii) Rosendo Salvado, who founded a Benedictine mission at New Norcia in 1846 and managed it until his death in 1900. During a stay in Italy from 1850 to 1853, Bishop Salvado wrote memoirs which included his observations of the customs of Aborigines in the New Norcia district. At that time, he also prepared, from memory, two extensive word lists of Aboriginal language.
102 The writings of Grey and Symmons are not in evidence. However, an extract from Salvado’s memoirs (edited and translated by E J Stormon and published in 1977 as The Salvado Memoirs)is in evidence.
103 Ethel Hassell married a farmer residing at Jerramungup, north-east of Albany, in 1878 and lived there until 1886. During her residence at Jerramungup, Hassell took an interest in the life and customs of the local Aborigines and wrote notes about what she learnt and saw. These notes were published in 1975 by C W Hassell under the title My Dusky Friends.
(g) The early 20th century writers
104 The evidence identifies two persons who wrote about the south-west Aborigines in the early 20th century – the latest point of time at which it was possible for any writer to have contact with a person who was alive in 1829, or born shortly thereafter. One of those writers was Professor A R Radcliffe-Brown, Professor of Anthropology at Sydney University. His work The social organisation of Australian tribes was published in 1930-1931. This work is widely respected by modern anthropologists. However, it is not in evidence. I gather it dealt sparsely with the south-west and casts little light on the issues that fall for determination in this case.
105 The other early 20th century writer was Daisy Bates. In 1904 Bates was appointed by the Western Australian government to research the Aboriginal tribes of the State. She appears to have spent most of the following decade on this task. Bates was not a trained anthropologist and her writings have been criticised, both for their lack of organisation and for Bates’ pronounced Eurocentric judgments. However, even her critics acknowledge her great industry and excellent rapport with Aborigines. She is widely regarded as having been a good observer and patient listener. Dr Brunton said Bates engaged in ‘participant observation’. He explained this term as a person ‘sharing the lives as much as possible [of] the group of people that he or she is … studying, asking questions in the course of … observation of everyday life, as well as pre-determined questions of interest’. Bates left many manuscripts, the most important of which (for present purposes) was edited by Isobel White for publication, in 1985, as The Native Tribes of Western Australia.
(h) Some cautionary notes
106 In considering the work of the above writers, all of whom came into contact with Aborigines who were alive at, or about, the time of settlement, I believe it is important to bear in mind a point made by Dr Host:
‘The idea that historical knowledge is prefigured by certain assumptions is not especially radical. All understanding begins with certain assumptions or beliefs. They are the hooks on which we hang our interpretations of the world. They enable meaningful communication to the extent that they are shared, but one who does not share them is unlikely to make much sense of what is said.’
The point, of course, is that, in considering non-Aboriginal accounts of Aboriginal society, it is always necessary to make allowance for the author’s (and one’s own) assumptions and prejudices, including any tendency to view Aboriginal society through a Eurocentric lens.
107 Further, as counsel for the Applicants pointed out in their final submissions, it is necessary to be cautious about accepting the accounts of lay writers – that is, anthropologically untrained writers - of what they had been told by Aboriginal informants. Particularly in the first years of settlement, when Aboriginal people spoke little English, language problems must have imposed significant limitations upon accurate communication of complex information and ideas.
108 Moreover, both Dr Palmer and Dr Brunton commented about the circumstances in which information was provided by Aborigines to European observers. At para 1.20 of his report, Dr Palmer said:
‘The early writers were, without exception, educated men who filled positions of authority in the new settler society. Barker was the commandant of the King George Sound garrison, Moore represented the legal authority of the colony and admitted that he was recognised as “one having authority” … Collie was a surgeon, Hassell was the station owner’s wife. This meant that, to a greater or lesser extent, there was always an asymmetrical relationship between the original inhabitants and the new settlers where power over goods, services, resources and firearms was almost always in the settler’s favour. Even when the explorer Grey was in extremis and dependent on his Noongar guide Kaiber for his life, he was able to exert his authority over him by threatening him with his gun … In my opinion it may well have been an appreciation of the one-sidedness of the relations between the settlers and the Aboriginal people that led the latter to exercise caution over the release of information, which some of the new settlers sought. There is some evidence that not all the data collected was sound. Armstrong is particularly damning of those with whom he worked, accusing them of making up information for the price of a meal or a “few pence” and then laughing at the settlers for their gullibility … Hassell was similarly critical of the quality of the information provided to her (and presumably to others). She stated that those with whom she lived might tell only what they thought “was good for you to know” or what they thought you wished to hear … and that information about the ritual life, being deliberately kept from her, was hard to come by … Salvado also provides examples of when he was deliberately mislead.’ (footnotes omitted)
109 At p 100 of his report, Dr Brunton said:
‘… while the early writers may have accurately recorded the actual activities they witnessed, their understandings of the significance of these activities, and their connection to other aspects of traditional laws and customs were very limited. A number of the early observers, such as Armstrong, Grey, Salvado and Hammond, noted that Aborigines of the Perth region were most reluctant to provide accurate responses to their questions, either because they did not comprehend what was being asked or because they were being interrogated about restricted matters. Armstrong wrote of overhearing Aborigines laughing at the false information they had given inquirers in exchange for some gift, and Grey said that rather than confess ignorance about a matter, they “will often invent a tradition”.’
110 These cautions are important. However, they do not mean the lay writers’ material should be disregarded. Accounts of events which the writers themselves witnessed would seem particularly useful. Also, there is probably force in Dr Brunton’s observation, immediately after the quoted passage, that the ‘observers’ obvious awareness of the dangers of innocently accepting anything they were told makes it more likely that the information they did record had a reasonable empirical basis’. Where there is consensus, amongst two or more of the early writers, about the existence of a particular state of affairs or practice, this is likely to be the most reliable available evidence.
111 Dr Palmer and Dr Brunton seem to share that view. At para 2.21 of his report, Dr Palmer said: ‘There is substantial evidence from the early writers that there existed a discrete cultural society within the South West of Western Australia’. At para 2.1.2 of his report, Dr Brunton said the writings in the first decade of settlement:
‘represent the firmest basis for presenting a description of the situation at the time sovereignty was acquired, although they clearly need to be interpreted in the light of contemporary understandings developed from ethnographic accounts and analyses of Aboriginal culture and society elsewhere in Australia’.
112 In his oral evidence, Dr Brunton commented that ‘the observers provided more information than we have for many other comparable parts of Australia’. Dr Brunton thought the information was sufficient to allow him to conclude ‘that in the South West of Western Australia at sovereignty there was a normative system under which rights to speak for country were held by estate groups, membership of which was reckoned by patrilineal descent’.
(i) Late 20th century writers
113 During the latter half of the 20th century, many works, touching on early Western Australian Aboriginal history, were published. These works are different in kind to the earlier works. Their writers had no opportunity to converse with people who had personal knowledge of conditions in the early years of the Colony. The late 20th century writers had to content themselves with interpreting other people’s writings and/or whatever oral histories were narrated to them.
114 Although it would be wrong to refuse to consider writings within this category, it seems to me they cannot provide much assistance in determining the factual situation existing in 1829. I bear in mind a comment about secondary materials made by Dr Host at para 22 of his report.
‘… I am aware that, in the field of historical study, secondary sources are the most accessible and that during the past 35 years, issues central to the terms of my brief have been addressed in an extensive secondary literature. The secondary literature has been invaluable but, in my view, by its very nature, it adds layers of interpretation and scholarly opinion to the facts it adduces. I therefore determined to consult relevant and accessible primary sources wherever possible and appropriate, thus to base my opinions on the sources themselves rather than on subsequent interpretations.’
115 As Dr Palmer and Dr Brunton have demonstrated in their evidence, it is possible to find in the late 20th century writings support for almost any proposition. Some of the late 20th century writers were anthropologists of high repute; some were less well-known. However, whatever the general reputation of a particular writer, his or her work has value, for present purposes, only to the extent that the Court can be satisfied that any views expressed are based on facts established by other material before the Court or conceded by all other parties.
(j) Marginal materials
116 I make two further comments on the published material. First, at paras 37 to 57 of his report, Dr Host set out an account of writings, published over more than a century, that evinced changing attitudes amongst the Western Australian white population to Aborigines, including those of the south-west. The account says much about white culture, but little about Aboriginal society at any particular time. I do not think it bears directly upon the issues I have to determine, although it does reinforce Dr Host’s warning about being alert to Eurocentric value judgments in the early writings.
117 Second, under the heading ‘The Survival Thesis’, Dr Host traced the vicissitudes of the south-west Aborigines from the time of white settlement until recent years. This makes fascinating (and depressing) reading. It explains the fragmentation after settlement of the families and communities that had previously existed, and the abandonment of some important elements of traditional laws and customs. However, Dr Host sets out reasons for believing that Noongar society and culture nonetheless survived. To the extent that his material rebuts those writers who argue that 19th century travails totally destroyed the south-west pre-settlement Aboriginal society, it provides support for the Applicants’ case. However, apart from that, this section of the report offers little assistance in respect of the issues falling for consideration in this case.
(iii) Historical summary
(a) The maritime explorers
118 There is no firm evidence before the Court as to the size of the south-west Aboriginal population at the date of settlement. In The Native Tribes of Western Australia (p 54), Bates offered an estimate of ‘40,000 Aborigines living in the Southwest before white settlement took place’. However, Dr Host was sceptical of any estimate. At para 64 of his report, he said:
‘It is a historical fact that the size of the Aboriginal population of the south-west at the moment of settlement was unknown. Subsequent attempts to estimate the population were haphazard and unreliable. Early head counts could only enumerate people sighted and later attempts were compromised by arbitrary decisions about whether or not to include people of “mixed” descent.’
119 Whatever the precise figure, there were significant numbers of Aborigines, at least along the coast. The European maritime explorers noted, as early as the 17th century, the presence of an Aboriginal population on the south-west coast. Their journals refer to some aspects of the Aborigines’ culture: their tools, fish traps, weapons, huts, burial grounds and use of fire.
120 At para 121 of his report, Dr Host summarises the observations of an exploration party led by Willem de Vlamingh:
‘In January 1697… members of an expedition led by Willem de Vlamingh went ashore near present-day Mossman Park. They marched inland to the Swan River where they saw signs of children and old people (hand and foot prints), three huts and wells dug for fresh water. They also saw “a big tree full of notches by which people could ascend till the top”, precisely the kind of notches that were made, according to prehistorians, with the kodja axe. Further investigations led to the sighting of more fires, huts and wells. In the vicinity of what is now East Perth, another party found a freshly dug waterhole sweetened with a thyme-like herb, a fresh fire and several more huts furnished with bark bedding, wax and gum, but again no people. The wax and gum suggest tool-making as identified by prehistorians, and the various signs of habitation – huts, wells, tool use, the herbal treatment of well-water and the imprints of children and the elderly – indicate not only the presence of a community (or communities) along the Swan but also socio-cultural organization.’ (Footnotes omitted)
121 Similar observations were made by members of the maritime expeditions commanded by George Vancouver (1790), Bruny D’Entrecasteaux (1792), Nicolas Baudin (1801) and Matthew Flinders (December 1801). A common feature of their reports was the shyness of the Aboriginal people. The Aborigines often withdrew into the bush when the Europeans came ashore. Notwithstanding this, the cumulative effect of the maritime explorers’ reports is to establish that Aborigines were present, in significant numbers, along the whole coast from present day Esperance to, and including, the Swan Valley.
122 There were some contacts between the maritime explorers and Aboriginal people. Dr Host remarked how some of these contacts (especially those of Baudin and Flinders) entered Aboriginal oral tradition, the detail of which corresponds closely with the explorers’ journal accounts.
123 Phillip Parker King explored Oyster Harbour, at King George’s Sound, in 1818. He did not meet any Aborigines but, Dr Host said:
‘Clearly impressed by Aboriginal fish traps, [King] noted that “the mouths of all the creeks and inlets were planted with [fish] weirs’ and that eleven had been counted ‘on the flats and shoals between the two rivers [the King and the Kalgan]’. One was “a hundred yards long, and projected forty yards, in a crescent-shape, towards the sea”. King added that they “were formed by stones placed so close to each other as to prevent the escape, as the tide ebbed, of such fish as had passed over at high water”.’
124 King returned to King George’s Sound in 1821. On this occasion, he had extensive contact with the Aboriginal population. He admired their tools. He described the use of a spear and spear-thrower to capture a seal at a distance of 30-40 feet and its dissection with a taap knife. Dr Host noted King ‘reported that the Aborigines were not a seagoing people, did not make canoes and ‘were timid when they approached the water’’.
125 Dr Host summarised King’s observations of the Aboriginals’ social organisation in this way:
‘Altogether, King and his crew saw about forty Aborigines of whom ten were boys. He described them as being slight of build with long curly hair. They could not be persuaded to introduce their wives and children and would not take the visitors to their camps. King speculated that the camps were scattered about in different places and at different distances. His reasoning was that small groups of men went off in different directions each evening and returned from the same directions, but at different times, the following day. Because they mixed freely together, he supposed that they belonged to the same “tribe”. He also commented that they did not seem to acknowledge “any chief or superior among them”.’ (Footnotes omitted)
126 A later visitor to King George’s Sound, Jules D’Urville (1826), described the Aborigines’ kangaroo skin cloaks, under which they carried smouldering banksia cones for warmth and to enable them to fire the land. D’Urville had friendly contact with the Aborigines, with whom he traded meat and biscuits for information. They treated his party to a corroboree.
127 Dr Host made this summary of the observations of D’Urville’s party:
‘They witnessed and recorded the firing that accompanied a kangaroo hunt. They saw that the Aborigines divided themselves into small “tribes”, sometimes of twenty or thirty but more commonly of twelve or less. They observed that their Aboriginal friends travelled very long distances, often far from the seaboard. And they noted names and relationships. They observed, for example, that Yalepouol, an exuberant boy of twelve or thirteen, was the son of a doting father named Patet. They also identified an open-faced young man “more lively than any of his comrades”. The man’s name was Mokore (Mokare). His father owned the land beneath their feet and Mokare would presently become the consort of a series of British agents.’ (Footnotes omitted)
(b) The King George’s Sound garrison and settlement
128 On Christmas Day 1826, Major Edmund Lockyer arrived at King George’s Sound, from Sydney, to establish a garrison. He commanded 42 men (including 20 convicts). However, Lockyer remained at the Sound for less than four months. Basing himself on Lockyer’s journal, Dr Host commented that ‘he neither tried nor cared to understand the law and custom of the country into which he had intruded’. Apparently, Lockyer made no attempt to befriend the Aborigines, despite their overtures to him. His main interest in the Aboriginal population was its potential as cheap labour. However, Lockyer did describe a payback incident which, Dr Host argued, ‘exemplified a traditional practice and demonstrated that traditional law and custom held sway at the Sound in 1826-1827’.
129 After Lockyer’s departure, two other people had periods of command before Barker’s arrival in December 1829. Neither of them contributed to our knowledge of the Aboriginal people of the area.
130 A notable feature of Barker’s association with King George’s Sound was his friendship with Mokare. In his journal, Barker recorded some of their conversations. Dr Host noted the openness of this record:
‘… his frankness about the parts of Mokare’s conversation that he did not grasp inspires confidence, in my view, that the parts he did understand were represented more or less accurately.’ (original emphasis)
131 Dr Host commented in his report on spirituality:
‘With regard to spiritual matters, Mokare’s reticence may have arisen both from a respect for the secrecy of certain knowledge and an inability to explain religious mysteries. He gave Barker enough information, however, to illustrate a rich and active spiritual universe and one that admitted of mysteries, just like other spiritual systems such as Christianity. He did so conversationally and in what Barker called the recitative mode. Recognized in the West as a means of presenting information learnt by rote or by heart such as that contained in poems and songs, this mode is used in oral cultures to preserve and transmit knowledge. Mokare often talked of spirits (which Barker referred to as ghosts) and their mischievous behaviour. He did not draw a distinction between goodand evil spirits, as Christianity does, but he confessed that the spirits were frightening. He also suggested that they went abroad at night and sometimes visited those who had killed them. In most respects, however, they were a mystery that, according to Mokare, Aborigines discussed at length.’ (Original emphasis, footnotes omitted)
132 In his discussion about the relationship between Barker and Mokare, Dr Host stated Mokare ‘imparted knowledge about Aboriginal language, science (ecology, astronomy and geography), spiritual beliefs, travel, … traditional law, custom and Aboriginal rights and interests in land.’
133 Barker recorded information from Mokare about sexual transgressions. Dr Host summarised this information as follows:
‘According to Mokare, a serious transgression was one that offended the entire community rather than just an individual. The only consistent offence he consigned to this category was that of “running off” or cohabiting with a close relative such as one’s sister, the sister of one’s father or mother, or the daughter of one’s brother or sister. In such cases, the penalty was death by spearing if the offenders were caught. In other instances of illicit sex, notably extra-marital relations, the offender had only the husband to fear and could avoid punishment by avoiding the husband until his anger had cooled. According to custom, the offending wife would not be forgiven but would be punished with death. Such punishment, however, was evidently more in the nature of a threat than a reality for the transgression rate of women seems to have been high. A possible explanation is that older men had several wives, some of whom were promised as infants. Younger men remained unmarried, often into their late twenties, having to wait for their own promised wives to reach maturity … It is not surprising that such women entered into liaisons with young men whom they found attractive. Nor is it surprising that they did so with impunity if aging husbands lacked the physical capacity to obtain the redress to which customary law entitled them.’ (Footnotes omitted)
134 In his journal, Barker noted instances of spearing, as a form of redress for misbehaviour. This was a method of punishment sanctioned by customary law. Apparently, there were even customary rules about battles. Barker noted that fighting ceased ‘once a man on each side [was] dead’. It seems that sometimes a truce was struck. Barker reported information from Mokare about such an event ‘at a very great distance’ from King George’s Sound. The ‘great body’ were retiring to their own territory but were ‘to return at some future time, not in general hostility, but to cause Tulicatwale & Coolbun to pass through the ordeal of the spear’. These two would stand the ordeal from daylight until noon of one day, when they would give peace offerings of spears, skins, etc, & the two parties would then shake hands & be perfect friends’. Dr Host said:
‘The most persistent impression one gets of traditional Aboriginal lifeways as they were reported to Barker by Mokare is that they were highly flexible. The abject conformity to rigid social structures and territorial limits suggested by many commentators seems to arise more from efforts to mould social and cultural life to theoretical models than from searching out and examining empirical observations of lived reality. When Mokare discussed the precepts of traditional law and custom explicitly, he indicated that they were well defined and clearly understood. To this extent he suggested a certain rigidity. Yet his account of everyday life conveyed the distinct impression that the same precepts were more accommodating in practice than one would ascertain from simple definition and description. In other words, saying what they were did not necessarily explain how they worked. But if one joins the dots, so to speak, one can get a glimpse of their operation with reference, for example, to the status of women.’
135 Barker noted the custom of female infant betrothal and of a wife being remarried, upon the death of her husband, to one of his brothers. He also mentioned the right of the woman to continue to live on her own family’s estate after marriage, citing the case of Mokare’s sister, Mullet. Dr Host said:
‘Presumably Mullet remained because she had a right in law to do so, of which Barker was unaware, or because traditional law and custom were flexible enough to deal with exceptions. Indeed, by Mokare’s account, traditional law and custom were highly flexible and honoured, at least when the issue at hand was not deemed too serious, as much in the breach as the observance.’
136 In his journal, Barker referred to Mokare’s brother, Nakina, as ‘the head of the family … whose ground we occupy’. Dr Host summarised Barker’s account of land-holding rules in this way:
‘[T]raditional law and custom were flexible on the issue of land usage. The family was the landholding group, the head of the family was recognized as the titular custodian and other family members had their plots, as it were, within the ancestral estate. The landholding system was complicated, however, by various connections and associations formed through kinship networks as well as knowledge of, familiarity with and access to extra-territorial sites. Although I have found no evidence of women having formal rights and interests in land, they could, as I have suggested, enjoy the right or privilege of occupancy. Hence Mokare’s married sister, Mullet, continued to live on the family estate at Yaramal, near the garrison farm. She shared her accommodations with a co-wife while a third wife travelled with her husband Nulloch, a King River man.’ (Original emphasis; footnotes omitted)
137 Dr Host said:
‘Europeans did not map the ancestral estates but they left quite a clear picture of their locations and ranges. A speculative map, based on the writings of Barker, Nind and especially Collie, has since been drawn by W.C. Ferguson. Collie noted that Mokare’s estate surrounded Princess Royal Harbour and extended eastward to Bald Head. Using landmarks identified by Mokare, Ferguson traced a semi-ellipse that passed from Bald Head, through Mounts Melville and Clarence to the harbour’s north head, almost directly opposite the tip of the Vancouver Peninsula. The boundary he described was between five and ten kms from the coast at any given point.
…
There is no dispute among writers on the period that the custodian’s pre-eminent right (and perhaps responsibility) was that of burning the land. If he did not conduct the burning personally, he should, according to custom, have overseen the process or have deputized a family member to do so. By Barker’s account, burning could occur at any time between January and April. Apart from the symbolic significance of the custodian’s control over burning, there was also an economic rationale: burning yielded an abundance of food. Custodians, or occupying families, might also have assumed other rights. Mokare, for example, was affronted by the plundering of towans (parrots) and their nests on his family’s land. Yet there was a delicate balance between occupancy and usage rights because seasonal change demanded a degree of reciprocity.’
138 After giving an example of flexibility concerning burning rights, Dr Host referred to the ‘delicate balance between custodial and usage rights’. He cited Mokare’s advice to Barker that, during a forthcoming journey by Mokare to Palongerup (some eight or nine days away), Wills people would take possession of Mokare’s land, exercising rights arising out of their marital connections with Mokare’s people, the Mineng. Also he cited a case where Mokare and Nakina accepted an intrusion onto their land by other Wills people who wished to sprinkle ochre over someone’s grave. Dr Host commented:
‘Despite Mokare’s misgivings, he and Nakina were resigned to the ceremony. Their resignation, and the formal advice to them that the visit would occur, indicate several things about traditional law and custom. First, the importance of ceremony and ritual was such that they overrode tensions and could bring about the suspension of conflict. Second, significant sites were not necessarily located within ancestral lands. Third, under traditional law, usage conventions could take precedence over custodial rights, for although Mokare and Nakina were averse to the visit they acquiesced. Presumably, the prospective visitors anticipated their acquiescence for they did not ask permission but announced their intention. One gets the impression, therefore, that traditional law was complex; that its protocols were honoured even when there was no immediate and obvious benefit; and that it rendered territorial boundaries more permeable than has commonly been supposed.’
139 Dr Host made the point that the King George’s Sound garrison occupied only a small area of land; it did not threaten to dispossess the local Aboriginal land-owners. That was not true of the Swan River settlement, which was conceived as a capitalist venture dependent upon farming and trading. It was also not true of King George’s Sound after control of that area passed in 1831 from the Governor of New South Wales to the Lieutenant Governor of the new Colony of Western Australia. Land grants were generously made and white settlers rushed to take up their granted land.
140 Nind’s article contains a wealth of information about Aboriginal practices in the King George’s Sound area between December 1826 and October 1829; some of it derived from Mokare, some apparently from other informants and some from his own observations.
141 Nind used the word ‘tribe’ to describe small groups of natives. At first, he said, the garrison members thought each tribe had a chief and that Nakina was one of them. However, after spending more time with Nakina and Mokare, Nind became satisfied that ‘neither of them possessed any authority over their countrymen’; implicitly, there were no chiefs.
142 In relation to ‘tribes’, Nind said:
'With respect to the divisions and subdivisions of tribes, there exists so much intricacy, that it will be long before it can be understood. The classes Erniung and Tem are universal near the Sound; but the distinctions are general, not tribual. Another division, almost as general, is into Moncalon and Torndirrup; yet there are a few who are neither. These can scarcely be distinguished as tribes, and are very much intermingled. The Moncalon, however, is more prevalent to the eastward of our establishment, and the Torndirrup to the westward. They inter-marry, and have each again their subdivisional distinctions, some of which are peculiar, and some general; of these are the Opperheip, Cambien, Mahnur, &c.
What I, however, consider more correctly as tribes, are those which have a general name and a general district, although they may consist of Torndirrup or Moncalon, separate or commingled. These are, I believe, in some measure named by the kind of game or food found most abundant in the district. The inhabitants of the Sound and its immediate vicinity are called Meananger, probably derived from mearn, the red root above mentioned … and anger, to eat. It is in this district that the mearn is the most abundantly found; but distant tribes will not eat the mearn, and complain much of the brushy nature of the country - that it scratches their legs.
143 Nind went on to mention other groups, Murram, Yobberore, Will, Warrangle and Corine; all of their names being derived from foods common in their districts. He went on:
‘Although every individual would immediately announce to us his tribual name and country, yet we have not been enabled to trace any regular order of descent. The son follows his mother as Erniung or Tem, and his father as Torndirrup or Moncalon. Beyond this we have not been able to penetrate, for half brothers are not unfrequently different. This would probably be caused by cross marriages. From the same cause also their divisions of relationship are very numerous …
In their marriage, they have no restriction as to tribe; but it is considered best to procure a wife from the greatest distance possible. The sons will have a right to hunt in the country from whence the mother is brought.
They are very jealous as to encroachments on their property, and the land is divided into districts, which is the property of families or individuals. At some particular seasons of the year, however, the young men visit their neighbours in parties, and sometimes travel forty or fifty miles for that purpose. Their stay, which is generally short, is a period of rejoicing and feasting.
The visiting, of course, only takes place between friendly parties, yet it is attended with a ceremony denoting peace; and they generally approach their friends a little previous, or subsequent to noonday.’
144 Nind described the Aboriginal huts he saw at and near King George’s Sound. He went on:
‘An encampment rarely consists of more than seven or eight huts; for, except during the fishing and burning seasons, at which times large parties assemble together, their numbers are generally small, and two or three huts suffice. The number of individuals, however, seldom exceed fifty. The huts are so arranged as not to overlook each other. The single men have one to themselves - the children sleep with the women in a large hut near the husbands. These encampments generally consist of near relatives, and deserve the name of families rather than of tribes.
Those families who have locations on the sea coast quit it during the winter for the interior; and the natives of the interior, in like manner, pay visits to the coast during the fishing season. Excepting at these times, those natives who live together have the exclusive right of fishing or hunting upon the neighbouring grounds, which are, in fact, divided into individual properties; the quantity of land owned by each individual being very considerable. Yet it is not so exclusively his, but others of his family have certain rights over it; so that it may be considered as partly belonging to the tribe. Thus all of them have a right to break down grass trees, kill bandicoots, lizards, and other animals, and dig up roots; but the presence of the owner of the ground is considered necessary when they fire the country for game. As the country does not abound in food, they are seldom stationary, removing, according to the time of the year, to those parts which produce the articles of provision that may be in season. During the winter and early spring they are very much scattered, but as summer advances they assemble in greater numbers.
It is at this season that they procure the greatest abundance of game. It is done by setting fire to the underwood and grass, which, being dry, is rapidly burnt.’
145 In his report, Dr Host discussed the evidence, in the writings of Barker and Nind, about the extent of travel by King George’s Sound Aborigines at the time of settlement. He mentioned a footnote, in the republication of Barker’s journal by Mulvaney and Green, suggesting that one local Aborigine, Maragnan, evidently knew the coast to around Cape d’Entrecasteaux, some 200km to the west of Albany. The footnote added: ‘To judge from Barker’s journal, the range of Mineng contacts did not extend as far east of Albany; basically only to the Mt Manypeaks area, about 50km. To the north the limit was around the Stirling Range, c. 100km, and possibly less to the northwest’. Mulvaney and Green cited a work by W C Ferguson. However, Dr Host thought they had overlooked references, in Barker’s journal itself, to travel over much longer distances. He gave examples, although they seem inconclusive because of doubts about names. I think all that can confidently be said is that the King George’s Sound Aborigines frequently travelled to other areas (possibly some of them far distant) for purposes of ceremony, hunting, trade and wife-getting.
146 The article by Collie details journeys that he made with local Aborigines, especially Mokare, and their way of life. It recounts the death and burial of Mokare, but contains little information that is material to the present case. However, reference should be made to a journey undertaken by Collie, after Mokare’s death, in company with an Aborigine named Manyat. This was a ‘march of ten days, and to the distance of 65 miles from King George’s Sound’. Collie described Manyat, on his return, as having ‘revelled in the idea, that he had penetrated farther from King George’s Sound than Nakina, or any of his acquaintance’.
(c) The early post-settlement years
147 In his report, Dr Host quoted substantial extracts from the diaries of Captain James Stirling, the founder and first Lieutenant Governor of the new Colony, and Captain Charles Fremantle, who was sent ahead of the main party to select the Swan River settlement site and prepare accommodation for the troops who would guard the new settlers. The Fremantle extracts include a description of an Aboriginal man who ‘looked like a chief as he was marked down his stomach with three stripes of white and had in his head two bunches of feathers dyed red’. Dr Host commented this ornamentation ‘suggests a continuity of custom from the Sound to the Swan River’.
148 The establishment of a European settlement at Perth, in 1829, did not immediately terminate Aboriginal use of the area. In a letter written in 1832, Stirling estimated the Swan River Aboriginal population at about 11,000. Dr Host mentioned a corroboree, in the following year, on land that is now part of St Georges Terrace. In 1834, this land was the site of a battle between the Mooro (Perth) Aborigines and a group from present day York. Dr Host commented: ‘The very fact that such events occurred seems to indicate that the local Aborigines who hosted them were sufficiently robust, both culturally and numerically, to do so’.
149 Dr Host noted a despatch by Stirling to the Colonial Office in 1837 in which he said that, if the Aborigines were to combine against the settlers, ‘it would be useless to attempt to maintain our conquest with our present numbers’. From this passage, Dr Host inferred that Stirling ‘had some sense that there were more Aborigines than settlers’, bearing in mind that the settlers had firearms. Arrival and departure records suggest there were only about 2,000 settlers in the Colony at that time, while Stirling, in his despatch, gave a figure of 22,000 Aborigines. Perhaps this estimate should be treated with scepticism; at the time, Stirling was seeking to persuade the British authorities to send more soldiers to the Colony. Nonetheless, Dr Host’s inference about outnumbering seems correct.
150 Dr Host noted that, during the early years, the number of recorded Aboriginal deaths from violence and disease was low, about seven deaths per year. He went on:
‘It would be unwise to suggest that recorded deaths were the only deaths, but it is equally unwise to assume, on the basis of seven recorded deaths a year, that the Aboriginal population declined to the point of extinction … Settlement may well have impacted on indigenous culture in unexpected ways. However, Aboriginal peoples had occupied the south-west for millennia before Europeans arrived. During those millennia, some of the changes they experienced, for example, the loss of land that resulted from the rising of the seas, were probably no less catastrophic than the advent of Europeans. In all of that time, they did not simply maintain their lifeways; they also co-existed, an achievement that required intelligent and highly-developed diplomacy. The material from King George Sound illustrates the ongoing capacity of Aborigines to resolve disputes and there seems no good reason to assume that the capacity was so thoroughly undermined by a few decades of European occupation that they began to kill each [sic: other] off indiscriminately.’ (Footnotes omitted)
151 Whatever their numbers at any particular time, it is Dr Host’s opinion that the Aboriginal people of all the south-west have been identified as ‘Noongar’ (or ‘Noongal’, ‘Nyungar’, ‘Nyungal’, ‘Yunger’) ‘since the 1840’s and perhaps the 1830’s’. Dr Host cites Nind’s 1831 vocabulary in support of the earlier date. That vocabulary gives ‘Yungur’ as the meaning of ‘A man’. Moore’s 1842 vocabulary lists the word ‘Yung-ar’, with the meaning ‘People. The name by which they designate themselves’. Moore went on: ‘There may be about 3,000 aborigines frequenting the located parts of the colony. See the Statistical Report for 1840’. This comment seems to imply that Aborigines in all ‘located parts’, including places as far-apart as York, Perth and Albany, were ‘Yung-ar’.
152 Lyon’s article evinced admiration for the ‘Aboriginal Inhabitants of this Country’ whom he described as ‘a harmless, liberal, kind hearted race; remarkably simple in all their manners’. He described their way of life, saying:
‘Every bush as well as every sheet of water supplies their commissariat. Their rivers abound with fish, and their forests with game. Their time is therefore entirely spent in moving from place to place, as hunting or fishing may require; or in paying and receiving visits from the neighbouring tribes. The kangaroo, the opposum, the swan, the Pelican, the duck, the emu, the wild-turkey, the cockatoo, the pidgeon, the quail, the frog, the grub, the yamia, the boorn, and the beean booraberang, each furnishes its number of repasts at the proper season. Their rivers too in many places easily forded; and admirably adapted to spear fishing. Hence, there being few islands on the coast, they have not the least inducement to attempt navigation. Even swimming is unknown among them. They have been seen to paddle themselves across deep water with their hands, where the distance from bank to bank was short; but, of the art of swimming, they are entirely ignorant.’
153 Lyon wrote that the Aborigines ‘are formed into distinct tribes, who have their particular districts, and whose chiefs have but a limited authority, excepting in time of war or any emergency’. Later he said:
‘I have already observed, that they are formed into distinct tribes; and that the whole country is divided into districts. But, though they have places to which they are accustomed to resort for encampment, they have no fixed habitation, and generally move about from place to place in large bodies. Private property seems to be utterly unknown among them. The game and the fish are considered the common property of the tribe; and as every dispute between the different tribes is decided by the spear, they are utter strangers to the quirks and quibbles of the law.’ (Original emphasis)
154 Writing in 1833, Lyon estimated there were about 1,000 Aborigines adjoining the Perth settlement. He attributed the small number to the ‘horrid custom of killing one of another tribe, when any of their own happens to die, thus causing a double mortality, together with the practice of polygamy’.
155 Lyon commented about linguistic differences. He said:
‘Almost every tribe has a different dialect. The difference in some cases, is merely provincial; but in others it is so great as to be unintelligible. Still, like the languages of the different nations of Europe it seems to have a common origin.’
156 Lyon then set out three word-lists. The first was ‘a list of words that are precisely the same here and at King George’s Sound’. Five examples were given. The second list was of words where ‘the difference seems to be provincial’, eight examples being given. Then followed another eight examples where ‘the words for the same thing are so different that the parties speaking must be unintelligible to one another’. However, it is interesting to note that this last list gives the Swan River dialect word for ‘a man’ as ‘mamerupt’, as against the King George Sound ‘Nyoonger’, whereas Moore gave the Swan River word as ‘Yung-ar’.
157 Armstrong’s article dealt with a number of aspects of the culture of Swan River Aborigines. In the course of a discussion about their spiritual beliefs, he referred to evil spirits; in particular, ‘a malignant spirit called Meetagong, which prowls around at night and catches hold of them, if they go away by themselves to any distance from the fire where the rest of the party lie’. He also mentioned the ‘waugal’ – ‘an aquatic monster, whose haunt is supposed to be in deep waters’.
158 Armstrong also referred to a ‘tradition’ amongst the Aboriginal people as to their origin, namely:
‘the whole native population of this country was, in distant ages, confined to the mountains - that the different tribes now occupying the plain between the mountains and the sea are the descendants of a very few families, who migrated into the plain at a comparatively late period; but when asked whether any rumour had been handed down to them of the plain having been covered with the sea before that migration, they have laughed at it. They assert, too, that the language of the mountain tribes, which now differs very considerably from that of the tribes of the plain, was at one time their universal tongue, and that their own dialect is derived from the former. It is a remarkable fact, that the mountain dialect is still invariably preferred and used for all purposes of a public nature or general interest, such as their formal public discussions of the subjects of their quarrels between tribe and tribe, and their chanted narratives of legends, battles, and hunting matches. They state, as a fact handed down to them from their ancestors, that Garden Island was formerly united to the main, and that the separation was caused, in some preternatural manner, by the waugal.’
159 Armstrong confirmed other writers’ accounts of redress for injury by spearing, which the offender must suffer without resistance, and the practice of young girls being the subject of arranged marriages.
160 Armstrong said the ‘land appears to be apportioned to different families, and is not held in common by the tribe’. He set out the territories claimed by various people and went on:
‘These co proprietors appear equally interested in their respective districts, and are equally ready to revenge any tresspass, which may be committed, not only unauthorised hunting, but by taking swans’ nests, &c. Land is beyond doubt an inheritable property among them, and they boast of having received it from their fathers’ fathers, &c., to an unknown period back. All the sons appear to succeed equally to their fathers’ lands.’
161 Armstrong also said:
‘There is no supreme authority, either in peace or war, vested either in an individual, as chief or patriarch or in any body of individuals. A family is the largest association that appears to be actuated by common motives and interests.’
162 Armstrong provided information about the interaction between Aborigines in the Perth area and groups further afield. He said that the Perth Aborigines ‘obtain their ordinary spears from many swamps, but the finer kind from Barga – a district in the hills between Guildford and Kelmscott’. He added:
‘But their very best spears, which are extremely scarce, and very highly valued, are presents from their southern friends, and are said to be brought from a district two or three miles south of the Murray. They would not sell one of these spears for a loaf. They are called Boor-do-een, and are thin, heavy and springy’.
163 Armstrong went on:
‘They say that when a tribe is pressed by a common enemy, they retire, if the pursuit be very hot, to the nearest swamp that offers concealment; otherwise to some neighbouring tribe, in which they have relatives, who are bound to defend them, right or wrong. The latter course has been adopted by the Swan tribe, when pursued by the whites; they have always retreated to a northern tribe, about a day’s journey off. Yagan’s tribe used always to fall back upon We-up’s. But they would not, they say, retire upon a tribe in which they have no relatives. They themselves would not afford refuge, or, at least, protection to any stranger fugitives. The Swan tribes are in the habit of communicating with at least ten surrounding tribes, - viz, three to the northward, two to the north-eastward, two to the eastward, besides the Canning, Mangles Bay, and Murray tribes.’
164 Armstrong also commented about ordinary travel. He said:
‘From observation, and from their own accounts as far as their ideas of number and distance can be understood, there is reason to think that, during war, in pursuit or fight, their usual rate of travelling is between thirty and forty miles a day. On hunting excursions, or while peacefully passing from place to place, and having at the same time to provide their food, their lightest [sic] average rate does not probably exceed fifteen miles a-day.
…
A whole tribe does not, as a custom, migrate beyond its own district; but sometimes a whole tribe pays a visit of a few weeks to a neighbouring tribe, but this is always on a previous invitation, which is sometimes sent to its neighbours by a tribe that has had extraordinary good luck in hunting, or has had a whale cast on its coast. There is good reason to believe that few, if any, of the Swan men have been further from the Swan than 80 to 90 miles, unless with settlers. They move about in their own districts according to the seasons and the consequent variety of food. In winter they separate a good deal and live apart by families, and become stationary for a month or six weeks at the place where they have built their huts, provided the food of the season continues plentiful there.’
165 Armstrong mentioned fishing:
‘Even the maritime tribes, on an immense extent of coast intersected by frequent and broad estuaries, have no knowledge of the use of canoes, or any substitute; - their shores swarm with fish, yet they have never devised even the clumsiest resemblance to a fish-hook. One or two weirs, of the simplest possible construction, have indeed been seen; and they have an equally simple substitute for a net, which they use in the shallower pools of their rivers, when the latter, during the dry season, have ceased to run. A party of them form across one end of such a pool, a screen of brushwood, proportioned in height to the depth of the water, which they push before them through the pool to the opposite shore, sweeping before them everything in the shape of fish. The spear is their great instrument in fishing, as well as in the chace. On the coast they use, for that purpose, two spears tied together.’
166 Armstrong commented on the Aborigines’ gregariousness:
‘They are known to be extremely sociable, and very fond of gossiping; and their social amusement, besides mock-spear fights and throwing the kile-ee, is conversation round their fires at night. In the summer time, the tribe for sixty miles round assemble, settle old grievances and raise new ones. At these meetings they entertain each other with the well known dances and chants &c. of the corrobaree; which chants are partly narratives of battles, hunting matches, and excursions to strange and distant tribes; and partly unmeaning jargon, consisting of syllables strung together at random, but in the composition of which there appears to be some rivalry, each tribe exchanging the effusions of its “balladmongers” for those of its neighbours.’
167 Armstrong said he had ‘taken down the names of every individual in most of the Swan tribes’. He said none of the tribes exceeded 40 individuals; men, women and children. He estimated some 700 individuals regularly visited Perth, Fremantle, Guildford and Kelmscott; there was one tribe to about every ten square miles of country.
168 In the course of recounting the local Aborigines’ attitude to the white settlers, Armstrong referred to their unwillingness to ‘drive away or prevent stranger tribes from visiting Perth’; the reason being that ‘it is from those visitors they now receive, in return for permission to visit here, that supply of cloaks, bags &c, which their own district formerly yielded them’.
169 The evidence includes an extract from the Perth Gazette and Western Australian Journal of 7 September 1833 reporting a meeting at which Armstrong acted as interpreter. In the wake of the fatal shooting of Yagan, by two teenage boys seeking to claim the reward put upon his head, two members of Yellowgonga’s tribe, Migo and Munday, asked to meet the Lieutenant Governor to discuss an end to killings. The whole newspaper report is interesting, in terms of black-white relationships in the Perth area. What is presently relevant is the discussion about the penalty for theft. It seems that Migo and Munday named 16 Aborigines, whom they claimed to have been killed by whites, as well as ‘nearly twice as many wounded’. The report went on:
‘After all the names of the dead were given, they intimated that they were still afraid, before long, more would be added to the number, but being again assured that it would not be the case, unless they “quippled”, committed theft, they said then no more white men would be speared. They seemed perfectly aware that it was our intention to shoot them if they “quippled”; they argued however, that it was opposed to their laws, - which was banishment from the tribe, or spearing through the leg. The death of Domjum at Fremantle, who was shot in the act of carrying away a bag of flour, they say was not merited, that the punishment was too severe for the offence; and further, that it was wrong to endanger the lives of others for the act of one, - two of his companions having been severely wounded.’
170 In his journal Diary of Ten Years Eventful Life of an Early Settler in Western Australia, Moore made many references to contacts with the local Aborigines. The journal extracts that are in evidence include a comment about land:
‘Each tribe has its distinct ground; and they will, of course, rather adhere to it, dispute its possession, and take their revenge on the intruders, then fall back on other tribes of their own countrymen, and fight their way inch by inch with them.’
171 Moore also made a comment about inheritance:
‘I was witness to a great row among a number of natives at Perth yesterday morning. The occasion was this. It appears that among themselves the ground is parcelled out to individuals, and passes by inheritance. The country formerly of Midgegoroo, then of his son Yagein, belongs now of right to two young lads (brothers), and a son of Yagein. Some trespassers went upon this ground, lighted their fires, and chased the wallabees. This was resented by the young lads, and, as it happened, there was a large meeting of natives at the time, a general row commenced, and no less than fifteen were wounded with spears in different parts of the legs, - to which they seem to confine themselves as if by some law among themselves.’
172 It is worth mentioning Moore’s description of an Aboriginal burial, in 1838, near his land in Upper Swan. Dr Host noted the consistency of this description with Collie’s description (published in 1834) of Mokare’s burial at King George’s Sound in 1832. Dr Host thought the two descriptions demonstrated cultural maintenance over both time and distance.
173 I also mention an article by Moore, Aborigines of Australia – Swan River that was published in Colonial and Commercial Maritime Journal, Vol 5, in 1841. This article contained the following information about the Aborigines’ social life:
‘In all parts of this colony which I have visited, comprising from 100 miles north of Perth, down to King George’s Sound, every thing leads to the conclusion that the inhabitants are all of one race. The language is radically the same, though spoken with a variety of dialects, gradually blending into one another; and it is worthy of observation, that all the known vocabularies of the language of different parts of Australia present so many instances of identical expressions, as to strengthen the belief that they are derived from some common stock. The conformation of their heads and bodies is the same; the cast of countenance is the same, although different shades of hair are perceptible; their habits are the same; their weapons are the same. It is ascertained that at some distance to the north, shields are made use of, which are only known here as rare curiosities, and are still less known as you go to the south. The curved weapon, fashioned something like a coarsely-shaped sickle, called “kily”, may have its prototype in the German keile, and is said to be traceable to the elanta of the remotest ancients; whilst that singular instrument by which their spears are propelled, is said to be derived from the amentum of the ancient also.
I do not consider them divided into tribes, according to our sense of the word. Those who frequent or belong to any vicinity naturally congregate together for society, assistance, and mutual protection. These people appear to be more particularly designated with reference to the localities which they frequent; but there are certain general terms sometimes used among them with reference to the residence of people, which seem rather indicative of direction than description of locality – as the Waylo men, which is a term used equally here and at King George’s Sound, for those living immediately to the north; and the Daran men, which is used equally here and at York, for those living immediately to the eastward.
There is not, in my opinion, any one acknowledged head or chief of a tribe; but, of course, the strongest, shrewdest, and most daring, will exercise an influence over the rest.
The tribes are therefore but the result of two or three families frequenting the same neighbourhood; the most influential man is the chief; his authority is like that of a father over his family, or an elder brother over the younger, and only extending so far as he may be respected or dreaded.
Protection from the intrusion of strangers, and assistance in defence, in avenging quarrels, in resenting injuries, or in revenging deaths, is expected from each individual.
To effect some common object, tribes do often join for offence or defence; and they seem to me to have judicial meetings, either for the adjustment of differences, the ratification of friendship, the exchange of commodities or products of one place for those of another.
The district which the father occupied or ranged over, is claimed by the sons; they assume a proprietary right to the animal and vegetable products of it, and resent any unauthorized encroachment upon a use of this property. One of the most serious skirmishes which I have seen among the natives was occasioned by the resentment of the sons of Midjigoroo, for the firing the country, and destroying the game on the district opposite to Perth, on the other side of the river. Each party was supported by their respective friends, and the quarrel became general. The right appears to be vested in individuals, and there is not a spot of ground which is not claimed by some person as his district.’
174 Salvado’s memoirs contain a chapter headed ‘Laws, Seasons, Arts’. It includes the following:
‘ 1. Many Europeans have thought fit to apply the word 'tribe' to the groups of six or so natives whom one meets in the Australian bush. I do not think that this is an accurate term, since, as far as my knowledge goes, each family is independent of others, and is governed by its head, the father; I have never found an instance where the head of the family assumed the right of giving orders to other heads, or to the members of their families. If a person is insulted, he does not have recourse to anybody for justice, but seeks revenge on his own behalf; if he is weaker than his enemy, he asks help from his relatives and friends. Thus the natives, rather than governing by tribes, seem to govern in the patriarchal fashion, with each family - not usually more than six to nine persons - forming a small society, dependent on its own head alone.
2. On the other hand, they possess general laws, maintained by tradition and handed down from father to son; and any head of a family has the right to punish breaches of these laws severely, even though the culprit be a stranger. For instance, if a young man who is less than thirty takes a woman about with him, and gives out that she is his wife, the first old man who hears him say this can kill him without pity, in virtue of a law that is common to all the natives, that no-one may contract a marriage, under pain of death, before he has completed his thirtieth year. The reader may well think that it would be easy for a native to conceal his exact age, or indeed not know it; but it must be realized that, in spite of the absence of registers and witnesses, they can discern with marvellous accuracy, from the strength of the body, when marriage is permissible according to their traditions. I shall speak about their other laws when an appropriate occasion offers.
3. Every individual has his own territory for hunting, gathering gum and picking up yams, and the rights he has here are respected as sacred. I have often heard them say in dispute - even to their friends: 'Nichia n-agna cala, nunda cala Canturbi; iei nunda uoto' (This is my district, yours is Canturbi [the name of a place near New Norcia]; get out of here straight away!’). Consequently, each family regards one particular district as belonging exclusively to itself, though the use of it is freely shared by nearby friendly families. But if an enemy ora stranger is caught there, he is put to death by the owner.
…
The natives of Perth and those of King George Sound, although they are about 300 miles apart, speak practically the same language (the former adding a syllable or vowel more than the latter at the end of each word). A great number of the words used by the natives of Adelaide agree with those used in the Perth district, and such correspondences obtain commonly elsewhere.’
175 In a section of his report entitled ‘Aboriginal Adaptation and Cultural Maintenance 1841-1900’, Dr Host described the relationship, during those years, between the south-west Aborigines, on the one hand, and, on the other, the pastoralists, for whom many of them worked, and the mission stations that sought to civilise and convert them. A major theme of this section is the resilience of Aboriginal society; despite increasing contact with the white population, many customary activities were preserved. Dr Host cited Hassell’s claim that, even Aborigines who had developed long-term relationships with employers would absent themselves to undertake traditional activities such as ‘hunting, gathering, feuding, attending ceremonies and telling their traditions’.
176 In his report, Dr Host took pains to demonstrate that, contrary to assertions by some, many traditional Aboriginal practices persisted for many years after settlement. In particular, he drew on the writings of Hassell; letters by a settler, Eliza Brown; and ‘An Australian Parsonage; or, Settler and Savage in Western Australia’, a book written by Janet Millett and published in 1872. This book described the interaction between the author and her clergyman husband, on the one hand, and Aboriginal people in York in the 1860s. Dr Host commented that her book ‘demonstrated that Noongar people at the end of the 1860s were alive and well, adapting to the European presence, adopting aspects of European culture but maintaining many aspects of their own’.
177 At paras 366-367 of his report, Dr Host said:
‘The evidence adduced from York and the Blackwood-Warren area indicates clearly that Noongars in frequent contact with Europeans and adapting to their presence were also maintaining many aspects of traditional law and custom. They used traditional travel routes and tracking skills in their work for settlers as mail carriers and police aides. They continued to burn the land, so much so that the practice became a flogging offence in 1848. Ceremonial life continued and reports of corroborees persisted into the 1890s. Noongar men remained proficient with the spear and imparted the skill to Eliza Brown's son Kenneth. Brown and Millett both commented on the maintenance of traditional dress and body decoration. By supplying Khourabene with clothes and finding that he always returned without them, Millett discovered the continuation of the traditional obligation to share. Wollaston noted the failure of missionaries to civilize or westernise Noongar people (with a few exceptions) and would eventually be faced with his own failure to do so.
Early betrothal and the moiety system were objects of deep concern to Millett in the 1860s when traditional law/custom relating to the practices were sometimes broken as they were at King George Sound in the 1820s. Khourabene was threatened with spearing at York in the 1860s for hunting on land at York in which he had no traditional rights or interests, just as he would have been at King George Sound in the 1820s or Perth in the 1830s and 1840s. Most significantly, Noongar families remained together and on country. When they were employed by Europeans, they remained in the lands that held their significant and sacred sites. They worked as family units on a seasonal basis then returned to the material culture of the bush when the work was finished. If jobs were small, they were done by nuclear families. If they were large, the kinship networks supplied the labour. Hence, the kinship system that linked families and the principle of sharing or mutual obligation that was woven through it, the unseen bases of traditional law and custom, remained.’ (Original emphasis)
These conclusions were not challenged by any respondent.
178 Dr Host continued his survey through the remainder of the 19th century. He cited accounts of hunting parties, corroborees and reprisal spearings. He thought that, throughout this period, ‘Noongar people remained robust’. However, he said:
‘They [Noongar people] also came increasingly under official scrutiny, doubtless because they were defying predictions of their demise. Assertions of their imminent extinction persisted but they became more equivocal. The physical presence of Noongar people could scarcely be denied but the spurious categories of casteand blood, which acquired an equally spurious legitimacy through official usage, became a means of asserting their racial and moral decline. At the same time, the categories artificially deflated Aboriginal numbers.’ (Original emphasis)
179 Dr Host went on to refer to official documents, including census documents that sought to distinguish between full-blood and mixed-blood Aborigines. He commented:
‘Early enumerations were not only complicated by the impossibility of ascertaining which Noongars did and did not have European ancestry, but they were also unreliable because Noongars remained comparatively mobile and could easily have evaded census enumerators. Estimates, then, were surely deflated. Yet as Fraser emphasized in 1901, “in almost every case, half-caste aboriginals are brought up by and subsequently continue to live with those of full-blood”. It seems clear, therefore, that the artificial categories of caste and blood were irrelevant to Aboriginal people or, at the very least, were not relevant in the way that they were to Europeans. When one disregards the spurious categories, one can see that even deflated estimates showed a steady increase in the south-western Aboriginal population, an increase that mocked both the notion of extinction and Draconian legislation that seemed calculated to bring it about.’ (Footnotes omitted; original emphasis)
180 Dr Host summarised in this way the position at the end of the 19th century:
‘By 1891, the colonial population had not topped 50,000 and Aborigines had the time and space to adjust to the European presence. Much if not most of the south-west remained untouched by formal colonial expansion and control of Aboriginal people was limited to policing those in settled areas. The kinship system and the principle of mutual obligation from which traditional law and custom arose, persisted, along with the Aboriginal sense of place and various aspects of ceremonial life and material culture. During the next ten years, the European population jumped to 184,000 and the groundwork was laid for unprecedented displacement. It would take more than 20 years and a succession of Aborigines Acts, however, before the full impact of that displacement was felt. Moreover, the full impact remains incalculable because … no reliable means had been devised for estimating Aboriginal numbers.’ (Footnotes omitted)
181 It appears that population growth in Perth was relatively slow: in 1884, some 6,500 people, rising only to 35,767 in 1911.
182 Dr Host commented: ‘Noongars had access to the food and water resources of metropolitan lakes and swamps until after the Second World War’.
(d) Early 20th century writers
183 In ‘The Native Tribes of Western Australia’, written about 1910 but perhaps later updated, Bates identified informants who had been alive in the early years of settlement. She apparently spent much time with some of them. Bates used the term ‘Bibbulmun’, whose derivation she was unable to ascertain, to describe the people who have been called ‘Noongar’ by others. In a section of her work headed ‘The Bibbulman Nation’, Bates wrote:
‘The Bibbulmun Nation occupied the line of coast between Jurien Bay … and a point somewhere east of Esperance Bay, towards Point Malcolm. Its inland boundary (approximate) stretched diagonally from about Watheroo … to about Mt Ragged ... Its widest area was between Augusta (Cape Leeuwin district) north-east to about Kalgarin (Carlgarin on [official] maps) …; its narrowest area was in the Esperance district. All along its landward boundary were the circumcised tribes. The many rivers, hills, estuaries, timbered areas and rich loam flats within its boundaries, in the abundance and variety of the animal and vegetable foods which they afforded, made the Bibbulmun people the most fortunate of all the Western tribes, for there was no time of the year which had not its seasonal product for the sustenance of the inhabitants.
Although the Bibbulmun Nation throughout its whole area had but one fundamental language, and possessed similar customs, laws, etc., there were two forms of descent within its boundaries, the tribes dwelling on a narrow line of coast from about Augusta to Jurien Bay following the line of maternal descent, while the rest of the tribes had paternal descent.
All coastal Bibbulmun were Waddarn-di-sea people, and called themselves, and were called by their inland neighbours, Waddarn-di Bibbulmun. The inland tribes were distinguished by the character of the country they occupied. They were either Bilgur (river people, beel or bil-river), Darbalung (estuary people) or Buyun-gur (hill people - buya-rock, stone, hill), but all were Bibbulmun. Tribes were also named from various local terms for points of the compass, as Wil Bibbulmun (wil-north), a term used by the Albany people in speaking of the tribes north of them; Kurin Bibbulmun (kurin-east); the Katanning district people called themselves and were called by their neighbours by this term. Yabbaru Bibbulmun-Perth and Gingin district tribes were so called from their dialectic term for north-yabbaru. Bunbury Bibbulmun were called Kunniung Bibbulmun from their local term for west. Minung Bibbulmun (minung-south) was the term applied to the tribes east of the Darling Ranges from about lat. 31, long. 117 to the southern coast about Albany. Minung may also have been derived from min, men or mirn, an edible gum or red root, but its more general meaning is south, aid it bears this meaning amongst tribes beyond the boundaries of the Bibbulmun people …
Between all these people there was constant intercourse from time immemorial. They assembled at any point between Augusta (Cape Leeuwin) and Cockleshell Gully (Jurien Bay district) for various purposes, either when a certain local food was ripe, or when the spawning season arrived or the swan nesting season, or warrain (edible root) season, etc.: there was in fact a main irregular highway north and south, with branches eastward here and there over the hills wherever relationships extended.’
184 The occupation area of the ‘Bibbulmun Nation’, as described by Bates, broadly corresponds with the territory claimed by the two Single Noongar native title claims. The most significant difference is that Bates put the eastern extremity of the occupation area further east than that of the claim area.
185 After detailing the ‘local names applied to groups of Bibbulmun living in certain areas’, Bates said:
‘Each tribe, or aggregate of local groups, had a definite area over which every individual member had hunting and food rights. Within this area were certain waters, hills, valleys, rivers, estuaries, which were the property of the groups inhabiting that particular part of the country.
Owing to the early settlement of the Southwest, it was extremely difficult to obtain the definite boundaries of any special local group or groups, as in nearly all cases the once numerous inhabitants had dwindled down to one or two old men, and the old people were often found far away from their own hunting grounds.’
[One criticism that has been made of Bates is that she disregarded mixed-blood Aborigines. Her reference to ‘one or two old men’ is, therefore, probably a reference to the number of surviving full-blood members of the tribe.]
186 After detailing the tribal areas, Bates said:
‘All these people laid claim to certain portions of the Minung Bibbulmun territory, which they stated had been held by their people since Nyitting, (cold, ice age?) or ancestral times. From these runs they could not be dispossessed, and on, or as near these as white settlement rendered possible, they lived and died. Indeed I know of one instance amongst the Minung Bibbulmun of an old woman walking over 200 miles to reach the spot where she had been born, and where she wished to die. She lived about a fortnight after her long journey to her kal (fire, hearth, home).
Every group held relationship of some kind with every other group, for all constituted the Bibbulmun Nation. A Minung Bibbulmun from Albany could travel through the tribes east, west and north of him, as far as the limits of his relationship extended. Nebinyan died at Katanning whither he had gone to be looked after by some Kaiala Bibbulmun and Kurin Bibbulmun with whom his father's people had intermarried.
There was also free intercourse between the Minung (Eastern) Bibbulmun and the Western Bibbulmun, notwithstanding the difference in the form of descent of both people. Whether this was due to the facilities afforded by white settlement, and the greater ease with which long journeys could be accomplished under white protection, cannot now be definitely ascertained. The living members of the various groups state that they could always travel through any area in which a relation existed, the term relation being used in its widest sense. Again, the journeys taken by young boys in preparation for their initiation could be extended as far through Bibbulmun country as the boys' guardians cared to go, and this rule again made for an extension of the highway. These show in which direction the group's wives, husbands, betrothals were sought or obtained. One old man, now dead, of the Dunan wongi section, stated that he took some boys to Doggerdirup (Bald Head, Albany) from their birth place at Wonnerdup, a distance of some hundreds of miles, but that journey was undertaken after white settlement.
Yabburgurt, the last Murray district native, whose father's ground was in the Manjuburdup (Mandurah) district, stated that he could travel to Yunderup (Busselton) and find mururt (blood relations) there; he could go to Kugalerup (Blackwood River district) where some of his nganganjura (mother's people) lived; to Karrganup near the Moore River (Gingin district), where waiabinuk (relations-in-law) lived.
Joobaitch, the last Swan and Canning district native, whose father's springs, pools, etc., were in the present Guildford district, could go south of Bunbury, as his mother's father came from the Burong wongi district. He went eastward to Northam, York, Meckering and north-ward to Dandarraga [Dandaragan] in all of which places he found mururt and waiabirding [relations-in-law].
Woolberr, the last member of the Gingin district section of the Yabbaru Bibbulmun, had a friendly highway towards Jurien Bay on the north, Goomalling and Dowerin on the east, and south towards the Murray, as his mururt and waiabirding were to be found in the local groups of these districts. Woolberr was killed while endeavouring to cross the railway line near Perth.
Monnop, the last Victoria Plains district Bibbulmun, had also an extensive highway opened to him through relationships, etc. His father's country was near the border of the circumcised tribes, and some boys from his father's people's group had been given over to the circumcised tribes for initiation, but only those of his people who were willing to be circumcised went on friendly visits “over the border”. The highway of his people ran west and north-west to the coast about Jurien Bay, and south into the Swan district. Monnop died at Guildford in the early part of 1914.
These instances will suffice to show the unity of the Bibbulmun Nation. They were one people, speaking one language, and following the same fundamental laws and customs. Why their forms of descent should be different they themselves could not explain. The Minung Bibbulmun accused the Western Bibbulmun of having inaugurated female descent in order to “legalise”, so to speak, wrong marriages, while the Western Bibbulmun suggested similar motives for paternal descent obtaining amongst their eastern neighbours.
All along the borderline where the two lines of descent met, the tribes were friendly with each other, intermarrying and adjusting their “in-law” relationships to suit the form of descent obtaining.’
(e) Dr Palmer’s comments on the historical material
187 Before dealing with particular topics, it may be useful for me to set out the comments on this historical material offered by Dr Palmer, and Dr Brunton’s response to that comment.
188 In chapter 7 of his report, Dr Palmer said:
‘The South West appears to have constituted a single cultural bloc, with dialects of a single language spoken by people who shared laws and customs in common. They recognised local and regional names, but they appear to have shared a commonality of belief, custom and material culture which distinguished them from their neighbours to the north and east.
Groups of people had rights to areas of land, which were gained, principally, by descent. A family was generally associated with a particular area. These rights were articulated as ownership of relatively well defined areas of country. The exclusivity of rights to country was mediated by a complex set of relationships developed through kinship, consanguinity, affinality and other alliances. As a consequence rights in land were not hermetically or exclusively bounded and more than one country group had rights to use country beyond their own. The exercise of such joint or shared rights was tempered by a requirement to follow protocols requiring the seeking of permission, for some activities, although this was not an invariable rule. People who were not known and with whom no alliances were recognised always required permission, if seeking to visit unfamiliar country and trespass was regarded as a serious offence.
There operated within Noongar society a system of social categories, complemented by and complementing the use of kinship terms whereby all people within a known social universe were classified as kin. Certain behaviours and obligations were required reflecting the kin classification obtaining.
In religious thinking, there was a strong emphasis on the importance and influence of the spirit world and funereal rites were particularly important. Divination was a part of these rites, and the Noongar doctor, or ‘clever man’ had a key role here, as in other activities that involved sorcery. The culture was marked by the telling of narratives of place, relating the here and now to the creative period of the Dreaming, and explaining how places in the landscape were imbued with spiritual potency. Other relationships with the natural world were expressed through a variety of forms of totemism, although these appear to have been variable and not uniform across the region. There was also a rich ritual life, which was marked for the Noongar people by the absence of circumcision and subincision.
Finally, there was a structure to the society, which rested on an acceptance of the seniority of older people and that young men (and, presumably, women) must learn from them and respect them. Authority was not centralised but rested within the family groups, usually with a senior male, although women could also be recognised as having authority through their seniority. Other leadership roles probably depended upon circumstance and individual ability and were tempered by kinship requirements. The society was marked by some acts of violence, which developed from a desire to revenge death as well as punishment for transgressions of Noongar social rules, which were understood to constitute a law by which people lived and acted.
The early accounts tell us very little about the economy of Noongar people, prior to settlement of the region by Europeans. Nor do we learn much about political relationships between groups and individuals. The accounts of the religious life lack first hand detail, and much must have been left unrecorded. Finally, we learn little or nothing about art and aesthetic expression. Despite these significant gaps, the accounts of the early settlers and those that followed soon after provide a basis for understanding Noongar culture. They also provide a point of departure for forming a view as to whether contemporary Noongar culture is founded on traditional and customary practices and rules.’
(f) Dr Brunton’s response to Dr Palmer’s comment
189 At para 4.3.4 of his report, Dr Brunton said ‘I generally concur with the conclusions about traditional Aboriginal culture in the south-west of Western Australia’, presented by Dr Palmer in chapter 7 of his report, ‘although with a few very significant exceptions’.
190 Dr Brunton went on:
‘In particular, I think he has overstated the cultural unity within the south west at the time of sovereignty, and that he has unnecessarily confused the issue of rights to land by his seeming unwillingness to apply distinctions that have been profitably utilised by other anthropologists discussing Aboriginal societies, including those of the south west.
I am also struck by Dr Palmer’s lack of attention to the ritual obligations to land and/or specific sites of importance that are most likely to have been a crucial aspect of people’s relations to their country. While he might contend that there is little information about these matters in the early accounts, he does not discuss the data that does exist, and which I presented and discussed at some length in my 2003 report ... The omission is particularly surprising in the light of Palmer’s own writings in relation to his research with traditionally-oriented Aborigines in other parts of Western Australia. Thus, in an article dealing with Western Desert people south of Balgo he stated, “Aborigines have developed a system of land tenure which is maintained and sustained through ritual enactments”, and in one dealing with the Pilbara he wrote “in ritual, land-owners can demonstrate their spiritual relationship with land through the purveyance or revelation of esoteric songs or objects which are symbolic of their relationship with their country”. In this regard is it also appropriate to note the more general remarks by Erich Kolig, a distinguished anthropological scholar of Aboriginal culture. Referring to Australia as a whole, he writes that the ethnographic evidence “clearly indicates that Aboriginal society had an obsession with the importance of ritual and the manipulation of symbols through ritual in order to exert control over the world in virtually all its aspects… Aboriginal culture attributed to ritual power over nature, world and society, and indeed saw ritual as necessary to guarantee their continued existence’’.’
(iv) Language
(a) Dr Thieberger’s evidence
191 In the introduction to his report, Dr Thieberger summarised conclusions he had reached:
‘The area of the claim … extending from just north of Jurien inland and south to just east of Hopetoun, includes a group of languages collectively known as Noongar. The Noongar languages extend further to the east of the claim area, and in this report I distinguish the claim area from the larger Noongar region.
I will show why the Noongar dialects are considered to form part of a single language by comparing vocabulary items within the group, and then contrasting that vocabulary with neighbouring languages. The evidence suggests that Noongar is a single language consisting of a network of dialects (in the technical sense). I will also show that Noongar uses specific grammatical forms that identify it internally in contrast with neighbouring languages.
I will show that records of these languages going back to the late 1820s indicate that the same language has been associated with this country since that time.’
192 In his report, Dr Thieberger described his methodology and identified his sources. As none of the respondents challenged Dr Thieberger’s methodology or sources, I need not set out that material. The respondents say what Dr Thieberger calls ‘dialects’ should better be described as separate languages; the significant degree of commonality between them is to be explained by the fact that all the languages are descended from a common, Australia-wide ancestor. In discussing Dr Thieberger’s evidence, it is sufficient for me to concentrate on what he says that is relevant to these contentions.
193 Dr Thieberger’s report included a map (map 2 in his report) in which he identified what he called ‘the Noongar region’. The identification includes the whole of the claim area, but extends further to the east. Dr Thieberger marked on that map the locations of eleven named groups (Yuwat, Balardung, Wajuk, Binjarub, Wiilman, Kaniyang, Wardandi, Bibbulmun, Minang, Goreng and Wudgaarri), which together ‘form a dialect group’. He said:
‘This means that they share certain features, lexical items and grammatical characteristics, that are not shared with languages to the north and east ...’
194 On map 2, Dr Thieberger showed the location, outside the claim area, of six named language groups (Nhanda, Watjarri, Badimaya, Kalaku, Wangkayi and Ngatju), all of which, he said, ‘are generally acknowledged as not forming part of the Noongar group’.
195 Dr Thieberger commented: ‘From the earliest sources there is a recognition of the unity of the dialect group in the Noongar region’. He cited an observation by Grey in 1840:
‘Throughout the whole of this extensive range of country the language is radically the same, though the variations in dialect, and in the use of certain words by single tribes are very considerable. … The foregoing observations will show my reasons for embracing in one vocabulary, the words found either generally or partially in use over so extensive a tract of country.’
196 Dr Thieberger also quoted from Moore’s 1842 descriptive vocabulary. Dr Thieberger said:
‘Moore talks of the region in which common words are found, “most of them are used under some form or modification by all the aborigines residing within the limits of Moore River to the north, the Avon to the east, the sea to the west, and King George’s Sound to the south. The characteristic peculiarity of the King George's Sound dialect is to shorten the words by cutting off the final syllable, especially where it ends in a vowel, a Kat, for Katta - Kal, for Kalla.”
… “I have no hesitation in affirming, that as far as any tribes have been met and conversed with by the colonists, namely, from one hundred miles east of King George's Sound up to two hundred miles north of Fremantle, comprising a space of above six hundred miles of coast, the language is radically and essentially the same.”’
197 Dr Thieberger referred to Bates’ statement about the ‘Bibbulmun Nation’ having ‘but one fundamental language’ throughout its whole area (see para 183 above) but with eleven local groups within the nation. The names of most of Bates’ eleven local groups have a similar sound to those of Dr Thieberger’s eleven local groups.
198 Tindale listed eleven local groups, whose localities clearly fall within the areas of the two Single Noongar claims. The names he gave those groups correspond closely, in sound, to the names used by Dr Thieberger. A twelfth group, which seems to be located in an area straddling the north-eastern boundary of the claim area, Tindale identified as Njakinjaki. Tindale said these people ‘were known to the southern tribes as Njagi and were said to be a naked people with an unintelligible language’.
199 A major component of Dr Thieberger’s report is his analysis of Aboriginal word-lists, compiled by various people, including Tindale. The lists reach from that of Flinders in 1801 to one made by Carl Georg von Brandenstein between 1970 and 1984. Dr Thieberger drew from this analysis the conclusion that there was a single language throughout the claim area.
200 Dr Thieberger considered whether there was evidence of a ‘distinction between Noongar and its neighbours’. He said:
‘It is not possible in this report to systematically contrast the grammatical systems of the Noongar language with its neighbours. In part this is because we have such poor grammatical records for all of these languages, and in particular the north-east neighbouring languages, for which we have virtually no information.’
201 However, in Table 8, Dr Thieberger made a comparison of ‘some grammatical features to show that the Noongar group exhibits forms that are not shared with all neighbouring languages’. He said:
‘In particular, the Noongar group are distinguished by having a Nominative/Accusative case system, unlike all languages around them. Like most Australian languages, these neighbouring languages have an Ergative system, which means that the subject of a transitive verb is marked differently to the subject of an intransitive verb. Further, the object of a transitive verb is marked by the same means as is the subject of an intransitive verb.’
202 Dr Thieberger went on to make a number of detailed comparisons between Noongar and its neighbouring languages. In relation to some matters, one or more neighbouring languages had the same feature as Noongar, but Dr Thieberger found a generally high level of distinction. He made the following comment:
‘As we have seen, there is a cohesion among Noongar dialects that we can characterise as dialect variation marked by differences in vocabulary but similarities in grammatical structure throughout the region. From the little grammatical information that we have we can see that there is little variation across the Noongar region.’
203 Dr Thieberger quoted, with apparent acceptance, a comment by A C Dench, in Nyungar, Macquarie Aboriginal Words (1994), that there ‘appear to have been three distinct dialects which differed mainly in their varying pronunciations of similar words’. Dench identified the locations of ‘three main dialect groupings’.
204 Dr Thieberger looked at place names. He said:
‘In some parts of Australia it is possible to correlate placenames with particular linguistic features of a local indigenous language. The Noongar region is one such place where the characteristic -ap/-up endings are commonly found. Douglas … says the –ap suffix means 'place of' in Noongar.
Map 3 shows that Aboriginal placenames ending in -ap/-up are mainly concentrated in the area corresponding to the regions recorded by Tindale ... In this map 1897 out of 1955 (97%) names with those endings are found within the Noongar boundaries.
Tindale notes … that Hammond's (1933) “big-tribe” grouping corresponds “closely with the spread of the [-up] suffix in place names.” Tindale goes on to say that this “big-tribe” grouping “has some linguistic merit”, and that it matches a grouping of non-circumcising people of the south-west. He also refers to this group as being the “[- up] people”. A further placename suffix of the region is [-ing] which he suggests predates [-up]. For our purposes it is sufficient to note that both suffixes are found in the claim region, and that the extent of the –up suffix coincides with what we have identified as the Noongar language region.
In order to constitute a good correlation of placenames with linguistic features of the Noongar language, and therefore to relate the language’s speakers to a specific area of land, the –up/-ap placenames would need to be both (i) non-existent or at least rare in neighbouring and other areas (where we assume any form resemblance is more likely coincidental), and (ii) showing a fairly consistent distribution over the entire Noongar region. It is reasonable to say that the first condition is satisfied in this case (with Nyakinyaki a possible exception though not significant because of the poor information available). It is also reasonable to say that the second condition is not satisfied. It is clear from Map 3 that a large part of the Noongar region has no –up/-ap names: much of the Juat and Wilman areas and nearly all of the Balardong areas as identified on the map.
This distribution can be interpreted in a number of ways. First, it might reflect a recent dialect difference within Noongar whereby the –up/-ap morpheme only occurs across part of the area. It is not necessary to demonstrate that this distribution coincides with a major dialect distinction; linguistic variables are often not restricted to wellbounded dialect regions. Second, given that placenames are usually held to be more resistant to change over time than other aspects of a language, and that there does not appear to be any evidence that –up/-ap has been used to create new placenames in historical times, it could be argued that the distribution reflects a much earlier stage of the development of the dialect regions within the current Noongar area of land. Third, there is a possible argument that the –up/-ap area represents the entire Noongar-speaking area at an earlier time and that Noongar speakers spread into the rest of what is now the Juat, Wilman and Balardong areas after that time.
In the present case, the central question for the last interpretation is whether the hypothesised earlier time predates the imposition of British sovereignty over the region. Again, given that placenames are usually held to be more resistant to change over time than other aspects of a language, and again, given that there does not appear to be any evidence that –up/-ap has been used by Noongar people to create new placenames in historical times, it is reasonable to conclude that these places were named well before the imposition of British sovereignty. There is therefore no evidence on this basis that the current extent of the Noongar-speaking region is any different from its extent at the time of the imposition of British sovereignty.’
205 After a section dealing with the continuing use of Noongar language in recent times, Dr Thieberger expressed these conclusions:
‘In this report I have shown that the early records provide a number of wordlists of the language spoken by the indigenous people encountered by the first settlers in the claim region/ area. In some cases we also have grammatical information about that language.
By comparing a representative sample of wordlists I have shown that those recorded within the Noongar area show substantial similarity to each other and more than they do to those recorded from neighbouring languages.
In my opinion, from the accounts we have in the earliest sources and which I have discussed in the preceding sections of this report, it is clear that there has been a group of dialects constituting a single Noongar language and that this grouping predates European settlement.
By comparing these wordlists over time, in my opinion, we can see that there is a great similarity between the early lists of Noongar and those recorded by Atkins and Humphries in the last twenty years. This indicates that the language of the region has been spoken in the same place since at least the time of European settlement.
The number of speakers of Noongar as an everyday medium of communication has dropped significantly, and may be virtually a handful today, but the efforts of Noongar people to pass on their language and their identification of Noongar as their language, indicates, in my opinion, a strong sense of continuity with their linguistic tradition that clearly predates the settlement of Europeans.’
206 None of the respondents made any serious attack on Dr Thieberger’s evidence. No language expert was called to rebut his conclusions. Counsel’s cross-examinations were directed more towards elucidation than challenge. However, Mr Ranson did put to Dr Thieberger the issue of a single source language. The exchange was as follows:
‘Do you agree that the current understanding among linguists is that all Australian Aboriginal languages, or at least all the languages in the southern part of Australia derive from one source language, thousands of years ago?
DR THIEBERGER: I agree that as best we can determine it on the evidence that we have, there is great similarity among all of those southern languages such that they could have descended from one common ancestor language; I wouldn't like to say how long ago.
MR RANSON: Alright, well I'm not asking you to say how long ago, I think we can assume it was a significant time ago, but that is the generally accepted understanding among linguists, that there was most likely originally one source language for all of the current Australian languages, or the ones at sovereignty.
DR THIEBERGER: All of the current southern languages I think that's fairly uncontroversial.
MR RANSON: Yes. And when you say the southern languages what you're talking about there is essentially in fact all of mainland Australia other than some parts of the Kimberley and the far north of the Northern Territory, broadly speaking?
DR THIEBERGER: That's right, that's correct, and Tasmania for which we have little information.
MR RANSON: Yes. And I think the name that linguists have given to that purported original language is Proto-Australian?
DR THIEBERGER: Pama Nyungan is the term for the southern group of languages, Proto Pama Nyungan.’
Dr Thieberger said there were ‘some similarities’ between all the Pama Nyungan languages; the theory is that the similarities arise because the languages came from the same source.
207 Dr Thieberger also agreed that, ‘a further step down the language tree … one arrives at … a Nyungic group of languages’ which were spoken throughout Western Australia, except perhaps some of the Kimberley.
208 Mr Ranson referred Dr Thieberger to Ngayarta, which Dr Thieberger called ‘a construct’ of Pilbara languages. He said:
‘… from what I know of the Pilbara languages, the differences between the languages that form the lower parts of that tree are different to the relationships between the languages that form the lower parts of the Nyungar tree – so … the sub-parts of Nyungar as a subgroup show greater similarity to each other than do the sub-parts of Ngayarta, which have much greater differences between them.’
209 Mr Ranson suggested to Dr Thieberger that the collective name ‘Noongar’ was ‘first clearly attached to all of these languages by a linguist … in the 1960s and 1970s’. Dr Thieberger replied:
‘In a technical linguistic sense I think that’s true. I think the earlier sources all note that Noongar is a term for Aboriginal person in all of these languages and that's one of the forms of naming languages, so in … that sense we can go back to some of the earliest written sources to show that Noongar is a common term for all the languages of the south-west.’
210 Dr Thieberger was asked to explain the difference between a language and a dialect. He said:
‘Alright, usually the language is considered to have dialects and the dialects are variants in various aspects of the language. There may be variation in vocabulary, there may be variation in accent, there may be variation in grammar, so that we can talk of dialects of English, some people consider the English as it's spoken in the United States to be a different dialect to the English that's spoken in Australia.
…
The distinction is, the distinction between dialects is that they share sufficient features to allow them to be grouped together, so if you have a substantial proportion of a vocabulary that is shared by two varieties, let's call them varieties, because that's a neutral term. If a substantial proportion of a vocabulary is shared by two varieties, then we can consider them to be dialects, and if more than a substantial proportion, so in lexico-statistical terms we talk of 80 per cent shared vocabulary, and higher than that, we could consider them to be one language.
…
But if you have varieties that have similar grammars and similar vocabularies then they're more likely to be dialects of one language. The extent of that sharing can determine whether it's a single language or multiple languages.’
211 Mr Ranson then had this exchange with Dr Thieberger:
‘MR RANSON: And so from amongst all that complexity and debate, can I come back to the exercise that you carried out in your report. You haven’t … really been able to work with enough material or enough material of the right type to draw any firm conclusions at all about languages and dialects and the inter-relationships within the region that you were looking at; is that a fair assessment?
DR THIEBERGER: No, I think that the grammatical information that we have indicates that all of the varieties that we have in the south-west stand together as a group of dialects; they have sufficient similarity to be considered part of one language bloc, and that distinguishes them from the language to the east, Ngatju, languages to the north Watjarri and Badimaya, ...’
212 In response to Ms Webb, Dr Thieberger agreed that, from his research, ‘dialect differences have been used in the south-west of Western Australia as a means of social identification of groups’.
213 Ms Webb asked Dr Thieberger to reconcile Dench’s identification of three dialects with the eleven dialects listed by him. He responded:
‘Dench's listing of dialects is based on identification of linguistic features, and he talks about three broad forms in the southwest. The listing that's in the handbook, as I've said, is a listing of the terms that we have in the literature. So it's to do with groupings that have been identified in the literature. The handbook was primarily provided so that people could - could look up information about languages. They were going to look up the terms that they knew in the handbook. The fact that linguists identify three broad varieties of linguistic types in the southwest is not something that Noongar people would necessarily identify with. So the distinction is of the intention behind the creation of the handbook, and - and also Tindale's map, which is there to look at social groupings, rather than linguistic variety.’
214 Dr Thieberger explained that the differences between his dialect names and Tindale’s were ‘actually just variations in spelling’; Tindale having used a semi-phonetic spelling.
215 Dr Thieberger was asked about a thesis he had written in 1988 in which he mentioned a class at Bunbury. He had said the participants:
‘… set about learning Noongar. They had a sketch grammar and numerous vocabularies and the class included two older people who remembered some Noongar. When faced with the morphological complexity of the language as presented in historical sources, the group reconsidered their aims. They drew a time line with "old Noongar" on one end, based mainly on written sources, and English at the other end.
They chose a form of language that they considered would be located somewhere along the time line closer to the English end than to the old Noongar end. The use of the time line illustrates their identification of their own vernacular as related to the traditional language, however distantly.’
216 Dr Thieberger explained:
‘Well, as I say in that paragraph, they recognised that old Noongar was a full language with all the complexity that every language has, and that if they were to relearn it, it would be a massive task. So they decided to situate the Noongar that they would be interested in relearning somewhere closer to their time.’
(b) Aboriginal evidence about language
217 All the Aboriginal witnesses called by counsel for the Applicants referred to their traditional language as ‘Noongar’. All claimed to speak and understand it, to varying degrees. In the evidence given by the various witnesses, several common themes emerged. Most of the witnesses said they learned Noongar from their parents, grandparents or other older people. Most said they had passed it on, or were passing it on, to their own children and grandchildren. Many witnesses mentioned regional differences in vocabulary or pronunciation but all of these witnesses nonetheless insisted Noongar speakers could understand each other.
218 It would be tedious to set out all the evidence given about language by the Aboriginal witnesses, but I will try to give the flavour of this evidence by summarising the evidence of ten witnesses, selected so as to include at least one person who gave evidence in each district within which Aboriginal evidence was taken.
A Jurien Bay
219 Mr WW was born at the Moore River settlement at Mogumber in 1946. In his witness statement, he said he used to listen to his grandmother and his father speak to each other in Noongar; he picked up a lot of words that way. Mr WW said he knew many Noongar words, especially those that relate to plants, animals and parts of his country, but he does not talk Noongar all the time.
220 In oral evidence, Mr WW gave examples of his use of Noongar, sometimes mixed with English. He said his children and grandchildren were learning and using Noongar, as he had done.
221 In cross-examination, Mr Ranson asked Mr WW whether people speak Noongar words differently in different places. Mr WW replied:
‘There’s a lot of different dialects within Noongar country, and they … use it but we all still understand it, just the same thing, same word.’
Mr WW explained he meant others use ‘the same word but they’re pronounced differently’.
222 Charlie Shaw was born in 1939 at Fremantle. In his witness statement, he said:
‘There are different pronunciations of the Noongar language. I know quite a few words. Sometimes it takes a little while to remember the Noongar names for everything.
I know the Noongar names for a number of different site[s] and the name for various bush foods. I remember from what the old people, including my mother, taught me. Old people (uncles and relations) used to tell us the words in the camps, sitting around the fire.’
223 During cross-examination, Mr Ranson asked Mr Shaw whether his pronunciation of some words was different to the way some other people say the word. He agreed it was. Asked to explain the difference, Mr Shaw said:
‘… it’s probably the gap where some of the mob have been taken away or put into institutions or where they had to be moved in certain countries and they lose the sort of full benefit of the wording, I suppose, if that’s the right way of putting it. Like they’re being pushed away from the Noongar people and they lose that wording properly.’
B Albany
224 Lynette Knapp was born in Perth in 1954. She said her father, Alfred Knapp, was ‘a Mearnanger man from Minung country around Albany’. She explained that Mearnanger and Minung mean the same thing. Ms Knapp believes her great grandmother, Jackbam, who was born about 1835, was an informant for Daisy Bates and that Jackbam’s grandfather was Nakina (Nakima), the older brother of Mokare.
225 Ms Knapp described how she learned the Noongar language:
‘When I was a child I can recall my father speaking Noongar language with his friend, Vincent Wynn and others around the blackfella camps. He would speak to me and my siblings in language and taught me much of the language so that I will speak to my children about the landscape and the animals using Noongar language.
My father taught me most of the Noongar words for plants and animals by taking me out to his favourite spots. I often do not know the English words for some plants and animals because I was taught the words in Noongar language. Speaking Noongar language, rather than English, is natural for me and feels more comfortable than using English when I speak about things on my country. Because of my father’s thorough knowledge of the Albany area he taught me the Noongar names for places. Some of these names have been adopted by wadjelas (white people) and changed slightly by the spelling of words that have different sounds to what I say. An example of this is Kalgan River which I was told is the Kalganup River. Many Noongar places that are unsettled don’t have wadjela names but they do have Noongar names. An example of that is Beedjibup which is near Denmark. I only know that place by its Noongar name because it has never become a wadjela place.
My children continue to learn the language as we visit our country to hunt, fish, camp and look after important places. I also believe that the Knapp family mob communicate using sign language. We can say a lot without using words. I was taught it while growing up.’
226 During the course of cross-examination, Mr Ranson asked Ms Knapp about language. She said she was ‘not fluent’ in Noongar, but ‘I know what someone else is talking about’. She got the language from ‘my dad, other family members, something that I was raised with’. Mr Ranson asked about differences:
‘And are there different languages in different parts of Noongar country. You mentioned before the Wilmun language. Is that a different language?
LYNETTE KNAPP: Some. Some, but they're all universal. You - if people - my people from the Wilmun people talk to me and say something, I know basically what they're talking about. There are little differences but not much. It's - it's the way of Noongars learning to communicate.
MR RANSON: And is there a language like that that's a bit different, that's Mearnanger language?
LYNETTE KNAPP: Mearnanger language, some of the language is totally different.
MR RANSON: Totally different.
LYNETTE KNAPP: But I would know - if I went from here to Ngadju country, I'd know what they're talking about because it's connected.’
227 Lomas Roberts was born in 1939 at the Gnowangerup mission. His father had been born at Jerramungup. Mr Roberts did not know the year of his father’s birth but he understood his great-grandfather to have been given the name ‘Bob Roberts’ when he went on an expedition, in the early years of the Colony, with John Septimus Roe, the Surveyor General. Bob Roberts later worked for the Hassell family at Jerramungup.
228 In his witness statement, Mr Roberts said:
‘I can speak a lot of Noongar, I speak it with a lot of people I meet, like Henry Dabb, Tom Egan and Greg Moore. We say things like: ‘how are you going?’, ‘where you come from?’, and ‘what’s going on there?’ I’ve taught Noongar to my children and am teaching it to my grannies.
I know Noongar words for most things out in my country. It’s sometimes hard to remember all these words unless you are on your country looking around, or talking to other that can speak Noongar.
Henry Dongup taught us all the Noongar words and ways. By this I mean the Noongar language, the names of places, and respect for the country.
Today, I teach Noongar children about current Noongar ways and heritage issues on country. Noongar language needs to be taught on Noongar country. I have written a book of Noongar stories for children to be taught at primary schools and also I teach Noongar language at the Curtin University.’
229 In oral evidence, Mr Roberts said he learned the Noongar language from his grandfathers, uncles and father. They also taught him Noongar songs and the Noongar names for places on his country.
230 Mr Ranson asked Mr Roberts about regional differences. Their exchange was as follows:
‘MR RANSON: And do you know all the Noongar language or just some of it?
LOMAS ROBERTS: I know my language, a lot of it, and bits and pieces of other countries.
MR RANSON: So, there are different languages for different countries around the place?
LOMAS ROBERTS: Yes, different languages.
MR RANSON: And are there things you don’t know the words for in your language, some words you don’t know?
LOMAS ROBERTS: There’s not too many things I don’t know, in my language anyway, but if you get up north there will be.
MR RANSON: When you say “up north”, where do you mean? Where does it get - - -
LOMAS ROBERTS: Well, I mean the north with the language I can’t speak that very much.
MR RANSON: And what about up in Perth, is it a bit different up there the language?
LOMAS ROBERTS: Yes, I think it is.
MR RANSON: You think it is?
LOMAS ROBERTS: If you don’t pronounce it properly like.
MR RANSON: So, it’s a bit different up there?
LOMAS ROBERTS: A little bit different, yes.’
C Lake Toweringup
231 The oldest Aboriginal witness in these cases, Angus Wallam, was ‘born at Mogumber (Moore River) in around 1925 or 1926’. In his witness statement, he said:
‘I speak Noongar language very well and I can sing Noongar songs too. My grandfather taught me as well as other older people I grew up with. When I was younger, I always lived with the old fellas. For some reason they liked me, and showed me things – looked after me. I remember sitting around the fire with the old fellas, and they would all sing Noongar songs. Some of the old fellas were Levi Moses, Yurrang Moses, and Wirraben Moses. Some of them were Noongar men from Saltwater country (Bremer Bay way). I would hear older Noongars singing at Carrolup and at Katanning and when we were travelling through the bush.’
232 Mr Wallam said he could sing Noongar mirdar songs. He explained:
‘They are songs that are for a particular country. You should only sing songs that come from that country, and not from other places. People don’t like you singing songs when it is their country and not yours.’
233 Mr Wallam said he learned ‘lots of songs by sitting around the campfire. Singing songs was another way of telling yarns’. He gave an example:
‘One Noongar song I know is about a man stealing another man’s woman. You have to watch Noongar men, because they were always stealing the other Noongars’ women. A man gave his woman a fire stick to take with her, so he would know where she was. One night she went to go to the toilet, another man came along. He told her to put the fire stick in the ground, and then they both ran off. The old fellas were always telling yarns like this, I tell them to my grannies [grandchildren]’.
234 During oral evidence, at Mr Hughston’s request, Mr Wallam sang a song, in Noongar language, about a ‘chap a long time ago he lost his missus’. Mr Wallam explained:
‘Yes, I used to go out with the old people. I lived with the old people and I’d hardly go out with young people myself and I’d mix with the old people and learn and listen to what they … talk about and what they sing about … But I wasn’t quite quick enough to catch onto grandfather now and again, you know … Because he was a great singer himself.’
235 Mr Wright returned to this topic in the course of his cross-examination of Mr Wallam. The evidence was as follows:
‘MR WRIGHT: Yes. You know some of those mirdar songs do you?
ANGUS WALLAM: I used to sing some of them. See, I wasn’t quite quick enough to catch the old people, you know. I wasn’t interested in it.
MR WRIGHT: Yes.
ANGUS WALLAM: To keep doing it or sometimes the old girls or even grannies will say, “Yes, boy, you listen to old Granny here”, see? And sometimes I’d listen.
MR WRIGHT: Yes.
ANGUS WALLAM: But I did learn a few things from them anyway.
MR WRIGHT: But do you still remember those mirdar songs?
ANGUS WALLAM: Yes.
MR WRIGHT: Yes. And you still know how to sing them today do you?
ANGUS WALLAM: I know how to sing them, yes, today.
MR WRIGHT: Yes. And are they just songs for this Wagin district?
ANGUS WALLAM: Everywhere, yes, around this side of the district, all around southwest everywhere.
MR WRIGHT: All around the southwest?
ANGUS WALLAM: That’s right.
MR WRIGHT: But you’re not allowed to sing – you can only sing songs – mirdar songs for the Wagin area if you’re in Wagin, is that right?
ANGUS WALLAM: I suppose it is right in a way. Well, you’ve got to be careful what you’re singing. You might sing a song from the northwest and the people up northwest mightn’t like you using their songs. The same as the white fella, if he makes a song up and somebody else uses it he can – it’s not – it’s not right really.’
236 Joseph Northover was born in Collie in 1966. He gave evidence that he speaks the Noongar language and sings Noongar songs; he learned from his parents, grandmother and ‘other old people that I grew up with’. Mr Northover itemised the different types of songs, including winyan songs (sad songs) and mirdar songs. He said it is sometimes hard to translate Noongar language and songs into English.
237 In oral evidence, Mr Northover told Mr Hughston that he speaks a little Ngaanyatjarra Arrente, a Western Desert language, because of his maternal grandfather.
238 Mr Wright asked Mr Northover whether there were differences of languages or dialects within Noongar country. He responded: ‘Not so much different dialect. They were pronunciation.’ Mr Northover gave some examples, adding ‘you’ve got to be careful how you say it’. He did not agree there were different words, merely different pronunciation.
239 Mr Northover said that, in recent years, he had picked up some additional Noongar words at the Noongar Language and Culture Centre in Bunbury. Mr Wright asked him whether there were many other people around who speak the Noongar language as well as he did. Mr Northover responded, ‘Quite a few left’, although ‘not too many left in my age’.
D Dunsborough
240 Vilma Webb was born at Northam in 1932. Her father was born at Guildford, near Perth, but her mother and maternal grandparents were all born south of Perth and Ms Webb has lived there most of her life. Ms Webb said she learned Noongar language from her parents; they used to tell her stories in Noongar. She said that, when she speaks to her children about special places or animals, she teaches them the Noongar words. She has also taught Noongar to schoolchildren in Busselton, Margaret River and Bunbury.
241 Mr Wright asked Ms Webb about the Wardandi language. Ms Webb described it as ‘a language from down this area’. Mr Wright asked whether Wardandi is ‘a bit different from the language around the Albany area’. Ms Webb replied: ‘Yes, some – some difference in that you can – you can see it when you start to read it out’.
E Kellerberrin district
242 Mr MW was born in 1938 at Djuring, a place near Kellerberrin. He has lived in that district all his life, except when away working for the Railways. Mr MW said:
‘I speak Noongar language a lot of the time with my family. I speak Noongar with my mother, uncles, and also with my sister Charlotte, and her son, John. I’ll talk Noongar to any body that I meet who is happy to listen. My uncle Ossie Humphries, I’ll talk Noongar with him also. Whenever I go to special places in my area, I call out to the spirits in Noongar. I tell them who I am and where I am from and that I am family. It is an important rule to always tell the spirits what you are doing or you can get into trouble.’
243 Mr MW also said:
‘I am a Noongar. My mother, father, mother’s mother, mother’s father, father’s mother and father’s father were all Noongar.
All Noongars speak the same language and they don’t do those bad things that the Wongais and Yamatjis do.’
244 Prior to giving his formal oral evidence, Mr MW pointed out to the Court a number of important land marks on his country. Mr Hughston noticed that, in doing so, he sometimes used an Aboriginal language. Later, Mr Hughston asked Mr MW about this. Mr MW said it was ‘Noongar language what I was taught by my elders and mums and dad and grandfathers’. He said ‘it’s very important to me. It was handed down and today still … very strong and significant.’ He said he had taught Noongar to his own children.
245 Mr Hughston asked Mr MW whether the Wangkayi language (used outside the claim area) was ‘the same or similar to Noongar language, or is it different?’ Mr MW replied: ‘Well, same in some ways … but different in others’. He gave the example of the word for ‘brother’ – ngoorn in Noongar, kuta in Wangkayi and Yamatji.
F Swan Valley
246 Frances Humphries was born in 1942 at Walebing, between New Norcia and Moora. Her father was born in Moore River Settlement in 1878. Her mother was born at New Norcia but claimed the Upper Swan as her country; this had been her father’s country. Ms Humphries said:
‘My parents both spoke Noongar language, but when I went to New Norcia mission we were not allowed to speak it. If we were caught talking it we would get a clip around the ear. I remember some of the older girls speaking Noongar. There were a couple of Yamatji girls in New Norcia who used to speak their language too. I could usually understand what the Noongar girls were saying, but I couldn’t understand the Yamatji girls.
My mother-in-law, Gertie, spoke Noongar. She used to talk half and half. That’s how I caught on a bit of it, you know. I still use a few Noongar words when I am talking to my husband and children.’
In her oral evidence Ms Humphries was not asked any questions about language.
G Kings Park
247 Gregory Garlett, who was born in 1951 at Bruce Rock, gave evidence about meeting his great-grandmother, Yurleen (also known as Fanny Bennell), when he was about seven years old. He said: ‘she told me stories and mostly spoke Noongar. She didn’t have much English. I was still learning Noongar then whereas most of the older kids knew it already’.
248 In his witness statement, Mr Garlett said:
‘I speak Noongar words and can understand others speaking Noongar. My mother spoke Noongar to us and I teach my kids to speak. I write some speeches in Noongar for Uncle Clive Davis that he uses at openings for events in Perth. The words are back to front in Noongar, you name the subject and then talk about it, for example, you’d say in Noongar: “yonger, kill it” rather than “kill the kangaroo”. That way, you know what you are talking about up front. Noongars also use their eyes when they are speaking. Noongars also have a different accent when they speak English so you know they are Noongar. I talked a lot with my mother, now I teach my grandkids and kids. I speak with Uncle Clive and Uncle Tom Ford. I also speak Noongar words with Robert Bropho and Kelvin.’
249 When Mr Garlett gave oral evidence, Mr Hughston asked him how well he could now speak Noongar. Mr Garlett commenced his reply by speaking in an Aboriginal language. He went on:
‘I can speak that language. I speak it with all my senses, my eyes could see good, my ears are good to hear it, my mouth speaks it the way I've been taught and I speak with my hands and eyes and the sign language Noongars use when they don't want to be seen talking.’
250 Carol Petterson and Ms Knapp, both of whom were brought up in the Albany area, and Mr Northover, from Collie, also spoke about the Noongar habit of using sign language.
251 As will be apparent from my reference to the places where witnesses gave their evidence, and their birth places, the ten witnesses to whom I have referred come from widely scattered parts of the claim area. Their dates of birth span a period of about 40 years (1925-26 to 1966). Yet all claimed acquaintance with a language they identify as ‘Noongar’; all said they learned this language (to a greater or lesser degree of competence) in childhood from their parents and/or older relatives. Although those asked about the matter acknowledged some differences in pronunciation, and occasionally in vocabulary, between Noongars from different parts of the claim area, all maintained they could understand any other Noongar person, regardless of his or her place of origin.
252 I think the Aboriginal evidence lends support to Dr Thieberger’s conclusions about a single Noongar language with only dialectical variations.
(c) Dr Palmer’s evidence
253 In his anthropological report, Dr Palmer discussed the significance of language in identifying a society. At para 2.10, he said:
‘Anthropologists generally accept that language is one of the unifying cultural traits that can be understood as forming commonalities between groups and so result in their members being considered as a part of one society.’
254 Dr Palmer went on to cite writers, including Moore, Salvado and Hassell, who had expressed the opinion that the language used by Aborigines in the south-west, coming from places far apart, was one language, albeit with dialectical differences. I have already set out the statements by Moore and Salvado. Dr Palmer summarised Hassell’s material in this way:
‘Hassell, who collected her information some decades after Moore, identifies a number of groups (which she called “tribes”) including the Wheelman (sixty miles from the coast), Mongup tribe, “further inland”, Caractterup tribe, Kar Kar “more toward Esperance Bay”, Qualup tribe and their coastal neighbours and the “Bremer Bay tribe”. She stated that the language spoken by these various groups was the same as that spoken in the rest of the South West of Western Australia, but with dialect variation.’
255 In chapter 9 of his report, headed ‘The Claimant Community’, Dr Palmer wrote at length about language. In that chapter, he said:
‘Those with whom I worked were not only aware of their Noongar language, but held views as to its importance as a determining aspect of their culture. A number of claimants stated that they continued to speak the Noongar language and that its use was common amongst the Noongar population. A number of people stated that they learnt the Noongar language from their parents or older relatives. Noongar words were used during interviews and site visits. Those with whom I worked regarded the use of the Noongar language and styles of speaking as a means of establishing their identity. This was because the language was different from those used by neighbours belonging to different cultural groups to the north and east. One man told me that when Noongar language words were used they provided a means by which non-Noongar people recognised you. It was a view widely held. Use of the Noongar language was seen to provide a ready means by which people could be identified as being Noongar. Noongar language was also as a means of identifying yourself to other Noongar people, with whom you were not personally acquainted. The use of the language was also seen as a source of pride, even if it was others who spoke it and made you “feel good”.
Others recognised that there were regional differences between the Noongar language characterised by differences in the pronunciation of words. It appears that at least some claimants continue to teach their children Noongar words and Noongar is taught in some schools in the region. I was also told that the language continues to be used by young people as words, creating a distinctive style.
In relation to these data I make the following observations. Given the scope of my research I cannot make definitive comment on the degree of fluency with which Noongar is currently spoken. It would appear to me, however, that the language is used by the majority of the claimants as a form of what one linguist, W. Douglas, called “Neo-Nyungar” …. Douglas does however state that Noongar continues to be spoken by some middle-aged and by ‘elderly folk’. I would expect that there do remain some fluent speakers of the Noongar language. Neo-Nyungar is characterised by Douglas as a development from Noongar, influenced by English, sharing semantic, phonemic and grammatical aspects of both languages. Neo-Nyungar is, according to Douglas, ‘a unit in the continuum of language change’. My view is that most claimants are referring to Douglas’s ‘Neo-Nyungar’ in the discussions referenced above. This does not diminish its social and cultural importance, nor the evident role it plays in the maintenance and establishing of a distinctive Noongar identity. The language, as used, has a distinctive style which means that its use is an ideal vehicle for establishing identity with outsiders, as well as with insiders, both known and unknown …
The data presented above also indicate that regional variations in the Noongar language remain. These dialect differences were noted in present-day Noongar by Douglas. Douglas identifies six regional dialects of Noongar. Dench recognises only three dialects, but lists words as belonging to six regions. These regional variations in speaking are understood to be in evidence today by the claimants. They are seen to be markers of regional difference within the single Noongar language.
Finally, my view is that the Noongar language, however typified in practice, is considered by many claimants to be an important part of their culture and has value to them. Language is an important aspect of any culture since it may encapsulate concepts, beliefs and ways of thinking. Its use provides a clear statement about the speaker’s geographic origins and territorial affiliations, their ancestry and their cultural heritage. Noongar language would appear to me to be used by many of the claimants to enunciate these aspects of their identity. The fact that Noongar is taught in at least some of the schools and that some of those with whom I worked stressed that they taught their children the Noongar language also supports the conclusion that Noongar language use remains important.’ (Citations omitted)
256 Dr Palmer’s report was written prior to the ‘on-country’ hearings. Dr Palmer subsequently heard, or read, all the evidence given at those hearings. When he was called to give oral evidence, Mr Hughston asked Dr Palmer whether the Aboriginal evidence had caused him to ‘wish to alter or comment upon any of the opinions’ expressed in his reports. Dr Palmer said he did not wish to change any of his expressed views, ‘except perhaps in relation to some emphasis’. He identified four areas, one of which was language. In relation to that topic, he said:
‘I think maybe I’ve underestimated … the incidence of the language, particularly in relation to more complete sentences, which I’ve heard from some of the witnesses, and also in relation to … songs. So I think I might’ve sharpened that point a little bit in my analysis.’
Dr Palmer explained he had underestimated the extent to which the language is still used.
257 After Dr Palmer mentioned a couple of other matters, Mr Hughston asked him what, in his opinion, ‘distinguishes the Noongar people as a society of people distinct from other Aboriginal people who are not Noongar?’ In the course of responding to that question, Dr Palmer mentioned ‘the use of a common language’. He said:
‘There seemed to be a lot of evidence, and also provided from my colleague Dr Thieberger, that Noongar as a language constitutes a particular and single language, although it has regional variations, which is understood to be and to belong to the area of the southwest, whereas languages outside are differentiated by name and by recognition that they have different words, they are fundamentally different. Even if people don't know the exact difference, that's the … recognition.’
258 During cross-examination of Dr Palmer, Mr Wright had these exchanges with him:
‘Now, I wanted to ask you … are you suggesting that when Aboriginal people at sovereignty used the term "Noongar" they were referring to all the Aboriginal people of the southwest?
DR PALMER: Well, the best guide we have to that is the citation in Moore, in his word list, where he says "Noongar", and the definition he provides is something like “the word the people use to designate themselves”.
MR WRIGHT: Yes. Now, that doesn’t necessarily indicate that they're designating all the people of the southwest, does it? It might just mean that those with whom - those who are using the word “Noongar” in a particular locality used the same word to refer to the people in their locality.
DR PALMER: Yes, indeed. The usefulness of the Green reference that you've drawn our attention to is, of course, that Green, as you say, was relying on sources where the term Noongar had been collected not just from one area, from the Perth area, but from a great many areas. In fact, Curr, who's a little bit later - I think that's 1888 or thereabouts, your Honour - was systematically collecting word lists from - I mean, the whole book is from the whole of Australia but the relevant references here are references which were collected from the compilation of … word lists from around the southwest, which Green has brought together in that single table.
And, you know, Green is of the view that this is an indication that this word was very widespread. So I agree with the proposition that's put to me, if the term only occurred in one region as Noongar, then perhaps it raised issues about whether it was universally applicable across the southwest, but the evidence that Green has put together, and consistent with his own conclusions in his … earlier history report, is that that provided indications that the word was used across the southwest identifying commonality. And there's nothing more common, surely, than the use of the same name to identify the same thing.
…
MR WRIGHT: Yes. So what I'm wishing to explore with you is - is whether your opinion is simply, on that point, that there was some dialectical similarity … . Is that the point you're making, or are you making the point that when someone in Albany used the word "Noongar" you think they were referring to everyone including the people in Jurien Bay?
DR PALMER: Well, the term “Noongar”, … has four principal referents, so it's going to depend on the context of the citation, obviously, as to what they … mean. But it seems to me logical that if someone here is called “Noongar” and someone down there is called “Noongar” and they meet and they say to each other - sorry, this is somewhat hypothetical, your Honour, but they say to each other, “Who are you?” and they say, “I'm Noongar,” and they say, “Oh, I’m Noongar too”, then there's the basis for an understanding that they share a commonality.
Now, that - but, remember, language was only one of the things that I said they shared.
MR WRIGHT: Yes. So if - to use that hypothetical example, if a person in Albany around the time of sovereignty had met someone who'd just come down from Carnarvon, for example, presumably they would've said, “You’re a Noongar”.
DR PALMER: If they came from Carnarvon, I think, your Honour, it's more likely they would've said that they were Yamatji.’
259 Mr Wright took Dr Palmer to the dialectical differences noted by Bates. Dr Palmer responded:
‘I don’t think it would be a fair representation of Bates in this piece to conclude that her analysis was leading her to a conclusion that said that they were speaking a different language. In fact, my recollection is that she says on a number of occasions that they were very much unified both by their customs and their … laws and … rules.’
260 Dr Palmer mentioned Bates’ statement that ‘the Bibbulmun Nation throughout [its] whole area had but one fundamental language’: see para 183 above. Dr Palmer called this ‘her initial proposition’. He went on:
‘So, I mean, all Bates is doing here is recognising what everybody else as far as I know has recognised, and that is, amongst the Noongar people, there were - in the language that they spoke, there were dialect variations.
MR WRIGHT: Yes. And so the proposition I’m wanting to put to you - and not getting caught up in differences between language or dialect, unless you think that is very significant, when you say that anthropologists generally accept language can be a unifying cultural trait, I'm asking whether you consider language can also be a cultural trait which was used to differentiate different societies.
DR PALMER: Well, you've glossed over a - a very, very important distinction which anthropologists and linguists do make, and that is that there is a difference, a very important difference, between dialect and language.
…
DR PALMER: - what I'm saying, where I'm coming from is that, just by establishing that there are different dialects within a language is - does not necessarily go to matters of disaggregation of constituent dialect-speaking groups.
MR WRIGHT: Yes. Now, I understand what you've just told me. Can I ask you nonetheless - you say “does not necessarily” - do you think it can, in some circumstances, be a very significant disaggregating criteria, even dialect difference?
DR PALMER: Well, linguists, I think, and anthropologists, no doubt, would agree - that in terms of social interactions, people use dialects to establish certain things about themselves. But that underpins - if you like, is underpinned by a much more fundamental question is, “Well, are there still areas of commonality?”. I mean, … there are a number of different accents in this courtroom, if you like, tending towards dialects, but that doesn’t mean to say we don’t probably consider ourselves to be part of one community or society. It’s sort of - by asking the question in a very broad way, it’s - it perhaps doesn’t allow an answer which focuses on the detail of what's actually going on.’
(d) Dr Brunton’s evidence
261 In Section 4 of his report, Dr Brunton addressed the question whether the Single Noongar claim was anthropologically justified. He referred to cultural and linguistic evidence. He said:
‘I accept that from the perspective of present-day researchers, there appears to have been a considerable degree of linguistic and cultural similarity across the south west of Western Australia. Certainly, many contemporary anthropologists would accept Dr Palmer’s contention … that the people now identified as Noongar constituted a “cultural bloc” – although it is important to point out that this is an anthropological construct which is not the same as “a single cultural society”. But, even so, some other well-informed researchers who were interested in delineating cultural areas would not be as sure – Peterson cites Tindale as identifying two culture areas (i.e. “blocs”) in south west Australia, the -up people (the area where place names frequently end in “up”) and the -ing people (the area where place names frequently end in “ing”).
However, whether or not anthropologists or linguists can find strong commonalities in culture and language, it does not necessarily follow that this was acknowledged by the people themselves, or that any such recognition had consequences in terms of social organisation, land tenure, etc. Dr Palmer’s discussion of both language and culture elides an important anthropological (and linguistic) distinction between the external observer or researcher’s perspective (the ‘etic’ view) and the perspective of members of the culture or language under discussion (the ‘emic’ view) ... The fact that different groups of people spoke dialects that can be identified by linguists or other observers as belonging to a common language, or that they had similar rituals, forms of social organisation, food preparation or material culture … means nothing if the groups themselves did not see these characteristics as socially significant.’
262 Dr Brunton went on to say:
‘I do not have the expertise which would enable me to make an assessment of the linguistic similarities or differences within the Single Noongar Claim area at the time of sovereignty. Nevertheless, I think that it is appropriate for me to point out that early observers wrote of differences significant enough to affect intelligibility. Lyon wrote that “almost every tribe has a different dialect. The difference in some cases, is merely provincial; but in others it is so great as to be unintelligible” – although he also thought that like the languages of different nations in Europe there was probably a common origin to these “dialects”. Collett Barker said that the language at Coconyup … was “quite different” from the language at King George Sound, and that Mokare did not understand it – although Maragnan, who had travelled in the area, did. And when Bishop Salvado was finally able to persuade a young man from Moore River to travel with him to Perth, he noted that at first, this man did not understand the language of the Perth Aborigines.
Nevertheless, Dr Palmer cites a statement from Salvado that the people of Perth and King George Sound “speak practically the same language”. However, he does not explain that this was in the context of Salvado’s suggestion that all the Aboriginal languages of Australia derived “from a common stock” and Salvado’s further observation that “a great number of the words used” by the Adelaide people “agree with those used in the Perth district”. This context means that Salvado’s cited statement should not be taken as evidence of a sense of commonality between the people of Perth and King George Sound.
A similar context framed the observation of G.F. Moore which Dr Palmer also invokes as early support for the proposition of a single language in the south west. It is appropriate to quote Moore at some length on this point:
… as far as any tribes have been met and conversed with by the colonists, namely, from one hundred miles east of King George’s [sic] Sound up to two hundred miles north of Fremantle… the language is radically and essentially the same. And there is much reason to suppose that this remark would not be confined to these limits only, [my emphasis, R.B.] but might be applied, in a great degree, to the pure and uncorrupted language of the whole island. Many of the words and phrases of the language on the eastern and southern sides of Australia… are identical with those used on the western side.
Of course, Dr Palmer does cite Clark’s observation that the Aborigines from King George Sound and those to the west as far as Point D’Entrecasteaux did not understand the vocabulary that George Grey had collected. But he does not consider whether this observation compromises the suggestion that Aborigines of the south west could be viewed as “part of one society”.’ (Citations omitted)
(e) Applicants’ submissions
263 In their closing submissions, counsel for the Applicants referred to the comments about language made by Moore (paras 173 and 196 above), Salvado (para 174) and Hassell (para 254). They referred to Dr Palmer’s views and Dr Brunton’s concession that there was, at sovereignty, a ‘considerable degree of linguistic and cultural similarity across the south-western region’. However, not unexpectedly, counsel relied mainly on Dr Thieberger’s evidence. They said:
‘Dr Thieberger has over twenty years experience as a linguist in Australia and overseas. He has extensive experience and expertise in relation to Western Australian Aboriginal languages, and in particular the Noongar language. None of the respondents elected to call any expert linguistic evidence to challenge the evidence of Dr Thieberger.
In preparing his report for this proceeding, Dr Thieberger examined early historic sources from the southwest, including word lists and some grammar. He compared the early word lists and grammar with each other and with a current word list compiled by a linguist in the mid-1990s from conversations and study with a Noongar man, the late Cliff Humphries.
In Dr Thieberger's opinion, despite there being a number of names for dialects in the southwest, there is at the same time a recognition by most observers, from the earliest records to the present, that there is a homogeneity in the region that is not shared with neighbouring languages. Furthermore, word lists which Dr Thieberger studied and compared, evidenced both the cohesion of the bloc of languages known as “Noongar” and their continuity over time.’
264 Counsel then set out Dr Thieberger’s conclusions, reproduced at para 205 above.
(f) Submissions for respondents
265 In their closing submissions, counsel for the State drew attention to comments by both Moore and Salvado about similarities between the language of the south-west and that used elsewhere in Australia. Counsel said:
‘Thus none of the early observers identified language as a means of distinguishing the Aboriginal people of the south-west from other Aboriginal groups.’
266 After referring to evidence about dialects, counsel said the State accepted ‘[t]he fact of similarity of languages or dialects in the south-west prior to sovereignty’; however, they emphasised Dr Thieberger’s evidence that all these languages or dialects ‘are part of a much broader group of languages known as Pama Nyungan, which covers almost all of Australia’.
267 Counsel put some detailed submissions about Dr Thieberger’s evidence. I need not repeat that detail. However, I should say that counsel are incorrect in claiming that Dr Thieberger ‘agreed that the use of the single descriptive term “Noongar” to describe the various languages or dialects of the south-west region is a recent phenomenon’. At the transcript reference cited by counsel (pp 250-251), Mr Ranson was asking Dr Thieberger about Douglas’ work. This evidence was given:
‘MR RANSON: Is that work that he did and those conclusions broadly speaking the beginning of the period in which the use of that term Noongar as a settled and agreed collective description of those languages was established?
DR THIEBERGER: I couldn’t say; I don’t – I haven’t done a history of the use of the term Noongar I’m afraid.’
Mr Ranson did not pursue the matter. As indicated at para 209 above, Dr Thieberger did agree that the collective name ‘Noongar’ had only been used by linguists, ‘in a technical linguistic sense’, since the 1960s and 1970s. However, that says nothing about popular use, including within the Aboriginal community itself. As we have seen, some of the Aboriginal witnesses spoke of learning ‘Noongar’ as children many decades before the 1960s and 1970s.
268 Counsel for the State ended this portion of their submissions with the following paragraph:
‘Finally, Dr Thieberger accepted that, as a linguist, his contribution to the Court’s inquiry into the issues before it in a native title case must be a modest one. He said that there is no necessary link between languages or dialects and the political, social or economic condition of the speakers of those languages or dialects. And as a result he conceded that he could offer no opinion about social, political or landholding groupings in the south-west. He noted, however, that the various dialect differences he (and Tindale and Dixon) had identified have been used as a means of social identification in the south-west. (Citations omitted)
269 This paragraph is not entirely accurate. It would not have been appropriate for Mr Ranson to invite Dr Thieberger to assess the significance of his contribution to the Court’s inquiry; nor did he do this. So Dr Thieberger did not accept that his contribution was a modest one; this must be Mr Ranson’s assessment. However, Dr Thieberger did make the other concessions set out in the paragraph.
270 In her closing submissions, counsel for the Commonwealth made three points about language at the date of settlement:
(a) ‘all of the Aboriginal persons connected with the SNC claim area at sovereignty would have had knowledge of and spoken one or more of the languages or dialects which are now collectively described as “Noongar”’;
(b) ‘the existence of a language or dialects of that language does not necessarily say anything about the existence of a society associated with the area where the language or its various dialects are spoken’; ‘there is no necessary link between linguistic affiliations and social or political groupings’; and
(c) ‘dialect differences have been used in the south west of Western Australia as a means of social identification of groups’.
271 Counsel put the issue in this way:
‘What the Court is concerned to find is whether there existed at sovereignty an ethnographically and culturally separate group. An indication of “separateness” is the assertion of group and territorial independence from other groups, albeit that the groups may come together for social or ceremonial interactions. Whether a group identifies with the same or different languages or dialects of a language may be a relevant factor (amongst others) but it is not determinative.’
272 The submission, on this matter, made by counsel for WAFIC was relatively brief. Counsel said:
‘Dialects can form the basis of social differentiation. WAFIC submits that it is significant that the dialects identified by Dr Theiberger are coincident with groups identified by Tindale. It is submitted that if native title is established, this coincidence of dialects and identified groups is consistent with the submission of WAFIC that native title is held by a group or groups smaller than the whole of the applicant group.
… it is WAFIC’s submissions that:
(a) it is not material per se whether there are 10 or 12 or 13 different groups;
(b) it is material that:
(i) there was (and, if native title is established, is) more than one group within the applicant group; and
(ii) such dialectically differentiated groups are relevantly connected to differentially defined geo-spacial areas.
In summary, it is WAFIC’s submission that if native title is established, the linguistic evidence is consistent with it being held by the dialectical groups identified by Dr Theiberger (and Tindale).’
(g) Conclusions
273 I accept the submission, made on behalf of various respondents, that people who all speak a particular language are not necessarily members of the same society or community. The converse is also true; a single society may transcend language differences: see Neowarra at [393].
274 It follows that a conclusion as to whether or not there was a common language throughout the claim area at date of settlement will not itself resolve the issue between the parties as to the identity of the relevant community, for the purposes of s 223(1) of the Act. However, as is conceded by each of the respondents’ counsel who have addressed this issue, the conclusion is a significant factor, to be taken into account with other matters, in identifying the relevant 1829 community.
275 Among those early writers who dealt with the matter, the overwhelming view was that, at date of settlement, the people of south-west Western Australia shared a common language, although with regional variations. The material may be summarised as follows:
(i) Moore’s 1842 vocabulary (para 151 above) listed the meaning of ‘Yung-ar’ as ‘People, The name by which they designate themselves’. He then referred to ‘3,000 aborigines frequenting the located parts of the colony’; implying that his meaning applied in all locations. In his 1841 article (para 173 above), Moore stated that, in all parts of the colony which he had visited, from 100 miles north of Perth to King George’s Sound, the ‘language is radically the same, though spoken with a variety of dialects, gradually blending into one another’. [A point 100 miles north of Perth would be more than two-thirds of the distance between Perth and the northern boundary of the claim area.]
(ii) Lyon (para 156 above) noted some words ‘that are precisely the same here and at King George’s Sound’; though others were not.
(iii) Armstrong wrote about the language of the tribes of the plain having been derived from ‘the language of the mountain tribes’. He said, ‘the mountain dialect is still invariably preferred and used for all purposes of a public nature or general interest, such as their formal public discussions of subjects of their quarrels between tribe and tribe, and their chanted narratives of legends, battles and hunting matches’: see para 158. In other words, the mountain dialect was the lingua franca understood by all ‘tribes’. Given Armstrong’s reported fluency in several south-west Aboriginal dialects, his comments seem to be particularly important.
(iv) Grey, Salvado and Hassell (paras 195, 174 and 254 above respectively) all observed the similarity of the language spoken in widely-separated parts of the south-west.
(v) Bates said ‘the Bibbulmun Nation throughout its whole area had but one fundamental language’ (para 183 above).
276 As appears from the Aboriginal evidence I have summarised, the oral tradition of south-west Aborigines is that there is, and always has been, only one indigenous language in the south-west; that language is called ‘Noongar’ and is still spoken by many of them.
277 Dr Thieberger is the only witness in these cases who has specialist linguistic qualifications. He has had extensive experience in relation to Aboriginal languages, including a long association with south-west Western Australia. Dr Thieberger expressed a firm opinion that, in 1829, there existed a common language, although with dialectical differences, throughout the claim area. He expounded his reasons. Although Dr Thieberger was cross-examined at length, his opinion was neither challenged nor explicitly contradicted by other evidence. I thought him to be an impressive witness: knowledgeable, careful and fair. To the extent that Dr Brunton offered conflicting views, about linguistic matters, I have no hesitation in preferring the opinions of Dr Thieberger. His training and practical experience in these matters vastly exceeds that of Dr Brunton.
278 An important aspect of Dr Thieberger’s evidence was his explanation of his reasons for describing the regional variations in language as dialects, rather than different languages; and why he expected these variations would not have precluded communication between people living in different parts of the claim area. The reasonableness of that expectation is borne out by the observations of Grey, Armstrong and Moore, made soon after settlement, and, somewhat later, of Salvado, Hassell and Bates. Dr Brunton mentioned some writers who apparently expressed a contrary view. However, their writings are not in evidence; nor do I know the sources or extent of their information.
279 Both Moore and Salvado noted a degree of commonality between Noongar words and those used by Aborigines in other parts of Australia, even as far away as the east coast. Dr Thieberger conceded there was some commonality. He accepted this was explained by the common ancestry of all (or virtually all) Australian Aboriginal languages. However, although questions of degree arise, Dr Thieberger gave detailed and persuasive reasons for his conclusion that the language spoken inside the claim area was a language different to that spoken immediately outside its boundaries. Languages which have a common ancestry, and share some vocabulary, may nonetheless properly be regarded as different languages, spoken by people who see themselves as members of different communities. The Italian, Spanish and French languages, which are all substantially derived from Latin and share some vocabulary, illustrate the point.
280 I conclude that the evidence about language in the claim area provides significant, although not decisive, support for the Applicants’ claim that, in 1829, there existed a single community throughout the claim area.
(v) Laws and customs concerning land
(a) The early writings
281 The early writings provide a deal of information about the ‘ownership’ and use of land, in the south-west at about the date of settlement. I take from them the following items of information:
(i) Nowhere was it the rule that all members of a large community (whatever it was) had equal rights over all land;
(ii) On the contrary, particular areas of land (although relatively large – as might be expected in a hunter/gatherer society) were ‘owned’ by particular small groups of people, whose members inherited their right of ‘ownership’;
(iii) Each small group of people comprised several nuclear family units; some members of different units being ordinarily related by blood or marriage;
(iv) Some, but not all, the early writers used the word ‘tribes’ to refer to these small groups. Whether or not they did so, the early writers agreed that, although the groups were led by a ‘titular custodian’ (Dr Host), this person was not a ‘chief’, in the sense of having a right of command: see paras 125, 136, 141, 153, 161 and 173 above;
(v) The land-‘owning’ groups enjoyed some exclusive rights over their land, for example, in relation to burning. However, generally, their rights were not exclusive of all others. By virtue of laws or customs acknowledged by them and operating beyond their own ranks, they had to submit to periodic intrusions by particular people or on particular occasions: see paras 137, 138 and 143. The groups also recognised obligations, which were probably reciprocated, to share any abundant produce of their land.
282 In speaking about Nind’s comment (see para 143 above), that Aborigines were ‘very jealous as to encroachments on their property’, Dr Palmer addressed a seeming paradox, from a European perspective. At para 3.28, he said:
‘From an anthropological point of view, in my opinion, what Nind appears to be indicating is that “families” have what could be called home areas (“locations” and “property”) but were free to use other areas as well. Thus home areas are not exclusively held but are shared with others, “so that it might be considered as partly belonging to the tribe”. However, for firing the country, the “owner of the ground” should be present. I am aware from my knowledge as an anthropologist that in an area where food is limited, or may be so in some seasons, the ability to move freely across different areas would have been an important feature of the traditional economy. Nind had a difficulty in reconciling his notions of exclusive private property with the observations that areas of land were shared. Such preconceptions are not helpful to an anthropological analysis.’ (Citations omitted)
283 I take from this comment that it is unhelpful – and perhaps potentially misleading – to use the word ‘ownership’ to refer to the land rights held by particular individuals or ‘tribes’, at date of settlement. Although individuals obtained by inheritance their right to occupy and use particular land, this was not ‘ownership’ in the European sense. The rights were held in common with other members of the ‘tribe’, and were subject to obligations towards others outside the ‘tribe’. They were not transferable by sale or lease.
284 Notwithstanding Dr Palmer’s caution, it seems to me the early writings about land provide assistance in determining whether there was a single Noongar society at date of settlement; although perhaps mostly in a negative way. A particularly striking feature of the early writings is the consistency of the accounts of land laws and customs written by people who lived as far apart as King George’s Sound, Perth and New Norcia.
(b) Aboriginal evidence about land
285 At a later stage, I will review the evidence of the Aboriginal witnesses in these cases concerning their present connection to the land. For present purposes, it is sufficient to note three points:
(i) although there was some inconsistency between the witnesses as to the details of the descent rules, the pattern was broadly the same; there was no regional or geographic variation in the evidence;
(ii) all witnesses claimed special rights over particular areas of country, variously described as their ‘boodja’ or ‘run’ or ‘country’, including the right to ‘speak for’ that country; and
(iii) all witnesses expected to have access to other land within the claim area. This access was dependent either on some special relationship with that land – for example, it being their mother’s country – or permission being granted. Even if access was available, the person would not think it proper to ‘speak for’ that land.
286 I think this evidence is relevant to the present issue only in that it is consistent throughout the claim area. To the extent that present day culture throws light on the 1829 position, it tends to suggest there were, in 1829, similar land ‘ownership’ rules throughout the claim area.
(c) Dr Palmer’s evidence
287 Dr Palmer reviewed the early writings. He noted Moore’s account of the disputes over succession to Midgegooroo’s country, after the deaths of his sons Yagan and Narral. He saw this as an indication ‘that succession to estates was a part of traditional Noongar law and custom’ and that ‘descent was not the only means by which rights to land were gained or claimed [Narral inherited from his elder brother, Yagan]’. However, Dr Palmer said, ‘Moore’s materials are incomplete and conclusions drawn from his observations should be tentative’.
288 Dr Palmer noted that Lyon described the ‘districts’ held by particular ‘tribal’ leaders. He said:
‘Lyon gives by far the most complete view of what he considered to be a tribal organisation, where “chiefs” ruled discrete named territories, which Green found convenient to map … However, the lack of any ethnographic detail makes it impossible to reconstruct the social, cultural, economic and ritual inter-relationships that may have existed between these groups and how rights were realised in relation to areas of land in practice.’ (Citations omitted)
289 Dr Palmer also referred to Armstrong’s comment about land ownership and inheritance: see para 160 above. He said:
‘Armstrong, also writing of the Perth area, states that certain individuals held areas of land and defined them with some exactness. He is less clear about how the system worked in practice, although he does allow that people moved about over other people’s land. Overall, however, he appears to take the view that people mostly lived on their own country. His account of the areas of residential groups is not altogether consistent with that provided by Lyon.
Armstrong noted that trespass was a punishable act.’
290 In his report, Dr Palmer referred to information, collected by both Armstrong and Symmons, about the people in Yellowgonga’s group. Dr Palmer was able to identify a blood or marriage relationship between Yellowgonga and many, but not all, of these people. In particular, he noted ‘the close relationships that obtained between members of neighbouring groups (Yellowgonga and Midgegooroo). Dr Palmer said:
‘This residential arrangement probably reflects the close relationships that obtained between members of neighbouring groups … It further strengthens the view that residential groups were closely allied and had interchangeability of membership, depending on circumstance and the realisation of kinship, marriage and other alliances that were the basis of the relationships that underpinned group cohesiveness. In this case, the deaths of Midgegooroo and perhaps Yagan (his son) may well have been a cause for the realisation of these links in practice.’
291 Dr Palmer went on:
‘From the records we can also learn that the members of Yellowgonga’s group represented several different territorial areas. Yellowgonga himself is recorded as regarding the area north of the Swan River as his own ... His wife was Yangan and Yangan’s brother had the country round Lake Monger. Nignana and his brothers belonged to the area round Rockingham and probably south to the River Murray. Willum, Midgegooroo’s son was associated with the land south of the Swan river, but was also of ‘Monday’s tribe’ (between the Canning and the Swan) as well as ‘the first tribe north’. A man called Barbang may have been associated with land south of York, while Dutomerra was also described as a part of Wiap’s tribe, an area in the hills to the east of Perth.
In my view the lessons that can be learnt from Armstrong’s material are that ‘family’ groups were founded upon a complex web of relationships and alliances. These brought people together in acceptance of bonds of kinship, affinal relations and other relationship alliances forged through social and ritual processes. Yellowgonga’s group had a nuclear family at its core, but included individuals with affinal relations and, as far as can be ascertained from the data, probably others who were quite distantly related or who saw their relationships in classificatory or social terms. Within this group were representatives of a number of different geographic interests. In my view, the presence of these different territorial interests and the bonds that bound them together as a living or residential group, probably had an affect on how the members of the group together accessed and exploited the areas that comprised their traditional range.’ (Citations omitted)
292 Dr Palmer offered a caution about the available data. He said:
‘The accounts here reviewed relating to territorial affiliations are incomplete and, taken together, lack consistency ... In my view it would be an error to attempt to map “tribes” or “chiefs” on to country, using these data. My reasons for holding this view are as follows. In the accounts examined here the extent of an individual’s country is sometimes made by reference to imprecise geographical features, or is expressed in the vaguest of terms in relation to some indeterminate direction. It is also unclear, in my view, whether rights to the country (however defined) are being ascribed to one individual or to many. Finally, again in my view, mapping territory hides the complexity of the relationships between individuals and the implications that these relationships might have had for the exercise of rights to country in practice.’
293 In discussing Barker’s journal, Dr Palmer made a comment, which I think is justified by the relevant entries, that Barker’s account ‘reflects a system where numbers of people used common country in small bands within a recognised range’.
294 Dr Palmer went on:
‘Barker also tells us how land changed hands. If there were sons, portions of an area of country would be set out for each son at birth, but a son does ‘not enjoy possession until grown up’. A younger brother appears to have taken over the role of a deceased older brother as principal representative for an area of country, but this may have also depended upon the age (and assertiveness) of a son to press his case. He also wrote that in the event that there were no males in a family, ‘his next neighbours have his ground’. Significantly, then, Barker takes the view that there was a normative system that accommodated death to ensure continuity of responsibility of ownership of estates.’ (Citations omitted)
295 Dr Palmer quoted several mid to late 19th century writers who gave accounts of land organisation consistent with those he had extracted from the writings of Nind and Barker. I need not set out the quoted extracts. As I do not have the original writings, I cannot consider them in context; so I do not put independent weight upon them.
296 Dr Palmer made a comment about Bates’ work which is important, for present purposes. He said:
‘In her discussion of local organisation Bates also indicates that there were numerous dialect groups within the Bibulmun nation and that these dialect groups were local groups. My view is that it is unlikely that each ‘local group’ (however understood) could comprise a distinct dialect group as such a group would be too small to have unique linguistic integrity. What Bates may have meant is illuminated to some extent by her records set out elsewhere. On a map Bates notes the dialect groups as she understood them. These would appear to be much larger than localised family groups of the sort that Bates appears to be describing as the minimal land holding unit of the society.’ (Citations omitted)
297 In his report, Dr Palmer gave the following summary of his ‘understanding, as an anthropologist, of the main points which emerge from the early accounts of Aboriginal relationships to land within the claim area’:
‘3.57 Individuals were regarded (and apparently regarded themselves) as having one area of country, however defined and bounded, that was of particular importance and significance to them. They had undisputed rights to this area of land which were of the nature of an ownership in real property. This is evident from all the writers reviewed above, and particularly from Moore, Lyon and Armstrong for the Perth area, and Nind, Barker and Collie for the Albany area. Although it is something that the early writers remain silent upon, in my opinion, based upon my study, training and experience as an anthropologist, I consider this attachment was articulated through spiritual referents, as this was and is the basis of traditional Aboriginal relationships to land throughout Australia.
3.58 The early writers also record that land passed through the family, implying or stating that descent was an important means of gaining rights to country. The extent to which a person’s affiliation with country was concomitant with exclusive rights is unclear. The accounts, as provided here, are not consistent. However, by looking at one particular residence group, the details of which we have from the early record, it is possible, using my knowledge as an anthropologist, to attempt a reconstruction of how things may have worked in practice. Yellowgonga’s group comprised members of a number of different areas, who apparently were free to use the country in which they resided. There is evidence from all three writers from the Albany region (Nind, Barker and Collie) that rights to a ‘natal’ area’ (Collie’s term) were shared with others. A person’s affiliations to country were expressed in relation to a complex web of rights that might be realised in relation to several areas of country by reference to kinship ties or other relationships.
… the rights to the resources of a number of areas, beyond that of an individual’s patri-group, appear to have been exercised freely and the degree to which members of the country group (or patri-group) exercised exclusive rights to their country is, to my mind, much in question. In summary, then, individuals were recognised as ‘belonging to’ a certain area (perhaps as a result of a spiritual connection or by reference to descent). Their rights to this area were burdened by rights of others who were generally known to those who belonged to the country in question. Those who were not known were treated with caution as potential trespassers. For most activities those with common rights did not need to ask each other in order to take resources. For the Albany region, at least, it would appear to have been correct protocol to ask permission before undertaking other activity such as firing. However, while desirable, there were cases, as instanced here, where individuals did not consider that it was always necessary to ask first.
3.60 The Bates’s data is not easy to reconcile, as it shows some inconsistency and, in my view, her final position as expressed in her proposed book The Native Tribes of Western Australia did not altogether reflect the complexity of her field data. However, several general conclusions can be drawn from these data. First, the Noongar society that Bates observed appears from her data to be one that allowed quite extensive use of country by family groups, while usually associating people with particular home areas. Second, land use and rights to it were not exclusively held, but were shared between several family groups and these family groups were typically related in some way, including in prior generations. Third, rights to land were gained through descent, although Bates provides very few details on this principle. However, it is evident from her example of Yabburgurt that people gained rights to their mother’s country, their father’s country as well as that of their spouse. Finally, Bates recognised that areas of land could become ‘ownerless’ at certain times, but she does not explain the way by which such land was absorbed or taken over by other groups.’ (Citations omitted)
298 Dr Palmer expressed the opinion that the term ‘tribe’, used by some of the early writers, was not ‘appropriate to the local circumstances observed in places like Perth and Albany’. He said:
‘The early writers observed groups of people moving about the land who were understood to have a particular interest in what was usually a named area of country. The composition of these groups is reasonably clear from the early literature and can be best described as an extended family group. By this I mean that it typically might have included a nuclear family (a man, his wife or wives) and their children, as well as, perhaps, siblings of the man, his spouses and children, as well as members of his first ascending generation. So, generally speaking, members had either consanguineal or affinal ties but could also include those who had other alliances which were not necessarily based on consanguineal ties. Such groups are well documented in the anthropological literature … and are generally called ‘bands’ in the anthropological literature, or sometimes “hordes”. Keen also calls them “residence groups” and this is the term that I will use in this report. At least one of the early writers [Nind] accepts that the groups observed using the land were extended family units. There is also agreement between later commentators for this region on this point.
The early writers reviewed here were then neither consistent nor clear as to the social unit that held rights to land. There was a tendency to assume that the members of the residential group or band, or a significant person within it, owned land. As the band was understood to be a “tribe”, the land was easily understood to be the territory of the ‘tribe’. Moreover, the relationship between different social groups and their use and rights to different areas was not explored. In her accounts, Bates’s focus was on individuals. However, she did record important data concerning the rights to use country that were legitimated by reference to inter-group relationships.’ (Citations omitted)
299 Dr Palmer referred to a debate that had occurred, between anthropologists, as to the legitimacy of a distinction made by Radcliffe-Brown between the ‘horde’ (a patrilineal descent group) and the ‘clan’, which Radcliffe-Brown thought was made up of two or more ‘hordes’. After mentioning several items of anthropological literature, Dr Palmer concluded:
‘Important articles by R.M. Berndt (1959) and W.E.H. Stanner (1965a) set out what was to become anthropological orthodoxy with respect to a distinction between the band, as the land using group (that is, Radcliffe-Brown’s “clan”), and the local group, as the land-owning group (Radcliffe-Brown’s “horde”). Stanner also established the relationship between a local group’s home territory (Stanner termed this the “estate”) and the country (“range”) its members used, along with others, as members of bands ... Local groups were exogamous (that is, members did not marry each other) which was a consequence in part at least of the fact that membership was through descent, so people would not be expected to marry members of their own family. The defining feature of the local group is its members’ common affiliation to an area of country. … I will then call this unit a “country group” in this report.’
300 Dr Palmer also mentioned another anthropological debate, as to the means by which people could legitimate rights to country by reference to descent: ‘whether patrifiliation was the only or preferred means of reckoning descent or whether matrifililation was also recognised in a cognatic system’. Dr Palmer thought it impossible to give a conclusive answer to that question. He said:
‘While issues remain unresolved, in my opinion it is evident that there was most probably a degree of regional variation to be found across the continent. It would be hard to conclude from the above debate that one model will fit all. Second, for hunter gatherer societies, there is a need for flexibility both as a result of ecological considerations and because of the likely exercise of personal choice. Thus it is unlikely that pre-contact systems were as rigid and fixed as may have been supposed. Finally, it is clear that rights to country, their exercise and legitimation were a complex matter that required the exercise of a range of social relationships rather than reliance on a singular principle.
Amongst hunter and gatherers, residence groups are likely to change over time. This is both a result of the exigencies of living as well as of social interaction. Economic activities will require degrees of co-operation while food availability or scarcity may invite or require that extended family groups split up either for shorter or longer periods. Moreover, tensions between individuals, fights and quarrels are also likely causes for separation and fusion, while strong friendship may bring together members of different families. While the degree to which band membership fluctuated may have depended upon environmental consideration … this alone is unlikely to account for all changes in residence group composition. It did, no doubt, depend upon a variety of factors, personal, environmental and social. Nor do I think, with respect to the Noongar materials, that inquiry after the relative permanence or impermanence of residence groups will be particularly fruitful, given the poor quality of the early accounts. Residence groups were labile and as such could not constitute a fixed enough entity to constitute a land owning body. As residence group membership fluctuates, the distribution of members of country groups across the countryside will be reflective of these changes. This both facilitates and is facilitated by a system wherein a person may gain rights in more than one area of country. This would appear to point to a system wherein rights to country were exercised and enjoyed by sets of people comprising a number of different country groups having cultural, social and filiational commonalities.
In my view it is an error to consider the land-holding system, as it is reported, as comprising a series of hermetic and self-contained land units (estates) over which individuals exercised exclusive rights. In my view this does not reflect the traditional situation as it has been reported by early observers discussed here and as it was most probably to have been found, both for the Perth and Albany regions and elsewhere in the south west of WA.’
301 Dr Palmer related these conclusions to the early writings about the south-west:
‘The accounts provided by early settlers and writers in Western Australia can be better understood in the light of these comments and conclusions. First, … it is my opinion that those early observers, when using the term “tribe” were probably writing of what would be now best termed, a band or residence group. Second, the residence group was not itself a land owning group, but was comprised of those who, as members of a country group did exercise proprietorial rights to country, which may have been the country on which they were at the time observed, or it may not have been. Third, members of a residence group, if comprised of more than one country group … would, between them, have rights to two or more areas of country. Fourth, given that the Noongar people recognised alliances through kin and ritual, it is likely that some rights to country could also be gained through the development or forging of social relationships. Finally, if the system is a relatively flexible one, as some writers have suggested for other areas of Australia, rights to country may be gained by means other than descent.’
302 During the course of his cross-examination of Dr Palmer, Mr Wright asked many questions about late-20th century writings. I found that cross-examination unhelpful. As I mostly did not have a copy of the particular writing, it was often unclear to me what the particular writer was really saying. Even more often, it was unclear what research he or she had undertaken. Nothing in this cross-examination caused Dr Palmer to depart from his earlier-expressed opinions or affected my confidence in them.
303 Mr Wright took Dr Palmer to the issue of patrilineal/matrilineal descent in the Perth Metropolitan Area. Dr Palmer accepted the possibility that ‘there was a strong bias towards patrilineal descent in the Perth Metro area at sovereignty’. However, Dr Palmer pointed out that Grey had written about people ‘gaining rights in mother’s country’ and that Bates ‘makes it quite clear that people got rights in both their father’s and their mother’s country’. His evidence went on:
‘I don't think Bates was saying that people didn't get country through patri-filiation, but Bates certainly also says that people got country through links with their father on the one hand and with their mother's country on the other. So she wasn't talking about mixed marriages in this case. ... I don't want to be … dogmatic about these early writers, and I - you know, I understand this is an important issue for you.
MR WRIGHT: Yes. And just to try and pin you down … given those qualifications you've just given us, would you agree that … there was a strong patrilineal bias in the Perth Metro area at sovereignty; that that's the preferable view on the totality of the evidence?
DR PALMER: Well, I think the best I can do for you is to say there may have been, but that the system as it - most probably as it operated always allowed for matrifiliates to claim rights to country as well. I - I don't think that the evidence is - particularly given the Bates material and - and the other things that I've said, that it's - that it's likely that matrifiliates were always ruled out of the … equation.’
304 In the course of a discussion with Mr Wright about ‘contingent’ or ‘secondary’ rights (or ‘secondary connection’, as Dr Brunton preferred to say) – that is, rights only exercisable by the leave of the primary right-holder – Dr Palmer pointed out the limitations of the early writings. The exchange was as follows:
‘MR WRIGHT: Yes. Okay. So can I then clarify that, based on what we know from the early writers, which we - you've said is - is not very detailed, we seem to have country groups who have rights through descent, and then we have other people who may have what we've called contingent rights.
DR PALMER: No, but, look, the early literature - they don’t even get it right in terms of who - who had rights in country. They call them “tribes”, which were - Dr Brunton and I agree on this - that were probably “bands” and it was understood that it was the bands that probably owned the country, which indeed was a mistake that some early anthropologists made. I mean, … the line of inquiry that would rely extensively on the early accounts as pieces of anthropological analysis in relation to local organisation provides such enormous difficulties that we can only really come up with one or two sort of main principles, if you like.
MR WRIGHT: And those main principles are?
DR PALMER: Well, one - one is descent.
MR WRIGHT: Yes.
DR PALMER: It - it seems that descent was important. And the other is that - that people recognise that certain areas of their country, either more or less bounded, were important to them and that they exercised some rights in them.’
305 During Ms Webb’s cross-examination of Dr Palmer, she asked him to state ‘the classic landholding system in the south west of Western Australia’. Dr Palmer responded:
‘it's difficult to know, but from the information of the early writers, and bearing in mind what I've said about their preconceptions and their prejudices, my view is that … people obtained rights to country, certainly through descent - this is given that they … recognised themselves as belonging to a particular group of people who belonged in the country, in this instance Noongar. I think there is some evidence that there may have been a patrilineal bias …
But what I do think - and this is - I think that far, Dr Brunton and I would be in agreement. What I think is that it didn't stop there, that there were rights that were also obtainable in land and were … part of the normative system that were obtained by reference to other things other than the country of father, and that may have included birth, and it certainly included rights to mother's country.’
306 Ms Webb asked Dr Palmer about cognation (relationship by birth) as a principle of group recruitment. Dr Palmer said cognation requires choice and, theoretically at least, the available choices would double with each generation. However, he thought descent was not the only element:
‘the two which probably spring to mind are perhaps related, or maybe three, but certainly is birth, residence and familiarity, and I think those three form a kind of a set sometimes. So, in my report when I discuss about the exercise of choice what I’m trying to do is to understand how in a cognatic system these, if you like, discriminations are made. So that it’s not just a question of somebody, as it’s been put to me, choosing an apical ancestor and then sort of working it out. I think that’s putting it the wrong way. There have to be a number of qualifications in that person’s life experience which, as it were, leads them back to that ancestor which, by descent, then provides, if you like, the final legitimation for the assertion of rights to a particular area of country.’
307 Dr Palmer was unhappy about Ms Webb’s use of the word ‘negotiation’, in relation to an individual’s land claim being accepted; he preferred to speak of a ‘social process’. Ms Webb asked him to explain that term. He replied:
‘Well, your Honour, the issue that we’re trying to deal with, or that I was trying to deal with here is this issue of to some extent of choice which is why I think we’ve arrived here, and I give an example as an anthropologist like examples, and it relates, … to a child. So, you know, in the normative system as operating, the child has, say, rights to the mother’s or father’s country but those – those rights are mediated by a number of other factors which are social factors. The child is young, the child has no knowledge, the child in the authority structure is considered to be … not within that structured system as of yet and so on.
So, the situation with the child is that it has potential rights to country but the realisation of those rights are going to depend on a lot of other things which may happen subsequently to that child. And if they don’t happen, then the child may not be pushing rights as an adult in that country. They may be pushing rights in another country. And I think that’s true of a number of instances, and that’s anthropologically how we overcome this problem in a cognatic system of how – how you can obtain a focus of rights on particular countries or areas.’
(d) Dr Brunton’s evidence
308 In his report, Dr Brunton re-affirmed views he had expressed in a report written in 2003, and which was reproduced as sections 2.2-2.4 of his present report. In section 2.2, Dr Brunton had noted the references to landholding made by various early writers and opined ‘that the “tribes” identified by early observers were bands – whose membership would fluctuate according to various circumstances – rather than land holding groups’. He had said some individuals appeared ‘to have had different band affiliations at different times’ and there were some ‘individuals who appear to have been engaged in joint activities with members of other bands – other than ritual or ceremonial activities’ which ‘could normally be expected to bring together members of different bands’.
309 Dr Brunton also said:
‘Whatever sense of common identity may have existed at the south west regional level as a result of cultural and linguistic similarities, or at the level of Tindale’s ‘Whadjuk’ tribe, there is no evidence to indicate that such higher level groups or categories can be seen as land holding units in any way ... Indeed, the frequency with which the early observers stressed the ‘family’ or individual nature of land ownership suggests that, notwithstanding their great limitations by the standards of contemporary research, they did attempt to ascertain whether any ownership rights were held by higher level groups qua groups. Certainly, individuals who were not members of the estate group may also have held secondary connections to an estate – or specific sites within an estate – in the vicinity of their own estates, as a result of having common non-patrilineal ancestry, or sharing a Dreaming track, or a common totem, or having been born near a site in this estate, or some other reason. I referred earlier to information from Radcliffe-Brown and Bates relating to birth place and totems, and it is quite possible that they were identifying one of the mechanisms by which secondary connections with an estate were established. Unfortunately, the information available does not allow us to draw more specific conclusions.’
310 Dr Brunton also referred to ‘secondary connections’ which, he said, ‘would also have provided one of the paths through which usufructuary rights to estates would have been granted’. He said:
‘Usufructuary rights of one kind or another would have been granted on other grounds as well, such as through marriage, or through the invitations which groups issued to neighbours to share in seasonal or windfall resources. There is no evidence to suggest that these usufructuary rights would only be granted to individuals who shared a membership in a higher level group.’
311 Dr Brunton used the term ‘estate’ to ‘refer to the primary unit of land tenure (although … not necessarily the irreducible unit) comprising a tract of land over which a group has a set of rights and duties which most closely correspond to Western notions of ownership’. He thought that, at settlement, ‘the Perth Metro and Bodney claim areas would have contained a larger number of estates than the listings of “tribal” territories by Armstrong and Lyon might suggest’ – he thought more than 16. He said:
‘So bands would have been made up of men belonging to more than one estate group (as is also apparent from Armstrong’s and Symmons’ data), and the range of these bands would have encompassed the country which included its members’ estates, as well as the estates of others with whom they had appropriate relationships. As I have already indicated … I think that bands would have been reasonably flexible and permeable groupings.’
312 Dr Brunton expressed agreement with para 3.57 of Dr Palmers report (para 297 above) but disputed his following conclusions. He stated his reason:
‘I think his reasoning leading to these conclusions tends to conflate a number of matters that need to be distinguished – relationships to kin with rights in land; proprietary or ownership rights with usufructuary rights … and “laws” or elements of a “normative system” with the absence of transgressions against these laws.’ (Citation omitted)
313 In relation to the first matter, Dr Brunton said:
‘Stating that individuals had certain rights in the country of given relatives may not mean that they had inviolable or automatic rights, but rather that such rights depended on the continuation of certain kinds of relationships between the “owners” of the country concerned and particular kin. This notion is captured by Peter Sutton’s recent distinction between “core” rights to land and “contingent” rights to land – thus he states that “the right to use someone else’s country is usually contingent, for example, on the nature and state of relationships with those other people”. He argues that despite the difficulties that might be faced in making such a distinction in specific instances, “there is much ethnographic evidence to suggest it is a common feature of Aboriginal land relationships”.’ (Footnotes omitted)
314 Dr Brunton thought it was always necessary for Aborigines in the south-west to obtain permission to access others’ territories. He said:
‘The observations of the early settlers and the inconsistencies in their accounts … are not difficult to reconcile if we posit an ideal of “exclusive rights” to estates – exclusive in the sense that non-landholders would have required permission through various kinds of direct and indirect mechanisms to access land and resources – operating in conjunction with the commitment to what Les Hiatt calls an “ethic of generosity”, which he sees as very widespread in Aboriginal societies. While not indiscriminate in terms of either people or resources, the “ethic of generosity” means that “access and benefit are normally accorded as a matter of course to a wide network of tribesmen over and above the actual owners”. This conjunction would have created a situation where permission was rarely denied, at least if the relations between the land holder and the person or group requesting permission were in a reasonably amicable state.’ (Footnotes omitted)
315 Dr Brunton raised the possibility that, in areas of the south west ‘where people took their moiety or semi-moiety membership from their father’, ‘particular estates or perhaps even larger tracts of country were identified with a particular moiety and/or semi-moiety’. He went on:
‘Noting Nind’s observation about the differential geographical distribution of semi-moiety members, Keen suggests that “it may be that people identified country by semi-moiety; this is consistent (if semi-moieties were patrifilial) with the evidence of the patrilineal inheritance of land at King George Sound” …
Such an identification between country and social categories is found in other parts of Aboriginal Australia, including Western Australia, and acts as a constraint on succession, requiring those taking over the land of extinct groups to be members of the same category as the previous owners. Keen writes “according to Collie, if patrilineal succession failed, a neighbouring group succeeded to the country; it may have been of the same semi-moiety”. If this was indeed the case, then the processes of succession in these areas would have differed from those where moiety or semi-moiety membership was taken from the mother, such as on the west coast, where there would have been no consistent identification between land and social category, and therefore no such constraint on succession. In other words, in one significant aspect – particularly significant given that the rate of extinction of estate groups and therefore the conditions under which succession became necessary would have been considerably higher after sovereignty than before – there may have been a major difference between the land tenure systems within the area now comprising the Single Noongar claim.’ (Footnotes omitted)
316 Dr Brunton was critical of the sparsity of Dr Palmer’s references to recent anthropological writings about social and cultural continuity in south-west Western Australia. Dr Brunton proceeded, in Section 5 of his report, to discuss these writings at some length. However, many of these writings are not before me, and I have little or no information about the factual assumptions upon which most of them were based. Consequently, I obtain no benefit from Section 5 of Dr Brunton’s report. The opinion of an expert assists a court only where two conditions are fulfilled: first, the court is appraised of the facts assumed by the expert in reaching that opinion; and, second, the truth of those facts is either proved by evidence or conceded by all other parties.
317 During the course of questioning by Mr Bodney, Dr Brunton declined to accept that the landholding units at date of settlement were moiety groups, such as the Ballarruk and Didjarruk upon whom Mr Bodney’s claims depend. Mr Bodney put to Dr Brunton that, at settlement, ‘in this district of the Wadjuk territory you had these two groups, two Aboriginal societies (Ballarruk and Didjarruk)’. Dr Brunton responded:
‘I find it difficult to accept your statement there, Mr Bodney. I don’t believe that that would have been the case at sovereignty. I think that you had members of the four semi-moieties, the Ballarruk, the Ngarnook, the Tondarup and the Didjarruk are all within the area that is now said to be the Wadjuk tribe or the Wadjuk group.’
318 Dr Brunton thought there was a practical problem about Mr Bodney’s position:
‘I don’t understand how the system could have worked as it was described by, say, Daisy Bates who spoke to people like Joobaitch and other people who were born, if you like, soon after settlement. I don’t understand how the system could have worked if it operated as you’re suggesting.
It seems to me from what she’s saying given, for instance, that a Ballarruk could marry either a Tondarup or Didjarruk, I don’t see then – and given the fact that membership was then determined through the mother, I don’t see how you could have a situation in the country that you’re identifying as Wadjuk in which you only had members of the one sort of moiety that is Ballarruk and Ngarnook or Ballarruk and Didjarruk as the only land holders. It just – I just don’t see how the system could have worked.’
319 During questioning by Mr David, it became apparent that Dr Brunton saw a different kind of link between the moiety system and landholding:
‘In the area I think from [Jurien] Bay and sort of down to about Augusta, those semi moieties, the identification was taken through the mother. Along the south coast the moieties, and it seems the semi moieties were known, were taken to the father and I’ve tried to suggest in my report, although I must say, you know, I’ve just done so on the basis of a suggestion from Ian Keen and from my knowledge of the situation in other parts of Western Australia, there may then have been a difference in terms of the rules relating to succession to property between the two areas.
In other words, with the patrilineal moieties it may have been a situation that you could only succeed, you could only take over the country if … an estate group died of people who had the same moiety as you. In the matrilineal areas because the moiety identification would change from generation to generation, that is most unlikely to have been the case.
You see, in the patrilineal areas it is possible that you could have had a localised situation where a particular area of country is always associated with a particular moiety because it’s been transmitted through men and because the land is going through men. And this is certainly the case in other parts of Aboriginal Australia and has been documented.’
320 At an early stage of his cross-examination, Mr Hughston had Dr Brunton confirm that, when he commenced to prepare his 2003 report, which dealt only with the Perth Metropolitan Area, he had looked ‘at the laws and customs of the people encompassing basically the whole of the Single Noongar claim area’. Dr Brunton agreed he had done this. He said it was because it had ‘been apparent to [him] at the time that there were significant relationships, continuities and similarities between the laws and customs for the people of that region which is encompassed by the Single Noongar claim’. The evidence went on:
‘MR HUGHSTON: Okay. Now, it's clear from the way in which you conducted your research, the strategy which you adopted back then, that it was apparent to you that the Aboriginal people who occupied the area more or less encompassed by the Single Noongar claim area at sovereignty, had certain cultural similarities.
DR BRUNTON: Yes.
MR HUGHSTON: Spoke basically the same language.
DR BRUNTON: I'm not sure about that but that was an assumption I - that was my, if you like, initial assumption I - - -
MR HUGHSTON: Yes. And acknowledged and observed fundamentally the same laws and customs.
DR BRUNTON: That was, again, a provisional assumption that had to be tested in the … literature.
MR HUGHSTON: And did you depart from that provisional assumption anywhere to identify the Perth region as acknowledging and observing laws and customs which were not fundamentally the same as laws and customs observed and acknowledged elsewhere in the south-west.
DR BRUNTON: I can't recall - you know, because it's now one consolidated report, I can't recall whether I did make the points in the earlier report about the difference between the social categories, … the semi-moieties and moieties. It's possible I did but I can't … recall whether I did because it would not have been so relevant for the Perth case.
MR HUGHSTON: Dr Brunton, can I suggest to you that nowhere in your 2003 report do you depart, if you like, from the conclusion, the basic conclusion which you say was apparent to you at the start, and that was that there was - because of the considerable degree of linguistic and cultural similarity across the south‑western region, that to ascertain the laws and customs of the Perth region you would look at what had been written by the early ethnographers for the whole of the south‑west region.
DR BRUNTON: I certainly used that in order to illuminate the Perth material, and I agree - - -
MR HUGHSTON: Because you were of the view then, and I suggest to you you're of the view now, that … the relevant land-owning group in the whole of the south-west is a group that you've called I think “the estate group”?
DR BRUNTON: Yes.
MR HUGHSTON: And that's a small basically patrilineally recruited group.
DR BRUNTON: Yes.
MR HUGHSTON: And I think Dr Palmer calls that same group “a country group” in his report.
DR BRUNTON: Yes.
MR HUGHSTON: And I think where you differ is that he says that as at sovereignty that patrilineal descent wasn't the only means of recruitment into that group, that there were other pathways for acquiring membership of that group.
DR BRUNTON: That’s one of the points we differ and if I can clarify that.
MR HUGHSTON: Yes.
DR BRUNTON: My point would be that there was, if you like, an ideology or … norms of patrilineal recruitment such that when other mechanisms came into play, and I don't deny the possibility that they did, that they would be masked, so that the group would appear as … essentially a patrilineal or patri‑group I think you were saying.
MR HUGHSTON: Well, not so well masked that Aboriginal informants didn't actually tell some of the early ethnographers that, for example, if a man had no sons then his daughters' children would inherit the land.
DR BRUNTON: I would - well, that - you're referring there to Grey.
MR HUGHSTON: Yes.
DR BRUNTON: And one would presume, and obviously has to speculate, that Grey being given the normative rule then said, "Well, look, what happens if a man has no sons?"
MR HUGHSTON: Yes.
DR BRUNTON: And so he's given, then, the mechanism that operates where this doesn't apply.
MR HUGHSTON: So, clearly, there was more than one legitimate means of recruitment into the land-owning group as at the date of sovereignty.
…
DR BRUNTON: Yes, I'm saying there was a - there was a norm or an ideology of patriliny, and when this was not possible to be met, then there were other mechanisms that came into play.’
321 Dr Brunton acknowledged there had been other descriptions in other writings; sometimes wives were referred to as co-owners, sometimes ownership was treated as being in the family. There was then some evidence that assists to identify the main issue in relation to this part of the case:
‘MR HUGHSTON: Okay. Now, one thing that's clear, though, could I suggest to you, that the laws and customs under which any estate group possessed rights and interests in land and had a connection to the land weren't simply the laws and customs of that particular estate group; they were the laws and customs of a much larger grouping of Aboriginal people.
DR BRUNTON: I would certainly accept that.
MR HUGHSTON: Okay. And in this area of the south-west, harking back to the research strategy which you undertook, can I suggest to you that at sovereignty that that larger body which possessed those laws and customs under which estate groups held their rights and interests in land, were the Aboriginal people who occupied more or less the area now encompassed by the Single Noongar claim.
DR BRUNTON: That's where we disagree, Mr Hughston. I think that the group within which the relevant laws and customs would apply would have been the smaller group.
MR HUGHSTON: Yes.
DR BRUNTON: And my reasons would be, firstly, the one of where changes did occur, the extent to which they would have then been felt necessary to be followed across the board, and the fact that … the difference in terms of the rules of social categories.
MR HUGHSTON: Well, … can you identify that smaller group for me?
DR BRUNTON: I find that … it's very difficult and … you know, … I've tried to clarify that in my witness statement. I think we just don't have the information about boundaries, the information about … the areas of country to which names applied.
MR HUGHSTON: Yes.
DR BRUNTON: It's so inconsistent. I find it very difficult to say, “Look, this would be the particular group”. I suspect on the basis here - and this is not from south‑west Australia but from other parts of Australia - that it would have been of the order of magnitude of the Tindale sort of tribe ... In other words, … the kind of areas which he has delineated in the … coastal south‑west Western Australia. But as I said, I … can simply say, because we have no other bases on which we can confidently delineate a group with - with which yes, people agreed this is the boundaries of, say, the Wadjuk or the … Yued, or so on.
MR HUGHSTON: Certainly when you wrote your first report in 2003 you could confidently delineate a group whose laws and customs were likely to be the same laws and customs as those acknowledged and observed in Perth, and that was the group which more or less occupied the area of the Single Noongar claim.
DR BRUNTON: As I said, that was a basis of a research strategy and I wasn't addressing, I wasn't asked to address the broader question. I was looking at the extent to which I could use that ethnographic evidence to illuminate.’
322 A little later, Dr Brunton went further. He had this exchange with Mr Hughston:
‘MR HUGHSTON: Yes. Would you agree, then - is it your opinion that there was a considerable degree of cultural similarity across whole of the south-western region.
DR BRUNTON: Yes, I accept that there was a considerable degree of cultural similarity.
MR HUGHSTON: And when we are dealing with cultural similarity, by culture we're talking about laws and customs, aren't we?
DR BRUNTON: Well, yes, culture can … be said to encompass laws and customs.
MR HUGHSTON: Well, what does it encompass over and above laws and customs?
DR BRUNTON: Well, beliefs.
MR HUGHSTON: Beliefs. So it encompasses laws, customs and beliefs?
DR BRUNTON: Mmm.
MR HUGHSTON: So you believe that as at sovereignty, there was a considerable degree of similarity in beliefs, customs and laws across the whole of the south‑west?
DR BRUNTON: No, I - I said I believe that there was a considerable degree of similarity in terms of those elements that … we know about over large parts of the south-west, yes. The whole, I don't want to commit myself ---’
323 Dr Brunton was taken to para 9 of his report, where he referred to ‘the considerable degree of linguistic and cultural similarity across the south western region’. He told Mr Hughston he was ‘not retracting’ that statement and added ‘I’ve said linguistic to the best of my knowledge’.
324 In a discussion about the extent to which Nind’s report was helpful, Dr Brunton said he wanted to ‘clear up a possible source of confusion’. He said: ‘I was not saying that a group the size of a Tindale tribe was the landowning group; rather, … I think it’s a much smaller group’. As I understood Dr Brunton, this was the ‘estate group’. However, as I also understood him, the society whose laws and customs entitled the estate group to particular land was a ‘Tindale-sized tribe’; that is, a group roughly corresponding with the group of people who spoke a particular dialect.
(e) Applicants’ submissions
325 In their submissions about land laws and customs, counsel for the Applicants referred to Dr Host’s observations about the flexibility of traditional Aboriginal lifeways, as reported to Barker by Mokare: see paras 136 - 138 above. They noted Nind’s description of the interaction between groups: see para 143 above. They also referred to the observations of Salvado, Moore, Armstrong and Bates about land organisation in parts of the south-west, other than King George’s Sound. Counsel then summarised Dr Palmer’s opinion:
‘Dr Palmer states that in many areas of Australia it is evident that rights in country are not the sole or exclusive prerogative of the members of a single country (or local) group, however recruited. Based upon Dr Palmer’s consideration of the anthropological literature on this issue over the last seventy years or so, Dr Palmer is of the opinion that it is evident that there was most probably a degree of regional variation in local group organisation and ownership of land to be found across the continent. Secondly, for hunter/gatherer societies, there is a need for flexibility, both as a result of ecological considerations and because of the likely exercise of personal choice. Thus, in Dr Palmer’s view, it is unlikely that pre-contact systems were as rigid and fixed as may have been supposed. Finally, he concludes that it is clear that rights to country, their exercise and legitimation were a complex matter that required the exercise of a range of social relationships, rather than reliance on a singular principle.
In Dr Palmer’s view, it is an error to consider that the land-holding system, as it is reported, as comprising a series of hermetic and self-contained land units, (estates), over which individuals exercised exclusive rights. In his view, this does not reflect the traditional situation as it has been reported by early observers and as it was most probably to have been found, both for the Perth and Albany regions and elsewhere in the southwest of Western Australia. It is submitted that Dr Palmer's opinions in this regard are soundly based on the early source materials which are referred to in his report.’ (Citations omitted)
326 Counsel discussed Dr Brunton’s evidence concerning land ownership at some length. In essence, their submission was that he had adopted an erroneous approach to the issue. Counsel said his approach was:
‘predicated on the mistaken assumption that native title is a set of rights and interests which closely corresponds with Western notions of the ownership of land. That approach involved Dr Brunton in setting out, very early in his principal report, certain anthropological assumptions about the nature and identity of land owning groups and then reviewing the historical record for evidence which would identify land owning groups of that kind, within the Single Noongar claim area. (Citations omitted)
327 Counsel for the Applicants noted agreement between Dr Brunton, on the one hand, and Dr Host and Dr Palmer, on the other, that, at date of settlement, ‘rights and interests in particular areas within the south-west, were possessed by family groups, which Dr Palmer calls “country groups” and which Dr Brunton calls “estate groups”’. Counsel then said:
‘What stands between Dr Host and Dr Palmer on the one hand and Dr Brunton on the other, is the extent of exclusivity of those rights and whether those rights and interests could be acquired otherwise than by patrilineal descent.’
328 Counsel for the Applicants proceeded to deal with both these issues. In relation to the first – exclusivity of rights – they referred to the extensive references in the early writings to the entitlement of people other than members of the landholding group to access particular land for various purposes, including food-gathering.
329 In relation to the second matter, acquisition other than by patrilineal descent, they pointed to passages in the early writings in which there are suggestions, at least, of non-patrilineal entitlements. Counsel noted Dr Brunton had conceded, in cross-examination, the existence of exceptions to a rule of patrilineal descent. They submitted, in effect, that the evidence did not indicate a fixed rule of solely patrilineal descent.
(f) Submissions for respondents
330 Counsel for the State commenced the relevant part of their closing submissions by making three statements which, with one qualification, seem to be correct and uncontroversial:
(i) ‘The evidence clearly establishes that in the south-west at sovereignty, groups of people had rights to areas of land which were articulated as ownership of relatively well defined areas of country. Dr Palmer defined those groups as “country groups”, and Dr Brunton defined them as “estate groups”;
(ii) Amongst the early observers there was general agreement that areas of land were owned by family groups, and not by individuals, nor by larger political entities;
(iii) It is clear that at sovereignty there was no centralised authority to which the various country groups in the south-west were subject, but rather families acted independently of each other.’
331 The qualification is that the independence of families, stated in item (iii), was subject to obligations imposed by the laws and customs observed by a larger entity, whether a single Noongar community (as Dr Palmer thought) or a Tindale-sized community (as Dr Brunton believed).
332 Counsel for the State submitted that the boundaries of land possessed by particular ‘estate’ or ‘country’ groups were ‘relatively well-defined’. In relation to this matter, they summarised the expert evidence as follows:
‘Dr Host said in his evidence that boundaries were permeable. By this he meant that they were not clearly defined (like lines on a map), but he acknowledged that:
(a) there was a general sense amongst the Aboriginal people as to which territory belonged to whom, and that permission was needed to pass through another person's or group's territory;
(b) there was a distinct sense of which sites or landmarks belonged to whom; and
(c) outside of those sites or landmarks, boundaries would have been less well defined (e.g. within a zone that, around Albany for example, may have been in the order of 1 to 10 kilometres wide).’
Consistently with that evidence, Dr Brunton explained that, as a general principle, estates are more likely to have clearly defined boundaries in resource rich areas than in arid areas. Even then, it may be accepted that boundaries would be clearly defined in some places (where they are formed by particular features of the landscape) and more indistinct in others. Dr Palmer similarly said that boundaries were defined by specific or more generalised geographical referents.’ (Citations omitted)
333 I think this summary is accurate. With one exception, the experts’ evidence is consistent with the consensus view of the early writers. The exception is that the early writers seem to have thought the land-owning groups were the various groups (‘bands’ or ‘tribes’) who lived, and moved around, together. On the other hand, Dr Palmer and Dr Brunton both believe the situation was more complex than that: ‘ownership’ resided with ‘country groups’ (or ‘estate groups’) whose membership was not identical to that of the bands or tribes. ‘Bands’ or ‘tribes’ could comprise people from more than one ‘country’, or ‘estate’, group.
334 Counsel for the State also submitted the evidence ‘clearly establishes that the principal way in which rights to land were acquired was through patrilineal descent’. They cited statements by Armstrong, Grey, Moore, Barker, Millett and Bates, amongst other statements not in evidence in these cases, and mentioned Dr Brunton’s opinion ‘that membership of an estate group was ideally determined on the basis of patrilineal descent’. However, counsel acknowledged Dr Brunton’s recognition of exceptions to this rule. So the result is not markedly different to that postulated by Dr Palmer: a normative rule of ‘patrilineal bias’.
335 Counsel for the State also said:
‘The evidence also establishes that while country may be said to have been owned by families or groups, it was the men within those families or groups who controlled the exercise and the transmission of rights. Women were not regarded as landowners, although they clearly had rights to reside and forage in their father's country and, when married, acquired similar rights in their husband's country.’ (Footnote omitted)
336 I think this statement is correct, subject to the qualification that there is evidence that women enjoyed rights of ‘ownership’ in some circumstances; also that land could sometimes be inherited through women.
337 A further matter noted by counsel for the State, once again uncontroversial, related to the rights of others. Counsel said:
‘There is no doubt that the members of a country group were not the only persons to use the land and waters within the country group's territory. Rather, members of a number of country groups frequently gathered together for the purposes of everyday living, including hunting and gathering. Dr Brunton described the groups that used land as “bands”, and Dr Palmer described them as “residence groups”. Both agreed that residence groups were not fixed or enduring entities but rather their composition changed over time, and they were not landowning groups.’
338 In a section of their submissions headed ‘Other bases for rights in land’, counsel for the State devoted attention to a debate between the two anthropological witnesses as to the nature and extent of the exceptions to the rule that, at date of settlement, land rights were acquired by patrilineal descent. I need not summarise that debate; it seems to suffer from both semantic point-taking and an insufficiency of information from the early writers about these exceptions. What is important is that there is no suggestion, by any of the early writers, that any variation in the exceptions from patrilineal descent, as between one part of the claim area and another, had the effect of breaking the people of the south-west into distinct communities. On the contrary, the writer who devoted most attention to those differences (Bates) spoke of ‘one people’.
339 Counsel for the State made a comment about place of birth. They noted that:
‘Dr Palmer was not aware of any early observations which suggested that birth outside of a country group gave the person rights in the place of birth, except for some observations by Salvado and Bates. Salvado reported that birth near a pool gave rise to certain rights in relation to that pool. Bates suggested that birth in the territory of another group may have given rise to certain rights in that other territory later in life, especially through totemic affiliation; and that a person may also have obtained particular rights in respect of their place of birth.’ (Citations omitted)
340 As counsel noted, Dr Brunton had adverted to the possibility that ‘place of birth may have given a person a particular right as to a site within their family’s estate’, but there was no evidence that any such right would be inheritable by that person’s children. Counsel submitted:
‘… there is nothing in the early literature to suggest that place of birth alone qualified a person as a member [sic: of] a country group. Nor does the early literature support a finding that in the south-west a person could ordinarily obtain membership of their mother’s country group (i.e. the country group into which the mother was born).’
341 These comments about place of birth appear to be correct. However, once again, they are inconsequential in the present context. There is no suggestion that rules about place of birth differed in 1829 between one part of the claim area and another, so as to support the argument against the then existence of a single Noongar community.
342 Counsel for the Commonwealth said her client:
‘does not dispute the existence of a normative system of laws and customs operating in the south west under which rights and interests were possessed. Nor does it disagree with the submission that rights and interests in particular areas were possessed by “country groups” or “estate groups”.’
343 Counsel said the issue ‘is the normative rule applying under which the rights and interests were possessed at sovereignty’. She noted the Applicants’ description of their case, in their Outline of Case filed before the hearing:
‘a “land-owning system comprising both recognition of multiple local attachments to land within Noongar country and which places primary emphasis on descent as the means for acquiring rights and interests in land”.’
344 Ms Webb went on to refer to Dr Palmer’s evidence which, she claimed, led to the conclusion that ‘[n]o normative rule as to how rights and interests were possessed at sovereignty is, or can be, discerned in [the Applicants’] argument. In essence, the “rule” is that there is no rule (except to the extent that “descent” was an important means of gaining rights to country)’.
345 Ms Webb then referred to the evidence of both Dr Palmer and Dr Brunton, together with excerpts from some other anthropological writings collected by Dr Brunton in his report. She concluded this aspect of her argument by saying:
‘It is not a matter for the respondents to a native title claim to prove the existence of a normative rule at sovereignty under which rights and interests in land are possessed, or which determines membership of land-owning groups. That is a matter for the applicant.
The … Applicant has not established on the evidence the nature and content of any normative rule at sovereignty under which rights and interests are held, and membership of the land-owning group is determined. In particular, the evidence does not establish a cognatic system operating or any normative rule for a “land-owning system comprising both recognition of multiple local attachments to land within Noongar country and which places primary emphasis on descent as the means for acquiring rights and interests in land” (insofar as such a general formulation can be considered to be a “rule”).
Insofar as anything is established by the evidence in this case, it is that the social organisation at sovereignty and inheritance of rights and interests in land was based on a normative rule of patrilineal descent (with some exceptions in circumstances where patrilineal descent was not possible).
No normative rule allowing cognation for local group membership at sovereignty has been established on the evidence. ’
346 Counsel for WAFIC put a succinct submission on this point:
‘… if native title is established in the claim area, the relevant holders will be defined by reference to local group organizational units. Specifically, it is submitted that:
(a) at sovereignty, native title rights and interests were held by groups smaller in scope than the applicant group as a whole;
(b) it is not permissible for a group to merge with others or attach to geographical areas to which they were not traditionally attached post sovereignty; and
(c) accordingly, if native title rights and interests are established, then they are held by the relevant groups identified to have held those rights at sovereignty – which in WAFIC’s submission (assuming continuity, in respect of which WAFIC adopts the submissions of the State) are the groups identified by reference to, inter alia, dialectical differences.’ (Citation omitted)
347 The local government authorities represented by Mr Wittkuhn put no submission concerning the laws and customs relating to land at date of settlement.
(g) Conclusions
348 The issue for determination, in this section of my reasons, is whether, at settlement, there was in the claim area a single normative community, with members throughout and beyond the claim area (as the Applicants contend), or a number of normative communities who occupied discrete, smaller territories, perhaps similar in size and location to the dialect areas identified by Tindale (as several respondents say).
349 In evaluating that issue, the evidence concerning laws and customs, at settlement date, pertaining to land is of cardinal importance. In relation to that matter, it is significant that Dr Brunton conceded the existence, at date of settlement, of a ‘considerable degree of cultural similarity’ throughout the whole claim area, including in relation to laws, customs and beliefs. When pressed by Mr Hughston to identify any regional difference in the land laws and customs of the claim area, Dr Brunton mentioned only the difference in descent rules claimed by Bates. Bates stated that, from Augusta up the coast to Jurien Bay, children took descent from their mothers; over the remainder of the ‘Bibbulmun’ area, from their fathers. On the evidence, it is not clear that Bates’ distinction was well-founded; neither Dr Brunton nor Dr Palmer thinks it was. However, the important point, made by counsel for the Applicants, is that, despite this perceived difference, Bates wrote that, throughout its whole area, the ‘Bibbulmun Nation’ was ‘one people, speaking one language and following the same fundamental laws and customs’.
350 There is considerable common ground regarding the position, at date of settlement, concerning laws and customs relating to land. The following matters seem to be clear:
(i) In dealing with widely-scattered geographical areas, the early writers reported normative rules that differed from each other only to the extent that Bates detected a more rigid system of descent than the other writers; and thought it differed between one part of the claim area and the remainder;
(ii) At the date of settlement, the normative system governing rights to land was that of a larger community than either the ‘tribes’ mentioned by some of the early writers or the ‘estate groups’, or ‘country groups’, mentioned by Dr Brunton and Dr Palmer. It was that normative system which supplied to members of the smaller groups their rights to occupy and use particular areas of land, and imposed on them obligations to allow certain others to use that land for certain purposes, such as food-gathering and ceremonies;
(iii) This normative system was not formulated or enforced by any over-arching authority. The normative system derived its force from the fact that it was part of a mosaic of laws and customs that were generally observed by a community of people larger than the various ‘tribes’, ‘estate’ groups or ‘country’ groups; and
(iv) The present parties agree, first, in rejecting the notion of a geographical difference in descent rules and, second, in postulating a general rule of patrilineal descent, subject to exceptions. However, there are differences between the expert witnesses in this case, and amongst other anthropologists, concerning the nature and extent of those exceptions.
351 I defer any final view about the 1829 situation. At this stage, I merely note that the apparent lack of points of distinction between the laws and customs governing land use and occupation in different parts of the claim area, at date of settlement, is something that tends to support the view that the people within that area were then a single community, for the purposes of s 223 of the Act.
(vi) Customs and beliefs
(a) Circumcision
352 All parties accept that, at date of settlement, there was a ‘circumcision line’ whose location roughly corresponded with the northern and north-eastern boundaries of the claim area. The line was mentioned by a number of writers. Its position was identified in various publications, including Bates’ 1907 map Geographical Distribution of Tribes. In describing the Bibbulmun Nation’s area, Bates commented that ‘all along its landward boundary [that is, to the north and north-east of the line] were the circumcised tribes’. Circumcision was not practised south of the line.
353 In a discussion about the role of cultural differences, in delineating a society, Dr Brunton acknowledged the significance of the fact that circumcision was not practised in the claim area. He said:
‘… certainly they didn’t have circumcision and sub-incision and the fact of that would have been quite important in how the Aborigines coming in from other areas, as they did either accompanying droving teams or being moved, saw them.’
354 Dr Brunton was here speaking of the post-settlement situation. However, the pre-settlement position must have been the same. To the extent that pre-settlement Aborigines were aware of a different custom concerning circumcision, it must, for them, have been a marker of the existence of different communities.
(b) Kangaroo skinning
355 Nind, Moore and Hassell all described the practice of wearing a kangaroo skin cloak, reaching nearly to the knees. Although they were observing Aborigines in different geographical areas, Nind and Moore gave consistent descriptions of the method of cloak manufacture.
356 In his memoirs, Salvado (at p 154) described two Aboriginal methods of cooking a kangaroo. Both methods were apparently used in the New Norcia area; the choice between them depended on the cook’s urgency to eat. Even the speedier method included removal, from the carcass, of ‘the entire skin right up to the neck’.
357 Although the evidence on this topic is not as clear as that relating to circumcision, it seems that, in the areas immediately outside the claim area, it was not usual practice to skin kangaroos. In those areas, kangaroos were cut up and cooked unskinned; kangaroo skins were not made into cloaks. In his report, and basing himself on his own experience, Dr Palmer said ‘the skinning of kangaroo was not preferred practice in many Aboriginal societies to both the north and east’. He said that, in Western Desert cultures, ‘a kangaroo must not be skinned and a series of normative rules dictate how the animal will be gutted, cooked and subsequently shared’.
(c) Spiritual beliefs
358 In his report, Dr Palmer sought to summarise, and put into context, the early writings about spirits and death. He said:
‘The accounts of early writers present a picture of South West Aboriginal society that was deeply informed by reference to spirits, death and the after life of the departed. In my view this typifies a society that made of the spirit world a preoccupation that informed much belief, action, opinion and emotion. Several consequences flowed from this. First, there existed in parallel with the here and now, that is the physical world of people and things, a spirit world that had to be accommodated, placated and negotiated. This meant that certain things could not be done, particularly travel at night and to certain places known to be the resort of spiritual entities. Certain things also had to be done typified by the lighting of fires or the provision of grave goods. The known world was then resonant with spiritual presences, many of which were at best ambiguous, most dangerous. Activity in country needed to accommodate the eventualities of the spirit world and people had to be on guard to ensure their safety.
Second, the event of death had repercussions beyond bereavement. Death released spirits into the world that had to be understood and encouraged to go their way peacefully, leaving the living to their own devices. This meant that funereal practices were important public rituals which served not merely to dispose of the dead and farewell a loved one, but to enter into and manage a relationship with the spirit world. Added to this was the importance, recorded in some accounts discussed here, of establishing the cause of death – usually attributable to a person.
Some writers reviewed here regarded the belief in spirits and the spirit world as ‘superstition’. They equated it with a belief in ‘ghosts’ which was familiar to them from their own culture. However, in my view, these beliefs in the spirit world constitute a more substantial body of belief and its management a system of rules and laws. The following of these rules were considered to be essential for maintenance of peaceful relationships between the living and the dead. The scrupulous observance of rules that determined how one dealt with the spirit world constituted an important part of Noongar culture. It was a culture that reverberated with spiritual reference and this was a notable feature of its manifestation.’
359 Dr Palmer cited references in Barker, Armstrong and Bates to an Aboriginal belief that the spirits of the dead remain present, inhabiting the land. Dr Brunton did not disagree with Dr Palmer’s opinion about the central importance of spiritual beliefs in Aboriginal culture at date of settlement. However, he was sceptical of the view that those beliefs were peculiar to the claim area. For example, he accepted, during the course of his cross-examination, that there was a belief in the claim area about the continued presence of the dead, but he added ‘that’s a fairly common belief in Aboriginal Australia’. The evidence went on:
‘MR HUGHSTON: Yes. And there are other instances, though, aren't there, where people didn't display the fear of the ghosts or the spirits when they believe that they were encountering the spirits of their deceased relatives?
DR BRUNTON: That's true. Well, they - they - you're referring to situations where they encountered Europeans who they believed were [returning] - - -
MR HUGHSTON: Yes. Yes.
DR BRUNTON: Yes, that's true.
MR HUGHSTON: It's a characteristic, isn't it, of this region, that the early European settlers described the Aboriginal people as believing that the early settlers were the ghosts, or the spirits, of their own recently deceased relations and friends.
DR BRUNTON: That's true. I'm not sure whether that also applies in other parts of the country. I just can't answer that.
MR HUGHSTON: Yes. Well, you're not sure, because there isn't literature like that for the rest of the country, is there? It's quite unique.
DR BRUNTON: As I said, I'm not - I can't answer that.
MR HUGHSTON: Alright. So we have a situation where there is a - described in the early ethnography a widespread belief in the spirits of the deceased people being present in the land, some of those spirits can be dangerous and malevolent, but others, if they're the spirits of your own relatives, are not to be feared.
DR BRUNTON: Yes. In general terms, yes.’
360 Dr Brunton mentioned ‘fears about going into deep pools because of wagyls’. More generally, he agreed there is ‘described in the early ethnography a belief in the existence of dangerous places, places that had to be avoided’. He agreed Bates had described these as ‘winitj places’, and this word had been used by a number of the Aboriginal witnesses in these cases. Mr Hughston put to him: ‘So that’s clearly a belief which appears to have its roots in the pre-sovereignty past?’ Dr Brunton agreed.
361 One of the criticisms Dr Brunton made about the Applicants’ case was the absence of Aboriginal evidence about performing site-specific rituals, to remove the danger lurking in particular places. Mr Hughston put to Dr Brunton that there was an absence, in the early ethnography, of ‘descriptions of specific site or land related rituals’. As I understood it, Mr Hughston’s point was that site-specific cleansing rituals had never been part of south-west culture. Dr Brunton drew attention to a description by Bates of a black swan ceremony. However, Dr Brunton conceded Bates did not state this was a site-specific ceremony, and that he could not cite any other reference to a supposed site-specific ritual or ceremony. Mr Hughston then drew his attention to Armstrong’s reference to ‘certain ranges of hills … between Mr Trigg’s lime kiln and Fremantle which they consider very unlucky to pass over and that all who cross them are likely to die soon’. The evidence went on:
‘Again, that's the avoidance, [of] dangerous places we were talking about earlier. Is that right?
DR BRUNTON: Yes.
MR HUGHSTON: “They call the mountain that contains the cavern discovered by Mr Dale on the bank of the Avon the Mountain of the Moon because they believe that the moon once entered that cavern and left the print of her hand on its side, but they had never used it as a temple.”
Presumably, that means they have never performed ceremonies there.
DR BRUNTON: Yes.
MR HUGHSTON: And then he goes on to say:
“Neither are they known to perform there or elsewhere any idolatrous rite or ceremony.”
DR BRUNTON: Mm.
MR HUGHSTON: So it appears obvious, doesn't it, that the early inhabitants, occupiers - Aboriginal occupiers of the southwest were not particularly into, if you like, land or site-specific rituals?
DR BRUNTON: Well, yes, according to this, they're not into [any] kind of rituals at all.’
362 In the course of discussing the position in south-west culture of spiritual beliefs, Dr Brunton mentioned ‘wagyls’ (or ‘waugals’). He referred to descriptions of the waugal given by Moore, Armstrong, Salvado and Bates. Bates said:
‘… in the south west the waugal was usually perceived as a huge snake which had made various features of the landscape within its own district. In some parts it was believed to have journeyed through certain districts, leaving traces of its travels at specific places, which were always “sacred” or “forbidden”. In particular, the waugal made the rivers. In the south western region local traditions relating to the waugal varied as to whether it was “an avenger, guardian spirit or healer”.’
363 Although he did not, Dr Brunton might also have mentioned Armstrong’s reference to ‘a malignant spirit called Meetagong, which prowls around at night and catches hold of them, if they go by themselves to any distance from the fire where the rest of the party lie’: see para 157 above. Many of the Aboriginal witnesses in this case mentioned their belief in the existence of wudatji, small creatures about three to four feet in height, who behave in a similar way.
364 Dr Brunton also mentioned Bates’ reference to ‘baby-stones’ places, where women go when they wish to conceive. He said: ‘[t]he place was taboo at all other times, and men always kept well away from such stones’.
365 Dr Brunton identified a number of other winnaitch places in the Perth area mentioned by Bates. Dr Brunton concluded:
‘The Perth Metro and Bodney claim areas clearly included many places which were set apart in various ways, and where certain kinds of behaviours, including total avoidance, were required; these behaviours most probably depended to some extent on the individual’s relationship to the estate on which the site was located, as well as other factors, although some places may have been avoided by everyone. While such places are commonly referred to nowadays by the blanket term “sacred site”, the phrase is misleading if it is taken to imply the kind of veneration that non-Aboriginal Australians tend to associate with the term “sacred”. Terms such as “dangerous places” may be preferable.’
366 While there seems to be no dispute about the existence, at settlement date, of numerous dangerous places in the claim area, the significance of that fact, in the present context, is unclear. As I understand the situation, the existence of ‘sacred sites’, or ‘dangerous places’, is a feature of Aboriginal tradition throughout much (if not all) of Australia. Similarly, I understand many Aboriginal communities have a traditional belief in a creature like the waugal. I am unaware of the position in relation to wudatji. In the absence of evidence that the apparently widespread belief in these creatures throughout the claim area distinguished people in the claim area from those outside it, I cannot be satisfied that the sharing of these beliefs adds weight to the claim that, in 1829, there was a separate, distinctive community throughout the claim area. That does not mean evidence of present-day adherence to these beliefs is unimportant; such evidence is relevant to the question whether people continue to adhere to the traditional laws and customs of such a community, if its existence is established on other evidence. I see no reason to read down the reference to laws and customs, in s 223(1) of the Act, so as to exclude laws and customs that are observed by a particular community in common with Aborigines in other communities.
367 The evidence also establishes Aboriginal belief in the powers of the ‘mubarn’ (or ‘bulya’ or ‘mulgarradock’) – ‘Noongar doctors’ or ‘clever men’ – at date of settlement. Dr Palmer said these powers:
‘… included an ability to foretell the future, practice divination, particularly with respect to establishing the cause of death of a person and being able to cure illness or injury.’
368 Dr Palmer cited references to the mubarn in numerous early writings. There is no controversy about those references. It is also clear that many contemporary Aborigines entertain these beliefs. However, it is important to note Dr Palmer’s statement that the ‘equivalent of Noongar doctors are recorded for many other areas of Aboriginal Australia’.
(d) Marriage
369 It is evident from the early writings that the Aboriginal population of the south-west had rules about marriage at settlement date. Their content is less clear. Nind commented that, in marriage, ‘they have no restriction as to tribe; but it is considered best to procure a wife from the greatest distance possible’. Nind saw this as a pragmatic consideration; ‘[t]he sons will have a right to hunt in the country from whence the mother is brought’.
370 Nind wrote about ‘divisions and subdivisions of tribes’, and stated some names (for example, Erniung, Tem, Montcalon and Torndirrup – see para 142 above). However, his observation that there was ‘no restriction as to tribe’ suggests the existence of these divisions and subdivisions did not dictate or restrict the choice of marriage partners. Nind said the divisions ‘are very much intermingled’. The divisions seem to have been geographically based. Nind said the Moncalon is ‘prevalent to the eastward of our establishment, and the Torndirrup to the westward. They inter-marry and have each again their subdivisional distinctions, some of which are peculiar, and some general’. What that meant, he did not explain.
371 Bates seems to be the only early writer who detected the existence of different rules of descent (maternal and paternal) governing rights to land. She made the comment that, at a ‘borderline where the two lines of descent met, the tribes were friendly with each other, intermarrying and adjusting their “in-law” relationships to suit the form of descent obtaining’. It is unclear to me whether this comment was relevant to choice of marriage partners. At p 55 of The Native Tribes of Western Australia, Bates referred to the ‘Karratjibbin Groups’, who lived outside the claim area. She said:
‘The name Karratjibbin has been applied to this nation, as it was the term supplied by my Southern Cross informants, for their chief camping ground in that locality. Only a few weeks could be devoted to this most interesting people, but sufficient information was obtained to justify their separation from the Southwestern nation and also from the central areas.
...
The peculiar organisation existing amongst these people differentiates them from every other known tribe in the West. They possess a two-moiety system, which in this respect links them with their south-western neighbours, but with the important difference amongst the Karratjibbin people of each moiety marrying within itself and producing the other moiety. …
Whether the area of these people extends further than the limits mentioned, could not be ascertained in the short time allowed for investigation ... I found the system amongst the Norseman district natives and in the Mt Jackson group. Their social organisation, customs, laws, initiation, etc., coincide with those of their eastern, north-eastern and south-eastern neighbours, with whom they have traded their local products. Whether they exchanged boys for initiation with these neighbours I could not discover. The rule was to send a Southern Cross Karratjibbin boy to Mt Jackson, and vice versa. A Norseman district boy went to Karratjibbin.
The various groups composing the ‘nation’ held rights of possession to certain water-holes, hills, soaks, springs, etc. …
The Karratjibbin Nation borders the Bibbulmun on the north-east, and several of the latter were adopted into and circumcised by the Karratjibbin people.’
372 The territory of the Karratjibbin groups lay to the north-east of that of the ‘Bibbulmun Nation’. Consequently, Bates was saying that the Karratjibbin two-moiety system ‘in this respect’ linked them with the Bibbulmun (‘their south-western neighbours’), ‘but with the important difference amongst the Karratjibbin people of each moiety marrying within itself and producing the other moiety’; implicitly, the Bibbulmun did not do this. That, however, left unclear what role (if any) the implied Bibbulmun two-moiety system played in regulating choices of marriage partners.
373 In relation to differences between the Aborigines living in the claim area at date of settlement and those immediately outside it, it is interesting to note Bates’ general observation about the Karratjibbin: ‘Their social organisation, customs, laws, initiation etc, coincide with those of their eastern, north-eastern and south-eastern neighbours’. Implicitly, they did not coincide with those of their south-western neighbours, the Bibbulmun.
374 It will be apparent from the extract from Dr Brunton’s evidence quoted at para 315 above, that he was of the opinion that, at date of settlement, there existed in the claim area, two distinct moiety systems governing choice of marriage partners. It appears from para 4.2.3.3 of his report that he based this opinion upon Bates’ reference to a ‘two-moiety system’.
375 Dr Brunton’s para 4.2.3.3 seems to intermingle moiety divisions relevant to marriage with descent rules governing access to land. Nonetheless, it may be correct to attribute to Bates a belief that moiety rules governed choice of a marriage partner in the claim area. The problem is that the available material does not establish the nature of the rules or the extent to which they imposed a restriction on the choice of marriage partners. All that may be said is that, whatever the content of those restrictions, Bates thought the situation to be different amongst the Karratjibbin groups to the north-east of that area.
376 The evidence clearly establishes the existence of two marriage practices, in the claim area at date of settlement: infant betrothal and a brother – possibly only a younger brother – marrying the wife or wives of a deceased brother. However, I believe these practices were once widespread in Aboriginal Australia. It has not been suggested by any party that the existence of either of them assists to identify the relevant south-west community at date of settlement. In the result, I obtain no assistance from marriage rules or practices in forming a view as to the existence of a Single Noongar community in the claim area at that date.
(e) Sexual transgressions
377 At para 133, I set out Dr Host’s summary of Barker’s report about sexual transgressions. It appears from the summary that there were firm rules about sexual conduct in the King George’s Sound area at the date of settlement. However, there is no material that enables me to determine the geographic area over which these rules applied.
(f) Payback
378 Payback is mentioned by Lockyer (see para 128 above), Barker (para 134), Lyon (para 154), Armstrong (para 159) and Salvado (para 174). There is no doubt about the existence of the practice at date of settlement. However, there is no material to suggest, or reason to believe, that the practice was different in the south-west to other parts of Aboriginal Australia.
(g) Funeral rites
379 At para 188 above, I quoted Dr Palmer’s comment, that ‘funereal rites were particularly important’. Earlier, I mentioned Dr Host’s comment that Moore’s description of an Aboriginal burial, in 1838, in Upper Swan was consistent with Collie’s description of Mokare’s burial at King George’s Sound in 1832 (see para 172).
380 Almost all the Aboriginal witnesses in these cases talked about the importance of allowing time, before the funeral, for the spirit to depart the body and, also, the manner in which the body had to be laid in the grave. The evidence about the last-mentioned matter was not entirely consistent; there may be some regional variation in respect of that matter. Nonetheless, it is clear that funeral rites are, and always have been, a central element in south-west Aboriginal culture. What is not clear is the extent (if any) to which funeral practices in the south-west differ from those elsewhere in Australia.
(h) Tools, weapons and food-getting
381 Many of the early writers (including the maritime explorers) described Aboriginal tools, weapons and food-getting. Their reports establish that the south-west Aborigines, before and at date of settlement, were a resourceful people whose way of life was well-adapted to their environment. I have not discerned any regional variation in the writers’ accounts, except for the obvious fact that fishing was only available to those Aborigines who enjoyed access to substantial bodies of water. For those people, it seems fish were important. Nonetheless, and importantly in relation to the nature and extent of any native title rights that may be held to exist in the present case, it is clear that pre-settlement Aborigines did not use canoes or any other form of water-craft; neither were they confident swimmers. Lyon (para 152 above) said the people near Perth had ‘not the least inducement to attempt navigation, even swimming is unknown among them’. Armstrong (para 165) said the coastal Aborigines ‘have no knowledge of the use of canoes, or any substitute’. It seems fish were sometimes caught in nets and weirs, but mainly were speared.
382 The comments on fishing by Lyon and Armstrong are consistent with the evidence of the Aboriginal witnesses called in this case. Although many of these witnesses lived in coastal communities, none of them gave evidence of an oral tradition, or long-standing practice, of using boats for fishing. The only evidence was of fish, and other marine animals, being taken by persons standing in the water or on dry land, such as headlands or riverbanks or islands accessible by wading.
383 The evidence before the Court in relation to tools, weapons and food-getting does not assist me to determine whether the people of the south-west should be regarded in 1829 as a single community. The material does not disclose differences between the tools and weapons used, and practices followed in respect of food-getting, in different parts of the south-west. But neither does it indicate that any of these customs differed from those followed elsewhere in Aboriginal Australia.
(vii) Social interaction
(a) The early writers
384 One subject that permeates the early writings is the extent of interaction between local groups, or ‘tribes’, and Aborigines further afield. Even a casual visitor to King George’s Sound, D’Urville, noted (in Dr Host’s words) that ‘their Aboriginal friends travelled very long distances, often far from the seaboard’: see para 127 above. That behaviour of the King George’s Sound Aborigines was confirmed by Barker (paras 134 and 138 above) and Nind (paras 143 and 144).
385 The early Perth writers also noted widespread travel. The York Aborigines apparently came to Perth (about 60 miles/100 km) for a battle in 1834 (para 148 above). Armstrong recorded sources of the Perth Aborigines’ spears, including the ‘very best spears’ that were brought by ‘their southern friends’ from ‘two or three miles south of the Murray’, perhaps also a distance of about 60 miles from Perth (para 162). Armstrong noted the ‘Swan tribes’ had regular contact with ‘at least ten surrounding tribes’ – to the north, north-east, east, south-east (Canning) and south (Mangles Bay and Murray) (para 163). Armstrong did not identify all the tribes. However, the cumulative area of their territories must have been considerable.
386 By the time Bates conducted her research, the situation must have been much changed. However, she seems to have made enquiries about travel from the old people she interviewed. In The Native Tribes of Western Australia, Bates reported ‘constant intercourse from time immemorial’ between all the ‘Bibbulmun people’. She said they ‘assembled at any point between Augusta (Cape Leeuwin) and Cockleshell Gully(Jurien Bay district) for various purposes … there was in fact a main irregular highway north and south, with branches eastward here and there over the hills wherever relationships extended’: see para 183.
387 If Bates’ report is correct, there was regular contact between all the west coast people. Moreover, they were in contact with people ‘over the hills’ to the east. Bates does not say how far east. However, she noted interaction by the people ‘over the hills’, with both those of the west and other eastern tribes (‘[t]here was also free intercourse between the Minung (Eastern) Bibbulmun and the Western Bibbulmun’): see para 186. Although Bates must have known European settlers had opened up additional, perhaps easier, lines of communication, she seems to suggest this widespread intercourse predated settlement. She said the ‘living members of the various groups state that they could always travel through any area in which a relation existed, the term relation being used in its widest sense’. (My emphasis)
388 Perhaps the best guide to Bates’ perception of the degree of interaction at settlement date, between the west coast Aborigines and those ‘over the hills’ to the east, is her opinion that there was a Bibbulmun nation whose territory extended all the way to the Esperance district.
389 The early writers noted the occasions of interaction between tribal groups: trade, feasting, ceremonies, wife-getting and fighting. As previously noted, there were rules under which particular land ‘owners’ had to submit to the intrusions of others, at least at particular times or in particular circumstances. There appears also to have been a custom whereunder land ‘owners’ accepted food-getting intrusions by friendly neighbours; perhaps subject to reservation of some pre-eminent rights, such as burning the country.
(b) The Aboriginal evidence
390 The impression about social interaction conveyed by the early writings obtains some support from the Aboriginal evidence in this case. I will deal with that evidence in the next section of my reasons, in discussing the situation since 1829. For present purposes, it is sufficient to say the evidence suggests a long-standing tradition of social interaction between people resident in widely-scattered parts of the claim area. However, in considering that evidence, it is necessary for me to bear in mind that opportunities for interaction would have increased enormously after 1829. The desire for wide interaction may have been increased by the pressures put upon the Aboriginal population by white people and the making of further-flung marriage connections. Interaction would have been forced upon Aborigines in some cases; for example, by government authorities taking people of different ‘tribes’ to a common institution such as Moore River or New Norcia. Accordingly, I give the contemporary Aboriginal evidence about interaction little weight in relation to the 1829 issue.
(viii) The expert evidence about the 1829 situation
(a) Dr Palmer
391 In his report, Dr Palmer reviewed the early writers and expressed the opinion that they provided ‘substantial evidence … that there existed a discrete society within the South West of Western Australia’ at date of settlement. He went on:
‘I have reviewed the use of a single term for the members of this cultural bloc and shown that the term “Noongar” (or its variants) has long been employed to identify the members of this society. I have also noted that early writers identified a number of other names that, in my view, identified groups within the larger society. The names were non-exclusive and provided a means of identifying groups in relation to particular characteristics, such as place of normal residence or by reference to their location from the perspective of those who utilised the name.’
392 Dr Palmer said:
‘Based on my reading of the literature … the cultural society of the South West was marked by a preference for seeking a wife who came from that cultural society, but from a group other than that to which the man belonged. As a consequence, there was a forging of inter-community relationships, social and cultural interactions (including joint ritual activities) which both developed and enhanced social alliances and facilitated economic inter-dependencies. The occupants of the area also exhibited a distinct material culture, a detailed knowledge of their natural environment and employed domestic customary behaviour which further identified them as a cultural unit. Finally, there was across the whole region a similarity of language which found expression in regional dialects. These aspects of Noongar culture do not represent a complete account of the traditional laws and customs as recorded by the early observers.’
393 In his reply report, Dr Palmer referred to Bates’ reference to the ‘Bibbulmun Nation’. Dr Palmer said he shared ‘Dr Brunton’s misgivings about Bates’ use of the term ‘nation’’. However, he thought Dr Brunton ‘is wrong to dismiss the evidence she provides about the social relationships that existed between those she identified as Bibbulmun’. Dr Palmer thought Bates established the Bibbulmun, ‘while made up of many dozens of different groups’, were linked in five ways:
‘• one language;
• possessed similar customs and laws;
• were identified in contrast to their neighbours by the non-practice of circumcision;
• enjoyed extensive social intercourse between neighbouring groups and those more distant;
• enjoyed rights to multiple countries, sometimes at some distance from one another.’
394 Dr Palmer noted Dr Brunton had shown that Bates ‘was a thorough ethnographer’. He commented:
‘I think then that his dismissal of Bates’s considerable body of ethnography relating to what she perceived of as a single Bibulmun society is unjustifiable in his own terms. My own view is that Bates provides substantial grounds for concluding that the people of the South West could properly be regarded as constituting a single society. Bates’s reasons for reaching such a conclusion were based on her own observations of what she considered to be traditional (that is, pre-sovereignty) aspects of the society.’
(b) Dr Brunton
395 It is convenient to begin by setting out the following paragraph in the concluding section of Dr Brunton’s report.
‘Was there a single Noongar society covering the South West of Western Australia at sovereignty? Even using the broadest interpretation of society I do not think that it is possible to state that there was a single Noongar society covering the south west of Western Australia at the time of sovereignty, as the available evidence suggests that there was no sense in which the occupants of the region had a sense of unity, or even an awareness of the existence of substantial numbers of the other occupants. There were no all-encompassing relationships or structures, and the fact that contemporary anthropologists and linguists can now discern many cultural and linguistic similarities across the region does not necessarily signify a single society. In any case, in regards to the seemingly important characteristic of social categorisation – moieties and semi-moieties – there were two different rules or laws within the region, and it is possible that these had consequences in terms of certain relationships to land.’
396 In the main body of his report, at section 4.2, Dr Brunton discussed this question. Dr Brunton thought the word ‘nation’ was inappropriate; ‘there is no evidence of any “compact” or preparedness to combine amongst the various constituent groups who … did not necessarily know of each other’s existence’.
397 Dr Brunton referred to statements of some of the early writers, in order to argue that Bates had overstated the degree of intercourse between members of the ‘Bibbulmun nation’. Dr Brunton’s examples are difficult to evaluate; there are too many ambiguities in the place names he cited. However, Dr Brunton is undoubtedly on firm ground in saying that, although Dr Palmer claims ‘evidence from the early literature that people travelled widely over the South West’, ‘he adduces nothing to suggest that at the time of sovereignty any one group or person knew of, let alone moved through, the whole of the area covered by the Single Noongar Claim, or even a substantial part of it’.
398 While conceding ‘a considerable degree of linguistic and cultural similarity across the south-west of Western Australia’, Dr Brunton said: ‘it does not necessarily follow that this was acknowledged by the people themselves, or that any such recognition had consequences in terms of social organisation, land tenure, etc’.
399 It is clear that lack of mutual knowledge and acknowledgement was fundamental to Dr Brunton’s rejection of the suggestion of a single Noongar community. There is a question whether such knowledge and acknowledgement is necessary, for the purposes of s 223(1) of the Act.
400 Dr Brunton went on to refer to moieties and semi-moieties. However, as I have indicated, the material on this subject is inconclusive.
401 Dr Brunton referred to Tindale’s work. He said he largely shared Dr Palmer’s reservations about Tindale’s ‘tribal model’. However, he went on:
‘Nevertheless, despite the many questions that can be raised about Tindale’s model and the boundaries he delineated, I do not think the fact that he identified thirteen different “tribes” which are wholly or partly encompassed by the Single Noongar claim … should be dismissed too readily. A number of names that Tindale identified in the south of the Single Noongar claim area were also obtained in slightly variant forms as names for ‘languages’ or dialects nearly a decade earlier by Gerhardt Laves … And as Dr Palmer acknowledges, some had been recorded by the very early European settlers ... These names may only have represented “dialect units” … but at least in the case of those which were provided by Aborigines themselves as names for their form of speech, they also point to a sense of differentiation from the people who spoke other named forms of speech, an indication of the Crawfords’ point about the keen interest that Aborigines in the south west had in perceived cultural and physical differences between groups ...
Certainly, Dr Palmer is justified in noting “the complexity and diversity of the nomenclature of identity” … the likelihood that “identity names may not be exclusive”, and the danger of thinking that the names recorded by the early writers are “indicators of fixed social groups” ... But the ambiguities and uncertainties surrounding the precise referents of identity names of the kind that Tindale and others recorded does not mean that they were of little import compared to a supposed primary significance of a regional identity as “Noongar”. As will be clear from my discussion so far in this chapter, I have not seen any evidence in accounts from observers writing in the early decades of European settlement that would persuade me that the various groups who are now encompassed by the term “Noongar” saw themselves as having a significant common identity.’
402 I have omitted Dr Brunton’s citations in this passage. However, it should be noted that, in footnote 452, Dr Brunton makes clear that he has merely inferred that some tribal names ‘were provided [to Tindale] by Aborigines themselves’. Apparently, Tindale did not say so.
(ix) Submissions about the 1829 situation
(a) The Applicants’ submissions
403 Counsel for the Applicants commenced their closing submissions by discussing the evidence about the matters discussed above. I need not set out their comments, except to note that, in relation to marriage, counsel said:
‘Bates stated that from Jurien Bay to the Donnelly River, (West of Pemberton), a child gained the moiety of their mother but over the rest of the “Bibbulmun” area, from their father. This regional difference in the way in which a person obtained their moiety, is the only internal difference which Dr Brunton could identify within the body of laws and customs which were acknowledged and observed by the Aboriginal population of the southwest at sovereignty. The main, almost the only, source of information about moieties in the southwest is the writings of Bates and she was, of course, well aware of this internal regional difference in the means by which a person acquired a moiety identity. Dr Brunton acknowledged that Bates was aware of this difference when she wrote that the people of the southwest acknowledged and observed the same fundamental laws and customs.’
404 Counsel for the Applicants concluded their review of the evidence by submitting:
‘that there can be no real argument that the Aboriginal people who occupied the Perth Metropolitan claim area at the time of sovereignty, were part of a larger society of Aboriginal people, who occupied the whole of the area encompassed by the Single Noongar claim, and who acknowledged and observed the same, or essentially the same, laws and customs.’
405 Counsel recognised that Dr Brunton did argue against that position. However, they contended Dr Brunton’s argument was flawed by his insistence that there could not be a single Noongar community unless the people themselves knew of, and acknowledged, their commonalities in culture and language: see para 395 above. Counsel commented:
‘In the High Court's explanation of the meaning of the term “society” in Yorta Yorta, there is no requirement that the members of the society subjectively possess a “sense of unity” or “an awareness of the existence of substantial numbers of the other [members of the society]”. Similarly, there is no need to establish the existence of any “all encompassing relationships or structures”. All that is required is that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a “society”.’ (footnote omitted)
406 Counsel said that, in De Rose, both the primary judge and Full Court:
‘accepted that the relevant “society” was the Western Desert Bloc, because the laws and customs that exist throughout the Western Desert “are essentially the same”. The Full Court noted that it had been estimated that the population of the Western Desert prior to European contact may have been 18,000 persons living and moving over an area of some 250,000 square miles. It would be unreal to suggest that at sovereignty, the members of that far-flung society in the Western Desert, had any subjective sense of unity or even an awareness of the existence of substantial numbers of other members of the society. (footnotes omitted)
(b) Respondents’ submissions
407 In their closing submissions, counsel for the State correctly said that the ‘Applicants say that at sovereignty there was a distinct society of Aboriginal people in the south-west of Western Australia, which they describe as “Noongar”. The distinguishing characteristic is said to be shared law and custom’. They went on:
‘That immediately raises the question – distinct from whom? Although Dr Palmer was of the opinion that there was a single Noongar society based on shared law and custom, he was unable to define the geographical extent of the Noongar society. The [Applicants] seek to distinguish Noongars from Yamatjis to the north and Wongais to the east. However “Yamatji” and “Wongai” are clearly not precise anthropological terms. Dr Palmer explained that Wongai is a coverall term for a lot of different groups that are broadly speaking part of the Western Desert cultural bloc. They do not adjoin Noongar country, but rather between “Noongars” and “Wongais” there were other “transitory groups, if you see them as marked cultures”. In our submission, although there was frequent reference in this case to “Wongai” and “Yamatji” people and country, those are very generic labels for a number of different groups (in the same way Noongar is a generic label for groups in the south-west). There is no clear delineation between these groups.’
408 Counsel’s reference to Dr Palmer’s evidence was not incorrect. However, that evidence should be read in its context. Dr Palmer explained, in answer to a question as to ‘the boundary of the Single Noongar society’:
‘Well, I’m limited of course by the fact that I only did research within the application area, so had I done research outside perhaps I could answer that question definitively, but I am aware from other research that I’ve done not connected with this inquiry that – and I think it’s also borne out in evidence - that there appears to be an understanding that Noongar extends further east in the southern portions of the application area.’
Dr Palmer said he thought all the claim area was within the territory of the single Noongar society.
409 In their closing submissions, counsel for the State noted that ‘Dr Brunton accepted that the various groups in the south-west of Western Australia may be classified as forming a cultural bloc, in the sense that they may objectively be seen as having many similar laws and customs’. However, they said, ‘there is no sense in which those similarities combined to define a particular group of people or a particular area of land as being distinct from neighbouring groups’. Counsel then offered the following summary:
‘(a) Language: There was a group of “Noongar” languages, some of which extend east beyond the SNC # 1 claim boundary, which languages are part of a near Australia wide Pama Nyungan language family. Within that group there were in the order of 13 separate languages or dialects. Within the SNC #1 claim boundary there was also a distinctive difference in place names, which fall into two categories - the “up” and the “ing”.
(b) Circumcision: The eastern boundary of the alleged Noongar society is said to have been the line beyond which Aboriginal groups did not circumcise. However the location of the circumcision line is unclear, the absence of the practice of circumcision continued northwards up the western coast of Australia into the Pilbara, and it seems some “Noongar” people may have been circumcised.
(c) Laws and customs in relation to land: There was similarity throughout the whole of the south-west and beyond. In the First Respondent's submission, the normative rules in relation to land in the south-west are essentially the same as those further north including the Pilbara and Kimberley. Even on the SNC Applicants’ case there is said to be similarity between the south-west and the Western Desert systems to the east.
(d) Moieties and kinship: There were two different moiety systems in the south-west. There is no evidence of either moiety system, nor the likely kinship system, being different from those of neighbouring groups at any particular point further north or east of the alleged Noongar society.
(e) Wagyl: Belief in mythical serpents inhabiting water are common throughout Australia, and there is no evidence of a distinctive wagyl belief common to all groups in the south-west.
(f) Spirits: Belief in spirits, including deceased ancestors, was not unique to the south-west. For example, other Aboriginal groups also regarded Europeans as returning ancestors; and other groups believed in mischievous small people ... The performance of propitiatory rituals is also common to other Aboriginal groups.
(g) Treatment of kangaroos: Groups as far away as the Western Desert may or may not have skinned kangaroos, however there is no evidence of a boundary anywhere near the … claim boundary beyond which skinning stopped. Some groups further east also wore kangaroo skin cloaks and this may be the result of climatic factors as much as cultural ones.
(h) Clever men: Such people exist in most other Aboriginal groups outside the south-west. Indeed the word “mabarn” is also used in the north of the State.
(i) Funerals: There were different funeral practices in different parts of the south-west, and no evidence that any of those funeral practices were unique to the south-west.
(j) Respect for elders: Not unique to the south-west.
(k) Totems: There is no evidence of any unique system of totemism in the south-west at sovereignty.
(l) Use of fire: There is no evidence that the use of fire to hunt and care for country is unique to the south-west.’
410 Counsel for the State placed reliance on this summary. They said it demonstrates ‘that there are some differences in law and custom within the south-west region, and many similarities that extend beyond just the south-west corner of Western Australia. Hence there is nothing to demonstrate a set of laws and customs, shared by, and unique to “Noongar” country or “Noongar” people. To the contrary, the level at which there can be said to be the greatest similarity of law and custom is far more localised than the level of the whole south-west region.’
411 Having regard to this reliance, it is desirable immediately to say the summary appears to contain two important errors. First, I do not think the location of the circumcision line is unclear. It is a matter about which Bates and Tindale substantially agreed. I am unaware of any contrary anthropological opinion and the position of the line was confirmed during Aboriginal evidence in this case. I do not recall any evidence (as distinct from counsel’s suggestions) about the absence of circumcision extending up the coast to the Pilbara; none was cited by counsel in their submissions. No doubt it is true to say that some Noongar people ‘may have been circumcised’. However, the only reference to that possibility in the evidentiary material, I believe, is Bates’ statement about some Noongars being adopted by members of the Karratjibbin groups, and being circumcised at that time. That statement tends to confirm the significance of circumcision and non-circumcision as societal markers.
412 Second, counsel have not cited any material that supports their comment about the normative rules in relation to land in the south-west being essentially the same as those further north and similar to those in the Western Desert. I do not think there is any such material. The south-west land rules described by the early writers are quite different from those proved in De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290 (‘De Rose (No 2)), a Western Desert case.
413 In any event, as counsel for the Applicants submitted in reply, the fact that some particular laws and customs may also be acknowledged and observed by other Aboriginal groups is not inconsistent with the existence of a south-west society: see Jango v Northern Territory of Australia [2006] FCA 318 at [350].
414 Counsel for the State went on to say, correctly in my opinion, that there is ‘no evidence of any overall unity or political organisation amongst the various Aboriginal groups at sovereignty. In particular there is no evidence that the Aboriginal people in the south-west of Western Australia had a sense of identity as a distinct people’.
415 Counsel for the State turned to the identification of the relevant society, or community, at sovereignty. They noted Dr Brunton’s agreement:
‘that the laws and customs under which any estate group possessed rights and interests in land and had a connection to land were not the laws and customs of any particular estate group, but were the laws and customs of larger groups of Aboriginal people ...’
On that basis, counsel said, the State ‘does not contend that one or more estate groups or bands can, of themselves, be defined as the relevant society’.
416 Counsel then mentioned Dr Brunton’s opinion that, at sovereignty, there were some 12 or 13 separate societies in the south-west – this opinion being ‘based on Dr Brunton’s assessment of the range of movement of Aboriginal people in the south-west at sovereignty’. They said:
‘Dr Brunton was unable to clearly identify those societies because of the conflicting and uncertain nature of the early observations as to group names and locations and the fact it is impossible now to know exactly what those names refer to or the basis for the names.’
417 After referring to several of the early writers, counsel submitted that ‘Dr Palmer acknowledged that small groups in the south-west could be classified as societies according to his understanding of the Yorta Yorta definition’. Dr Palmer did say that. However, it is only fair to note that he immediately added ‘it wouldn’t be an exclusive category … the term could apply to smaller groups … that comprised a larger social formation’. Dr Palmer’s evidence continued:
‘MR WRIGHT: So, do I understand you then to be saying that at the level of Noongar society, is that the largest level at which one could realistically classify a society in this region?
DR PALMER: According to the definition that I think we’ve agreed upon, yes.’
418 Counsel for the State went on to say:
‘The [State] submits that Aboriginal evidence as to the precise situation at sovereignty must be treated with considerable caution in this case, because of the degree of disruption to Aboriginal culture and knowledge transmission in the south-west … and the fact, clearly disclosed in the evidence at trial, that many Aboriginal people have had regard to early records and the writings of anthropologists. Nevertheless, we note that the [State’s] submission as to the existence of a separate society in the Swan coastal plain at sovereignty is not inconsistent with the Aboriginal evidence about the Perth Metropolitan Area ... Note in particular Greg Garlett's description of the Wadjuk tribal group.’
419 In her closing submissions, counsel for the Commonwealth identified four factors which, she claimed, ‘are contrary to a finding of a single society in existence over the entire SNC claim area at sovereignty’:
‘(i) the existence of a number of dialects (or languages) in the SNC claim area which appear to accord closely in name and geographic area with “tribes” identified by Tindale (and others);
(ii) apparent differences in initiation practices;
(iii) different moiety systems in the south west; and
(iv) different burial practices.’
420 Counsel did not develop her submission in relation to any of these factors. Item (i) is certainly correct. Counsel did not identify any evidence about item (ii); nor could I find any. Item (iii) apparently depends on Bates’ comments. The evidence about (iv) is unclear. On the one hand, Dr Host noted the similarity in Collie’s description of Mokare’s burial at King George’s Sound and Moore’s description of a burial at Upper Swan. On the other hand, there may be a regional explanation for some apparent inconsistencies in the Aboriginal evidence about present-day burial practices.
421 Counsel went on:
‘Of particular relevance is the historical material indicating that groups referred to themselves (and others) by regional names such as Wills, Mineng, Yued etc, and asserted a territorial independence albeit that there was cooperation amongst neighbouring groups.
There is no evidence that supports a broad “south west” society which could be described as a “body of people forming a community or living under the same government”.’
422 The quotation in the final sentence comes from Sampi v State of Western Australia [2005] FCA 777 at [1042], where French J said:
‘The identification of an Aboriginal society which can be said to have existed at the time of colonisation and which continues to exist today, united by traditional laws and customs, under which it and/or its members can be said to hold native title rights and interests is no easy matter. So much was recognised in Yorta Yorta. The use of the term “society” imports into the determination process a criterion of eligibility for the recognition of native title that is to be implied from the words of the Act and the common law in the way expounded in Yorta Yorta. It must not become a Trojan horse for the introduction of elements or criteria foreign to the requirements of the Act and the common law for the recognition of native title. The term should be applied in accordance with its ordinary meaning as ‘... body of people forming a community or living under the same government’. The relevant community must be a community which at the time of colonisation observed a body of laws and customs that continue in existence today. The continuity of the society and its laws and customs is subject to the qualification already observed allowing for the evolution of both providing that the essential continuity is maintained.’
423 Counsel for WAFIC and the local government interests made observations about some of the factors considered in relation to the question whether there was a separate Noongar society at date of sovereignty. However, they added nothing, by way of submission, as to what answer should be given to this question.
(x) Conclusions about the 1829 situation
424 As French J remarked in Sampi, it is no easy matter to identify the relevant Aboriginal society, or community, for s 223(1) purposes. One problem is that the word ‘society’ may appropriately be applied at various levels of aggregation. This was demonstrated in an exchange between Mr Wright and Dr Palmer during the course of cross-examination:
‘MR WRIGHT: Yes, so, one could talk, for example, about an Australian society, about a Western Australian society, about a Perth society and so on. Would you agree that there are different levels at which one can articulate society?
DR PALMER: Well, there would be little articulation at such a level of generalisation, wouldn’t there, because the – the term – I think it then becomes, your Honour, like a weasel word, it’s lost its innards.’’
425 Dr Palmer is correct. It is necessary to identify the level of aggregation relevant to the particular context. In the present case, the inquiry is into ‘the communal, group or individual rights and interests of Aboriginal peoples … in relation to land or waters’ at date of settlement. So it is necessary to determine the community or group (the ‘society’, if you like), under whose laws and customs those rights and interests were held and observed. It does not matter that there may exist a smaller, or larger, group of people which may properly be regarded, for other purposes, as a ‘society’ or ‘community’.
426 The members of the ‘tribes’, noted by the early writers, and of Dr Palmer’s ‘country groups’/Dr Brunton’s ‘estate groups’, can properly be said to have constituted societies, or communities, at date of settlement. Those people lived together and shared the incidents and fortunes of life. However, it is agreed by all the expert witnesses in this case – I think consistently with the tenor of the early writings – that the normative system that bound the members of those groups was that of a larger community. The issue is: how much larger?
427 Dr Brunton expressed the opinion that there were many normative communities in the south-west at the date of settlement; he thought perhaps 12 or 13, perhaps roughly corresponding with the dialect groups. However, he was not able to cite anything in the early writings that supported that conclusion. When pressed for his reasons, he ultimately advanced two matters.
428 First, and consistently with his view about the essentiality of mutual knowledge and acknowledgment, Dr Brunton referred to the likely limits of travel in pre-settlement times. As I understood his argument, these limits would have had the effect of breaking the people of the south-west into a number of discrete communities.
429 I have no difficulty in accepting that there were travel limits in pre-settlement times. It is likely that people would have known only members of other ‘tribes’ whose land was close to their own territory. If Armstrong’s information about the Swan Valley tribes (para 385 above) is accurate and typical, regular interaction probably extended for only about 60 miles (100km) in all directions – possibly more in the open, less densely populated, parts of the claim area.
430 However, I do not see why the limits of travel would have given rise to a series of discrete communities, having fixed boundaries between them like those of the Australian States or the countries of Europe. For the Swan Valley Aborigines, life no doubt revolved around the river and the land upon which is sited the modern metropolis of Perth, with occasional contact with Aborigines at Murray River and, perhaps, quite rarely with people as far away as modern Bunbury. Presumably, however, the Murray River Aborigines also had contact with people living within a radius of about 60 miles around their area, including fairly frequent contact with those at modern Bunbury and occasional contact with people further south; and the Bunbury Aborigines with those at modern Margaret River, and so on. In the absence of any over-arching government structure, whose operations necessitated clearly-defined boundaries, I see no reason why it should be assumed that limitations of travel resulted in the creation of a series of discrete communities occupying identifiable territories.
431 It is important to note the absence of any correlation between the extent of the Swan Valley tribe’s regular contact, as reported by Armstrong, and the area in which a particular dialect was used. The Swan Valley tribes presumably used Wadjuk dialect, but their reported area of frequent contact must have contained people who used Jued/Yued, Ballardong and Pibelman dialects; possibly Wilomun and Wardandi as well.
432 Dr Brunton’s second reason was based on Bates’ observation about the existence of a patrilineal descent system in one part of the south-west and a matrilineal system in another. When it was first stated, this reason seemed to me potentially persuasive. However, Dr Brunton was unable to say what significance should be attributed to Bates’ observation. It became clear that he did not accept Bates’ distinction was factually well-founded. As recorded at para 319 above, Dr Brunton revealed he was acting on a ‘suggestion from Ian Keen and from my knowledge of the situation in other parts of Western Australia’, that ‘there may then have been a difference in terms of the rules relating to succession to property between the two areas’.
433 These are fragile bases for an hypothesis of separate societies, particularly as Dr Brunton was eventually forced to concede that, throughout the whole claim area, there were significant exceptions to what he assumed to be a universal rule of patrilineal descent. It seems from his evidence in cross-examination (para 321 above) that Dr Brunton started with the assumption that was a normative society smaller than the single Noongar community and chose the dialect group for lack of any arguable alternative (‘because we have no other bases on which we can confidently delineate a group’). In any event, the point made by counsel for the Applicants is compelling. Although Bates made a distinction between descent systems, she obviously thought it unimportant. Bates was unequivocally of the opinion that the ‘Bibbulmun Nation’, throughout its whole area (which included the whole of the claim area) ‘possessed similar customs, laws etc’; ‘they were one people, speaking one language, and following the same fundamental laws and customs’. In other words, there was a single fundamental normative system that united the whole ‘Bibbulmun Nation’.
434 In evaluating Bates’ conclusion, it is pertinent to remember the respect accorded to her writings by Dr Brunton. At page 17 of his report, Dr Brunton said: ‘Bates’ material comprises the largest available corpus of information dealing with the Aborigines of the Perth region obtained at least partly from people who were alive in the early years of European settlement – even though the oldest were only children at the time’. In cross-examination, he agreed her work was the ‘first really serious ethnography for any part of the south-west’, that ‘she was clearly interested in … what we would describe as traditional matters’ and that he [Dr Brunton] had ‘commented very favourably … on the standard of her fieldwork, at least comparatively’.
435 The evidence clearly establishes the existence, at the date of settlement, of a number of different dialects in the claim area. It would have been natural for speakers of a particular dialect to feel special affinity with others who spoke that dialect. It would also have been natural for them to express that affinity by using a name having regional significance; as an Englishman might refer to himself as a ‘Yorkshireman’ or ‘Cornishman’. However, there is no evidence in this case that any such affinity had normative significance. In the absence of any over-arching government, one could expect to find such evidence only by identifying substantive differences in the norms (laws and customs) operating in different dialect areas. The significant point is that there is no such evidence in the present case, and this despite the number of early writers who took an interest in the normative system governing the lives of the Aborigines with whom they came into contact.
436 I accept there is no evidence that, at date of settlement, individuals throughout the south-west were aware of the existence of all the other people in the south-west or acknowledged them as members of a single society. Counsel for the respondents argued this is a necessary ingredient of a society whose laws and customs are capable of satisfying the requirements of s 223(1) of the Act. As it seems to me, the critical question, in relation to this aspect of the case, is whether or not they are correct.
437 Referring to the statement, in Yorta Yorta at [49], that the word ‘“society” is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs’, counsel for the State submitted ‘it is not sufficient to simply show that certain Aboriginal people or groups of people share similar laws and customs’. Despite my invitation to them to do so, counsel did not cite any authority for that submission. The State further submitted that a ‘society’, for the purposes of the Act, requires not only ‘shared laws and customs’ but also ‘other factors which demonstrate unity and organisation’. This seems to repeat the same submission. If something else is intended, by ‘other factors’, counsel have neither identified them nor cited any authority for their imposition on native title applicants. In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ seem to have regarded common acknowledgement and observance of a body of laws and customs as a sufficient unifying factor. Certainly, as is graphically illustrated by De Rose, it is not necessary that the ‘society’ constitute a community, in the sense of all its members knowing each other and living together. If that element was required, it would constitute an additional hurdle, for native title applicants, which would be almost impossible for most of them to surmount. The task of showing the existence of a common normative system some 200 years ago is difficult enough; it would be even harder to show the extent of the mutual knowledge and acknowledgment of those who then lived under that normative system, bearing in mind the non-existence of Aboriginal writings at that time.
438 The requirement postulated by Dr Brunton, and contended for by counsel for the respondents, must be rejected. The problem now under discussion is best resolved by examining the material before the Court, especially the early writings, in order to determine whether they reveal the existence of a single normative system, operating throughout the south-west of Western Australia, and acknowledged and observed by all the people in the claim area at the time of sovereignty.
439 The King George’s Sound writers (Barker, Nind and Collie) do not help very much in relation to the existence or otherwise of a common normative system; those writers had no knowledge of Aborigines living elsewhere.
440 Lyon is also not much help. He knew about the King George’s Sound Aborigines, and noted linguistic similarities, and differences, between them and the Perth Aborigines amongst whom he lived. However, he expressed no opinion, one way or the other, about the extent of the Aboriginal community (or society) and said nothing about normative differences.
441 Armstrong’s situation is similar. He described the interaction of the Swan River ‘tribes’ with those well-removed from them, and the widespread use of the ‘mountain dialect’ for ‘purposes of a public nature or general interest’. He noted no normative differences but, also, made no comment as to whether all the Aborigines were the one community.
442 However, speaking of all parts of the Colony he had visited, from 100 miles north of Perth to King George’s Sound, Moore said ‘every thing leads to the conclusion that the inhabitants are all of one race’. Moore did not find sharp dialectical boundaries. He thought the language ‘radically the same, though spoken with a variety of dialects, gradually blending into one another’. That is consistent with the notion of over-lapping communities that I suggested at para 430 above.
443 Salvado did not offer an opinion as to whether all the south-west Aborigines were members of one community. However, it is evident from his memoirs (para 174 above) that he interested himself in the content of the ‘general laws’, which he said were ‘maintained by tradition and handed down from father to son’. So it may be significant that he did not mention any regional differences in those laws.
444 That brings me to Bates who, as already stated, thought all the people in the ‘Bibbulmun Nation’ to be ‘one people, speaking one language, and following the same fundamental laws and customs’.
445 As will appear in the next section of these reasons, most of the Aborigines who gave evidence in these cases claimed association with a group identified by a name closely corresponding with one of the dialect names mentioned by Dr Thieberger. We heard references to ‘Juat’ (also called ‘Jued’ and ‘Yued’), ‘Mineng’ (or ‘Mearnanger’), ‘Ballardong’, ‘Wilomun’ (or ‘Wilmun’), ‘Pibelmen’, ‘Wardandi’, ‘Koreng’ (or ‘Goreng’), ‘Pinjarib’, ‘Nyakinyaki’ and ‘Wadjuk’ (or ‘Whadjuk’). Particularly when account is taken of the relevant locations, these references may readily be related to nine of the eleven dialect groups identified by Dr Thieberger: Yuwat, Minang, Balardung, Wiilman, Bibbulmun, Wardandi, Goreng, Binjarub and Wajuk.
446 However, a striking feature of the evidence of the Aboriginal witnesses was that none of them treated their local name as a sufficient, or even primary, statement of their identity. Each of them strongly asserted they were ‘Noongar’, although a Noongar associated with a particular local group. Most of the witnesses contrasted Noongars, as a whole, with people, such as Wongais (or ‘Wangkayi’, who lived out towards Kalgoorlie) and Yamatji (towards Geraldton).
447 This common situation was well brought out in some exchanges between Mr Gregory Garlett and Mr Ranson:
‘MR RANSON: Now, you've said to me that you're partly a Ballardong person and partly a Wadjuk person. What are the rules about … how a person gets to … describe themselves like that? How do you get to be a Ballardong person or a Wadjuk person?
GREGORY GARLETT: Well, you're a descendant of those people from those areas.
MR RANSON: Yes, I think you said to Mr Hughston before - and you might have been saying this about all of Noongar country - but you said you have to have at least one parent and be born there or grow up there. Is that the same rule for being a Ballardong person or a Wadjuk person? If you've got one Ballardong parent and you're born in Ballardong, you can say you're a Ballardong person?
GREGORY GARLETT: Well, Ballardong is Noongar anyway so it's all Noongar country you're talking about ...
MR RANSON: So is that the rule, it's at least one parent and then you can say you're a Noongar person?
GREGORY GARLETT: Well, you … can’t have Wangkayi parents and - and call yourself a Noongar.
MR RANSON: Not even one Wangkayi parent? Can you have one Wangkayi parent and call yourself a Noongar? If your father's Wangkayi can you still be a Noongar?
GREGORY GARLETT: Well, if your mother's a Noongar and your father's a Wangkayi, you can go either way. You can be a Noongar in Noongar country and you can be a Wangkayi in Wangkayi because you've got the one Wangkayi parent.
MR RANSON: And is that - if you're a person with one Wangkayi parent and one Noongar parent, is it up to you which way you go or is it up to one of your parents to decide which way you go?
GREGORY GARLETT: Them elders from those peoples will tell you. They will tell you where you - where you fit in. They'll accept you in that Wangkayi country if you're - you got one - one Wangkayi parent. And if you've got one Noongar parent, you'll get accepted in the Noongar country as well.
MR RANSON: So you can be accepted into both. If both sets of elders think it's alright, you can be both; is that right?
GREGORY GARLETT: At the one time. All depends which country you're in.’
448 Mr Garlett later likened the hypothetical case to a person who has a Japanese mother and an ‘Australian wajala [white]’ father. He thought that person might be accepted as Japanese while in Japan but Australian while in Australia. However, he contrasted that position with being a Noongar. His evidence went on:
‘All Noongars the same because they all come from that Noongar country. We've got - we've got those laws and customs in the Noongar area that tell you you belong to that area.
MR RANSON: Does it mean anything at all to say you're a Ballardong person and a Wadjuk person?
GREGORY GARLETT: Ballardong is the name of that area in that country. It's the name of that area. It's like a name, like a town name, you know, like that, like a State name. That's what it is.
MR RANSON: But it doesn't mean anything to you in terms of what kind of person you are? You're just a Noongar person?
GREGORY GARLETT: Well, be a bit funny if you started describing an area and it had no name. That's why the Noongars named all those places. They got the names here to describe those areas and tell you how far you can go this way, how far you can go that way, you know.
MR RANSON: Yes. And is that what it means? It tells you how far you can go? That's what Ballardong means, for example?
GREGORY GARLETT: Well, we know we got the right of passage in the Ballardong country because I grew up there, my parents were there.’
449 I am conscious of the danger of putting excessive weight on the evidence of contemporary Aboriginal witnesses in identifying the 1829 society. As counsel for some of the respondents have emphasised, in recent years there has been a resurgence of interest in Western Australian Aboriginal history and tradition, perhaps particularly amongst the Aborigines themselves. There has been an effort to preserve, and teach to younger people, some of the Aboriginal languages and culture. The word ‘Noongar’ has been widely used to identify the traditional language and culture of the south-west. Moreover, the witnesses who gave evidence in these cases were all aware that the Single Noongar application depends upon a finding that there was, in 1829, and is, today, a single community occupying the whole of the claim area, which community is usually called ‘Noongar’. So it is appropriate to treat with caution the evidence of the Aboriginal witnesses about their group identity.
450 Nonetheless, I was impressed with this evidence. I did not gain an impression, in relation to any of the 30 Aboriginal witnesses, that his or her evidence was tailored to suit the claim or that the identification arose out of the recent resurgence of interest in the Aboriginal traditions of south west Western Australia. As will appear from my detailed analysis of this evidence, almost all the witnesses attributed their identification as ‘Noongar’ to what they had learned as a child, mostly long before the resurgence of interest. I see no reason to doubt the truthfulness of any witness’ attribution and, indeed, it was not suggested to me by any respondent, in relation to any witness, that I should do so.
451 As will appear in the next section of my reasons, I rely heavily on this identification evidence in reaching my conclusions about the current existence of a single Noongar community in the claim area. However, I do not propose to do that in relation to the 1829 position. Too much time has passed by. None of the witnesses was able to trace the identification he or she learned as a child back to a person who is proved to have been alive in, or born shortly after, 1829. So I say no more, at this stage, than that the evidence of the Aboriginal witnesses in this case is not inconsistent with the Applicants’ case concerning the 1829 position.
452 In the end, in evaluating that case, I come back to matters about which I can be certain. I summarise them as follows:
(i) the explicit assessments of Moore and Bates, and the inference to be drawn from the silence of the other early writers in relation to the question whether or not there was a single community;
(ii) the evidence of Dr Thieberger and others as to the use of ‘one fundamental language’ throughout the claim area, albeit with regional dialectic differences;
(iii) the existence of a circumcision line, sharply separating the area in which circumcision was practised from that in which it was not;
(iv) a difference in practice, in relation to kangaroo skinning, between the people of the south-west and those outside it;
(v) the evidence of extensive ‘tribal’ interaction within the claim area, over areas of land greater than particular dialect areas;
(vi) the absence of any suggestion of normative differences, other than the dubious possibility of a distinction between patrilineal and matrilineal descent.
453 The only considerations put against a finding of a single Noongar community in 1829 were those voiced by Dr Brunton - predominantly the absence of evidence that the ‘strong commonalities in culture and language’ were ‘acknowledged by the people themselves’ and made to have ‘consequences in terms of social organisation, land tenure etc’. He thought the fact of the commonalities ‘means nothing if the groups themselves did not see these characteristics as socially significant’ (see para 261 above). As I have indicated, I think this requirement is an unwarranted addition to the test laid down in Yorta Yorta. Consequently, it would not justify me in rejecting the Applicants’ position on this aspect of the case.
454 In this section of my reasons, I have been addressing the first issue that arises in the cases before me: was there a single Noongar community in 1829? For the reasons set out above, I answer that question in the affirmative.
V Has there been a continuation of Noongar laws and customs from 1829 until today?
(i) Preliminary
455 Because of the form of the evidence that was given, it is convenient for me to consider together two questions that are logically distinct:
(a) whether the community that existed in 1829 (the single Noongar community) continued to exist over subsequent years, up until recent times, with its members continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829;
(b) whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs.
456 The evidence of the Aboriginal witnesses about subjects relevant to those issues tended to lock together what the person had learned, or experienced, as a child and the position today.
457 In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the ‘Larrakia case’). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and Gumana v Northern Territory of Australia [2005] FCA 50 at [195] – [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604:
‘It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.’
458 Selway J noted (at [200]) ‘that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it’. He went on:
‘There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom … This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.’ (Citations omitted)
459 In the preceding section of these reasons, I referred only briefly to evidence given by the Aboriginal witnesses in which they identified themselves as ‘Noongars’ and mentioned community interaction. It is necessary to deal more fully with that evidence, in now determining whether the 1829 single Noongar community continued to exist, as such, after the date of settlement and continues to exist today. Although the result will be lengthy, I propose to summarise the evidence of each of the Aboriginal witnesses relevant to this point, they being arranged in the order in which they gave their oral evidence. I will then deal, more briefly, with the evidence relating to maintenance of customs and beliefs, in particular laws and customs concerning land and waters.
(ii) Community identification and interaction
(a) The Aboriginal evidence
A Mr WW (named applicant, born 1946, evidence at Jurien Bay)
460 In his witness statement, Mr WW said:
‘I am a Noongar. I “enjoy” my father’s country and I have lived my whole life as a Noongar. I was taught by my grandmother, Ollie, that Noongars go from up near Jurien Bay, all the way down to Albany and to Esperance.
I am Noongar through my father, but I am also Yamatji through my mother. This is because of where they were born and where their families have always lived. Noongars were from the South West and Yamatji’s were from up North, past Geraldton. Wongais are from Kalgoorlie way and you can tell them by their complexion, they have more grey dry skin than Noongars.
When I was younger, we knew who was Noongar through our families. We knew the families of one another and we knew they were Noongar. No-one told me that I was Noongar, I just knew because of the way that we spoke to each other and other things, like hunting and fishing and camping that was all done together.’
461 Mr WW said his father had come ‘from the area north of the Swan River in Perth up to the north of Jurien Bay and around the Mogumber area’. He understood his grandmother, Ollie Warrell, was born in Gingin but her people ‘were part of Yagan’s mob and were Swan River people’. Mr WW’s grandparents, Ollie and William, were married in accordance with Aboriginal custom at Guildford in 1896.
462 Mr WW described how, when he was young, his family travelled by horse and cart from north of Moora to Perth. They would camp along the way ‘to get a feed’ from various swamps. He said: ‘We would nearly always stop at the same camps along the way. This is because Noongar people must have camped there before us. My father knew all the places’.
463 Mr WW said:
‘My father has told me that years ago the tribes from the Yued area and the tribes from the Perth area often met together. They held meetings, like ceremonies, at Success Hill Reserve in Perth. People from the Ballardong area, which is the area from York to up near Merridin, and people from the Peel tribes, which were from Pinjarra way, down south of Perth through Mandurah and down to near Bunbury would all meet together there. They were all similar people, all Noongars, even though they were from different areas and my father told me that they would meet up in Perth.’
464 Mr WW listed a number of ‘special places’ for which he knew ‘the stories’; they were told to him by his father and uncle. His father identified two corroboree grounds and also told him about a corroboree in which he [the father] was involved in 1946, in Perth. Mr WW said: ‘This was one of the last ones in Perth’.
465 Mr WW recounted many beliefs, stories and practices he was taught by older people, especially his grandmother Ollie and his father.
466 In oral evidence, Mr WW gave the boundaries of Noongar country, putting them a little further to the north and the east than the boundaries of the claim area. Mr Hughston asked him how he knew the boundaries. He replied: ‘Well, it was automatically – it was there, you know, for us as people … we all come together’. The evidence went on:
‘MR HUGHSTON: … I'll just ask you a little bit about other people. Yamatji people, are they the same as Noongar people or are they different to Noongar?
MR WW: No, they're a different mob of people.
MR HUGHSTON: Where's their country?
MR WW: Well, their country is that way north of here.
MR HUGHSTON: North of here?
MR WW: Yes.
MR HUGHSTON: Okay. And what about Wangkayi people, are they the same as Noongar people or are they different?
MR WW: They're different.
MR HUGHSTON: And where's the Wangkayi country?
MR WW: East from here.
MR HUGHSTON: Okay. Do you know around about where that Wangkayi country starts?
MR WW: He start somewhere near just other side of Merriden I think or Southern Cross.’
467 In answer to Mr Ranson, Mr WW identified himself as belonging to both the Yued and Perth local groups, through both his grandparents. He spoke about living with his grandmother in Perth, as a boy, and learning from her about his ancestry and the camp at Dog Soak (now Perth railway station) where he was told his great-grandfather (Tommy Nettle) had been born.
B Charlie Shaw (named applicant, born 1939, evidence at Jurien Bay)
468 Mr Shaw described himself, in his witness statement, as ‘a Noongar from the Juat area through my mother and my mother’s family’. He said his four sons, who were all born in Perth, ‘are Noongar because I am Noongar and I brought them up that way’. Mr Shaw said he was ‘considered a custodian by other Noongars in the area because information has been passed on to me from the old people. I am considered an elder because I’m older and I’ve been doing things through the years traditional way and I lived with the old people in the bush’.
469 Mr Shaw described his ‘boodj’ as the area from Moore River to Jurien Bay. He said:
‘The boodj keeps my family alive with all the things it can provide to us. The boodj of my people gives me connection to the land and to the sea and to the spirits of the older people. By me living here by the wardarn (sea) it is helping my spirit and the memories of the old people continue. It lifts my spirits it might feel like how a religious person feels when they go to church.
…
My lads tell me that they feel good on their country and I tell them “its because of your spirituality, you are feeding yourself, you are feeling better”. All of us Noongars are connected, like one. The spirits of our old people are in the trees, the rocks, the hills, the waterways and the sea. That is why my boodj is so important to me and my family.’
470 Mr Shaw spoke about various places in his country, and what he had been taught about them by ‘the old people’. Stories were associated with many of these places. Others were places of good camping or food supply. Mr Shaw mentioned a corroboree place, ‘a beendana (initiation) place and a kooning (birth place). He said:
‘For Noongars families are very strong. It is very important to be with relations, its bonding. You feel joy that you are with those people.’
471 Mr Shaw said he was ‘related to a lot of Noongar families’, whom he named. He described visits to those people and receiving relatives at his home on Wedge Island. He said he had shown some of the young relatives ‘a lot of different places’ and taught them ‘different things about the land and how to get food the traditional way’.
472 Mr Shaw referred to various Noongar meeting places. In relation to one of them, Cockleshell Gully, he said:
‘Noongars travelled there from the Swan River area and people came from the north to meet and exchange goods and have celebrations. There were highways through there with lots of water holes. The different people would then go their separate ways. It is a very important place. It feels good there.’ (Citations omitted)
473 In answer to Mr Ranson, Mr Shaw agreed that Jurien Bay was in the Yued area, whose limits he described. His evidence went on:
‘MR RANSON: And do you call yourself a Yued person?
CHARLIE SHAW: Yes.
MR RANSON: And do you – if someone was to ask you to say what sort of person you identify with, would you say you’re a Yued person first or would you say you’re a Noongar person first?
CHARLIE SHAW: Noongar person first.
MR RANSON: And why is that? Why would you say that first?
CHARLIE SHAW: Because that was passed on with your – when you’re with family and when you’re with your different mobs of people it always was sort of passed with you. It just came in, yes.
MR RANSON: And do I take it from that that things about Yued country and being a Yued person weren’t passed on so much to you at the same way?
CHARLIE SHAW: They did talk of it in a way where they said it – we’re saying Yued now. It’s Juat, and I can remember that going around in the old days, yes.
MR RANSON: Alright. So, in your family you say Juat?
CHARLIE SHAW: Juat, yes.’
474 Mr Shaw thought he first learned the word ‘Juat’ ‘in the late 50s I suppose’, when he would have been in his late teens.
C Charmaine Walley (named applicant, born 1962, evidence at Jurien Bay)
475 In her witness statement, Ms Walley said:
‘I am a Noongar woman. This is because my mother and my father are Noongar and my ancestors are Noongar. This means that I have the right to speak for the area in which my ancestors came from.
I was told by my mother and father that I was Noongar when I was younger. Noongars go from the north side of Jurien, down towards Albany way. I also know that Yamatji mob are further north of Jurien and Wongais are across near Kalgoorlie.’
476 Ms Walley referred to rules for land:
‘When my parents passed away, the right to speak for our family’s country was passed on to my siblings and I. This is the way it works with Noongars. My parents passed on stories about special places to me and my siblings and now I pass on that information to my children. This is a special responsibility. Although I am the youngest of my siblings, I feel I can still speak for my country, as long as I have consulted with my siblings first. This is what I know, I don’t have to be told, you just know this is the way it works.’
477 Ms Walley referred to training younger Noongars. She said:
‘In Noongar families, the proper way is to help bring up your nephews and nieces. Even if they are not blood related, you need to look after them. This is the Noongar way. Adoption into the Noongar community would mean that the child is Noongar, they would get some rights to the country that they were adopted into, but only if they have grown up in Noongar country and respect and partake in Noongar ways.’
478 Ms Walley told about many special places, stories and the spirits.
479 Ms Walley’s oral evidence included the following:
‘MR HUGHSTON: What group do you belong to?
CHARMAINE WALLEY: I’m a Noongar.
MR HUGHSTON: You’re a Noongar person?
CHARMAINE WALLEY: Yes.
MR HUGHSTON: Is there a subgroup or smaller group within that Noongar people that you also belong to?
CHARMAINE WALLEY: Yes, they’re the Yued people.
MR HUGHSTON: Yued people. And do you know approximately what the boundaries of Noongar country are …
CHARMAINE WALLEY: Well, I’ve always been made aware of those boundaries by my parents.’
Ms Walley must have misunderstood the question because she gave boundaries that coincided with the boundaries of the Yued area. However, shortly afterwards, in answer to Mr Bodney, she said: ‘Noongar country is all the south-west of Western Australia’.
D Carol Pettersen (named applicant, born 1941, evidence at Albany)
480 Ms Pettersen described herself in her witness statement, as ‘a Noongar woman from the Minung tribe of the Albany region’. She said her mother was also ‘a Noongar woman from Minung people around Albany’ and had taught her and her siblings ‘about Noongar ways’.
481 In her witness statement, Ms Pettersen also said:
‘All Noongars are obliged to share country and knowledge of country with their families. Noongar have close families that include first cousins. My first cousins are like my brothers and sisters and close relationships are formed from an early age. I call my brother ngorn and my cousin nambar. It is a rule that children are disciplined by their parents’ brothers, sisters and first cousins. When I was a child I would speak to my Uncle Alfie … and ask him questions and ask his permission to go places if my mother was not around at the time. He was the same to me as my parents were. Being ridiculed was used as a punishment and a parent might also get ridiculed on behalf of a child for that child’s wrongs.
Everyone within the close family group is part of our family or what I think of as “our people.” I remember my mother telling me when I was about 16 years old, “don’t forget your people, don’t ever forget your country and don’t ever forget who you are.” She meant that it was important to never deny being a Noongar and be proud. It was hard to do that in those days as there was a lot of discipline at school to stop us from acknowledging these things. We got a lot of support from within the family and from each other to keep the culture alive, even though this often had to be covert.
My mother taught me that everyone must be respectful of those older than them. I teach my children and grannies (grandchildren) to always respect older people. Part of that means looking after older people by bringing them things such as wood and food to make sure they’re comfortable. Another Noongar rule is that food should always be given to elders before anyone eats. The older people are the ones that I always speak to before big decisions are made.’
482 Ms Pettersen told Mr Ranson about various other local groups, which she identified as ‘Koreng’, ‘Wadjari’ and ‘Wilomun’, but this was all in the context that their country was Noongar territory. Ms Pettersen was hesitant about boundaries, leading to this exchange:
‘MR RANSON: And I know - you've spoken about the groups to the east and the north, and the difficulty you have in talking about their boundaries. Is that generally true, for you, around the whole of Noongar country, that you - you have some difficulty in talking about the boundaries of those people's country, the various groups?
CAROL PETTERSEN: The difficulty comes from me not having the authority to talk of other people’s places, and … that's a demonstration of breaching protocols.
MR RANSON: So the difficulty you have is a question of protocol, rather than that you don't know.
CAROL PETTERSEN: Than the knowledge, yes.
MR RANSON: So you do know where the boundaries of all those other groups’ country is?
CAROL PETTERSEN: Basically.’
483 Ms Pettersen described the contact between the various Minung families. She said: ‘Mostly, it’s funerals … there’s a lot of contact there … because we’re all connected somehow’. Ms Pettersen said there were also gatherings at sporting events and meetings and ‘the days when we celebrate being Noongar people’. She said this happens annually. The celebration takes two forms:
‘One is amongst ourselves, but … we come together and … it's good to be able to be accepted as Noongars again, you know, as people, because previously everything had to be undercover, that we, you know, hid our culture and we practised our ways, and - undercover. And it's good now to come out and be able to do that together and call each other as we would in the old Noongar way. And then the other way is to celebrate with the wider community and share food and generally educate or give people an opportunity to observe how we did things.’
484 In relation to the first form, coming together in the Noongar community, Ms Pettersen said:
‘the first thing is, you know, … you're embracing - you're (yakaya), you know, and yelling out to everybody and so happy to see each other again. And - and whatever the business is that we're there for, we do it and then some of us may camp at each other's place and there's more talking going on there and reinforcing the - reinforcing of our stories and our families and did we - you know, keeping in contact, "Do you know where so and so is and do you know what they're doing?" So it's sharing all the family stuff and where everyone is.
We - it was interesting, your Honour, that at one time I worked with the Jigsaw Child Agency and within 24 hours we could find an adopted Aboriginal child … Because everybody knew and you could see the facial features to know whether it came from Noongar country or up north and … within 24 hours we could find an Aboriginal child where it would take 24 years to find a non-Aboriginal child because of the way we keep in contact and share knowledge and just keep track. Even though children are adopted, we still know where they are.’
485 Ms Pettersen said the Noongar gatherings would involve ‘some hundreds of people’, ‘young and old’, ‘babies, dogs, old people, wheelchairs’, ‘at different places and different times’.
E Lynette Knapp (born 1954, evidence at Albany)
486 Ms Knapp made it clear that ‘Mearnanger’ and ‘Minung’ mean the same thing; ‘Mearnanger’ reflected a different pronunciation along the coastal strip between Denmark and Esperance.
487 Ms Knapp was exceptional in not claiming to have known the word ‘Noongar’ as a child. In her witness statement, she said:
‘As a child I never thought of being “Noongar”. My dad talked about the Minung mob as a family being the Knapp family and our relatives and that we belonged to the country around Albany. Noongar means “Aboriginal man”. We did not leave our country very much. It wasn’t until I went to Perth that I heard much about being Noongar. Now I have thought about it Noongar is a useful word to describe our people from all over the south-west right up past Jurien Bay. We are all the same.
You just know that someone is Noongar even if they look as white as white. You can tell a Noongar person by the way they speak, whether it be in English or in Noongar language, sign language, their name, where they live and where you meet them. If I meet another blackfella from another mob, like Wongai, I know immediately whether they are Noongar or not. I believe that beyond Geraldton is Yamatji Country and beyond Coolgardie is Wongai Country.’
488 Ms Knapp said:
‘Families make up the Noongar community and it is family representatives that are the key decision-makers. Some old Noongars with authority don’t talk much but they tell you when you have done something wrong. You would never say something bad about an older person in front of anyone. I was told by my parents that sort of thing would be disrespectful.’
489 Ms Knapp spoke of the relationship to children by other Noongars. She said it ‘is very often the case that uncles and aunts teach you Noongar ways as well as your parents’. She went on:
‘It is part of the Noongar way for brothers, sisters and “cousins” to help out with raising each other’s children. It is not unusual for someone to raise their brother’s son for many years along with their own children. This may happen if someone gets sick and needs help. We all consider it part of our obligations to family and the Noongar community. It is never a burden – it is just something we must do.
It is accepted that babies will feed from the breast of another Noongar woman in the family other than its mother if need be.’
490 In oral evidence, Ms Knapp made it clear that she used the words ‘aunties and uncles’ in a broad sense: ‘all my people that weren’t related to me are aunties and uncles’. She went on to talk about big gatherings at Bremer, which is in ‘Wilmun people country’. She added ‘that is Noongar country’:
‘Every Noongar used to go there. It was a great big gathering spot … there would be hundreds of people.’
491 Ms Knapp said the gatherings are not now as big as they were. However, she said:
‘… we see each other quite regularly. We – if we don’t see each other, we ring each other up, call each other, and make sure that everybody’s and everything’s going okay. But I can say an extended family as well. I mean, with people that I’ve grown up in and around Borden, Kebaringup and Bremer.’
492 Ms Knapp said hundreds of people, even thousands, would attend funerals. The evidence went on:
‘LYNETTE KNAPP: I – I don’t know how to explain that. I think that all of us know that we have to pay our respects to the person that’s gone and also to let their family know that we are there to support them and - - -
MS JOWETT: And would that be within this family that you talk about, this large - - -
LYNETTE KNAPP: Within a wider – yes, in a wider family.
MS JOWETT: So it’s outside - - -
LYNETTE KNAPP: Every Noongar person - - -
MS JOWETT: - - - those five or six families you would go to funerals outside of that as well?
LYNETTE KNAPP: Oh yes. Oh yes.
MS JOWETT: And why would you go to those funerals?
LYNETTE KNAPP: As a mark of respect to the families who’s lost their loved ones.’
493 In cross-examination, Ms Knapp said that, in Australia, ‘there are different groups of people but we’re Noongars. We’re known as Noongars’. She contrasted Kalgoorlie, which she described as ‘Wangkayi country’ and ‘up north past Geraldton’, ‘Yamatji country’. Mr Ranson asked Ms Knapp to say what country ‘traditionally is Noongar country’. She responded: ‘Traditional Noongar country is the country between Jurien Bay in a fine line down to Ravensthorpe’. Mr Ranson asked Ms Knapp about the Mearnanger territory. She described its boundaries and used the word ‘marra’. The evidence went on:
‘MR RANSON: And when you “marra” that means that’s where you stop - -
LYNETTE KNAPP: Yes.
MR RANSON: - - - if you're a Noongar person.
LYNETTE KNAPP: No, no, no, Noongar people are made up of many people, many tribes, all belonging together with the same - with the same totems, do everything by totems, borungur. They live by that, their beliefs, the way they do law, the way they bury people and the way they run their country, their families. There's a lot of people. There's a lot of tribes.
MR RANSON: So when I asked you about the Pallinup River and you said it's marra which means stop, and you held up your hand, what did you mean by that?
LYNETTE KNAPP: Marra means stop. In Noongar - in Noongar language, marra is stop. They showing your hand. They stop. It used to be - it was a big corroboree ground so you had to enter that area with a little bit of caution in case you were there at the wrong time but it's also a boundary - marks a boundary.
MR RANSON: And what's on the other side of that boundary?
LYNETTE KNAPP: Wilmun country.’
F Lomas Roberts (named applicant, born 1939, evidence at Albany)
494 In his witness statement, Mr Roberts said:
‘I’m a Noongar. Noongars are the people that come from “the old Noongars” that lived between Geraldton … and Norseman ... One of the ways that you can tell that Noongars are the same is in the language and in the foods that Noongars get from the country. We all do a lot of the things the same way.
We are all Noongars in the south west. If a Yamatji or a Wongai is born on Noongar country that doesn’t mean that they’ve got any say over that country. They might have some say if they marry in and learn ways and then their children might have some say.
I’m Noongar because my father was Noongar. It is because my father and his father were Noongar, because my grandmother was Noongar that I’m Noongar. I’ve lived by Noongar rules all my life. I have lived most of my life on Noongar country. Other people recognize that I am Noongar.
Being Noongar is about the people and the rules. Wilomun is an area. Wilomun is my tribe but we are also Noongar. My tribe includes the Woods, the Knapps and the Dowdens. Wilomun is the Noongar area around Bremer Bay and Qualup. Wirrlu (curlew) is a family group, and we’re from up around Quaalup and Bremer Bay and down towards Ravensthorpe.’
495 Mr Roberts described how he learned about Noongar culture, including sites and camping places, from the old people. He added: ‘Today, I teach Noongar children about Noongar culture (including traditional laws and customs) and heritage on country’. He went on to detail what and where he taught. Mr Roberts said:
‘When I was young the old men would take a boy aside and give him initiation and tell him about sites. Then he becomes a man. If the boy doesn’t keep that knowledge then he stays a boy. My grannies, Kara, Kirsty and Lomas Jnr, they’re learning a lot about all these things. The major thing with initiation, the key is listening and having respect for older people. My grannies, Kara, Kirsty and Lomas Jnr, they are learning a lot about Noongar ways, and so are my sons Geoffrey and Joe.’
496 Mr Roberts told Mr Hughston he was born at Gnowangerup, which ‘covers the Wilomun tribe’. He added: ‘They’re Noongar people’.
497 Mr Roberts told Mr Ranson that his grandfather had told him the boundaries of Wilomun country. He added: ‘See, I’ve been told as a young boy that from Geraldton across to Northam back to Esperance was all Noongar country.’
498 During the course of cross-examination, Mr Roberts made it clear that he regarded people as far away as Busselton as Noongars.
499 Mr Ranson asked Mr Roberts what the word ‘tribe’ meant to him. He answered: ‘Tribe means a group of people who’s sharing things.’ The evidence went on:
‘MR RANSON: And what do those people share, what are the things that those people share?
LOMAS ROBERTS: Well, they share – we never had much to share but share meat or their hunting grounds or today they’re sharing money if they’ve got it.
MR RANSON: And what about land, what about country, is that - - -
LOMAS ROBERTS: They’ll share land if they’ve got it, yes.’
500 Later, there was this exchange:
‘MR RANSON: So what does that word “Noongar” mean? If there’s different tribes with different country, what does that word “Noongar” mean?
LOMAS ROBERTS: Our country that one.’
G Michael Cummings (born 1972, evidence at Albany)
501 Mr Cummings is the son of Lynette Knapp. In short oral evidence, he identified himself as a Noongar person and told some stories he had been taught by his grandfather and mother.
H Angus Wallam (named applicant, born 1925-1926, evidence at Lake Toweringup)
502 In his witness statement, Mr Wallam said:
‘I am a Noongar man.
Within Noongar country there are different mobs of Noongars, different groups, like the Ballardong mob. Ballardong people are still Noongars and they live on Noongar country. We are still all one mob, all Noongars.
Every Noongar is related to one another somehow. Like all the Kearings, all the Michaels, that's all my gang. Bennell’s and Cornwalls are all my relations too. All married in and mixed up, see? I’ve got relations in Pinjarra , through my Granny Micheals, we are all related us Noongars. The Wallam’s, the Smith’s, the Colbung’s, the Eades, the Krackours, we are all one big family.
Sometimes when I say the word Noongar I am talking about a “black fella” but Noongar people are different to Wongai and Yamatji people. Wongai and Yamatji have a different way, and their language is different.
My country finishes where the taller grass trees, balak, begin to appear and some of the other trees change too.
I think that Noongar country goes east to Wave Rock, and then maybe north to Mullewa (140km east of Eneabba).
I learnt where my country is and where other peoples country is from the old people, by watching them and observing their behaviour.’ (Citations omitted)
503 Mr Wallam gave information about many places in the Toweringup area and also about Noongar ways. He said he learned these things from his father, grandfather and ‘the old fellas’.
504 In the course of cross-examination by Mr Wright, Mr Wallam said he grew up in Ballardong country. He acknowledged there were ‘other Noongar mobs’. He would not say their names, although he said he knew them. He was asked how he knew he was getting out of his country. He mentioned the trees. The evidence went on:
‘MR WRIGHT: Is it – is it those salmon gums, when you get to salmon gums, does that tell you you’re in a different country?
…
ANGUS WALLAM: Yes, more or less, yes. You see, it’s the high country up that way as you go east. Salmon gum and mallet and mallee and all this and the low mallet, and the further you go down the sou-west way, this way here, you get the red gum and the jarrah.
MR WRIGHT: And that salmon gum country, is that still Noongar country?
ANGUS WALLAM: It’s still Noongar country, of course.
…
MR WRIGHT: Now, that word “Noongar”, do you use to hear the old people use that word “Noongar”?
ANGUS WALLAM: Yes. Yes, yes. Yes, yes.
MR WRIGHT: And did they sometimes just talk about any black fella being a Noongar or does Noongar mean a particular group of people?
ANGUS WALLAM: No, just the one – most of them are just all Noongars they are, yes.
MR WRIGHT: Yes. But is that like an Aboriginal person coming from Kalgoorlie, would they sometimes be called Noongar?
ANGUS WALLAM: Well, they’re still called Noongar. Sometimes they’re called different altogether, so, you know, they might say oh, Wangkayi or someone is a Wangkayi or Yamatji or something like that.
MR WRIGHT: Yes.
ANGUS WALLAM: Yes, but they’re different to us down this sou-west way.
MR WRIGHT: Right. So, how do you know if a person is a Noongar person?
ANGUS WALLAM: Oh, they’ve got different ways. You can almost [sic: always?] tell a white fella too when he’s walking from a black fella, Noongar, see? You can almost [sic: always?] pick that out.
…
MR WRIGHT: So, you say they’ve got different ways, so are those – like, those Wangkayi people, have they got different ways to Noongar people?
ANGUS WALLAM: I suppose they have to. Like, we live different to them up there I suppose, you know. They’ve got their own country up there and their own stuff up there what they live on and we’ve got our own stuff down here what we live on.’
I Joseph Northover (named applicant, born 1966, evidence at Lake Toweringup)
505 In his witness statement, Mr Northover said:
‘I am a Noongar man and my father was a Noongar as was his mother. My mother was Noongar and so was her mother.
I think that a person who is not Noongar by blood may be adopted and brought up by Noongar parents. Over time that person may be thought of as a Noongar and accepted by the community. However, they should not speak for country as a general rule. They should know their place. But if they are the only remaining child in a family, then people would say that it was alright for them to speak.
My step grandfather on my father’s side, Bertie Northover, was from up North, but he was accepted by Noongars because he was married to my grandmother who was a Noongar.
In wajala (white people) ways some of my siblings would be step-brothers and step-sisters, but in Noongar way they’re my brothers and sisters.
There are Noongars as far north as Moora … way, they are also Noongars out near Kellerberrin … and Badjaling … and there are a few Noongars down Esperence (east of Jerdacuttup …).
Noongars are different to other Aboriginal people like Yamatji and Wongai. Other Aboriginal people have different areas, different languages and different customs and ways.’
506 Mr Northover said:
‘There are Noongar rules, you grow up with them, the old people teach you them. Older people include my grandfather, grandmother, father and other old people.
We listen to these old things because that is what we grew up with and we still carry them on today.
I teach other Noongars including my grandchildren about the Noongar way and Noongar culture. They ask me to sing Noongar songs or talk in Noongar language. The little ones listen good and some of them are pretty good at picking it up. I have also taught some of the kids on country while I was working for the Education Department and the Police.’
507 Mr Northover went on to speak about the things he had been taught by older people including his grandfather, grandmother and father; such as hunting, food preparation, methods of behaviour, spiritual matters, special places and totems.
508 In answer to Mr Wright, Mr Northover said he understood Noongar territory to go ‘just south of Geraldton’ and all the way ‘this side of Southern Cross’ down to Esperance. He said these boundaries ‘we worked out as a family … you just know that’s your area’. He talked about his two grandfathers, neither of whom called themselves ‘Noongar’ because they came from the north. Mr Northover thought Noongar were different from Yamatji and Wangkayi because the latter had ‘different ways’ of doing things: totems, corroborees, customs, belief, language. He knew this because he used to work around those areas when he was with the Education Department.
J Ross Storey (born 1970, evidence at Lake Toweringup)
509 In his witness statement, Mr Storey said, ‘I identify as Ballardong Noongar’. He then said:
‘It is very hard to define the boundaries of Noongar country but you always know when you are not in Noongar country, as it feels different, if things feel different, then you know you don’t belong there. Noongar country goes north up to around Jurien Bay and then east to around Merredin and Southern Cross, and south to around Esperance. I learned this from my grandmother and grandfather, Verna Ugle and Scotty Ugle.
The black boys [Xanthorea - Grass Trees], the red gum trees and the Wandoo (powder bark) trees, when you see them you know that you’re in Noongar country. So too with the Yorgum trees; they’re white gums. The Yorgum tree, it means like a grandmother tree.
I learned about these boundaries from my mother’s mother and mother’s father. This is something that you are never told directly, but that it is something that you learn everyday.’
510 Mr Storey also mentioned differences in animal names between Noongar territory and others, Yamatjis and Wongais. He went on:
‘Birdiya means a boss. To be a birdiya you have to give respect to the land and the old people, and then you will get it in return. You have to acknowledge the country and everything in it. You talk to it and interact with it. Looking after country means that you live in country, taking family out and showing them what to do and showing them different things in country. When I was younger I was told by the older men that I would keep learning until I become a birdiya.
I know about other areas, and some of the other totems that are for those areas and what you can and can’t eat in those areas. Being born to people who are from those areas gives you a connection to those same areas, as does continuing to live there and learn about and look after those places.’
511 Mr Ranson asked Mr Storey to explain his identification. Mr Storey said:
‘ROSS STOREY: Identify. I identify myself as a Ballardong Noongar.
MR RANSON: So what you really mean by "identify" is that that's what you are: you are a Ballardong Noongar.
ROSS STOREY: I am what I am.
MR RANSON: And what's a clan group? How does that work?
ROSS STOREY: That's the name that the Europeans gave to us for our little family - family groups that we live in. What your people gave to us.
…
MR RANSON: And when were those groups given that name?
ROSS STOREY: Probably when Europeans settled - our country.
MR RANSON: So that word “Ballardong”, that's a word that came from - - -
ROSS STOREY: “Ballardong” come from my people.
MR RANSON: And when you say you're part of the Noongar nation, what does that mean?
ROSS STOREY: The Noongar nation of the southwest of Western Australia.’
512 Mr Ranson took Mr Storey through a discussion about various clan areas. There seemed to be some confusion between them about the word ‘country’. Mr Ranson sought to clarify this and the evidence proceeded as follows:
‘MR RANSON: Can I just - can I try and just clarify for you what I'm interested in, and make sure, if this isn't right, you tell me. You've got that Noongar nation, which is a big thing and covers a lot of country. And you then talked about that - that clan group, that Ballardong group. And I think you said to me that's part of that bigger Noongar country but it's a bit smaller. And you then talked about your country, your family's country, which I think you say is your mother's country. And am I right in saying that - that's a smaller thing again; that's smaller than - - -
ROSS STOREY: No. My mother is part of the Noongar people, the Ballardong mob from the Noongar nation. So my mother - we got extended family through Noongar country.
MR RANSON: Right.
ROSS STOREY: It doesn't matter if we Ballardong mob, but we still got mobs into other country, but it's still in Noongar country.’
K Wayne Collard (born 1955, evidence at Lake Toweringup)
513 Mr Collard said in his witness statement that he was born in Pingelly, as was his father before him. His mother was born in Traysurin, just south of Kulin. Mr Collard said all his maternal ancestors were Noongar except for his mother’s father’s mother, who was a Wongai, born fifty miles east of Kalgoorlie. Mr Collard said he was also Nyakinyaki.
514 Mr Collard described how his mother taught him about his country when he was young, although he was not then very interested. He was now responsible for the country. He explained many Noongar rules about care of the land, special places, attitudes to others (especially older people) and care of the spirits. In response to Ms Webb, Mr Collard identified several other Nyakinyaki families.
L Wayne Webb (born 1957, evidence at Dunsborough)
515 Prior to commencement of evidence at Dunsborough, the Court visited Meekadarribee Falls at Ellensbrook. At that place, Mr Wayne Webb recounted an Aboriginal legend relating to it.
516 In his witness statement, Mr Webb said:
‘I am a Pibelmen Wardandi man. This is because my parents are from the Pibelmen and Wardandi people, it is through my blood. My mother’s side is the Pibelmen side. My father’s side is the Wardandi side. Wardandi means people who live by the sea.
The Pibelmen people and the Wardandi people are still Noongar people, but they are smaller groups within the whole of the Noongar group. I prefer to identify as a Pibelmen Wardandi man rather than use the word Noongar because this is what I was taught by my parents and this shows exactly what area I am from and how I am connected to that area through my mother (Pibelmen) and my father (Wardandi). Noongar really means “man”, but I sometimes use the word Noongar to identify the people from the South West, because lots of other people from the South West use the word Noongar and it is easy to identify with others what area and people I am talking about.’
517 Mr Webb said:
‘It is important to pass on information about our traditional ways to the young people. When my father passed away, he told my mother that he wanted his children, particularly the males of the family to take over and talk for certain places.
I have information about special places and ways of doing things that has been passed on to me by my father. I would not pass on this information to anyone and would only pass it on to my son, who is the eldest male of my family. I would not tell all these special stories and ways of doing things to the court, because I feel that this would go against what I have been taught by my father, which is that the stories are special and that the passing on of information is part of growing up and gaining more responsibility in my family. Some stories are not for everyone to hear, if I did tell the court and other people, I would be disrespecting my father and my family.
I sometimes visit the block in Injidup (Wardan Aboriginal Cultural Centre) and we teach young people Noongar dances, laws, spear making and weaponry. These things were taught to me by my parents and grandparents.’
518 Mr Wright asked Mr Webb about seeking permission. The exchange was as follows:
‘MR WRIGHT: … Now, you also talk in your statement about when you’re going to places outside of your family’s country and you say you have to talk to the old Noongar fellas or the other senior people for the community where you’re going.
WAYNE WEBB: Yes.
MR WRIGHT: So, is that true of that country outside of Noongar country, like in the country where they circumcise? Is it the same rule there?
WAYNE WEBB: I think – I think so. I’m not – you know, I don’t really know what goes on there.’
M Patricia Kopusar (born 1938, evidence at Dunsborough)
519 In her witness statement, Ms Kopusar said:
‘I am a Noongar woman. This is because my mother was Noongar and my mother’s mother was Noongar. I identify with my mother’s side. This is who I am and how I live and how my kids can choose to live. This is what my mother taught me and I will pass it on to my children, who are Noongar too. When I lived out of Noongar country up North, I would tell people that I was from the South West.
My children have rights in both Noongar and Yamatji country. This is because I am Noongar and their father is Yamatji. You cannot become Noongar by marrying a Noongar. You can have a role in the community, but you cannot have a say over what happens in that country. I was taught by my mother how to behave in other people’s country.
I feel that my association as a Noongar comes from my mother, I also from a feeling that I have for the South West. It is a healing, spiritual thing where I don’t get frightened on my family’s country. My connection to my family’s country comes from knowledge about that country that has been passed down to me by my mother. You can be born somewhere and still not belong there. You have to know about the country to have a connection.
I follow my mother’s country and my mother’s mother’s country which is around the Busselton … area. This is where I feel most comfortable. Even though my mother was born in Onslow, she would tell me that her area was Busselton. I have felt the same way, I have lived in lots of places for long periods of time, but I have always felt like an outsider. I don’t feel this way in Busselton, I feel comfortable and like I belong.
I knew from a young age that when I lived up north that this wasn’t Noongar country. My mother would always say that we were from the South West. She never sat me down and told me place names, but it was something that I just knew. Yamatji’s were from up North and Noongars were from the South West.’
520 Ms Kopusar talked about the Noongar attitude to family:
‘Noongar families are very close. My sister’s children call me aunty and their children call me granny. Cousins are like your brothers and sisters. There is a respect in the family and different age groups have different responsibilities. For example, my daughter’s would take in their sibling’s children if anything happened. Other Noongars would frown on you if you didn’t.
Sharing with the extended family comes from the way they used to do it in the old days. My mother told me that we had to share. Like when food came, it was divided up between the family, or when someone’s kids need looking after we would have to help them. I have a responsibility to look after my grannies (grandchildren, nephews, nieces) whenever they need it.
…
It is also very important for Noongars to pass on information to their children and their grannies. If you cannot pass on the information to your children, then you should pass it on to someone else’s children. I take my grannies out to Walyunga National Park … as well as to places down near Busselton … and I teach them about balga trees and what you should do when you are out in the bush. Sometimes we will go and sit around the fire and I will tell them stories that my mother told me.
As a Noongar, family comes first. Noongars also have clans and extended families, but it is the blood relatives that come first, then the extended family. Like when my family goes hunting, they will share whatever food they catch with me.’
521 Ms Kopusar said her mother was born near Onslow in the Pilbara. Her father was born in Claremont, Perth, in about 1895, but he later lived in the Northam district. He was taken to New Norcia or the Moore River settlement as a child. Ms Kopusar spent her early years outside the south-west but her mother used to talk about the Busselton district, where her own mother had been born. Ms Kopusar regards this area as her country.
522 Ms Kopusar told Mr Wright she would also describe herself as a Wardandi woman, meaning a person from the Busselton area. She was not clear about the limits of the Wardandi area, saying ‘I’ve always just identified as Noongar but I would identify as a Wardandi … because I think when I look at that map it looks like I’d fit in there somewhere’.
523 Ms Kopusar talked about the time when she was a little girl living up north and her mother talked about the Busselton area. I asked Ms Kopusar whether her mother had used ‘any name to tell you the Aboriginal group you belong to’. She replied: ‘No just said – well, I heard her talk about Bibbulmun but mainly she talked about Noongars. Noongar people’. Ms Kopusar confirmed this was when she was little, her mother then ‘talked about Noongars’.
N Vilma Webb (born 1932, evidence at Dunsborough)
524 Ms Webb said in her witness statement:
‘My mother and father were both Noongar, which means that I am Noongar and my children are Noongar. It depends on who your parents are. You cannot become Noongar if you’re [sic] parents are not Noongar. I also identify as a Pibulmen woman.’
525 Ms Webb also referred to the rule, taught by her parents, ‘to always listen to the old people’. She had done this and learned things she was now teaching to others. Ms Webb said:
‘When I was a child I would travel around with my family a lot and camp around with all the grandparents and uncles and aunties, we would all travel in one big lot. We own our first cousins and even our second cousins as brothers and sisters. Our aunties are like our Mum and our uncles were like a Dad for us. Like my Aunty Eileen (my mother’s sister) and Uncle Steve, they were like parents to me.’
526 In answer to Mr Wright, Ms Webb said the Wardandi area was her late husband’s country. Mr Wright asked if Ms Webb would call herself a Wardandi woman. She replied: ‘Well. I think that I can go both ways.’ Her perception on that point seems to contrast with her perception of the result of a Noongar – Yamatji marriage. She had this exchange with Ms Webb, counsel for the Commonwealth:
‘MS WEBB: Now, your children, their mother and father were both Noongar, weren’t they?
VILMA WEBB: Yes.
MS WEBB: Yes. And so that means that they're Noongar. Now, what happens if you have a Noongar mother and say a Yamatji father, what would those children be? What group?
VILMA WEBB: Oh it would be two groups, wouldn't they.
MS WEBB: Why would they be two groups?
VILMA WEBB: Because they - their father come from another country and their mother came from another country. So they wouldn't know which way they'd go, would they?
MS WEBB: No, no. That would be the same, would it, if the father was Noongar and the mother was Yamatji?
VILMA WEBB: Yes.
MS WEBB: Would they know which way to go then?
VILMA WEBB: No. They got a strange name for those sort of - for different people in different countries but I can’t think of it.
O William Webb (named applicant, born 1952, evidence at Dunsborough)
527 William Webb is the son of Vilma Webb, and brother of Wayne Webb. He explained his manner of identification in this way:
‘I am a member of the Wardandi clan. My ancestral connections are through the Wardandi people and the Pibelmen people. I take my identity through my father’s Wardandi side and my mother’s Pibelmen side. I associate as a Wardandi man because I have grown up in the Wardandi area and I know the stories and the sites for the Wardandi people.
I use the word Bibbulman to describe all the people living in the South West of Western Australia, in the area from Jurien Bay to Narrogin and sweeping down to the west side of Esperance. Sometimes I will use the word Noongar instead of Bibbulman. This is because a lot of people use the word Noongar and people can more easily identify with this word. However, I am also aware that the word Noongar means “man” and I prefer to identify as a Wardandi Pibulmen man.
My children will also belong to the Wardandi and Pibulmen peoples through me. They will inherit the right to speak for country as well as the right to learn the stories of places in our family’s country.
528 In the course of a discussion about passing on knowledge, Mr Webb said:
‘I helped to establish the Wardan Aboriginal Cultural Centre as place where the wardandi people can share their culture with visitors, school groups and Aboriginal people from other areas, in an effort to increase understanding and reconciliation with the wider community. I am the Manager of the Wardan Aboriginal Cultural Centre and I take visitors on walks through the bush and teach them about wardandi bush tucker and share special stories about this place. I do this as a way to promote my culture, because I am proud of my culture, also as a way of helping to preserve my culture and to celebrate it. I feel that as I get older, it is my responsibility to do these things and to teach others.’
529 Mr Webb said he had connections to the area from Augusta to Bunbury, through his father (Wardandi) and to the country around Walpole, Bridgetown and Manjimup, through his mother (Pibelmen). He said:
‘My father and his father would also tell me that all of the Bibbulman people living the South West in this area are not circumcised. North of Jurien Bay is Yamatji country and towards Kalgoorlie is Wongai country.
My fathertold me that the song and story lines for our people, from the Bunbury area cut through to Collie and to the Wave Rock area, (which is to the north west and out of Noongar country). Wave Rock is the place where the three tribes, Bibbulman, Yamatji and Wongai would hold big meetings. The song and story line from our people is the Blackwood River because it goes straight out to Narrogin. The Blackwood River is like the waich jen (emu tracks). When people were leaving to go to a meeting at Wave Rock which is outside Noongar countrythey had to follow a line to get there and that line was the Blackwood River.’
530 During the course of his cross-examination, Mr Webb confirmed that ‘Pibelmen’ is different from ‘Bibbulmun’. He explained that Bibbulmun is ‘the nation of people where I think there’s around about 12 to 14 claim group areas in that’; Pibelmen is one of those groups.
531 I asked Mr Webb about the relationship between the nation and claim groups. He replied:
‘They have distinctive types of language and so on identifying those different areas. Like down here, we'd call the big racehorse goanna the kurda … and if I went from here to Collie into Wilmun area they drop the “u” and they put an “a” and it becomes karda. So that identifies even within … our nation of people through language that that is the Wilmun area or that is Wardandi country, yes, by that language.’
532 I took the matter a little further:
‘HIS HONOUR: Do you see the people who are members of the clans having a special relationship to people who are in different clans but in the Bibbulmun or Noongar nation?
BILL WEBB: Mmm.
HIS HONOUR: In other words, a different relationship than they might have say to Yamatji or Wangkayi?
BILL WEBB: I think would sit within like the - the non-circumcision and then the customs and laws within that - that nation.
HIS HONOUR: So you think there are some customs and laws that are special to the Bibbulmun nation - - -
BILL WEBB: Yes.
HIS HONOUR: - - - that are not shared with Yamatji or Wangkayi or whatever?
BILL WEBB: No, no. You go out there, you lose a bit of skin or something else.
HIS HONOUR: Okay. And then … between the clans in the Bibbulmun nation, they have links that are somewhat different from the links they have with people outside?
BILL WEBB: Yes.’
533 Mr Wright followed this up by asking Mr William Webb whether he could think of any differences, other than circumcision, between the Bibbulmun nation and the Wangkayi. Mr Webb mentioned ‘the way you’re put to death’. He said ‘out that way … you stood at a distance and spears thrown at you’; ‘[h]ere you’re held by a couple of warriors and just sever the artery and it was over within about 20 minutes’. Mr Webb also mentioned ‘markings, ceremonial stuff with different markings’; he was ‘[n]ot quite sure what else they do’.
534 In re-examination, Mr Hughston asked Mr Webb whether Wangkayi people skinned the kangaroo. Mr Webb said he knew that ‘some of them up towards the north a bit just sort of singe it off’; but ‘down this area here, being a bit colder, we made them into bookas and blankets and stuff.’
P Thomas Ford (born 1934, evidence at Kokerbin Rock)
535 Mr Ford was born at Badjaling, a small town about 10kms east of Quairading. This is in Ballardong country, which he described as ‘between York, Toodyay, Merredin, Southern Cross, Hyden, Narrogin and back up to York’. He went on: ‘The Ballardong belong to Noongar. I have always known about Noongar.’
536 In his witness statement, Mr Ford said:
‘Noongar country is all the country in between Bunbury, around the coast to Albany and nearly to Esperance, then right out to the east side of Southern Cross, or maybe just to Southern Cross, west across to Mukinbudin, across north of Moora then all the way west to the coast. Then it goes right back down the coast to Bunbury again. Perth is in Noongar country.
Noongars, Wongais and Yamatjis are different. Years ago Wongais used to be scared of Noongars and vice versa. One of my first memories of hearing about Wongais was when I went to Narembeen, that’s east of Badjaling, with my father. The horse that we had started shaking around and getting agitated. My father said that the horse was upset because the wongais were close by and might be coming. I remember when I was kid no Noongars went to Southern Cross. You just didn’t do it. That was wongai country out there and Noongars had to be really wary of going there. I lived in Kalgoorlie when I had a young family so I am OK to go to Southern Cross now. I’m still very careful though. If people know you then it’s a lot easier, like they knew me in Kalgoorlie. A lot of Noongars, though, would be too frightened to go out to Southern Cross, and definitely too frightened to go hunting there unless someone from out there is with them.
To be Noongar, you must be born in Noongar country, south of Geraldton and west of Kalgoorlie, or have parents that are from that area. If you’re born in Kalgoorlie, then you can be a Wongai. Like my son, he was born in Kalgoorlie, he’s living there and it’s like he’s classed as a wongai. My granddaughter, her mother is a wongai, but she was born here in Perth, so she’s a Noongar. My son can come back to Noongar country and follow the Noongar line, the same way that my granddaughter can on wongai country. They’ve got parents on each side so they can do that. It’s where you’re living and the family you’re living in that’s important. The things that your parents or other old people are teaching you when you’re growing up.
Some Noongar families the Pickett, Yarran, Blurton, Lawrence, Narkle and the Fitzgerald families are all connected to the Ballardong Noongar area.’
537 Mr Hughston asked Mr Ford his age when he first heard the word ‘Noongar’. Mr Ford replied: ‘Well, I was pretty young then. See, it doesn’t make – and it didn’t make any difference when you come – where they come from.’
538 Mr Ford explained that the people from Geraldton and Kalgoorlie had different names (Yamatji and Wangkayi) but ‘down here in the south-west’ all are Noongar. Mr Ford identified the boundaries of Noongar territory, putting its northern extremity ‘round about Moora’ and going east to Southern Cross and Esperance.
539 In cross-examination, Mr Ford told Mr Wright he was first told the boundaries of the Noongar country when he was ‘about 30’. When he was ‘pretty young’ his father used to ‘tell us about the Wangkayi’s, but his father referred to them as the ‘black fellas out that way’.
Q Kevan Davis (born 1941, evidence at Kokerbin Rock)
540 Mr Davis said he was born in a hut outside Beverley; Aboriginal women were not then allowed to have their babies in hospital. He said, in his witness statement:
‘I am a Noongar man and have never thought that I am anything else. My mother was Noongar as was her mother, Yuuline. It was through my mother, my grandmother Yuuline, as well as my mother’s brothers and my mother’s mother’s brothers that I came to know this. I also learned about being Noongar from other older people that were around who told me these things.
I am Ballardong as well, although my grandmother, Yuuline, was also Pipulman. She told me that. I am Ballardong because I was reared up in Ballardong country and have learned about Ballardong country from my mother, my mother’s brothers and my mother’s mother’s brother, Bertie Bennell. The Pipulman (Bibbulman) track was the crossroads between Ballardong and Pipulman Bibbulman people. Both Ballardong and Pipulman people are Noongar.’
541 Mr Davis said he witnessed corroborees when he was young, although he was not supposed to see them. This was in the 1940s. Apparently, the dancing was at Kokerbin Rock or Kwolyn Rock. The men would dance with clapping sticks. Mr Davis also spoke of dances, with singing, around the camp fire. He still takes his grandchildren into the bush, lights a big fire and teaches them these dances.
542 Mr Davis said:
‘I have helped to organise big family reunions on country out near Shackleton. We had a big meeting there a couple of years back where all the families from our country like the Davis family, the Garletts, the Fords and others camped out together.’
543 In answer to Mr Hughston, Mr Davis gave the boundaries of Noongar country, also of Ballardong country. He said: ‘I grew up believing that I wasn’t allowed to go out of that area’.
R Norma Jones (born 1936, evidence at Kokerbin Rock)
544 Ms Jones said, in her witness statement, that she was told by her mother, and her mother’s siblings, that she was Noongar. Her mother was Noongar. She said: ‘Noongar people are all related’.
545 Ms Jones was born in a hospital in Subiaco, Perth, despite the fact that her mother was then living at Mukinbudin, near the north-eastern boundary of the claim area. Ms Jones said: ‘they wouldn’t give her a bed inside at the Merredin hospital. I was taken straight back to Mukinbudin after I was born’. Ms Jones said her mother was born at Success Hill, Guildford. Her mother told her her ‘people went right back to before the wajalas came’. She said her tribe used to be ‘right around all those Swan River and everything’ but moved out in Ms Jones’ great-great-grandfather’s time. She recounted the story, as told by her mother:
‘My great, great grandfather used to say there was a pale face people coming into here, south-west and going to taught the people how to live. And when they came, well, they thought that well, there is here now, so it will be okay, in Captain Cook’s place. But they did something terrible … to a young woman and they went out and raped them and so, they got the spears and tie them up … Yes, they got their spears and they started and then – then the wajalas would just get their guns and start mowing them down. And they didn’t know why, what was happening but, you know – and then they thought, well, what’s the good of it? You know, these people are not going to be like they said they would. And they – well, I mean my great, great grandfather was really upset and he reckons, “Oh, they couldn’t be like this. This is unreal.” And he said to … the Noongar people, “Let’s get out, get away, get away”, she said, “because they’re doing these sort of things to us ...” So that’s what happened.’
546 Ms Jones said she was Noongar from her mother’s side but Yamatji from her father; he was born in Marble Bar. She said:
‘Noongar people are different to Wongai people and Yamatji people. They have different laws. Yamatji country is north of Noongar country, and Wongai country is to the east. Kalgoorlie is Wongai country.’
547 Ms Jones said the Yamatjis had different laws; also the Wangkayi (Wongai) who ‘if someone does something wrong, they’ll cut his leg off or something like that’. Ms Jones was vague about differences; she said Noongars do circumcision, which is different from the preponderant evidence.
S Mr MW (named applicant, born 1938, evidence at Djuring)
548 Mr MW took the Court to Shark’s Mouth Rock near Djuring. He pointed out some handprints (about ten in number) in a cave in the rock ‘put up there by our old Aboriginal people’ and explained how this was done. He said the prints were ‘there before my time’. Mr MW said there used to be camping areas ‘right through here’. In his witness statement, Mr MW said:
‘They used to do initiation behind this rock here. No women are allowed there. It was men’s business. Different Aboriginal people used to come from all directions, and meet here for law business. The Wongais and Yamatjis used to come and meet with the Noongars here, and have big meetings, big corroborees. The old men from the other areas would try and talk the Noongar men into doing business their way, but the old Noongar men knew that this way was not right. They couldn’t be talked into the bad Wongai and Yamatji ways, they were wrong. I can’t really talk to women about what it was about, but they used to get big sticks, or we call them kundis. They would sharpen them up in the fire, and then make marks across your arms and chest. This is not the Noongar way.’
549 Mr MW then took the Court to Coffin Rock. This rock is about the size and shape of a coffin and dangerous to touch. Mr MW told a traditional story about it. He also spoke about some of the waterholes in the district. They are visited by the Djuring wagyl who ‘travels back and forth’.
550 Mr MW said he was a Noongar, as were his parents and all his grandparents. He claimed ‘strong associations with two areas of Noongar country’: the Badjaling area, where he lives, and the Kellerberrin area, where he was born. He came from the Ballardong tribe. He knew the word ‘Ballardong’ when he was young and living at York. At one stage, he thought ‘Ballardong’ and ‘Noongar’ were the same thing; however, he knows the difference now. Mr MW distinguished between Noongars, west of Southern Cross, and Wangkayi, to the east. He also distinguished between Noongars and ‘Yamatjis up Geraldton way’.
T Saul Yarran (named applicant, born 1941, evidence at Djuring)
551 In his witness statement, Mr Yarran said:
‘I am a Noongar man. My parents and my grandparents taught me that. Noongar is like my nationality. It is like being English or Italian. I am Noongar. I am Noongar because both my parents were Noongar as was my father’s father and my father’s father’s father. My father had a lot of knowledge about the country which he had learnt from his father and Granny Gweeowl. My father and Granny Gweeowl taught me everything I know about my country. Without that knowledge I could not speak for my country. I have an obligation to pass on the knowledge to my children and my grannies (grandchildren). I consider myself Ballardong which is my family’s mob around the York area, half way to Beverley and half way to Northam.’
552 Mr Yarran recounted a story, told to him by Granny Gweeowl, about how the ‘people of York came to be the Ballardong mob’. Mr Yarran said:
‘It was a story about the flowers that grew in and around the York area, the pink everlastings and the yellow ones. They were known as dongs to them people … On the west side of the river Gwaingwerit lived and that was my ancestor and on the east side of the river, the Bilya, lived Woorditche.
MR HUGHSTON: Okay. And what was that river called?
SAUL YARRAN: Bilya.
MR HUGHSTON: Has that got a white fella name?
SAUL YARRAN: Avon.
MR HUGHSTON: The Avon River. Okay. Alright, so you’ve got your ancestor and his people living on one side of the Bilya River - - -
SAUL YARRAN: Yes.
MR HUGHSTON: - - - and another group of people living on the other side?
SAUL YARRAN: That’s right, yes.
MR HUGHSTON: So, what happened?
SAUL YARRAN: Well, they were rivals. You know, they used to spend a lot of time, you know, looking at each other and the tribe over that side wanted to look at the girls on this side and they weren’t allowed to and eventually they married into each other, like the two tribes, tribal mobs and they became the Ballardong tribe.
MR HUGHSTON: Okay. And what was that area then that was originally associated with the Ballardong tribe? What place or places were originally associated with that Ballardong tribe?
SAUL YARRAN: York.’
553 Mr Yarran distinguished Noongar country from Yamatji and Wongai country. In his witness statement, Mr Yarran said:
‘Wongai people are different to Noongar people. They speak differently and act differently. You can tell that someone is a Wongai just by looking at them.’
554 Mr Yarran said he had worked on the railways in Wangkayi territory, at Coolgardie. He also had some Wangkayi relatives.
555 Mr Hughston asked Mr Yarran to describe some of the things that are different about Wangkayi people. He was reluctant to do this, because women were present, but said it was something to do with men’s initiation that Noongar people do not do. Mr Yarran also said that Wangkayi people have different laws; they have skin groups, whereas Noongar people do not. He said: ‘They don’t have wagyls in Wangkayi country’; he had never heard a Wangkayi person talking about mamaris or wudarjis.
556 During the course of cross-examination, Mr Wright asked Mr Yarran about people called ‘Nulla Nulla’. Mr Yarran said they were east of Merriden, outside the claim area. The evidence went on:
‘MR WRIGHT: So, is that still Noongar country that country?
SAUL YARRAN: Well, it’s – it’s sort of a mixture with the – with the Noongars and the Wangkayis becoming the Nulla Nulla.
MR WRIGHT: Yes. Now, when you say a mixture, so do you mean that like one parent’s Noongar and one parent’s Wangkayi?
SAUL YARRAN: Yes, yes.
MR WRIGHT: And so what are the kids then? Are the kids Noongar or Wangkayi or are they a mix?
SAUL YARRAN: They’re Nulla Nullas.
MR WRIGHT: They’re Nulla Nulla. So, would you call Nulla Nulla’s part of Noongar?
SAUL YARRAN: No. No, no.
MR WRIGHT: So that’s sort of another group of its own, is it, really?
SAUL YARRAN: Yes.
MR WRIGHT: Between Noongar and Wangkayi?
SAUL YARRAN: Yes.’
557 Mr Wright asked Mr Yarran about other groups. He mentioned Ballardong, Bibulmun and Yued. The evidence went on:
‘MR WRIGHT: Yes. And so, this word “Noongar”, so all of those different mobs that you’ve just mentioned, the Ballardong and the Yued and the Bibulmun - - -
SAUL YARRAN: Yes.
MR WRIGHT: - - - are they – they’re all now called Noongar?
SAUL YARRAN: They’re all Noongars, yes.
MR WRIGHT: Yes. And do you think that’s something that’s happened since the white man came that they’ve all been – just been called Noongars, that they used to all have their separate little names?
SAUL YARRAN: Yes. Like I said, when the white people came out, a lot of the tribal people in the Ballardong tribes, they didn’t like the rules that the white fellas made up, so they moved out. So, they were Ballardong people in the first place but they went back into the bush.’
558 In his witness statement, Mr Yarran had referred to an ochre pit near the Bilya (Avon) River. He said:
‘The old law men over the years; Yagan, Teddy Champion, and my great grandfather; would walk up here to get their ochre. They used to paint themselves up and then perform ceremonies. Areas around York were traditional meeting areas used for big meetings between different mobs. They would come up here and stay for maybe a week and talk about what should be done with the land. They would go out to the ochre pit and paint themselves up and go into the hills for law business.’
559 At the end of cross-examination, I asked Mr Yarran when he first heard talk about Noongar. He said he heard this about 60 years ago, when he was a small boy.
U Robert Bropho (named applicant, born 1930, evidence at Swan Valley)
560 Mr Bropho was born at Toodyay. In his witness statement, he said:
‘I am Noongar, I was born to be a Noongar from a Noongar woman. You can’t forget your parents. People use the term Noongar, it means “us”, all Aboriginal people living in the camps and bush breaks around Eden Hill and Lockridge. Those people around the Swan River and the Creeks. Old fellas called themselves Noongars.’
561 Mr Bropho contrasted Noongars with Yamatjis (‘north of Geraldton’) and Wongais (‘Kalgoorlie and outwards’).
562 Mr Ranson explored with Mr Bropho the meaning of ‘Noongar’. Mr Bropho gave an explanation that involved three ingredients: being born to a Noongar father or mother; living in Noongar country; and having learned about Noongar ways. Mr Bropho was asked about the name ‘Wadjuk’. He dismissed this as a ‘(w)hite fella name word’.
563 Mr McKenna asked Mr Bropho about the Bibulmun. He replied: ‘That’s Noongar people going south’. The Yued were people to the north and east. Mr Bropho was unwilling to describe their boundaries but named people who could do this.
V Albert Corunna (named applicant, evidence at Swan Valley)
564 Mr Corunna did not provide a witness statement. He had given evidence before Beaumont J and was recalled for further questioning by the respondents. However, Mr Corunna did not throw any light on the identity of the current Aboriginal community in the Swan Valley, or elsewhere. He said his father came from the Pilbara. He himself was born in Subiaco and he believed his mother was born at Success Hill, in Swan Valley. Mr Corunna said his mother’s grandmother was the sister of Yagan. This claim was disputed by Mr Bodney and Mr Miller.
W Richard Wilkes (named applicant, born 1943, evidence at Swan Valley)
565 Mr Wilkes was also called for further questioning. He also had no witness statement.
566 In response to Mr Bodney, Mr Wilkes said he knew ‘Wadjuk’ as a skin group; he knew of no Wadjuk territory. He said he knew the Noongar boundary, which he described.
567 Mr Wilkes had told Beaumont J that the word ‘Noongar’ means ‘the people’; ‘nyungar’ means ‘the men’; he was a ‘nyungar’. In evidence before me, he said he was born at Kununoppin, which is north-west of Merriden. Mr Ranson put to Mr Wilkes that this was in Ballardong country. Mr Wilkes replied: ‘No, it's Noongar country, but it's in Ballardong territory.’
568 The evidence went on:
‘MR RANSON: Yes. So are there people who are Ballardong people? You say "Ballardong territory"; are there people who are Ballardong people?
MR WILKES: Well, they call themselves Ballardong Noongars.
MR RANSON: And are you a Ballardong Noongar?
MR WILKES: No, I'm a - I'm a Noongar from the Derbal - from the Derbal Yerrigen area, and that's the Swan River and the - and the Marli qwonkin, which is the Swan plains.
MR RANSON: And if you were born up in that Ballardong Noongar country, does that … not make you a Ballardong Noongar person?
MR WILKES: No, because I born … from people who were originally from this area, and that's what my upbringing and my understanding was … through my parents. Even though my mother … come from Wangkayi country, she was married to my father, and she accepted the role of a Noongar woman.’
569 Mr Ranson asked Mr Wilkes whether there was a name for the people in the Swan Valley. He gave four names: ‘Mooro’, ‘Wirrurup’, ‘Bilyu’ and ‘Beeliar’, which he said had ‘an intimate way of intermingling with one another’. Confusingly, Mr Wilkes added a reference to ‘Wadjuk’ people. He said Wadjuk ‘has the name of this area, but its not used as much as what Noongar has come. Noongars starting to take over that word of Wadjuk’.
X Frances Humphries (born 1942, evidence at Swan Valley)
570 In her witness statement, Ms Humphries said:
‘I was born a Noongar woman. My parents told me that I was Noongar. I was brought up Noongar way in Noongar country. My mother and father were both Noongar. Both my mother’s and my father’s parents were Noongar.
If only one of your parents is Noongar, but you are brought up Noongar way then you’re Noongar. People can be adopted into Noongar society and taught about Noongar ways. For example, if a small child has been raised by Noongar parents, and taught Noongar ways, then the rest of the family may consider them to be Noongar. But it would always be for the family to decide.
…
Noongar country is different to Yamatji and Wongai country. Geraldton is Yamatji country and Kalgoorlie is Wongai. I reckon that somewhere just south of Geraldton is where you start going from Noongar country into Yamatji country. Then it probably comes across to somewhere on the other side (eastern side) of Southern Cross, and then down to Esperance somewhere. The other side of Southern Cross is Wongai country.
Wongai and Yamatji people are different to Noongar people. They have different laws altogether. I wouldn’t go in to Wongai country and speak for Wongais because they would spear me.’
571 She also said:
‘I have rights in both my mother’s and my father’s country. I have inherited these rights because I was born Noongar, I live on Noongar country, I have been taught Noongar ways, and I teach my children about Noongar ways. However, while my brothers were alive it was their responsibility to speak for country and any decisions in relation to our family and the land were up to them. They had to consider my rights and interests, but ultimately, it was their decision. But now that all my brothers have passed away, and I am the eldest, it is my responsibility to speak for my family’s country.’
572 Ms Humphries referred to family:
‘Family is very important to Noongar people. In Noongar way, the older people cared for all their nieces and nephews. When I was young I used to stay with Uncle Tony and his family down Midland way. My husband and I have always had an open house and have reared up lots of Noongar children.’
Y Gregory Garlett (named applicant, born 1951, evidence at Kings Park)
573 In his witness statement, Mr Garlett said:
‘I was born on Noongar country. To be Noongar you have to have at least one parent who is Noongar. If you have authority, if you have knowledge and are grown up by Noongars then you are Noongar. Robert Bropho’s mother was from Busselton and he was married to Noongar a woman from Perth. He can talk for his kids, he has authority to say things.’
574 Mr Garlett gave evidence of some boundaries of Noongar territory. He said a lake at Southern Cross ‘is a boundary between Noongars and Wongais’. He said ‘Moora is included as Noongar’, but he was ‘not sure how far north it goes’. He went on:
‘Inside we are still one mob of Noongar people as we are all linked. We all have similar rules and we are all related. People are mixed through marriage and moving around. The white fella wants to fence you in but we move around. We don’t hunt in one area but move around to four or five different places.
I heard of Ballardong when I was a kid from Reg Jacobs, my mother’s uncle and Yued when I was a teenager. Old Jacobs said he was married to a woman who was Noongar, she was an Anderson and she was from the Yued area. Ralph Winmar married dad’s sister. My mother Angeline Humphries and my father Leonard Garlett talked about Ballardong country and Ballardong people. They said it was the name of the tribe in that area, from York to Southern Cross and down to Narrogin. Mum said she connected to Ballardong through the Yarrans.’
575 In answer to Mr Hughston, Mr Garlett said he had ancestors, on both his father’s and mother’s sides, who came from the Perth area. The evidence went on:
‘MR HUGHSTON: Yes. So does that mean that you have rights under Noongar law in this Perth area?
GREGORY GARLETT: Well, I'm a descendant from those Noongar people from this area.
MR HUGHSTON: Yes. And what does that mean in terms of whether you have rights? Can you speak for this area or not?
GREGORY GARLETT: I can speak for this area if I'm asked by my elders to speak, I can speak, but while my elders are still alive well, if they want to speak, they speak unless they ask me.’
576 In answer to Mr Ranson, Mr Garlett agreed that Bruce Rock, where he was born, was a Ballardong area. He added: ‘I was born on the Ballardong country but I’m a Noongar from the Noongar country’. He said he was associated with the Wadjuk. The evidence went on:
‘MR RANSON: So you would say you're partly Ballardong and partly Wadjuk?
GREGORY GARLETT: Yes. On the whole I'm a Noongar but because I - - -
MR RANSON: Okay.
GREGORY GARLETT: Both parents are Noongars.
MR RANSON: Have you ever used any of those other names like
Yellowgonga and Morro, Beeliair, those Perth names that we've heard about?
GREGORY GARLETT: No, I mainly use Noongar.
MR RANSON: And we've talked about that Ballardong area and Ballardong people, and do you know some of the other names like that for other parts of Noongar country?
GREGORY GARLETT: Yes, we got different names for different parts of Noongar country, like everything else.
MR RANSON: Can you tell me some of those names for those other parts?
GREGORY GARLETT: When you say "parts", what do you mean by parts?
MR RANSON: Well, if Ballardong is one area, are there some other areas like that?
GREGORY GARLETT: Yes, there's a lot of names in different - in the Noongar country but on the outskirts there's Wangkayis and Yamatjis but that's separate.
MR RANSON: But can you - - -
GREGORY GARLETT: That's a separate people to us.’
577 Mr Ranson asked Mr Garlettt to give him the names of other groups within the Noongar territory. Mr Garlettt demurred to this. Finally, he explained: ‘I know the names but I don’t feel that I should be talking for that country when there’s other elders in that country to speak.’
578 Mr McKenna asked Mr Garlett about the word ‘Wadjuk’. He replied ‘it’s mainly the name of the tribe of people here’. He said the tribe was ‘associated with the Swan River area and coastal plains’; the boundary was in the Darling Ranges.
Z Kelvin Garlett (born 1958, evidence in Kings Park)
579 Kelvin Garlett is the younger brother of Gregory Garlett. For that reason, apparently, he said nothing about his self-identification, although he did identify his family run, which he called ‘the history of where you have lived and your old people have died’. He said:
‘My run is the metro area to Kellerberrin, Bruce Rock and south to Corringin. I have a connection to the metro area as this is where the history of the family line started from.
Booja is the land, Perth to Southern Cross, down to Albany. The boundary for Noongar country to the north is past Moora, to the east is Southern Cross and to the south is Albany. I heard this from my uncles and great uncles and my dad.’
580 Mr Kelvin Garlett also revealed that he spoke the Noongar language and referred to some ‘Noongar’ rules and practices.
AA Dorothy Garlett (born 1936, evidence in Kings Park)
581 Dorothy Garlett is a second cousin of Gregory and Kelvin Garlett. They are all descended from Yurleen (aka Fanny Bennell). Ms Garlett said she had known Yurleen. When Ms Garlett was about ten years old, Yurleen told her she had been born in Kings Park and, subsequently, ‘the wajalas drove all the Noongars off Kings Park’; they ‘shot them or took them away and put them into Missions up towards Bindoon’.
582 In her witness statement, Ms Garlett said:
‘I am a Noongar woman. I was born Noongar. My parents and my grandparents were Noongar. I married a Noongar man and I have Noongar children. I have always known that I was Noongar. My parents and my grandparents told me I was Noongar.
I am also Ballardong. I am Ballardong because I was reared up in Ballardong country and have lived there are [sic: and?] learned about Ballardong country from my father and my father’s mother, and her sons including Ernie, Mick, Bob, Bonnie, Harry and Bill Garlett. I also learned about Ballardong country from my husband, Ralph Winmar. The Ballardong people are Noongar.’
583 Ms Garlett described the Ballardong area, also Gubran country:
‘Gubran country extended from Yellowdine to Southern Cross. The Gubran mob were not Wongai and but they weren’t Noongar either. The Gubran people were not Noongar themselves but married into Noongars. Noongar people were allowed to marry into the Gubran. We used to mix in together.
The Gubran people are sort of at the crossroads between the Noongar people and the Wongai people to the east of Noongar country. Old Teddy Champion was a bloke that was connected at these crossroads. He was married to my mother’s niece, Elsie Riley which formed a connection between us. He could come into Ballardong country and into Gubran country.’
584 Ms Garlett went on to talk about boundaries:
‘Boundaries are marked by landscape. For example, on the other side of Southern Cross they have different trees. They have Gimlett trees which have a reddish brown colour. This is Gubran country. The trees in my country, Noongar country, are the white gum tree, the Yorgum trees and the jam gum trees. In wongai country they have mallee trees. Boundaries are also marked by the hills and the names of hills. There might be a hill that you’re not allowed to go past.
Noongar country stops east of Merredin, at Yellowdine, and at Southern Cross. It also goes down as far south as … Albany. Noongar country goes north as far as near Geraldton. I learned this from older people. On the other side of Yellowdine is Wongai country. I reckon that somewhere around Geraldton is where you start going into Yamatji country. Albany is in Noongar country. I am not sure about Esperance. That is probably on the boundary between Noongar and Wongai country.
Noongar country is different to Wongai country and Yamatji country. They have different laws and different language. They might eat some of the same food as Noongars but they do it differently. I remember being afraid of the Wongai people. I am not allowed to go there because I could be treading on special places that I do not know about. If I go there, I need to go with someone who knows the area and is allowed to be there.’
585 Ms Garlett mentioned her childhood:
‘I have lived my entire life in Noongar country. I grew up around Merredin, Kwolyin and Bruce Rock. I lived at Kwolyin in the early years. My father used to move around clearing the land for the wajalas. My family all used to move around with him, and camp at different places. My family used to live on the Saggas’ farm out from Kwolyin on the Kellerberrin Road. Mr Saggas went to war and while he was away our family lived in the Saggas’ house. We grew vegetables and shared them with all the other Noongar families. It is Noongar way that whatever you have, you must share. I remember Dad making little yards around the waterholes to catch the rabbits for our meat. We used to get lots of rabbits, sometimes 12 or 15 in one night.
I went to school at Bruce Rock or Kwolyin in the early days. There were about 23 students attending school at Kwolyin, including the Holland family. My family told me that the farmer’s wife didn’t like us going to school because she thought it meant that the white kids wouldn’t get a good education. The farmer’s wife contacted welfare, but we took off before welfare got there. They would have taken us to New Norcia or Carrolup. We went back out into the bush, to where my Dad was working.’
586 In oral evidence, Ms Garlett explained she was Noongar, because her parents were; but she was also Ballardong, because she ‘spent most of [her] growing up years in the Ballardong area’. Ms Garlett described the Noongar area boundaries. She also mentioned the Pibelmen tribe area which, she said, is part of the Noongar area, ‘the trail they used to take’.
587 In answer to Mr Ranson, Ms Garlett gave ‘Wadjuk tribe’ as the Noongar name for Perth Metro people.
AB Delores Flowers (born 1941, evidence in Kings Park)
588 Ms Flowers is the sister of Mr WW, who gave evidence at Jurien Bay. She said in her witness statement: ‘I am Noongar. This is because my father was Noongar and my grandmother and grandfather were Noongar.’
589 Ms Flowers told Mr Hughston ‘we knew all the time’ we were Noongar. She said: ‘I speak for around here [Perth] and Moora’.
590 Mr Ranson asked Ms Flowers whether ‘there are any rules for Noongar people about whether you should follow your father’s line [where there was a mixed marriage] or your mother’s line’. She said: ‘we mostly follow Dad’s line’, however it was permissible to follow the mother’s line ‘if we want to go and find out’. People get to speak for the country where they were born or where they mostly live.
591 Mr Ranson asked Ms Flowers whether there is ‘a difference between Yued and Noongar’. She replied: ‘Well, they’re Noongars but they’re just a different tribe, you know. Everybody’s a Noongar’. Ms Flowers said she was Yued; because of that, her husband would ‘probably be Yued’, although he was born in Albany.
AC Freda Yates (born 1938, evidence in Kings Park)
592 Ms Yates is the older sister of Ms Flowers. She also identified herself as Noongar, because of her father and his parents. Although her mother was Yamatji, she did not consider herself Yamatji. The reason was that her mother was brought up in the Noongar country, ‘she took the Noongar way’. Ms Yates said her husband came from Eucla; he was Wangkayi. However, her children ‘only stick to the Noongars’. Ms Yates said the rule was that, ‘if you come here and you’re brought up here’, or ‘if you come from somewhere else and … stay’, ‘you can become a Noongar person’. She said ‘Yued’ was the ‘tribe name’.
AD Kevin Miller (born 1951, evidence in Kings Park)
593 Mr Miller, a respondent to the Single Noongar claim, gave evidence about his background. He tendered a genealogy but no witness statement.
594 Mr Miller said his father was born at Bremer Bay in about 1900 and his mother at Albany, apparently about 1913. He himself was born at Mount Barker.
595 Mr Miller’s genealogy took his ancestry back to Waylup, also known as ‘King Billy of the Beeliair River’. Waylup was a small boy, living at the place now called Fremantle, when Captain Fremantle arrived. Mr Miller said Beeliair was the Aboriginal name for the Swan River; Waylup was his mother’s grandfather. On his father’s side, he said, he was descended from Tarapwirni and Tondaitch, two apical ancestors named in the Single Noongar claim. Mr Miller said he was a Noongar. However, he had chosen not to associate himself with the Single Noongar application. He was aware of the meetings that were held in order to formulate and authorise that application but he had elected not to attend. His brother, Samuel, had attended and was a named applicant.
(b) Comment on the Aboriginal evidence
596 I have set out the identification evidence of all the Aboriginal witnesses because I think that evidence is critically important to the issue of continuity of a single Noongar society. There were, of course, some differences in witnesses’ perceptions, but there was unanimity about the existence of such a society. There was also substantial agreement about the location of Noongar land. The witnesses’ boundary descriptions did not much vary, and were generally consistent with both the early writings and the anthropological evidence in this case. Most witnesses gave clear evidence of differences between Noongars, on the one hand, and Yamatjis and Wongais on the other; being differences they thought to be unlike those existing between Noongar tribes.
597 It would have been relatively easy for the witnesses to fabricate identification evidence, and I bear in mind the matters set out in para 449 above. There were moments of confusion, and some witnesses were less well informed than others. However, I was impressed by the manner in which all the witnesses dealt with this issue. I thought all were genuine, and confident, in their identification. Significantly, many of them told about first learning they were ‘Noongar’ when they were children. For many of them, this was back in the 1940s or earlier; well before the recent resurgence of interest in Aboriginal traditions and culture.
598 It is important to note that no respondent suggested, to any of the witnesses, that they were being dishonest, or were mistaken, either in their general evidence about identification or in stating the date when they first learned about their membership of the Noongar community.
599 As I previously noted, European settlement had a profound effect upon the Aboriginal people of south-west Western Australia. However, as Dr Host pointed out, the culture of those people persisted. Unlike the Yorta Yorta people, for example, the south-west community did not suffer a cataclysmic event that totally removed them from their traditional country. Families were pushed around, and broken up by removal of children and other events. However, people continued to identify with their Aboriginal heritage. I was impressed, for example, with the extent to which witnesses were able to trace their line of descent back for many generations, and to identify their contemporary relatives, despite the paucity of written records. I was also impressed by the extent to which they were able to speak about Aboriginal customs, beliefs and codes of conduct.
600 It is apparent that, despite the factors favouring fragmentation, members of families continued to remain in contact with each other, and with members of other Aboriginal families, especially those from their traditional areas. There is clearly a present-day ‘Noongar network’, linking families throughout the claim area.
601 It is possible that not all eligible people are part of that network. Some people may prefer to reject, or be uninterested in, their Noongar heritage. There is no evidence about the matter, but such attitudes can be found in any community. Rejection, or lack of interest, by some individuals does not itself negative the existence of a community. The question whether the members of the ‘Noongar network’ may properly be called a ‘community’, for the purposes of s 223(1) of the Act, depends upon the extent to which its members have continued to observe and acknowledge their traditional laws and customs; a matter to which I now turn.
(iii) Customs and beliefs
(a) Spiritual beliefs
602 Each of the 29 witnesses called by counsel for the Applicants gave extensive evidence about spiritual beliefs. On a few occasions, I wondered whether a witness personally held a particular belief, which he or she nonetheless described. Overwhelmingly, however, the witnesses conveyed to me they did share the particular belief; however unlikely that belief might seem to a non-Aboriginal person.
603 It would be a long and tedious business to set out all the belief evidence given by all the Aboriginal witnesses. The preferable course is for me to mention particular beliefs and note the names of the witnesses who spoke about each of them, once again in the order of their oral evidence. In order to give the flavour of their evidence, I have inserted some randomly selected quotations from some of the witnesses.
A Feeling good (or being safe) on boodja, because of the presence of familiar or friendly spirits
(a) Mr WW: ‘Spirits come out at night time and so lots of Noongars don’t
go out after dark. Lots of people don’t come to Mogumber because they’re scared of the spirits here, but I’m not afraid of them because this is my country. They are good ones here … My ancestors’ spirits are strong and protect me’.
(b) Charlie Shaw
(c) Charmaine Walley
(d) Carol Pettersen
(e) Lomas Roberts: ‘When you camp and light fires the wirrlus (the curlews) come swarming around. When they do this, they are telling you that you are being recognized by the spirits, and that you’re safe to be in the area.’
(f) Angus Wallum: ‘I can travel all through the bush in my country
without being molested or bothered by mamari because those spirits know me.’
(g) Ross Storey: ‘Around the Narrogin area I can go wherever I like
because the spirits, they know me, and I respect them … if … down in Albany, I wouldn’t go out into the bush on my own. The spirits down that way wouldn’t recognise me.’
(h) Vilma Webb: ‘When I visit places that are special to my family, I can feel the presence of my ancestors there.’
(i) Mr MW: didn’t talk of feeling good but of familiar spirits; ‘they recognise me when I speak.’
(j) Norma Jones: ‘the spirits in this area recognise my scent.’
‘The old people have told me stories about this area and I look after it … The spirits know me and they protect me.’
B Description of spirits that do good things
(a) Mr WW: ‘I went down to Round Pool and asked for a sign to show that the
old people were listening … The wind started blowing and then a big silver fish it jumped right out of the water. It was about thirty centimeters wide and it looked like a Taylor. These fish are ocean fish and not from the pool. I think they are spirits telling me that they are happy to see me, because I am from this area, this is my land.’
(b) Charmaine Walley
(c) Carol Pettersen
(d) Freda Yates
C Adverse effects of unfriendly spirits [sometimes not unfriendly – just ensuring correct behaviour]
(a) Mr WW: ‘dangerous to talk about the spirits’
(b) Charmaine Walley
(c) Lynette Knapp: Told story of a ‘spooky place’ that her family camped
at when she was about 14 years old: The mamaris tried to drag her
brother out of the tent. She commented: ‘I don’t know why we
decided to camp there because there are rules against camping there’.
‘Wirnaritj – bad spirits that warn against improper behaviour’.
(d) Joe Northover
(e) Wayne Collard
(f) Vilma Webb
(g) William Webb
(h) Kevan Davis: ‘Yorkrakine Rock is a women’s place, a birthing
place. It can be a dangerous place, especially for men. … My son-in-
law came out here, drove his car up onto the foot of the rock. My wife
and I got very angry with him and told him to move the car. He got
sick after that because he should never have gone there and done that’.
‘There is a very special smooth round stone near Korkin, right near
Shackleton, it sits next to the gnamma hole and shouldn’t be
moved. One time when we were out visiting the gnamma hole without
knowing it, my brother picked it up and put it in his car. If I had
known I would have told him to put it back. He took it back to
Northam with him. When he got home with the stone, strange
things started to happen. He telephoned me because he didn’t know
what to do. I drove out to his house, and he was right, something was
not right. The lights kept turning on and off, and the doors were
slamming like a big wind was going through the house. I couldn’t
work out what was happening, but then he told me that he had taken
the stone. I told him that he had to return it.’
‘I went to Yuberin about 10 years ago now. We took some
school kids up there. When I got back I thought I was going to
die from a very bad sickness. … He [Uncle Bill Humphries] thought that maybe it was the spirits poisoning me because things weren’t done properly’.
(i) Mr MW: A stone came hurtling towards his brother’s head, but he
couldn’t see anyone - ‘brother knew .. he must have been somewhere he shouldn’t so he left and went straight home’
(j) Frances Humphries
D Smoking an area to clear away bad spirits
(a) Charlie Shaw: ‘You can … light a fire to create smoke to stop the
spirits from following.’
(b) Lynette Knapp: ‘If spirit mumbling is heard you should leave.
Sometimes if you can’t leave straight away you should build a fire and stand next to it in the light. Then the spirits will see who you are and will not bother you anymore.’
(c) Angus Wallum: ‘we smoke the bush sometimes, the bushes. We
smoke our dog with the bush. Well, sometimes he won’t catch it. [It was then suggested that the smoke helps catch the kangaroo] …You’ll get the – yes, you’ll get kangaroo …Yes, he’s – this is our rules the old people taught us …It gives him some sort of – because the devil’s there all the time leading the dog away from the kangaroo or so or something’.
(d) Joe Northover: ‘if there's no water when we go hunting, then we light a
fire. We (took a barni) with a leaf then. We get the green
bushes and we hit ourself all over. And we chuck that bushes in the fire and the smoke take it then.’
(e) William Webb: ‘Smoking ceremonies can heal people and the smoke takes away bad spirits.’ ‘My niece had picked up a stone and a bone from the bush and brought it home. Because of this, a mamari followed her home and wouldn’t leave until I performed a smoking ceremony to get rid of the spirit.’
(f) Thomas Ford: [Regarding ‘smoking the dogs’] ‘when we go kangaroo
hunting. It was … something that the black fellas done years ago … See, they just put the dog through the fire, flame, and say a few Noongar words and let him go … if I had a dog, yes, I would do it, yes [these days].’
(g) Mr MW: ‘Moorok is burned to produce smoke and people stand in the
smoke. This smoke chases away the negative spirits from the country’.
(h) Gregory Garlett: ‘When you finish hunting you have to smoke
yourself, that means that you have to make a fire and stand in the smoke. If you can’t light a fire or need to get away quick you can throw sand over your shoulder. You do these things so the bad spirits don’t follow you.’
(i) Kelvin Garlett
E Need to leave food for spirits after hunting or fishing
(a) Mr WW: ‘Years ago, if the old Noongar people caught too much food,
they would leave the excess on the river for the wagyl.’
(b) Charmaine Walley: ‘You have to leave meat for wudartjis. [I]f you
didn’t, you would find it hard to get any kangaroo from that area the next time you went there.’
(c) Angus Wallam: ‘But you always cut it out [guts of the kangaroo]
because if you don't, if you take it back to that camp or your house then wudarjis mamaris come looking for you then and then come knocking looking for feed.’
(d) Wayne Webb: ‘When you get a kangaroo out in the bush, you take the
innards out and stick them up a tree to feed the mamaries and the wudarji (little fellas), so they don’t follow you home and cause you trouble’.
(e) Lomas Roberts
(f) Thomas Ford: ‘It is a rule that when you kill a kangaroo, you have to
leave the stomach & guts out in the bush for the mamaris’.
(g) Dorothy Garlett: ‘when you catch a kangaroo you should skin the
kangaroo and leave the guts there in the bush for the wudartji, so they don’t follow you home’.
F Propitiating unfriendly spirits, by speaking to them, and/or throwing sand on water, or on tracks, especially before fishing or hunting
(a) Mr WW: ‘I tell the kids to throw sand into the river when you go there.
This is to make peace with the spirits and to make peace with the wagyl. The spirits will keep your shadow if you don’t throw sand in the water.’
(b) Charlie Shaw: ‘When you go through other people’s country, we pass
some dirt or sand through our hands when we get there. We talk to the spirits and tell them that we are friendly and that I come in peace.’
(c) Charmaine Walley: [At a waterway] ‘my Dad told me that we were
recognised by the beermullah [spiritual snake] … It knew our smell, so we didn’t really need to do anything .. But he said … there was a ritual of some sort throwing sand in the water … My older sisters … they do that’.
(d) Carol Pettersen
(e) Lynette Knapp: ‘when I arrive on sacred ground I should talk to the
spirits. There are consequences if I don’t do this. The spirits need to be told that I am family and have returned and will do no harm. Before I leave I need to throw sand over my shoulder to blind the spirit people so they do not follow me home. At the end of a walk through the bush I make sure that I am the last person off the trail. I then take some sand from the ground in my hand and throw it over my shoulder. You need to talk to spirits as you would talk to anybody’.
(f) Lomas Roberts (hits water with stick)
(g) Angus Wallam: ‘Before I go fishing or swimming in the river, I throw
a handful of sand into the river, to let the wagyl know that I am here. I talk Noongar way. You have to let the spirit in the water know who you are and that you are there visiting. You can’t just rush in to that water’.
(h) Joe Northover (wipes under arm)
(i) Wayne Webb: ‘Before I go fishing or swimming I will always throw
sand in the water to let the spirits know who I am and what I am doing. Your scent is thrown onto the water with the sand to let them know who you are’.
(j) William Webb (sings out and marks a line on track so spirits can’t
follow)
(k) Patricia Kopusar: ‘Whenever I go to a waterhole, I chuck sand in to
acknowledge the water snakes in the waterholes. My mother taught me to do this. If you didn’t chuck the sand in the water, then you might get sick, or the water snake might get you.’
(l) Vilma Webb: ‘Whenever I go out into the bush, I will always make a line across in the sand. This marks the area so that bad spirits don’t follow you home. My mother taught me to do this. If you don’t do this something bad could happen to you’.
(m) Thomas Ford: ‘you chuck sand in the water and then you have a drink
[when come across a river or a pool].’
(n) Norma Jones (spits on stick and throws)
(o) Mr MW
(p) Albert Corunna
(q) Gregory Garlett
(r) Dorothy Garlett
(s) Delores Flowers: ‘We were taught to always chuck sand in the Swan River
before we went fishing there.’
(t) Freda Yates
G Places to avoid, regardless of cleansing, because of bad spirits
(a) Mr WW: ‘There are places that we don’t camp near because it is not
safe. There is one place in Gingin and we don’t camp there because it has jinga ties [bad spirits] … A lot of people were killed at Gingin and the spirits have not gone to rest’.
(b) Charlie Shaw: ‘There are bad spirits around caves. When I go there I
pick a small branch of a tree to brush over my back- to keep off the bad
spirits.’
(c) Charmaine Walley: ‘There are some places that Noongars do not go
because they get bad feelings at these places. I feel this way when I visit a place near Gilgie Well … We never go there because the old people said not to go there and because whenever we go there, it doesn’t feel right. This is because someone died there’.
(d) Carol Pettersen: ‘On the eastern and southern side of Bluff Knoll there
is a kadji place. This means it is a forbidden place. Mamaris live there and we don’t go there’.
(e) Lynette Knapp: ‘My father told me that there are places that hold bad
spirits and I have been told not to go near them. If I don’t listen to the warnings bad things will happen. I have had bad experiences when I did not listen to the warnings or forgot about them.’
(f) Angus Wallum
(g) Joe Northover
(h) Ross Storey
(i) Wayne Collard: ‘Little People’s Place … It’s a wirrnitj place. No one
will stay there. The fear of the mamaris would drive me out of there at night time. A wirrnitj place is where the spirits are not looking after you and all kind of bad luck can come your way.’
(j) Wayne Webb: ‘I was told by my father that the hollow tingle trees
house the spirits of my ancestors and that it is wirrnitj (spiritually bad) to go in those hollow trees. The spirits are held in the trees forever and the marks were made by the old people in the trunk to mark out the spot like a little shield or grave’.
(k) Vilma Webb
(l) Thomas Ford
(m) Kevan Davis
(n) Norma Jones: ‘It is important to show respect to the spirits and not go
places that you are not meant to go. I don’t know what would happen if I went to these places. I just would never go there. But I guess I might get sick or something bad would happen if I did.’ ‘Ingobbin Rock is also known as devils rock and I won’t go there. You can hear the devil there thumping, going vroom, vroom, vroom … The spirits are active there.’
(o) Mr MW
(p) Gregory Garlett: ‘Even now that I know where the wirrnitj places are I won’t
go there by myself.’
(q) Frances Humphries
(r) Kelvin Garlett
(s) Dorothy Garlett
H The chitty chitty bird (wagtail)
(a) Mr WW: ‘The chitty chitty (willy wag-tail) is evil and you should not follow it.’
(b) Carol Pettersen: ‘If you see a big willy willy you know that the spirits
are angry about something. When this happens my mother told us not to go around breaking trees as this would upset the spirits’.
(c) Lynette Knapp
(d) Angus Wallam: ‘I heard the song of the chitty chitty (willy wag tail).
He is a very clever bird, a naughty one. He can draw little kids away
into the bush’.
(e) Wayne Collard
(f) Wayne Webb
(g) Patricia Kopusar: ‘the jiti jiti (willy wagtail) is a warning bird that tells
you when strangers are coming’.
(h) Kevan Davis
(i) Mr MW
(j) Saul Yarran
(k) Dorothy Garlett
I Messenger birds:
(a) Mr WW: ‘[T]he Butcher Bird is a message bird. If it whistles, then
that means someone is coming, or there is good or bad news.’
(b) Carol Pettersen: ‘If a bird flies in to your house, or comes right up to
you and is not afraid, then we treat such birds with respect as this bird has taken on the spirit of somebody and is trying to convey a message.’
(c) Lynette Knapp
(d) Angus Wallum (messenger bird called kwerdalung): ‘The kwerdalung
is a messenger. He is a special bird, a special fella. He gives a whistle and lets you know if anyone is sick or if anything is wrong. He will let you know if there is a visitor or stranger coming.
(e) Joe Northover (messenger bird called kwurdalang)
(f) Wayne Collard (message of negative spiritual presence from currawong)
(g) Norma Jones (nyula, blue pigeon – messenger bird)
(h) Mr MW (spoke of birds bringing news of death – wirrlo, curlew)
(i) Saul Yarran (wirrlo – curlew bird – brings news of death)
(j) Robert Bropho (birds can be a sign for something eg. pelicans, mopoke)
(k) Frances Humphries (crow – particular birds bring different messages to different people)
(l) Gregory Garlett
(m) Dorothy Garlett (wirrio – curlew)
J Creation snake story
(a) Mr WW: ‘My father told me the wagyl goes way back into Lake Monger in Perth and travels underground like a river. It has an opening at Success Hill and Kings Park and it goes through all the wet areas through to Gingin, like Wanneroo Swamp, Joondalup and Yanchep. My father told me that this was the wagyl’s country.’
(b) Charlie Shaw: ‘The outcrops of limestone across the country are where the Woggardee (the rainbow serpent) goes from inland to the ocean. The holes were made by the supreme being, the Woggardee. They are all in a line because when he came up to breathe he pushed through the earth to make the hole. The Woggardee came from inland around Dandaragan to this area. You can hear the waves hitting the holes. It is a spiritual feeling hearing that. Noongars wouldn't go to those holes, bad spirits like to live in those places. The caves and the holes are very important and must not be damaged … There is a place called Kada Booja which means “Head of the Hill”. It is in the Mount Lesueur Range in the Lesueur National Park (about 30 mins drive from Jurien Bay). The woggardee came through here in the dreamtime on his way towards the sea. At Cockleshell gully the woggardee had carved the line through the mountains and rested there in the valley. The woggardee left some of his rainbow scales behind, and the different colours in the rocks – white, granite, limestone, red, orange – is from this. The woggardee, on his way to the sea, had come up for air at a few caves on the top of hills. These caves traced the water underground all the way to the ocean at Jurien Bay. The woggardee had also created the islands at Jurien Bay by pushing the rocks and sand up.’
(c) Carol Pettersen
(d) Lynette Knapp
(e) Michael Cummings
(f) Angus Wallam: ‘As the wagyl travelled, he made these
lakes, and then he continued down into the Blackwood River and into the ocean. The snake travelled from way up north round to Dumbleyung and made pools as he travelled across the country’.
(g) Joe Northover
(h) Ross Storey (wagyl – referred to real and creation snakes): ‘Well, the
olden day stories about, you know, the wagyls used to come down or
the margit, or whatever you call it, right through here he travelled. And made all these turns and bends and one thing and another right all the way around through here’.
(i) Wayne Collard
(j) Wayne Webb
(k) Vilma Webb: ‘The warkarl was the one who made all the waterways
including the Blackwood River. My father told me a story about the warkarl near the bridges at Guildford and Success Hill. He said that the warkarl lived in the cave under the river where there is fresh water’.
(l) William Webb: ‘The warkarl is a spiritual snake that created all the
riverways and waterways’.
(m) Kevan Davis
(n) Norma Jones
(o) Saul Yarran
(p) Robert Bropho
(q) Gregory Garlett: ‘The rivers and the waterways were created by the Wagyl, it is still there, in the waterways, that is his resting place. There are places along the Swan River. The Wagyl created all of the waterways and rivers.’
(r) Richard Wilkes
(s) Kelvin Garlett: ‘The wagyl passed the hill around Kings Park and went
under the Brewery site. There are rocks there, they are the eggs of the Wagyl.’
(t) Dorothy Garlett
(u) Delores Flowers
K Wagyls (waugals, warkarls)
(a) Mr WW
(b) Charlie Shaw
(c) Charmaine Walley
(d) Lynette Knapp: ‘tree snake – my family used as source of food. You
eat it and rub yourself down with the fat and this extends your life.’ ‘Wagyls are the carpet snake and we eat them I can get them from trees and water. They are often found in hollow trees. You only ever see the wagyl around water. This is how you know the water is permanent.’
(e) Carol Pettersen (margit - a water snake; the warkarl – carpet snake)
(f) Lomas Roberts (called margit)
(g) Angus Wallum: Wagyl made the rivers. He won’t bother you if you
are Noongar, but if you are from another country, then you had better be careful. I have seen the Wagyl, but I wouldn’t touch him. He has big squares on him. Lots of Noongars believe in the Wagyl, and they all look after him. They don’t touch him’. Some people call him wagyl, some call him carpet snake, some call him margit. Margit is his real name. Wagyl is usually the name of the water one. Noongar people look after the water snake, and they don’t kill them. The old fellas told me this and I have passed it on to my children’.
(h) Joe Northover (discussed warkarl, margit and ngarngungudditj, the hairy faced warkarl)
(i) Ross Storey
(j) Wayne Collard (warkarl): ‘[T]he Warkarl is responsible for all the
water ways on Noongar country. If you mess these waterways up, or interfere with them, the warkarl can cause damage. Noongars are always warning of troubles with warkarls. If you mess around with the warkarl, he won’t come back that way again, and you won’t get water there. The place will dry up, and the land will become salty.’
(k) Wayne Webb: ‘the wagyl created all the waterways and rock holes.
The wagyl is our creature and our creator. There is a platform and a spring out near Success Hill in Perth where the wagyl lives’.
(l) Patricia Kopusar: ‘I know of the warkarl, but my mother would just
say “water snake” … you have to respect water and keep it pure. … She said that the water snake looks after the water and if the water is messed up, the water snake will die and the water would die and then you would die’.
(m) Vilma Webb
(n) William Webb
(o) Thomas Ford: ‘The wagyl is a carpet snake, he’s the one
that brings the rain to Noongar country.’ ‘[I]f we mess with him then we mess up our water.’
(p) Kevan Davis
(q) Norma Jones
(r) Mr MW (the actual snake and spirit being): ‘The wagyl is a sacred
snake. He’s everywhere looking after places. We aren’t allowed to mess with the wagyl, as he’s very special…where wagyls are there is always water – when they are interfered with the water dries up … The wagyl is the keeper of Noongar country, he made the rivers and the gnamma holes.’
(s) Saul Yarran
(t) Robert Bropho
(u) Kelvin Garlett
(v) Richard Wilkes
(w) Frances Humphries
(x) Gregory Garlett
(y) Dorothy Garlett
(z) Delores Flowers
(aa) Freda Yates
L Wudatji or mamari (little people who cause mischief and take possessions)
(a) Mr WW
(b) Charlie Shaw
(c) Charmaine Walley
(d) Carol Pettersen: ‘Mamaris are little people who … live mainly in the
Stirling Ranges. They come around at night. They are about 2 or 3 foot tall and real black and hairy with a man’s body and are upright. They come and belt people up but it’s never happened to me. … I am fearful of them.’
(e) Lynette Knapp: ‘small, hairy, little people that live in the bush – you
can hear them … palyip – naughty mammaries and wudarjis – short, smelly – run away with babies because they like eating them, responsible for loss of children’.
(f) Lomas Roberts: ‘There are still a few wudarjis around the Stirling Ranges. They are black but they don’t talk. A lot of people call them ghosts. Sometimes people say they are not humanlike but they are human all right, you can see by how they move ... I’m hearing now that the wudarjis down Albany way are taking cars from the farmers … If you do something wrong then you can get your sleep mucked up by them’.
(g) Angus Wallam: ‘Mamaries are cheeky buggers and they wander around at night. If they follow me I just talk to them Noongar way. Wajala (Europeans) clear too much country, and now the mamari have nowhere to camp. Farmers should leave thickets in the farm for animals and spirits like the mamari to shelter’. ‘The wudartji’s are the ones that you hear scratching around the tent when you go out camping in the bush’.
(h) Wayne Collard: palyip – ‘they little people … Mamari …. Bulyip [other names]. … smaller than this table [indicated about three foot high].’
(i) Wayne Webb: referred to under heading ‘Need to leave food for spirits after hunting or fishing’ above.
(j) Patricia Kopuser: ‘Noongars call these little men wudarjis (spirit
beings)’.
(k) Vilma Webb: ‘mamaris or wudarjis … cause mischief. The
little men are everywhere along the coast. … Sometimes they’re tall, sometimes they’re small, they can change themselves any way they want to and they are quite hairy. They are also mischievous and can make people sick.’
(l) William Webb: ‘mamaries are the little people and they are often in the
bush and cause mischief. They are also known as wudarjis. They are hairy little men.’
(m) Thomas Ford: ‘Mamaris arelittle men’. ‘.. out hunting … you can hear
mamaris. If you’re with somebody you’ll hear a whistle, and you’ll think it’s your mate. But it’s not. The whistling can be from a mamari. Then you start to lose your sense of direction.’
‘… story of a bloke … who got lost for one week … When they found him he was naked and he had been belted with a stick. The mamaris had hit him.’
(n) Kevan Davis
(o) Norma Jones: ‘Wudartjis are little short men with beards. I have never
seen one but my mum told me all about them. They live near rocks. I always tell my kiddies to look out for the wudartjis. They only show themselves to children and they will only show themselves to you if you are somewhere you shouldn’t be.’
(p) Mr MW
(q) Saul Yarran
(r) Robert Bropho
(s) Gregory Garlett: ‘Wudartji can be real men or spirits. … They come in
the night time and breathe on you and then you can’t move and you can’t speak. They can be seen in the hilly country and caves. They also follow you home to Perth, they are all over Noongar country.’
(t) Frances Humphries: ‘Wudartji’s and Mamari’s are the same,
different people just call them different names. The wudatji’s live in the bush and in the hills. … They like to take children’.
(u) Kelvin Garlett
(v) Dorothy Garlett: ‘…wudartjis and mamaris (spirits) are all over Noongar country … they are short hairy little men that only come out at night time and they are very hard to see. They sort of follow their mob, and they sort of protect them by letting them know when they are somewhere that they shouldn’t be. By “their mob” I mean the Noongar people whose country it is … I have never seen a wudartji but I have heard them. You can hear them if you are somewhere you are not meant to be … there are some cheeky ones that might flog you if you are somewhere you shouldn’t be.
(w) Delores Flowers
(x) Freda Yates
M Mabarn man
(a) Mr WW
(b) Charmaine Walley
(c) Carol Pettersen
(d) Lomas Roberts
(e) Angus Wallum: ‘The devil (spirit) was inside of him [his grandfather],
and not allowing him to see properly. My grandfather told me to sit down, while he mabarn himself. He doctored himself up, to protect himself from the spirits on that hill’.
(f) Wayne Webb: ‘Mabarn men were those who had special powers and could also shape change. I was told by my Dad that when the elders had a bit of a problem, they would always call in the mabarn men to explain things to them’. ‘He [grandfather] gave me his mabarn. He picked me because I was the best one to pass it to. I hope to pass this on to one of my grandchildren, but I’m still thinking about who I can trust with the responsibility. Who will not abuse the power’.
(g) Vilma Webb: [Regarding mabarn] ‘we saw Uncle Norman Gidjup cure my cousin when she was very sick and she - he swallowed three coals, real red hot coals he swallowed them, and he said if two were still alive and he coughed them up and one was out., she would live but if there was two dead ones and one was live, she would die … And he hit himself on the chest. We was watching him. He hit himself on the chest and the coals flew out and there was two live coals in it and she's still living today’.
(h) William Webb: ‘Mabarn men have special powers. They can heal
people and they can also change shapes’.
(i) Thomas Ford
(j) Kevan Davis
(k) Saul Yarran
(l) Robert Bropho
(m) Gregory Garlett: ‘… mabarn people, a person who has magic. They
can heal you or help you, there are some around today … A mabarn will fix you up if someone does something bad to you.’
(n) Kelvin Garlett
(o) Dorothy Garlett
(p) Delores Flowers
N Creation stories for particular country
(a) Carol Pettersen
(b) Lynette Knapp
(c) Lomas Roberts
(d) Michael Cummings
(e) Ross Storey
(f) Wayne Collard
(g) Wayne Webb
(h) Vilma Webb
(i) William Webb: ‘Wyadup Creek … is one of the last places that the warkarl was seen. There are round rocks lying in the bay at Wyadup which are round and smooth and are the eggs that the warkarl laid on the beach.’
(j) Kevan Davis
(k) Saul Yarran
(l) Richard Wilkes
(m) Gregory Garlett
(n) Dorothy Garlett
O Spiritual totems
(a) Charlie Shaw
(b) Charmaine Walley
(c) Carol Pettersen
(d) Lynette Knapp
(e) Lomas Roberts
(f) Michael Cummings
(g) Angus Wallum: Mr Wallam did not use the word totem but he indicated that the following animal was special to him: ‘kwerdalung ...You can hear him, it’s like a little whistle’. He also indicated that the kangaroo (yongar) was special to him.
(h) Joe Northover
(i) Ross Storey
(j) Wayne Collard
(k) Wayne Webb: ‘Mine’s the kangaroo’.
(k) William Webb: ‘my father told me is that all Wardandi are the
kangaroo totem’.
(l) Mr MW (did not use word ‘totem’, but described the frog as of ‘special significance to Bennell side of family)
(m) Saul Yarran
(n) Robert Bropho
(o) Gregory Garlett
604 As this summary indicates, some beliefs were held by virtually all the witnesses, despite their variation in ages and the fact that they came from widely-scattered parts of the claim area. In combination, they ‘illustrate a rich and active spiritual universe and one that admitted of mysteries’, as Dr Host described what was revealed by Mokare to Barker: see para 131 above.
605 There were some differences between the beliefs of particular witnesses about a particular subject; the most striking examples being different views about messenger birds and totems. Frances Humphries explained the first example by saying: ‘Particular birds bring messages to different people’.
606 However, there was a high degree of consistency in relation to the most widespread beliefs (the need to appease the spirits, wirrnitjs, the creation snake story, wagyls, wudatji, mabarn). This says something about both the unity of the people across the claim area and their adherence to traditional ways.
(b) Marriage
A Kinship rules
607 The early writers commented upon the practice of young men seeking wives in a tribe different from their own. It is not clear to what extent (if any) that practice was caused, or supplemented, by restrictions on selection of particular marriage partners. Judging by the Aboriginal evidence in this case, there may have been such restrictions. Mr WW said, in cross-examination, there were rules: ‘you can’t marry too close’; that is, ‘if you were a part of that family … that you wanted to marry’. In re-examination, he explained it would not be alright for first or second cousins to marry; however, as to third cousins, ‘as it drifts out … I think they’ve got a chance to marry … if there’s love there’. If people married too close, the rest of the family ‘would push them out if they are strong with keeping together’.
608 Ms Walley thought the ban extended to third cousins. She said:
‘I was always taught by my parents that it is the wrong way to marry your first, second or third cousin. You shouldn’t marry your cousin at all but this doesn’t always happen. You would be shunned if you marry the wrong person. This is something that you just grow up with. This was something that was instilled in us.
If you are adopted into a Noongar family, you are still related, even if it is not by blood, so you still cannot marry your cousins.’
609 The Albany witnesses indicated the existence of similar rules amongst the Minung. In talking about the need for people who go to another person’s country to identify themselves, Ms Pettersen said:
‘Noongars from other areas might ask where you are from by looking up in the air with pursed lips. If you’re family they’ll embrace you. They will also ask you all kinds of questions about who you are. This is because there is an obligation to find out the family line. Everyone knows this because we have to find out who is related and this is important for marriage, who the elders are in the community and knowing their country and them knowing your’s [sic]. “Wrong Way” marriage may occur more often now than it used to but participants and their families would still feel bad about this.’
610 In cross-examination, Mr Ranson asked Ms Pettersen to explain ‘wrong way’ marriage. She said: ‘even if its fourth, five, sixth cousin, we still view that as wrong’. She said this was a rule that had been passed down to her.
611 Ms Knapp said that, in former time, the Mearnanger people ‘never married within themselves’, but they chose people who lived along the coastal strip between Warren River and Israelite Bay. She said that was still the rule. She added:
‘When you got second and third cousins marrying each other, we would like to go away from that simply because our first cousins, they’re our brothers and sisters. They’re not our cousins. Their children are our children. Our brothers and sisters’ children are our children and to be married and living together like that, you know, if you’re related, are just no-go, wrong way.’
612 The evidence went on:
‘MR RANSON: And do people mostly follow those rules these days?
LYNETTE KNAPP: No, no.
MR RANSON: Are there any consequences for people if they don't follow that rule? What happens if you don't follow that rule?
LYNETTE KNAPP: Well, it's frowned upon because you're marrying into family. A lot of those marriages are - are quite successful, you know, the fourth or fifth cousins but all the rest of it's very, very frowned upon by Noongar people. It's just something that you didn't do.’
613 Mr Roberts said:
‘If you wanted to marry someone you’d have to go to the tribe and then they’d get the girl for you. My father had to go for me and talk to the elders from the other tribe. You had to get permission.’
614 Mr Roberts said he applied for permission when he first married (his second marriage was to his deceased wife’s sister), but he conceded that people did not ask permission today.
615 At Lake Toweringup, Angus Wallam mentioned the common practice of two or more brothers marrying two or more sisters of another family. He said this was ‘an old Noongar rule’ but he didn’t know whether it was followed today. He also said the proper practice was to seek parental permission.
616 Mr Northover also talked about ‘wrong way’ marriage. He said:
‘Even today there are certain families that my family shouldn’t marry into. If one of our family goes against the rest of us and marries the wrong person we still talk to them, but they can’t be involved in our family business.
If a Noongar married or was with someone they shouldn’t like a first or second cousin, the family would be very upset. They would punish them.
There is a story for Lover’s Hill, which is between Collie and Bowelling where a couple got killed because they married the wrong way. At this place two different tree species grew intertwined. Noongars say that the two trees were a man and a woman who had married “wrong-way” they were punished and killed at this spot, and their spirits became the trees intertwined forever.’
617 Giving evidence at Dunsborough, Wayne Webb referred to the rules in the community of his grandmother, Evelyn Hill, who was born in Bridgetown, apparently in the first few years of the 20th century. Mr Webb said:
‘My Gran, Evelyn, was the one who told me who I could marry and who I couldn’t. Gran told me that when she married in her tribal area, they would always marry into the next family so that there was no intermarriage. Each family would speak for their own area of land and then they would all come together as one tribal group.’
618 In cross-examination, Mr Webb said his grandmother was a Pibelmen; it was alright for one Pibelmen to marry another, but you would marry ‘out of your family’. People could also marry someone from a different group, such as Wardandi.
619 When his mother, Vilma Webb, gave evidence, it became clear there was still a measure of disapproval of ‘wrong way’ marriages. She said:
‘If you ever looked at your second cousin or something, you’d get told off. You weren’t allowed to marry your cousin. The old people would tell me that when your husband passed away, then the brother-in-law would take over the responsibility for the family, he’d take over. This is a Noongar way. I don’t want to talk about “wrong way” marriage, because there have been a number of Noongars who have married that way and it would be disrespectful to talk about it.’
620 William Webb gave similar evidence to his brother. However, he took the matter a little further by saying:
‘I also learnt from my father that there were two groups, and that a person would belong to one or the other. These were manatjmut (white cockatoo) and wardangmut (black crow). What group you belonged to affected who you could marry, so that you couldn’t marry into your own group. This family line is tradition and law. This happened in the past.’
621 In cross-examination, Mr Webb explained to Mr Wright that this practice ‘was to separate the moiety lines’. He said it is more difficult to know moiety lines today and added: ‘I think it was just proving that way that they had the system of not inter-marrying and those identities of moiety is by … those two words.’
622 Mr Webb said it was still the practice for the ‘old people’ to say ‘who we could and couldn’t marry’, but he conceded this is ‘just within our group. We know it’s against the law to intermarry’. As to other Bibbulmun families, he said: ‘I believe they were a custom before but I don’t know now’.
623 When Mr McKenna cross-examined, it became apparent that Mr Webb thought the moiety system to be very flexible. The evidence went this way:
‘You talked about moieties, the black crow and the white cockatoo, and I think you said one of your daughters has white cockatoo and her husband has black crow; is that right?
BILL WEBB: Mmm.
MR McKENNA: And is that something you know or is that something you just say about them?
BILL WEBB: That was to distinguish between the marriage groups. I like to know her as the white cockatoo because she’s beautiful … and he’s the black crow.
MR McKENNA: Because he's not so beautiful.
BILL WEBB: No, he's alright.
MR McKENNA: And your other children, are they all white cockatoo?
BILL WEBB: Yes, they're beautiful except for my son, yes. Bit of a crow.
MR McKENNA: Alright. So you're just using those old moiety names because your children are beautiful or is there actually a system to getting it?
BILL WEBB: No, you just nominate. If there's a marriage sort of thing is that they'd be like - well, she's a black crow - you know, he's a black crow or she's a black crow or the - or the other one.
MR McKENNA: Right. So a white cockatoo should marry a black crow or one should be one and one should be the other or - - -
BILL WEBB: Most of the time the white cockatoo's a girl.
MR McKENNA: Right.
BILL WEBB: Whether she would go to live - have a choice in living in, yes, in which country.’
624 It seems the rule was much the same in the Ballardong country. Mr Ford said: ‘There are rules … that you can’t marry your cousin’. He gave an example of a pair of first cousins who had married; after that, they were not allowed back and their mutual grandmother never spoke to either of them again. He said: ‘You can only marry a person from a different family’. In the old days, the practice was for the man to go to live in the camp of the woman’s parents. Mr Ford himself did that.
625 In cross-examination, Mr Ford explained it was alright for one Ballardong person to marry another, but only if one person has a warding (crow) totem and the other a yongar (kangaroo). He explained that ‘some people have got totems’; ‘up north, they’ve got skins. They call them skins’. He said the totem was ‘for the whole tribe’, by which he meant ‘all the Garletts’. However, he then said ‘the woman is called a yongar … [a]ndthe man is called the warding’.
626 Mr Davis thought the marriage rules still applied. In his witness statement, he said:
‘One of the main Noongar rules is that you are not allowed to marry your relations which includes first, second or third cousins. The elders make sure that you know who your relatives are. They make young people know who their cousins are because we all live close together. Elders do not want you marrying the wrong person. They are very strict on that. The old people are the ones that control any inbreeding. Yuuline’s brothers told me that some of the old fellas used to encourage younger blokes to go and get women from the other mob to avoid them marrying sisters or cousins. This rule is very much still going. Today, a lot of families still try and enforce it, and there are a lot of disputes caused by people marrying the wrong way. These days, they don’t have to move away but they’re just ignored by other family.’
627 Mr Wright asked Mr Davis to explain ‘the other mob’. He gave this evidence:
‘Well, inside of their own families, you know, I mean you – the old people are very strict on who you should see and who you shouldn’t. I mean, a lot of times those people, you know, the only ones that were there was their cousin or something like that and they were very strict about that and they used to encourage the boys to go out there somewhere and find a girl that wasn’t from their area.
MR WRIGHT: Yes. And what about these days?
KEVAN DAVIS: I think the same thing applies, still applies because they’re – you know, we’re still fairly strict on who our – we all know who our relatives are and we make sure that our children know who their relatives are.’
628 Ms Jones said this about marriage:
‘In the old blackfella way, an elder will have a young girl married to him. When the girl is only young, the elders in her family cross her hands with the hands of a proper elder and speak Noongar. A young man is not allowed to marry a young girl because they have been promised to an elder.
Noongars are not allowed to marry their relations. We know our mother’s and father’s relations. My cousin Stan Hedland, he was going to marry a Hayden. My mother said you can’t marry her because she is your relation. This rule is very much still going. It is even harder these days because everyone is related. My son always used to call me up and ask me whether girls were OK to marry, to check whether they were his relations. Every time he called up, I would tell him, “no, you’re not allowed to marry her, she is your relation.” After about 6 or 7 times, he said, “I am not allowed to marry anyone!”.’
629 It seems the story had a happy ending. Ms Jones told Mr Wright her son was now married, to ‘a Noongar girl’ who is ‘not [a] relation to us’. The son sought Ms Jones’ permission to marry her, which she gave as the girl was not a relation.
630 The other Kellerberrin district witnesses, Mr MW and Saul Yarran, gave similar evidence about the rules. Mr Yarran also made a practical point:
‘… because so many children were taken away from their families, a lot of Noongar people these days don’t know who their relations are, their parents were not around to tell them. Too many people are marrying the wrong way.’
631 The evidence given in Perth did not differ much from what the Court had earlier heard. Robert Bropho simply said:
‘You should want to marry someone close to your area so you can stay there. You can’t marry your first cousin that is too close it is bad, that is danger talk.’
He was not asked about more distant cousins.
632 Richard Wilkes talked about ‘skin groups’, which he related to ‘making sure that there’s no in-marriages to close relatives’. He went on:
‘sometimes it does happen where it - it can't be helped, and - and I guess, in a sense, that, you know, if this happens, then, sometimes, those members of the family become somewhat outcast within our family, and it's not right. And this … could cause brain damage or some kind of disability within that child … six skin groups were used in that way so that the first marries from … the last, and vice versa, and so on.
It was magnificent how the Noongar people worked that out, and … I've got to say that … it is a bit of a jigsaw puzzle to me at this stage, but I think we still carried on in that tradition of making sure that our … people don't marry too much of a close relative. First cousins is taboo, because first cousin is - … they're your next brother and your next sister. So is the second. And the third. And then after that it comes away a bit and it's … not too bad.’
633 Mr Ranson asked Mr Wilkes to name the six skin groups. He mentioned ‘Ballaruk’, ‘Wadjarok’, ‘Ngidyok’ and Gidgiekok’, but couldn’t think of the others. Mr Wilkes said this was a ‘protection’, so ‘people didn’t marry too close’. He added:
‘… the law was strict in the old days, so that - and prevented this, but with the coming … of the settlers, that disrupted that … that people didn't know when they were taken away and they came back, and … sometimes they were marrying their - whatever, you know what I mean. I won't go into that.
MR RANSON: Yes. So it became impossible to keep following it, because everyone was too - too mixed up and shifted around.
MR WILKES: It was upsetting, and then - but a lot of us did know our families and we were able to carry on those traditions ... I believe to this day that we're still carrying on those traditions in the best way that we can.
MR RANSON: So the - the six groups have gone, but there's still some rules about - - -
MR WILKES: No, they haven't gone. The names are still there.
MR RANSON: Yes, but do people still actually keep - - -
MR WILKES: And people are still practising this through the way that I'm - what I just said.
MR RANSON: So people still have skin groups and they still know what the names of the skin groups are?
MR WILKES: Well, I - I can't speak for everybody, but I'm just speaking for me, that I - I do know the skin groups, but I can't think of two others at this particular time.’
634 Mr Wilkes said he was Ballaruk; he knew which groups he could marry. The evidence went on:
‘MR RANSON: And I'm not - I'm not asking you to speak for - for other people, but do you know of other people who still say that they know what their skin group is and what it's all about?
MR WILKES: No, I can't say that. I'm sorry. And that's being honest. I can't say that for other people.
MR RANSON: You don't know.
MR WILKES: But I'm saying that we carry that on, because most parents do look on that very closely. So whether they know the names of the six skin groupings or not, the tradition is still there where they look at it in that light.’
635 Frances Humphries said:
‘I was told we weren’t to marry our close relations. First and second cousins were too close, but third cousins were okay. If first cousins married, they were cursed by their family and their children could be born handicapped. My mother told me stories of when she was a mid wife and the rules of who could marry who. My mother sometimes delivered babies that were deformed or handicapped, and she told me that they were born that way because the parents had married wrong way. I wasn’t allowed to say anything, it is not good to talk about it because it is shame. People might get hurt and upset if I say anything or mention any names.
It is very common for brothers and sisters of one family to marry the brothers and sisters of another family. This was because of the marriage rules. There was often not many people that you were allowed to marry. The Jetta’s and the McIntosh’s are allowed to marry the Humphries. My cousin’s (my mother’s brother’s children) Clem Jetta and Vincent Jetta married my husband’s sisters, Myra Humphries and Irene Humphries. The Jetta’s are also allowed to marry the Yappo’s. For example, my mother’s sister, Eva Jetta married Paddy Yappo (sibling to Janie Yappo). My mother’s brother, Tony Jetta married Janie Yappo (sibling to Paddy Yappo). My husband and I have told our children what families they can marry into. This rule is still being taught.
These marriage rules mean that families remained very close, and if one of the siblings died, their children would be reared up by the other sibling. In Noongar way, if a man and woman are married, and the woman dies, then the man would marry the woman’s sister. This still happens sometimes today because it is considered to be good for the children to be reared up by people that care about them and love them because they are already family.’
636 Gregory Garlett said in his witness statement:
‘You can’t marry your cousin, it’s wrong way to marry your first cousin, the old people know who all of your cousins are. It might be alright after third cousins.’
637 Mr Ranson asked Mr Garlett whether it ever happened that ‘people marry their first cousins’. The evidence was:
‘GREGORY GARLETT: When the white fellas took the Noongars away and gave them different names and put them in different missions and they come out and they just – a lot of them didn’t know where they came from and sometimes it happened then.
MR RANSON: So, what happens when that happens, if people find themselves that that’s happened to them? Is that a problem?
GREGORY GARLETT: Yes, it would be a big problem.
MR RANSON: And what would happen if two people found that they even accidentally, say, married each other and they were first cousins? Would they have to get divorced?
GREGORY GARLETT: Well, I know that people have big arguments in their family, arguments all for those things there and it just carried on for a long time, but - - -
MR RANSON: Has that ever happened in your family that two first cousins have got married? Do you know?
GREGORY GARLETT: I think you’re coming into a lot of personal stuff here and people might get offended, you know, if I say things. I’ve got relations in the audience here as well, so - - -
MR RANSON: Yes, look, I don’t want you to - - -
GREGORY GARLETT: - - - I’d rather not say anything to offend my relations, so I’d like to leave that part out if I could.
MR RANSON: So, you’d rather not answer that question because you don’t want to offend anyone?
GREGORY GARLETT: That’s right.
MR RANSON: If I was to suggest to you some names of some people in your family, you’d prefer I didn’t do that?
GREGORY GARLETT: Yes, I’d prefer you didn’t do that.’
Mr Ranson left the subject.
638 Dorothy Garlett gave similar evidence. She said:
‘You are not allowed to marry your close relations. That is the rule. Our parents made sure we knew who our relations were so that we didn’t marry wrong way. If people marry wrong way, it is shameful. We don’t like to talk about it because it is too shameful. I remember this man that married the wrong way. He married his niece. All their children were born handicapped. The children’s parents died when they were young, probably because they had done the wrong thing. I feel very sorry for those children. We can’t talk about that stuff. I have made sure that my children know who there relations are and who they can marry.
Family are very important for Noongar people. It is important to know who your relations are. When Noongar people meet, they always ask who their parents, grandparents and family are, so that they can find out where they are from and where they fit in. Noongar people are all related through marriage and through the family totems. My family totem is the kouya, the frog.’
B ‘Give-away’ marriages
639 The early writers also talked about the practice of ‘give-away’ marriages, under which young girls would be promised to older men. The practice may also have applied to boys. Mr WW said his father ‘was given away to a woman from the Peel’; I assume this was before he married Mr WW’s mother.
640 Ms Pettersen also spoke about promised marriages in earlier times. She said:
‘Well, the … old people knew the best way … of how to arrange these marriages, and they would’ve known the family lines, they would’ve known the totems, so that the children had a full understanding.’
641 Several other witnesses also mentioned give-aways. Apparently, the rule was policed. Mr Yarran said:
‘In the old days if you married the wrong way, you would be speared in the thigh. In those days the wives were giveaways. Young girls were promised to the male elders. So if a young man married a young woman, it was like he was stealing an elder’s wife, and he would get speared in the thigh.’
642 Mr Ranson asked Ms Flowers about the marriage, in 1896, of her grandmother, Ollie Warrell. Ms Flowers said: ‘She was a give away when she was 14 ... And when they give you away you’ve got to marry that bloke’. After a few other questions, Mr Ranson returned to the subject:
‘MR RANSON: Okay. Now, that – you said that they were – she was a give away marriage?
DELORES FLOWERS: Yes, that’s right.
MR RANSON: What does that mean?
DELORES FLOWERS: Well, if they see anyone and they want you – say, they wanted me, well, Dad’s going to say, “Well, you can have her, that’s yours.” When you turn the right age they’re there to pick you up.
MR RANSON: Okay. And is that - - -
DELORES FLOWERS: You’re like a give away.
MR RANSON: And where does that come from? Was that a rule that – that’s what people did?
DELORES FLOWERS: That’s a rule. That’s a rule. That’s how our grandmother, she was a give-away to old Billy Warrell.
MR RANSON: And is that rule still there now?
DELORES FLOWERS: Oh, yes, up north somewhere but not here.
MR RANSON: So, people don’t do that any more?
DELORES FLOWERS: Some up that way, but not here.
MR RANSON: When you say “up that way” where do you mean?
DELORES FLOWERS: Up north wherever they give them away. Some [quite] young ones, well, they have.
MR RANSON: Okay. You’re talking maybe up at Jigalong or somewhere like that are you?
DELORES FLOWERS: Yes, around that way.’
C Comment on marriage rules
643 If Mr Wilkes finds the skin group system ‘a bit of a jigsaw puzzle’, it is perhaps not surprising it should be unclear to me. I think I understand the concept but there is too little evidence to indicate how it works (or perhaps, more correctly, used to work) in practice. Neither is it clear to me whether skin groups are conceptually the same as the moiety groups mentioned by Mr William Webb and Mr Ford. What is clear, and it is a pattern consistent throughout the claim area, is that there were, and continue to be, strict rules designed to prevent marriage between close relatives. Marriage between first cousins or second cousins was, and is, universally condemned; third cousins may be alright. The kinship rules were traditionally enforced by parental involvement; parents either chose the marriage partner or needed to give their permission.
644 Once again, there are some differences in details of the witnesses’ evidence. However, three things clearly emerge. First, the present rules are seen as a continuation of traditional Noongar rules. Second, there is no discernible regional difference in the content of these rules unless – which is unclear – there is a true distinction, and one of a regional nature, between moieties and skin groups. Third, people in leadership positions throughout the south-west continue, against great difficulties, to enforce at least the substance of the rules, by discouraging marriages between close cousins.
(c) Death and funerals
645 Almost all the Aboriginal witnesses talked about death and funerals. Witnesses from all parts of the claim area gave evidence that may be summarised as follows:
A When a person dies, his or her spirit goes back to the land. Accordingly, it is best to die in one’s own country. A person who dies away from his or her traditional country should be taken back to it for burial.
B Noongars are never cremated; fire would burn the spirit. People should be buried, but not quickly; the spirit needs time to escape and wander.
C Funerals are important occasions. Normally, they are ‘big affairs’. Relatives are expected to be present. There will be ‘big trouble’ if they do not attend. Other Noongars also should attend, to pay respect. Usually hundreds of people attend a Noongar funeral. Disputation is not allowed at a funeral. If people have been in dispute, they should ‘patch it up’ at the funeral; next time they meet, they will be happy.
D People are allowed, even expected, to show grief by crying loudly and even inflicting wounds on themselves.
E Burial places should be respected and cared for. They should be approached only if the spirit has been put to rest. Graves should not be disturbed.
646 The main witnesses who spoke about these matters were Mr WW, Charlie Shaw and Charmaine Walley at Jurien Bay; Carol Pettersen and Lynette Knapp at Albany; Angus Wallam, Joseph Northover and Wayne Collard at Lake Toweringup; William Webb at Dunsborough; Tommy Ford, Kevan Davis and Norma Jones at Kokerbin Rock; Mr MW and Saul Yarran at Djuring; Robert Bropho and Frances Humphries at Swan Valley; and Gregory Garlett, Kelvin Garlett and Dorothy Garlett at Kings Park.
647 Not all of these witnesses covered all the items in my summary, but all dealt with some of them. Importantly, there was no challenge to, or inconsistency in, the evidence about any of those matters. So it may properly be said that these items represent attitudes widely accepted throughout the claim area.
648 Some other practices were mentioned by too few witnesses for me to say that they are (or perhaps ever were) generally accepted throughout the claim area. Some of them seem to be former practices that are no longer generally followed: breaking the legs of the deceased person, so their spirit would not come after the living (Carol Pettersen); placing weapons and personal possessions in the grave (Carol Pettersen, Angus Wallam, Joseph Northover and Vilma Webb); burning a personal item of the deceased to release the spirit (Angus Wallam); smoking the place where the person died to set free the spirit (Robert Bropho and Gregory Garlett); abandonment of a camp or place where someone has died (Frances Humphries and Dorothy Garlett); and returning to the burial place after twelve months to sweep the ground (Gregory Garlett). Joseph Northover mentioned a rule that members of the deceased’s family do not hunt between the death and the funeral, which should be about two weeks.
649 A number of witnesses gave evidence about the method of burial. There were significant discrepancies in this evidence. Ms Knapp said there was a difference according to whether the deceased was a plains person or a hills person. Plains persons should be laid in a north-south position, facing the rising sun; hills persons east-west. However, Mr Wallam said the person should face the setting sun and Mr Roberts said there was no rule. Ms Pettersen mentioned putting soil or sand from the person’s birth-place on the coffin and Mr Wayne Webb described how new sand was placed in his father’s grave before the burial. He, and also his mother, mentioned a traditional practice of elevating the head, to face the sun and warm the spirit. Mr Corunna and Mr Wilkes gave evidence before Beaumont J of an old practice of burying people sitting up. As Mr Wayne Webb pointed out, burial practices now have to comply with ‘white fella ways’.
(d) Hunting, fishing and other food-gathering
650 Every Aboriginal witness had learned about food-gathering as a child. Their food sources varied, from one part of the claim area to another. However, a common feature of their evidence was that there were rules attached to taking, preparing and cooking particular food. Most witnesses expounded these rules, sometimes in detail. Many of the rules apparently stemmed from pragmatic considerations, but some had a spiritual rationale. One rule, mentioned by many witnesses, was that the hunter or fisher may take only as much food at a particular time as was then needed.
651 I see no purpose in setting out all the hunting and fishing rules mentioned. It is sufficient to observe the witnesses considered the rules still apply, when people seek the particular food.
652 The most notable feature of the hunting and fishing evidence was the surprising proportion of the witnesses who claimed they still continued to hunt and/or fish, either for themselves or in order to teach their children or grandchildren. I say ‘surprising’ because 22 of the 29 witnesses called by counsel for the Applicants were more than 50 years old when they gave their evidence; 18 of them were more than 60. I summarise each witness’ claim about his or her current hunting/fishing activities:
A Mr WW
653 On visits to Perth, Mr WW takes grandchildren to Munday Swamp and Leighton Swamp (near Perth airport) to look for yakken (turtles). Also they fish in the Swan River near Belmont and Guildford Point. Mr WW still hunts kangaroos with a dog.
B Charlie Shaw
654 Mr Shaw lives on Wedge Island where he is visited by his relatives: ‘[w]e put on a feast of seafood we have caught and kangaroos and other bush tucker’. Mr Shaw said:
‘Nowadays we sometimes eat kangaroo and emu, or give one as a gift to visitors to take with them. We don’t eat the intestines or the stomach of the kangaroo these days. Kangaroo is part of our main diet along with mullet and other fish.’
C Charmaine Walley
655 Ms Walley talked about hunting and fishing with her parents, as a child and teenager. She said: ‘I still go hunting for kangaroo and bungarra (goanna). Whatever we get is always shared among the family. This is always the way we have done it.’
D Carol Pettersen
656 Ms Pettersen said it was always men and boys who did the fishing and it is still like that. However, she claims still to ‘retain the knowledge of how to set fish traps, kangaroo traps, possum traps, lizard traps and how to stalk game’. She apparently still participates in hunting and fishing parties. She said:
‘I’ll take grandchildren with me and show them how to read the country and look at it so they can find water by following animal tracks. The grannies can now tell me how old the tracks of the animals are and what the animals are doing. I teach my kids and grannies as much as possible about bush skills and bush knowledge.
…
I can go to the bush and still find food. I know the seasonal foods, like berries that only appear in summer. There is always meat about like kangaroo, goannas and rabbits. I know how to sneak up on these animals and catch them. I know how to get tubers, corps, karbinyers, cummocks, djok (wild potato)and pain (berries). I know how to find water in gnamma holes, soaks, paper bark trees, and how to get the water clean by putting ashes in it. I was taught how to peg and dry kangaroo skins for rugs and clothing.’
E Lynette Knapp
657 Ms Knapp said she collected bush medicines, berries and karda norak (goanna’s eggs). She stated:
‘I often camp on, and visit, my country although this is sometimes restricted by CALM [the Department of Conservation and Land Management] and farm enclosures. I have often talked to CALM about these problems and asked them to speak with me when they make decisions. We go hunting and eat up on Noongar foods like kangaroo and goanna. We collect the gums and fruits from the trees and make dampers.
I often go to the Lizard traps. The Lizard traps are rock faces with lizard traps on top. The old people caught lizards there. I take my children to the Lizard traps to teach them about catching animals. These are made up of one flat rock, various sizes, with another smaller rock propped up against the first rock with one end on the ground. This is normally on a bare piece of ground, a few metres wide, then when they are scared, they run under the rock.’
658 Ms Knapp said that: ‘I go anywhere on my country camping’; despite CALM restrictions. Ms Knapp also referred to gathering oysters at Billyirbanup (Pelican Point) and said she last did so about six weeks earlier.
F Lomas Roberts
659 Mr Roberts claimed still to camp and fish at Bremer Bay, which is in his country, also at Kalga River. He apparently also continues to hunt. Mr Roberts said:
‘When camping we still make shelters from the trees. The most important thing to a Noongar is the tree. We use the tree to make a fire and I don’t need matches or a lighter, I can rub two sticks together. Trees are useful for making a dowark (throwing stick), fighting sticks and shelter for our camps. I throw the dowark at rabbits and kangaroos. It’s smaller than a spear and easier to throw.’
G Angus Wallam
660 Mr Wallam said that, when he was younger, he ‘lived off the bush’. He detailed the animals he then hunted. However, at the age of 80, he did not continue to do this. Nonetheless, he said he still taught his family about hunting and fishing. He had this exchange with Mr Hughston:
‘MR HUGHSTON: Okay. Have you … taught your family, anyone in your family how to get all that bush tucker and how to live off the bush?
ANGUS WALLAM: Yes, and I still tell them what to do and take them out and show them everything.
MR HUGHSTON: Okay. Is that important?
ANGUS WALLAM: Very important. Very important.
MR HUGHSTON: And when you take your family out and show them how to get that bush tucker, do you teach them about country as well?
ANGUS WALLAM: Everything. Everything.’
H Joseph Northover
661 Mr Northover was a fountain of information about hunting, fishing and food-gathering. He said he still goes camping all over his country. He hunts ‘out near Toweringup Lake all the time’.
I Ross Storey
662 Mr Storey said:
‘With Scotty Ugle [his grandfather] I spent a lot of time around all this country, hunting and tracking kangaroos and emus, looking for goannas, and getting berries and sap from the bushes and trees. I have always lived very close to this area. I spend a lot of time there now teaching my own kids about it and sometimes taking tourists there.’
663 Mr Storey told Mr Hughston he takes out his three children, ‘and maybe a couple of my nieces and nephews’, and ‘maybe track a kangaroo, or show them where mallee fowl nest is, or have a look for berries in the bush … [m]aybe look for goanna, gilgie, all that sort of stuff … and make a spear or boomerang, whatever’.
664 Apparently, Mr Storey is a successful hunter. He said:
‘The elders blessed me when I was little. Whenever I go out hunting or fishing, I will always get a feed. The old people are looking after us, you see. There are places where only our family go hunting; there is a place near Wandering. Next month I will go and get a big fat one for Nan [his grandmother, Verna].’
J Wayne Collard
665 Mr Collard described his country, which goes as far east as Wave Rock, also some of its land marks. He said he was ‘shown how to get, and I still get, bush foods from all around these different places: possums, wild carrots and berries’. He also mentioned bush medicines.
K Wayne Webb
666 Wayne Webb described how he was taught about the bush by his grandmother and father. He said:
‘I still go out and eat bush tucker, like reeds, berries, the plums off the emu bush which are like big dates, and the centre of the balga. All my nieces and nephews and all the young people of my family know about bush tucker. My Mum and Aunty Frances Gillespie still love it when we go out into the bush and get them a bag full of bardis from the jam trees and wattle trees.’
L William Webb
667 William Webb described how he was taught to catch fish. He herds the fish with bushes into a narrow channel of shallow water and then stirs the water. The fish cannot breathe and jump up. He went on:
‘I have told my children these practices. I take my children fishing and we go gathering bush tucker. My girl Billie Maree likes bardis (grubs) and sometimes she will eat them raw, but I prefer them cooked.’
M Thomas Ford
668 Mr Ford said:
‘Noongars eat goanna, bobtails, kangaroo and other bush animals. We always eat berries and that’s why we never get sick.
…
I take my grandchildren out camping in the bush Tammin, Quairading & Wyalkatchem, where I teach them how to camp, and tell them stories about where we used to camp. I also tell them how to collect berries, quardine like yams and bardis. We also catch kangaroo.
The old people used to camp at Lake Yealering which is near Corrigin. We They used to catch swan eggs and duck eggs, and eggs from water fowls and cygnets. They’d get the dogs to chase the water birds. A lot of Noongars from between Brookton and Katanning used to go there and it was a big meeting place.
I still take my grannies out camping in the bush, in the Wheat belt area and in the hills near Perth (Darling Ranges). I‘ve also taken them [to] Toodyay, Tammin, Wyalkatchem, Kwolyin, Merredin, Shackleton and Quairading.
When I travel around with my grannies I tell them where they I used to live and who used to live there. For example, when we went to Tammin, I told them where I used to live, where we used to work and where we used to go hunting and collecting bush tucker, places to stay away from, I’d tell them everything that I knew. Places they are not allowed to go to.
We always camp in the bush. We have also been camping at Shackleton, but it’s getting harder to camp out there because of the farmers locking up their properties. When we camped out near York a few months back the farmers wanted to know what we were doing. At Shackleton though no one really asks what we’re doing. We go out there because it is our country.’
669 Mr Ford later said:
‘When I go marron fishing, hunting for animals, you only ever take no more than you need. That’s a Noongar rule for hunting that you only take what you need.
My grannies eat foods from out in the bush. They eat kwelyitch, it’s red, like a carrot but it's hot like a chili. You can cook them in the ashes. I eat many varieties of berries and quandongs. Then you get the beehive, there’s honey if you want to. I cut down part of the tree and smoke it to get the bees out so that you can get the honey. My father told me this and showed me how to do it.
My mother and my grandmother Yurleen taught me what berries I could eat and what I couldn’t. She also taught me to get bardis (witchetty grubs). I fill up a box on my way back from Kalgoorlie and take them to my granddaughters. The way you find them is looking at the bottom of the tree and you can see the shavings and you just push the tree over and they’re all there.
I still get them for my grannies when ever I can.
I often eat cummocks, they’re like little black cucumbers, they grown on a vine. My mother taught me about these and how to eat them. They turn reddish/brown on the vine.
I eat kworna which are like potatoes that you dig out of the ground. They look like a little vine coming out of the ground, like a spider web. If you didn’t know what to look for then you wouldn’t know they were there.
There are lots of things you can eat out in the bush, like nyingarne and karda. The old bobtail, the yuurin, has medicine in it so the old Noongars never got sick. When you eat the liver of the bobtail it fixes up your health. A lot of Noongar people use the bobtail liver as a cure. The nyingarne (porcupine) rolls over and shows you where to cut him. Noongars used to use a sharp stone to cut him. Now people often use knives.
We sometime get koomols (possums) and the quirnint, (little pig-eared rat).’
N Kevan Davis
670 Mr Davis said:
‘My family used to have a lot of different ways of getting food and water and we still use a lot of these ways today. We often get berries, quandongs and bush carrots. Some bushes we can take anytime. You need to know the country and how to use it properly to get all these things. I am always teaching these skills to younger people.
I hunt kangaroos, both grey and red. Every Noongar family at Kwolyin had a kangaroo dog and they used to go out hunting. But they only took 2 or 3 kangaroos, only what they needed, no more. Whatever they caught would be shared with other families. I also hunt tamars (wallabies) at a soak in the low scrubby area around Kwolyin.’
671 Mr Davis spoke about teaching the young how to care for the country; also about making weapons. He said: ‘I also use and make spears and boomerangs. About a month ago I helped my grandsons make a spear out of a sheoak tree. We straightened it in the fire.’
O Norma Jones
672 Ms Jones described how she learned to catch kangaroo. At the age of 68, she apparently no longer did this; at least, not on her own. However, she said she still ate kangaroos: ‘When my grandson comes up from Perth, Joseph Nicholls, he helps me get the kangaroo’.
P Mr MW
673 Mr MW said in his witness statement:
‘In this area there are many plants and animals that were and are still being used by me and my family. These include: kangaroos, rabbits, echidnas, goannas, bardi grubs, gum from eucalyptus trees, bush cherries, quandong nuts. There is a little kangaroo found in this area, called a dunyit yongar. At Kokerbin Rock, where there is an old camping ground, we would hunt kangaroos and rabbits there, plus pumpkins, karnis (wild potatoes), possums, goannas (a yellow-stripey variety, called kalari), berries, cherries and quandong nuts, when they were in season.’
674 In cross-examination, Mr MW talked about life when he was growing up:
‘What I mean to say, … we had the free of the land in them days, as young fellas. We just runned all over the place, you know? … But like … you shut off, boom, boom, boom, boom, boom, here, here, there, all shut off.
MR WRIGHT: What do you mean by "shut off"?
MR MW: Blocked off, or whatever.
MR WRIGHT: Because the farmer's taken it up? Is that what you mean?
MR MW: Yes, and - and you got all these signs and things like, not allowed here, not allowed there.
…
MR WRIGHT: Like, back then, presumably you'd just go round anywhere and … catch a kangaroo or something.
MR MW: Yes.
MR WRIGHT: What about these days? Is - where do you go hunting these days?
MR MW: We … go out to farms and stuff and get permission off the farmers, you know? … And we go and ask farmers. They said, “Yeah”, you know, “Go in”. “Shoot roos”.’
675 However, he said, at Badjaling, although ‘kangaroos are plentiful there’, ‘we not allowed to shoot them’.
Q Saul Yarran
676 Mr Yarran said ‘[i]n the old days, everything we got came from the bush’. He described some of these things. He went on:
‘We still eat a lot of kangaroo. We eat it all, even the stomach. What you do is you clean out the stomach and you stuff it with all the liver, kidneys and fat, and you cook it in the ashes. The red kangaroos from up north of Merredin there, they are the best ones. They have more fat on them then [sic] the ones down this way. Looks like nice steak with the fat, which is good. The grey ones around this area are not so good. I am too old to go out hunting now but the young Hayden boy, he goes out. He looks after me, brings us a feed which I have now and then.’
R Frances Humphries
677 Ms Humphries talked about the hunting training she had received as a child. She is passing on the information:
‘My husband and I take our grannies out into the bush to teach them where to find Quondongs, kamos, quardines, berries and jam gums. We teach them what is poisonous and what is not. The whole family still go out hunting. We get rabbits and kangaroos. I have taught the grannies how to catch gilgies. I am getting too old to do much hunting these days.’
S Gregory Garlett
678 Gregory Garlett talked about going hunting for kangaroo with his brother, Kelvin. He also hunts, ‘in the outskirts of Perth and the hills, with my kids and nieces and nephews’. He mentioned emu (‘got one a couple of months back at Gingin’), possums (‘if there are too many around’), nyingarn (echidna - ‘I get about one or two a year if I see one’), goanna (‘there are not many around’), bobtail (‘I get him now and again, mainly for the old fellas if they are sick’), mallee hen and its eggs, turkey (‘there are only a few around now’) and gilgies.
T Kelvin Garlett
679 Kelvin Garlett confirmed his brother’s evidence and mentioned various bush medicines. He told Mr Wittkuhn that he went out hunting ‘about once a month, all the time’. He said his eldest child was aged 19. The evidence went on:
‘MR WITTKUHN: Okay. Well, say, the 19 year old, the people of that generation there’d be plenty of Noongar people of that generation who don’t do any hunting, is that right?
KELVIN GARLETT: Oh, there’s quite a few around [who do hunt] if you have a look for them.’
U Delores Flowers
680 Ms Flowers described what she was taught about fishing, hunting and bush tucker by her parents. Her evidence went on:
‘MR HUGHSTON: ... And do you still hunt for any bush tucker around the Perth region?
…
DELORES FLOWERS: That’s what we do is just take them out.
MR HUGHSTON: Yes. What sort of things do you get around Perth?
DELORES FLOWERS: Around Perth we get turtles. We still go to the swamps and that’s about it. That’s out here with the turtles.
MR HUGHSTON: Yes. And if you’re out in the swamps getting turtles, do you stay out there when it gets dark?
DELORES FLOWERS: Yes, we stay there and we have a feed but you can’t make a fire these days.
MR HUGHSTON: Yes. And you have a fire?
DELORES FLOWERS: Yes, we usually do cook them in the ashes but you can’t do that.’
V Freda Yates
681 Ms Yates had given evidence to Beaumont J about Noongar methods of catching, cooking and eating turtles, bobtail lizards, gilgies and goannas. At the hearing before me, she said:
‘I still visit places on my country that are special to my family to check up on the places and make sure they are not being destroyed. I also take my children and grannies back to these places and show them how to hunt and fish and to tell them the stories associated with these places.’
682 The evidence of these 21 witnesses must be considered against the background of some realities pointed out by Angus Wallam, now aged about 80 years. He told Mr Hughston about the significance to him of Lake Toweringup, a natural lake alongside which the Court was sitting. He said: ‘This is very sacred place here for us … for us Noongars’, because a star fell and caused the lake to form. His evidence went on:
‘MR HUGHSTON: But have the wajalas changed it at all or done any work on it?
ANGUS WALLAM: Made a big difference here.
MR HUGHSTON: What did they do?
ANGUS WALLAM: All this stuff here, all this wasn’t around here. See what they done here?
MR HUGHSTON: Yes.
ANGUS WALLAM: See all these places, nothing was here, built here years ago.
…
MR HUGHSTON: Are there any reeds in this lake?
ANGUS WALLAM: Yes, there’s a lot of reeds here … They pull them out too with the tractors …
MR HUGHSTON: And was that a good thing or a bad thing?
ANGUS WALLAM: No, it’s bad.
MR HUGHSTON: Why, what’s happened now that they’ve taken all the reeds out with the tractors?
ANGUS WALLAM: Well, you’ve got hardly anything in the water there now ... There’s not even the bullfrog there … or turtles or one thing or another. … Nowhere to live or nothing, see? … No cover or nothing for them.
MR HUGHSTON: Well, before the white fellas pulled all those reeds out, did you catch anything in this lake?
ANGUS WALLAM: Fish … You’d get turtle if you wanted it … And they were as fresh as a daisy.
MR HUGHSTON: Okay. This one saltwater or freshwater this lake?
ANGUS WALLAM: It used to be a freshwater lake but it’s just brackish now.’
683 Later, Mr Wallam spoke more generally. He had this discussion with Mr Wright:
‘MR WRIGHT: Now, these other lakes that are around this Wagin area, can you still get food from those other lakes?
ANGUS WALLAM: Not after the white fella destroyed the country.
MR WRIGHT: Right. So, they’re no good now?
ANGUS WALLAM: No, you know yourself it’s all full of salt. Not even – not even the bullfrog in the water lives. We used to live off the lakes and the rivers and one thing or another. Now you can’t and you don’t drink the water. Fresh as – it’s as fresh as a daisy or whatever but now you can’t get nothing. It’s all full of salt.
MR WRIGHT: Yes.
ANGUS WALLAM: You can go for miles from here, it’s nothing else but salt, and it’s getting worse and worse. It’s going further and further down here now from the Blackwood River down now. You see what the white fella did in the early days, hey? He wasn’t satisfied with clearing a bit of paddock on the top of the hill there. He went right into the riverside … where the water is and he cleaned up everything. He wasn’t thinking. He was worried about his own stuff and wasn’t worried about his animals or his sheep or anything and he hardly left a bit of bush in the paddocks for his sheep to shelter and now he’s sorry for it.
MR WRIGHT: So, is there anywhere in this Wagin district that people can still go and get like yabbies and things?
ANGUS WALLAM: No, you can’t get that now. The white fellas taken over everything.
MR WRIGHT: What about shooting kangaroo, that sort of thing?
ANGUS WALLAM: Well, you’ve got to have a licence to go out and shoot a kangaroo, then you’ve got to ask to get out there sometimes and you go to – we’ll go to a place and asked the farmer and he’ll let us go in and some don’t. I went to one farmer and asked him could I – could I be shooting roo in your paddock and he said, “No, by gees, don’t go there”, he said, “my boy.” “I don’t want you around the place”, he said. Then I went to the next neighbour and he said, “What, you want to go on there”, and I said, “Yes, if you don’t mind, sir.” And he said, “Look, Angus”, he said, “you people owned this country before ever I come here. You’re welcome to go in. Just shut the gate, that’s all.” And there was the difference there, see?’
684 It seems to me apparent that hunting, fishing and food-gathering remain important ingredients in the lives of most of the witnesses, and this despite the constraints imposed upon them by wajala laws and practices and the fact that these activities are presumably no longer essential to Aboriginal survival. Moreover, it seems clear that, in carrying out these activities, the witnesses strive to follow traditional laws and customs and that many of them, at least, are actively teaching their skills, and those laws and practices, to younger members of their families.
(iv) Laws and customs concerning land
685 The continuing importance attached to land will, I believe, be apparent from the identification evidence I set out above: see paras 460-595. Each one of the 30 Aboriginal witnesses identified his or her boodja, or ‘country’. This was an area, special to the witness, in which he or she felt at home and could move about freely without need of anybody’s permission. There is a striking resemblance between the situation described by those witnesses and the picture conveyed by early writers such as Barker (paras 134-135 above), Nind (para 143), Lyon (para 153), Armstrong (para 160), Moore (para 170), Salvado (para 174) and Bates (para 185). I have the impression that the typical contemporary boodja is more extensive than in 1829. That is only to be expected. It is the logical result of the interaction of a rule (or, at least, a practice) that a man should seek a wife from a tribe far away from his own, with the greater mobility brought to (indeed, forced upon) the Noongar people by white settlement and practices.
686 During the trial, considerable attention was devoted to the rules that dictated how a person acquired rights over particular land and waters. The witnesses answered in various ways, but each of them gave evidence that, in substance, may be summarised as follows:
(i) there must be a connection, by birth or family, with the particular area;
(ii) the person must seek to associate himself or herself with that area, by living within, or frequently visiting, that area and learning about it; and
(iii) the person must be recognised by other Noongars as being connected with it.
687 Ms Walley summed up the position succinctly when she said, in her witness statement: ‘… the right to speak for country comes from where your family was born and lived, where you have lived and hunted and where you feel welcome and comfortable’.
688 It seems that a marriage connection will enable a person to live and hunt in particular country, but the preponderance of evidence suggests this does not entitle the person to ‘speak for’ that country. For example, Mr WW said people ‘cannot claim land unless your parents, and their parents were from that area and they passed on to you knowledge about that area’. He said: ‘If you were born somewhere else, you cannot speak for this country’. Mr Storey said:
‘Being born to people who are from those areas gives you a connection to those same areas, continuing to live there and learn about and look after those places gives you connections as well.’
689 As I understood the evidence, it is possible for a person to gain rights to particular country through either parent. Some witnesses first mentioned the mother, some the father. However, I think no witness excluded acquisition through the other parent. Whether this has always been the position, throughout the claim area, or whether there has been a relaxation of the rule in the face of family fragmentation and interbreeding with white people, is a matter I will later address.
690 All the Aboriginal witnesses called by counsel for the Applicants mentioned the rule about seeking permission to enter land outside one’s own boodja. Carol Pettersen explained the rule in her witness statement;
‘If people are to come to my family’s country they should ask me or older members of my family for permission. It is a Noongar rule to ask permission to use someone else’s land for hunting, fishing, or taking or using anything. It is like wajala trespassing if people do not ask for permission. There are consequences if people do not ask. People get sick and dangerous incidents have occurred to those that break the rules. There can be accidental breaches of the rules but the consequences still happen. This was taught to me by mother’s father Alfred Knapp.’
Ms Pettersen said that seeking permission ‘is a Noongar rule and it is part of the respect I have for the ancestors and the country’.
691 Evidence from many witnesses suggests the rule about asking permission is still followed, although not universally. Thus, Mr Shaw explained:
‘It is very important for Noongar people to have their own water holes. This is very strong and people didn’t like outsiders moving in without asking permission.
The old people used to send messages to make others aware of them coming, like using message sticks and smoke signals. Now we do it by phone.
The right thing to do is to ask permission before you go onto country that is not your own. All the Noongars that have come up to Wedge have told me or rung me up.’
692 It seems the rule applies even if permission may confidently be expected. In her witness statement, Ms Walley said:
‘If I travel through other parts of Noongar country, like down Busselton way, I would go and speak to the people who live down there to tell them I was down there. This is what I’ve been taught by my parents. I would not hunt down there unless I had told someone first. I would find the elders down there and speak to them or I would ask the local Noongars and see who I should speak to.’
693 In cross-examination, Ms Walley said that two of her grandparents came from Albany, although they were taken away as children. In re-examination, Ms Walley said she had been to Albany twice, but only briefly. She then gave this further evidence:
‘MR HUGHSTON: Okay. If you were to go down to Albany again and wanted to go hunting or camping out in the bush, would you need to speak to someone down there first before you did that or not?
CHARMAINE WALLEY: Yes, I – I would.
MR HUGHSTON: Who would you need to speak to?
CHARMAINE WALLEY: I’d look for my relatives or the elderly people.
MR HUGHSTON: Okay. And why would you do that?
CHARMAINE WALLEY: Well, so that they can direct me to places where I can hunt or camp or things like that.
MR HUGHSTON: Okay. Now, because you’ve got grandparents that came from that country, would you expect that the people at Albany would say, “Yes, of course you can do that”?
CHARMAINE WALLEY: Yes.’
694 Permission is not necessarily restricted to relatives. Ms Knapp said:
‘People from other places must find out the owners before they go to other peoples’ country and then ask permission. I would not say “no” if people do the right thing and ask but they should ask. It is an important rule.’
695 Mr Ranson asked Ms Knapp about travelling to Perth (from Albany). She replied: ‘because it’s so urbanised now, it’s okay, but I think if you want to travel into spots of cultural significance, you have to go and ask permission’.
696 Mr Roberts referred to punishments for breach of the rules. He said:
‘If something might muck up an important place you should speak to a person for the area and get permission to go to that place. The old Noongars would spear you if you came onto country without permission. It is like stealing. You can be punished for going onto someone else’s country if you don’t ask first. Spearing doesn’t happen anymore but other punishments can happen to people who come onto country without permission.
If someone from another tribe goes hunting around Wilumen country without permission they may get into trouble. However, if they ask permission, Wilumun (my tribe) will share with them. That’s a Noongar rule that you have to share things you get from the country with those that need it.’
697 In oral evidence, Mr Roberts explained the possible punishment:
‘MR HUGHSTON: Okay. Is there something that can happen to you if you’re a stranger and you go onto someone’s country without asking them?
LOMAS ROBERTS: Yes, a lot of things can happen to you in Noongar tradition.
MR HUGHSTON: What sort of things can happen to you?
LOMAS ROBERTS: You could be in an accident of some kind, you could get bit with snakes.
MR HUGHSTON: Yes. Is there something that would make you have an accident or make you get bit by the snakes?
LOMAS ROBERTS: Yes.
MR HUGHSTON: What would make that happen?
LOMAS ROBERTS: That’s a mamari, a mamari man.
MR HUGHSTON: The mamari man would make that happen?
LOMAS ROBERTS: Yes.’
698 In cross-examination, Mr Ranson took the matter further:
‘MR RANSON: And if an Aboriginal person from Perth wanted to come down and go to that national park, the same thing?
LOMAS ROBERTS: The same thing. If he went through the bush without our permission something very bad could happen to him.
MR RANSON: What sort of thing could happen to him?
LOMAS ROBERTS: Oh, anything could happen. He could lose his life. He can go paralysed, like I was telling you about that lady from the land council who had a drink of that water, and things like that.
MR RANSON: And is that the reason why people need permission to go to places, so they can be safe when they get there?
LOMAS ROBERTS: Well, then someone could tell them where to and not to go.
MR RANSON: So, is that why people need to ask when they want to go somewhere - - -
LOMAS ROBERTS: Yes.
MR RANSON: - - - so that you can tell them where it’s safe to go and where not to go?
LOMAS ROBERTS: Yes, that’s right.’
699 The land rules seem to have a spiritual dimension. Mr Northover explained:
‘I do not hunt outside my own country, the country where I can speak for because the spirits outside my country aren’t my own. When I was young there were certain places we went and some we didn’t. I was told that I was not to go there, I simply wouldn’t question my elders. I tell my son not to go to places too and he doesn’t question it either. There were places my father and his father regularly hunted and we still go there today as adults.
I am free to hunt in my own area but anywhere else I should ask first. Even though I am related to people in Quairading, through my grandmother, I can’t hunt there without asking. I would visit my family to tell them I was there and what I was doing. If I wanted to go hunting, I would ask them to take me. Because we are related I would expect them to take me if I asked. I would not go on my own because it is not my country.
…
I believe if I am in someone else’s country, I would have to get the person that comes from that area to kill the game, I cannot do that. It is against Noongar way to just go off and hunt outside your own country.’’
700 I need not set out further extracts from the evidence. Although each Aboriginal witness expressed the matter in his or her own way, overwhelmingly they claimed the existence of a rule about seeking ‘permission’ to visit another’s country, the importance of that rule and the tradition that, if permission is asked, it is not usually refused. [The word ‘permission’ was not always used. Some witnesses used language such as having a ‘yarn’ about coming.] Of course, the rule has had to accommodate the realities of modern life; for example, the witnesses agreed that a person would not need to seek permission if merely driving through another’s country on the way to somewhere else, or if visiting Perth on business or for medical treatment. However, it is apparent that the rule is regarded as extant and its breach strongly disapproved.
(v) Submissions about the continuity of acknowledgement and observance of
1829 laws and customs
(a) The Applicants’ submissions
701 In arguing continuity, in their closing submissions, counsel for the Applicants noted Dr Thieberger’s evidence about the correlation between the word-list collected in the 1990s by Humphries and word-lists from earlier times. Dr Thieberger saw ‘strong continuity’ between the various word-lists. Counsel also referred to the Aboriginal evidence about language and Dr Palmer’s views. This was said:
‘The early accounts make it clear that rights to country were gained principally through descent, although rights could also be obtained through birth and marriage … In Dr Palmer’s opinion, and based upon the contemporary data, this system of gaining rights to country would appear to have remained current, in its fundamentals. This opinion is supported by the Aboriginal evidence. Although rights to country are usually gained by descent and in some cases, through place of birth or through an affinal relationship, residency and knowledge remain important attributes of realising and asserting rights to country.’ (Citations omitted)
702 After referring to some of the Aboriginal evidence, counsel went on:
‘Dr Palmer states in his principal report, that there is, in the data which he and his research assistants collected, a consistent view, for all areas reviewed, that more or less bounded areas of land were considered to be the property of families and individuals. It is submitted that this same consistent view is apparent in the Aboriginal evidence. Dr Palmer notes that Daisy Bates recognised that rights extended to areas, which she called “runs”, which were sometimes geographically substantial. In Dr Palmer's opinion, based upon the research data collected, this account would appear to accord with the contemporary Noongar view, that land is divided between families, which are country groups and whose members exercise rights as owners in it and extends to include a run which can be geographically quite extensive.
Although the extended family is the primary unit that “owns” country, an individual might have rights to more than one country. Robert Bropho is one example of this. Mr Bropho has rights and interests in the Perth area through birth, knowledge and affinal connections but he also has rights and interests in the Busselton area through his mother’s family. The Bropho (Nettle), Corunna, Wilkes, Garlett and Warrell families all have a connection with, and rights and interests in, the Perth area but they are also related and so have access to each other's land. Interests shared between families in the same area of country may not always be the result of extended family relationships. It appears that, in some circumstances, different families may share rights to the same area of country. Lynette Knapp, for example, gave evidence that the Colbung family also speak for the country which her family speaks for in the Albany region.
Again, consistent with the early European accounts, rights to country are enjoyed by a number of different groups of people (for the most part, comprising different extended families) and therefore rights to country never were, and are not today, the exclusive preserve of a single group . Again, as is made clear in the early accounts, and in the Aboriginal evidence, there are still protocols to be observed and permissions to be sought to access somebody else's land.
Noongar people consider that it is a land owner's right to have free access to and use of, his or her land but conversely, those who do not share rights in that land should seek permission before they enter or use the land. Most of the Aboriginal witnesses made statements to the effect that a Noongar person should keep to his or her own country and should not go outside. There are spiritual dangers ever present in the land and it is seen as potentially dangerous to enter someone else's land without first asking permission. A Noongar person is known to the spirits in his or her own country and accordingly, does not need permission to be in their own area but others, including other non-Noongar people, should ask first.’ (Citations omitted)
703 After referring to evidence about the consequences of failure to seek permission, counsel went on:
‘In his principal report, Dr Palmer makes the following four observations, each of which is fully supported by the Aboriginal evidence. First, bounded country is ideally regarded as the property of the family (or families) that have rights to it. Ideally, then, permission is required for members of other families to enter or use it. Second, rights to use country are extended to members of other families where there is a family connection. Third, the extension of rights to country requires the exercise of protocols of respect and acknowledgment of the role of the senior member of the family responsible for the country in question. Finally, while permission can ideally be withheld, there is an expectation that permission will not be withheld, and that the land and its products will be shared between Noongar people, particularly in cases where people know one another.
In Noongar thinking, an owner of country has the right to exclude or grant permission to non-owners to enter and use their land. But he or she also has a duty to share their land with others and a duty to ensure that no harm comes to visitors. The Aboriginal evidence amply demonstrates that Noongar people believe that unknown country is potentially dangerous, because Noongar land is possessed of spiritual potentialities which must either be avoided or knowledgably managed. Ignorance of country is therefore a matter of personal jeopardy. To venture into unknown country is to imperil both yourself and those who depend upon you. This means that, for the most part, Noongar people regard country that is not their own, and therefore which is unknown to them, as country to be avoided. Based upon Dr Palmer's research data and his own observations, he is of the view that Noongar people recognise a general duty to care for their own country. Looking after country typically requires a personal inspection to check for damage, perform maintenance, and ensure there is no unwelcome or unexpected development.
Another important aspect of “looking after country” and “speaking for country”, is to make any representations that might be necessary to ensure that spiritually sensitive places on country are not harmed by development. There were many instances in the Aboriginal evidence where witnesses spoke about the need to be consulted about and to protect, sites and indeed, country generally, from harmful development.
There is a also a right and a duty to pass on knowledge about country and about Noongar ways so as to ensure the continuity of Noongar tradition over the generations. The passing on of knowledge of country is understood to be a duty of a landowner.’
704 Counsel set out two conclusions of Dr Palmer about the early writings:
‘Firstly, at or very close to sovereignty, Noongar people exercised rights to their country and those rights were most probably comprehensive. Secondly, at or close to sovereignty, there also operated a system of permission, whereby ideally, a person who did not have rights to the country was required to ask permission before he or she accessed the country, took game from it or set a fire. However, it is clear that in practice, such permission was complex in its execution and not always consistently required or sought. In Dr Palmer's view, this reflects a situation where rights to country were variously attainable. The situation with respect to permission was one that was closed about with personal relationships, alliances and ties of kinship, that made it quite complex in practice.
In Dr Palmer's opinion, much the same systems are in operation amongst Noongar people today, as was the case at, or close to, sovereignty. People continue to regard their country as their own, as of right, and permission is an ideal requirement, hedged about with circumstantial qualifications that provide for a complex and often context-specific outcome. In Dr Palmer's view, the right of use and access remains fundamental to the normative system of customary land ownership amongst Noongar people. He also concludes that duties relating to the care and protection of country now probably receive greater emphasis than they did formerly, when the impact of development, clearing and urbanisation had yet to be felt across Noongar land. Dr Palmer concludes that the rights and duties of the Noongar people in respect of their country have not changed in their fundamentals and the normative system upon which an owner is understood to relate to his or her country, remains founded upon the same principles as it did at sovereignty.’ (Citations omitted)
705 Counsel made a detailed examination of the evidence concerning other customs and beliefs, especially spiritual beliefs, before putting this concluding submission:
‘There is a single Noongar society, the membership of which is determined by descent. A person is a member of the claimant group (ie, the Noongar people), if their mother or father was a Noongar person. That Noongar parent is in turn understood to have gained their Noongar identity and their connection with land or waters, from a Noongar parent or parents, so there is perceived to be a lineage extending back to Noongar ancestors in a time beyond memory. Although the principle of recruitment into the claimant group/society, is through biological descent, it is possible that a person may be incorporated in to the group through adoptive or other links. It is important also to acquire knowledge of Noongar country and Noongar ways.
The claimant group/society binds itself as a unit through descent, external identification as Noongar, internal identification, that is, through the inter-relatedness of the various Noongar families or extended families. The claimant group/society is further bound through common cultural practices and beliefs known as the “Noongar way”.’
706 Citing De Rose (No 2) at [58], counsel emphasised that it is a question of fact and degree as to whether the definition of native title in s 223(1) is satisfied. They said:
‘There are likely to be cases in which a claim by a community or group succeeds, notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs. In such cases, the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs.’ (Original emphasis)
(b) The State’s submissions
707 Counsel for the State also looked at Dr Thieberger’s evidence, in the context of assessing the position today. They noted the extent of the language loss amongst Noongar people, which has undoubtedly been substantial.
708 Counsel also mentioned Dr Palmer’s evidence about the normative system of law and custom in relation to land. In his report, Dr Palmer had said:
‘Given first that an individual is a Noongar person, solely by birth or adoption … rights to country may be claimed by descent or place of birth, or, in some cases through an affinal relationship. Residency and knowledge are also important attributes of realising and asserting rights to country, but in themselves do not, in my view, constitute a customary ground for claiming ownership. In my view these different pathways cannot provide for a ranking of rights to country, into primary, secondary and so forth, as has been suggested for other areas of Aboriginal Australia … This is because rights to country, while potentially realisable by reference to one or two or all of the principles noted here, are in their exercise a matter of negotiation and assertion.’
709 Counsel for the State commented:
‘Dr Palmer acknowledged in his report that under a cognatic system the areas of country a person may claim may expand exponentially with each generation. He therefore considered that there was an operative principle governing the choice of which ancestor's country a person would claim rights to, that operative principle being command of the requisite knowledge and experience of the country in question …
Dr Palmer did not explain any rule for the geographical area that could be claimed through the normative referents referred to above, but considered it could be extensive. That is, birth in a town, or descent from an ancestor associated with a town, could apparently justify a claim to rights in neighbouring towns and the land in between. In his report Dr Brunton pointed out a number of such instances, and pointed out other cases where there is no apparent justification for the area claimed using Dr Palmer's normative referrents.
Dr Palmer drew a distinction between a person's “home area” and “run”, but said that rights cannot be ranked as primary and secondary and that rights were the same over both types of areas.
According to Dr Palmer, rights to country are not held be a single group Different families, even unrelated families, have overlapping countries. Dr Palmer acknowledged that this situation produces complexities in relation to the asking and giving of permission. Dr Palmer also acknowledged that the existence of overlapping country “means that a number of individuals may share rights to the same [area] of country”. He then explained that:
“in the dealings which may eventuate over any issue that demands the exercise of rights to country, individuals may appeal to different legitimating referents in support of their claims to country. In these political exchanges (that is, exchanges that relate to an attempt to acquire power or resources) different skills, negotiations and alliances may be called into play. As in all areas of human interaction, some fare better in this process than others. Inter-personal relationships and personal abilities and attributes as well as personal inclination may determine or influence the outcome”.
However Dr Palmer went on to say that: “in matters relating to land, all claims to the exercise of a right to country are, in my view, underpinned by reference to a Noongar system of laws that relate to rights to land. Claims or assertions that are not so underpinned would not be accepted by other members of the Noongar community and would be summarily dismissed”.
Similarly in his oral evidence Dr Palmer acknowledged that for there to be a normative system there has to be a process beyond the individual whereby rights are generally agreed or not agreed. He said that the beliefs and practices of the Noongar people he had studied had jural like qualities because they are like laws or rules that are understood to be shared across a community of people. Dr Palmer said that if a person claims rights to country through an attribute which is sui generis to the system, then that will not give them a qualification for exercising legitimate rights to country.’ (Citations omitted)
710 Counsel then put two submissions:
(i) Dr Palmer’s opinion that there is a normative system for determining rights and interests in land is not supported by the Aboriginal evidence at trial, and ‘what Dr Palmer would consider to be a normative system is not a normative system of the kind require by s 223 [of the Act] and Yorta Yorta’; and
(ii) ‘even if there can be said to be a normative system, it is not one based on traditional law and custom’.
711 Counsel then referred to the Aboriginal evidence, correctly noting that some witnesses claimed rights through patrilineal descent, some through matrilineal descent and some by their own choice between mother’s country and father’s country. They also noted cases where witnesses claimed a connection with two different areas either because of birth in one, and an ancestral connection with the other, or because of ancestral connections with both. Counsel made the point that some witnesses based a connection claim upon an ancestor some generations removed. They mentioned Richard Wilkes, Albert Corunna, Norma Jones and the Garlett brothers.
712 Counsel criticised the evidence of three witnesses, Mr Northover, Mr Storey and Mr Davis, as ‘internally inconsistent and confusing’. It is appropriate to say immediately that I do not think this criticism is justified.
713 Both Mr Northover and Mr Storey maintained, from first to last, that they acquired their country through their mothers. The circumstances that Mr Northover also claimed other associations with Collie (birthplace of his paternal grandmother and ‘all my family buried there’), and Mr Storey talked about a general practice of taking law from the father (not in his case, his father was English), do not affect the bases of their claims.
714 As for Mr Davis, he was born at Beverley. His mother was born at Badjaling; his father in ‘the north’, outside Noongar country. Mr Davis was taken, as a child, to Shackleton, about 100 kms east of Beverley. Apart from a period in Perth, he seems to have spent most of his life at Shackleton or at Wyalkatchem - further north, but within the claim area - where he now lives.
715 It is true, as the State submits, that Mr Storey agreed his mother’s country, around Badjaling, is ‘not part of [his] main country’ and that he has no ancestral connection to the Shackleton area, which he regards as his country. This may mean that his claim is dubious under Noongar law, but there is no inconsistency or confusion in his evidence.
716 The more significant issue raised by counsel was whether it is possible to say that the Aboriginal witnesses articulated any normative rules concerning rights over land. Counsel attributed to Dr Palmer an acknowledgement ‘that the Aboriginal informants did not articulate normative rules applicable to all Noongar people as to how rights in land were acquired’. Counsel submitted that the evidence indicates only that ‘Dr Palmer has observed patterns of behaviour and then sought ex post facto to articulate a set of rules to explain what has happened’. Counsel said the case was similar to Jango, from which they quoted at some length.
717 Counsel then said that, ‘even if … the evidence supported Dr Palmer’s “normative system”, … such a system is not normative in the sense required by s 223 [of the Act] and the caselaw because there is no rule or system that governs and determines claims to country’. Counsel gave these reasons:
(i) ‘the referrents which Dr Palmer … put forward are so broad as to cover almost any situation’;
(ii) ‘the normative system put forward by Dr Palmer involves a process of negotiation and assertion’; and
(iii) ‘for there to be a normative system, it must be possible to distinguish between claims to country which are generally accepted by the relevant society as legitimate, and those which are generally accepted as being illegitimate’.
718 In support of point (iii), counsel referred to evidence of some disagreements about boundaries of, and the right to speak for, particular country. They said:
‘Thus the evidence suggests that overlapping claims to country are either simply allowed to continue because there are no normative rules for resolving such disputes, or they are the subject of political compromises, again without reference to normative principles (and sometimes now involving Land Councils).
Furthermore, the historical evidence demonstrates that because of the effects of European settlement, Aboriginal people have moved around the south-west and in particular have moved into the Perth Metropolitan Area ... The evidence does not establish that such movement has been regulated by or accorded with any normative system. For example, many Aboriginal people moved into the Perth Metropolitan Area for employment, health and housing reasons ... There is no evidence that any attempt has been made by Aboriginal people in Perth to stop them, nor even that such movement attracted criticism. Therefore either such movement was considered legitimate, in which case there is no normative system in place in the Perth Metropolitan Area as suggested by Dr Palmer, or such movement is illegitimate and such people (including many of the witnesses) have no native title rights in the Perth Metropolitan Area.’
719 Finally, in relation to this point, counsel said:
‘The evidence above demonstrates that while many claimants have joined together to press a communal claim to the Perth Metropolitan Area, if the Court determined native title in the Perth Metropolitan Area was held by the “Noongar People” then there would be no way of knowing how the legitimacy of any particular person's claim to enjoy that native title would be determined by the community nor how those rights would be allocated intramurally. It is one thing to say that it is not the Court’s role to work out the intramural allocation of rights , but the Court must be satisfied that there is a normative system under which it can be determined by the community itself. The Court cannot be so satisfied in this case.’ (Original emphasis)
720 Counsel’s final point was if, contrary to their earlier submissions, ‘there is a normative system for determining rights in the south-west of Western Australia, it can only give rise to native title rights and interests recognised by [the Act] if the normative system operates according to traditional laws and customs (allowing for a degree of change)’.
721 Counsel went on:
‘It is beyond doubt that the system of local organisation discussed … above, involving bounded estate (or country) group areas and bands (or residence groups), no longer exists in the Perth Metropolitan Area today ...
Compare this to many other parts of Australia, where the traditional system of land tenure under which country was divided into estates has still survived (see e.g. Neowarra at [204]-[206], Alyawarr, Ward, Gumana). Apart perhaps from Mr Bodney, there is no longer even a vestige of knowledge of the estate groups; and there is certainly no acknowledgment or observance of a system of law and custom under which country or estate groups are associated with particular estates.
In relation to local organisation, Dr Palmer's opinion was that the contemporary extended families may be regarded as a continuation of the country groups which were in existence at sovereignty. The [State] submits, however, that Dr Palmer's analysis is flawed. As we have submitted … above, it may be accepted that under traditional law and custom residence groups exercised rights in land by reference to patrilineal descent (which gave rise to the right to speak for an estate area), and through other factors such as matrilineal descent, birth, affinal relationships and broader kinship relationships which gave rise to contingent rights exerciseable with the permission (express or implied) of the country group members. However residence groups were not traditionally landowning groups. To the extent that there may today be a correlation between extended families and the groups at sovereignty, it is a correlation between the modern extended family and the traditional residence group, not the traditional country group. That is, even if Dr Palmer is correct, there has been a fundamental transformation of the residence group into a landowning group. This explains why there is now so much overlap between the contemporary asserted landowning groups and uncertainty as to who exactly speaks for what land, because residence groups were always labile and had no necessarily fixed territory.’
722 Counsel then put a submission that depends substantially upon the existence of a clear distinction between patrilineal and matrilineal descent. They said:
‘Dr Palmer was of the opinion that at sovereignty rights to land were gained through matrilineal or patrilineal descent, and through birth and marriage; and that the same holds true today. … the position at sovereignty was that rights to country were acquired principally through patrilineal descent. Certain contingent rights (in the sense that they were subject to standing or express permission) did exist in mother's country and through marriage, however they were not means by which a person could ordinarily acquire primary rights to land (i.e. rights which were transmissible and gave a right to speak for country). To the extent that Dr Palmer is of the opinion that under contemporary Noongar law and custom persons can obtain “ownership” rights to country through matrilineal descent, or through birth or marriage, that is a radical departure from the situation at sovereignty and cannot be regarded as “traditional”. Dr Brunton was of the opinion that there is no normative system of law and custom in relation to land, and even if there is, it is not traditional. In particular, Dr Brunton explained that the change from a patrilineal system to a cognatic system introduces negotiation and assertion into the process for determining rights in land in a manner which was not present at sovereignty.’ (Citations omitted)
723 After referring again to Jango, counsel said:
‘In relation to patrilineal descent, the [State] acknowledges that the prevalence of non-Aboriginal people fathering children with Aboriginal women is a cause of the breakdown of the patrilineal descent system. If that were the only change to the system of law and custom regarding local organisation and rights in land in the Perth Metropolitan Area, and some other coherent alternative system had taken its place, then it may be arguable that the system could nevertheless be characterised as ‘traditional’. However in this case such a change is just one of a number of other changes which have resulted in the present system of law and custom (if, which is denied, there is any system at all) being incapable of being characterised as a continuation of traditional law and custom. We also make two other points. First, a patrilineal system could develop mechanisms to deal with miscegenation, for example, a child takes the country of a social father, or of mother's father, or a child takes mother's country but that child's child takes father's country. There is no evidence in this case of such an adaptation of a patrilineal system. Rather there has been a complete breakdown. Secondly, as the High Court said in Yorta Yorta the reason why traditional law and custom has not been followed is not relevant - the inquiry is simply as to whether there has been a continued acknowledgment and observance of traditional law and custom.
There are also other indicia of the breakdown of the traditional system of laws and customs. First, in seeking to draw parallels between the contemporary situation and traditional law and custom regarding land ownership, the … Applicants have ignored the distinction between core and contingent rights. As discussed … above, the witnesses had a concept of home country and run, but did not differentiate the rights between those two areas. In our submission the existence of the distinction is consistent with the distinction discussed … above between core and contingent rights. Yet in terms of the rights people now claim in country, that crucial distinction has been lost.
Secondly, Dr Palmer expressed the opinion that at sovereignty and at present, rights to country were not held by a single group. It is certainly the case with the Perth Metropolitan Area today that a number of extended families claim rights over the whole of the area. But … that was not the situation at sovereignty. That is, there were not numerous overlapping country groups (or estate groups) in the Perth Metropolitan Area at sovereignty. It may be accepted that members of a country group had secondary rights in the country of another country group, but that is a fundamentally different situation to the present one where all the extended families claim primary rights in the Perth Metropolitan Area. Dr Brunton considered that overlapping claims may point to discontinuities in the system of law and custom relating to land because claims to country are asserted otherwise than in accordance with traditional law and custom. We submit that is correct.
Thirdly, Dr Palmer was of the opinion that the first requirement for claiming rights and interests in land is that a person be ‘Noongar’: ... In our submission that cannot be a part of traditional law and custom because the concept of an overall Noongar identity did not exist at sovereignty: ... That is, before 1829, a person from say Jurien Bay who sought to assert rights in say Albany would have been regarded as much as a stranger by the “Noongar” people in Albany as would a person from Kalgoorlie or elsewhere.’ (Citations omitted)
724 Counsel turned to the matter of permission. They said:
‘The [State] accepts that there is a general concept amongst the witnesses that they should seek “permission” to do certain things outside their own country, and that others should seek “permission” to do certain things in the witness’ country. However the [State] submits that the evidence at trial clearly supports the following six propositions:
(a) First, there is no law or custom requiring “permission” to simply go to an area, especially Perth and other towns, but rather the concept only arises in respect of conducting certain activities on the land.
(b) Secondly, the rationale for the concept so far as it exists is that there may be dangerous places and spirits in other country.
(c) Thirdly, in most cases no form of permission is sought at all.
(d) Fourthly, to the extent any form of “permission” is sought, in fact it is a matter of courtesy to inform someone from the area of the proposed activities, and “permission” is never refused.
(e) Fifthly, there is no consistent understanding as to how such “permission” should be sought or from whom.
(f) Sixthly, the witness’ concept of “permission” is not specific to Noongar country but is a general principle that applies everywhere.
The consequence is that there is no normative system of law and custom in relation to permission, or if there is, it is not “traditional”. Consequently the evidence as to permission does not translate into rights and interests possessed under traditional law and custom. Furthermore, the evidence as to permission does not support the existence of a single Noongar society. If anything, it contradicts it. These submissions are addressed further below, after the following review of the Aboriginal evidence.’
725 I need not detail all counsel’s references to the evidence about permission. Some of their six propositions are clearly correct, perhaps subject to qualification.
726 Although witnesses put the matter in various ways, I think the first proposition is substantially correct. In the age of the motor car and urbanisation, it could hardly be otherwise.
727 The second proposition is partly true. The need to obtain warnings about dangerous places is certainly part of the reason for seeking permission, but not all of it. There is also a recognition of the duty to acknowledge the local group’s right to control access to their land. One of the witnesses compared seeking permission to asking a householder’s permission before entering his or her home.
728 Counsel’s third proposition is, of course, correct in relation to non-Aboriginal visitors, as several witnesses pointed out. It is also clear that not all Aborigines (Noongar or otherwise) seek permission when they ought to do so. As several witnesses indicated, if permission is not sought, there is not much that the local group can do about it. Whereas, at one time, the intruder would have been speared, under wajala law that is no longer permissible. However, none of this means the rule has been discarded or disappeared.
729 I think counsel’s fourth and fifth propositions are borne out by the evidence, subject to the comment that it is difficult to see why there should have to be a single rule about the method of seeking permission. In 1829, no doubt, methods would have been restricted by the limited means for communication between Aboriginal communities. As circumstances changed, and the means expanded, it would have been natural for people to take advantage of them. The evidence clearly indicates permission should be sought from a senior member of the local group in the territory which is to be visited.
730 The sixth proposition appears to be correct. A number of the witnesses gave evidence about seeking permission when visiting areas outside Noongar country.
731 Counsel summarised their position by saying:
‘… the only thing that is traditional is the concept that “permission” is required. Even if (which we deny) there is now a system of law and custom about permission, it has a wholly different function and content from that which existed at sovereignty and is not a mere adaptation.’
(c) The Commonwealth’s submissions
732 Counsel for the Commonwealth said, in her closing submission, ‘[t]he principle [sic] reason that a single Noongar society is not made out now is the absence of normative rules which would operate to unite a body of persons by their acknowledgement and observance of those laws and customs’.
733 Counsel for the Commonwealth then offered some observations about the nature of Aboriginal society in the Perth Metropolitan Area today. She pointed to the limited use of Noongar language today, noting Dr Thierberger’s evidence that ‘“neo Noongar” was chosen to replace “old Noongar” [which] was a full language with all the complexity that every language has’. Counsel then said:
‘Whilst it is maintained that assertion of language affiliations does not, of itself, assist with the identification of a society (either at sovereignty or now), the very significant loss of language by at least 1990 which led to discussions about a language reintroduction program for “neo Noongar” to replace “old Noongar” is an indicator (or at the very least confirms other indicators) that changes since sovereignty have led to a loss of traditional ways, not their continuity, even through adaptation.’ (Citation omitted)
734 Counsel for the Commonwealth turned to the present rules about land. She referred to Dr Palmer’s view (set out at para 707 above) that there is a normative system by which rights to country may be claimed, if one is a Noongar person, by descent, place of birth or, in some cases, through an affinal relationship.
735 Counsel emphasised Dr Palmer’s statement that rights to country ‘are in their exercise a matter of negotiation and assertion’. Counsel commented:
‘In all this, a descent criterion serves as a pre-condition but the descent criterion is not the sole principle for gaining membership in a country group (and for the subsequent exercise of rights and interests on the part of the individual). The principle for recruitment is, then, dual: there is a descent element and there is a political element of assertion and negotiation. As remarked upon by Dr Brunton in cross-examination, it is in the absence of rigid norms that a system of social negotiation is utilised.’ (Citation omitted)
736 Counsel for the Commonwealth went on:
‘As presented by the [Applicants], the principle for recruitment of a person to a country group can be given as recruitment on the basis of the principles of selective cognation and election.
In the context of this case, the formulation that “the principle of recruitment to country groups is descent” may provide grounds for entering a spurious assertion of normative continuity when there has, in fact, been radical change. A shift from patrilineal descent to cognatic descent is a radical shift in which the norms governing group composition and the acquisition of rights and interests in land have changed in a fundamental way. A system of patrilineal descent is one thing. A system of cognatic descent is a totally and radically different system.
Under patriliny in Aboriginal Australia, a principle of descent does, indeed, operate to determine a person’s identity, that person’s group affiliation, religious adherence and primary rights in land. Under patriliny, these things are givens. They are all ineluctable and unalterable, as if set in concrete. Under patriliny, a person is associated and identified with one primary estate.
Contrastingly, under cognation, a person has a set of options in relation to the taking of country and the joining of country groups. Within a given range of opportunities determined by ties of cognatic kinship, the individual may elect to apply for rights in one country or another. Under cognation, a person may “take” not only one country but two or three and perhaps more.
The patrilineal system is characterised by descent-determined identity. In contrast, the cognatic system offers flexibility and a range of choices for, under cognation, there is elective birth-right. Within the realm of kinship, the qualitative differences between these two systems for the recruitment of persons to groups and to country could hardly be more marked.
By propounding the formulation that the principle for recruitment to a country group is descent, the [Applicants are] able to, impliedly, equate patriliny with cognation for both, after all, are modes of descent. Then, on the basis of the false logic that lumps together any and all the distinct normative principles of kinship under the heading labelled “descent”, the [Applicants are] able to propose that even if there has been a shift from patrilineal descent, and “over time, an increase in the number of Noongar people acquiring rights and interests in land through the mother”, this “change” is “clearly a change or development of a kind that was contemplated by that law or custom”.
The [Applicants’] proposal roots a latter-day system of options and choices between estates in a prior system of predestined identities and ineluctable and primary rights to a single estate of patrimonial land. The subsequent system of choice and flexibility can hardly be said to be “rooted” in the unbending provisions of characteristic of an original system which accorded supremacy to the principle of “father right”. What is clear is that an original system has been superseded by a latter-day cognatic system, if indeed that is the system operating at all in the … claim area.’ (Original emphasis)
737 Ms Webb then referred to the evidence of the Aboriginal witnesses, asserting that it is:
‘internally inconsistent and includes evidence as to: rights obtained through the patriline; rights obtained through the matriline; rights by descent from an ancestor, but a person can make a choice (cognatic); rights in more than one country through different ancestors on the father’s side and the mother’s side; rights through the birth of an ancestor; rights through residence, including of an ancestor; rights claimed through ancestors “coming from” a place, despite that ancestor not having lived at the place.’
738 Counsel concluded:
‘It is apparent that there remains today, in the … claim area, no rooted tradition for gaining native title rights in land. Rather, there has been massive departure and revision. Any rights and interests and interests now possessed by Aboriginal people in the area of the separate proceeding (and indeed, the entire … claim area) cannot fall within the definition of native title in s 223(1) of the [Act]. This is so because the latter-day route to the possession of rights and interests in land no longer bears any resemblance to that traditional route by which their pre-sovereignty ancestors came to hold rights in country.’
739 Turning to the matter of present day customs, counsel conceded ‘that there is a strong belief in the spirit world among the witnesses who gave evidence in this case. Indeed, there was a “preoccupation” with it. However, she said, that ‘does not assist with the defining of any society. The Aboriginal witnesses themselves recognised that beliefs in spirits are found over Australia and are not unique to Aboriginal people in the south-west of Western Australia’. She referred to the various methods of managing the spirits mentioned by witnesses and said:
‘That all Aboriginal people have rituals in relation to the management of spirits is uncontroversial. What defines and distinguishes one group of Aboriginal people from another is the detail of the ritual, not the desired result (ie management of the spirits).
The evidence of various rituals used in the … claim area to manage spirits is an indication of disunity, rather than unity, of society.’
740 In relation to marriage, Ms Webb said:
‘The evidence of Dr Palmer is that any previous system or systems of moieties and semi-moieties no longer exists. Certainly there was no evidence given of present day knowledge of moiety systems operating in the south west.
Insofar as there may have been marriage rules previously operating as part of a normative system, they have conflated to a consideration which, with respect, is common to all societies; that is, that people should not marry “too close”.
There is no evidence that Aboriginal people in the south west acknowledge and observe any marriage rule which is part of a normative system of laws and customs.’ (Citation omitted)
741 After noting that it is conceded by the Applicants ‘that major ceremonial rituals and formal corroborees are no longer practised’ and that the evidence about totems ‘can fairly be described as presenting diverse and differing views’, counsel turned to the evidence about death and funerals. She noted the concession of counsel for the Applicants, in their closing submissions, that ‘many of the outward burial practices described in the early literature and in the Aboriginal evidence are no longer observed’, and ‘the funerals are largely conducted as Christian rituals’ and then stated:
‘The only aspect of the funeral ceremony which bears any relationship to the rules of which there was evidence at sovereignty is the rule of burying a person on their own country.
That in itself does not permit a conclusion that traditional burial practices have been substantially maintained since sovereignty. Nor does it assist with any conclusion that there presently exists a single Noongar society.’ (Citation omitted)
742 In relation to hunting, fishing and food gathering, counsel argued:
‘The most important omission from the evidence as to hunting, fishing and gathering is the requirement to show that persons by engaging [in] those activities were, as a member of a class, exercising some sort of right pursuant to a system of rules.
Particularly in an urban environment, which is patently inconsistent with a “hunting and gathering” lifestyle which existed at sovereignty, the evidence must show that the activities of hunting, fishing and gathering are not random or coincidental in the sense that other members of the broader urban community also undertake those activities.
In the absence of evidence as to the system of rules supporting the activities as “rights”, hunting and fishing etc are merely observable patterns of behaviour and do not inform on the existence of normative rules and a society bound by them.’ (Citations omitted)
743 Ms Webb summarised her position in this way:
‘Based on the evidence, there is no identifiable group of persons in the south west of Western Australia who are a body of persons united in and by its observance of a body of law and custom, either at the level of the single Noongar society or at any lesser level.’
744 Accordingly, she asserted: ‘Based upon the evidence, there is no relevant native title holding group.’
(d) WAFIC’s position
745 Under the heading: ‘The continued existence of the relevant society or societies in the area of the separate proceeding from sovereignty to the present’, counsel for WAFIC said his client ‘makes no submission under this topic other than to adopt the submission of the State’.
(e) The local government authorities’ submission
746 In dealing with the question whether there is a Single Noongar society, Mr Wittkuhn observed the importance, at a practical level, of local governments ‘having some certainty as to whom they should deal with in relation to proposals affecting native title or waters’. He is, of course, correct. It was, no doubt, because this is a matter of importance to all levels of government (and other people), that Parliament made provision in the Act for the nomination of, and vesting of functions in, prescribed bodies corporate: see Division 6 of Part 2 of the Act.
747 In relation to the issue now under discussion, Mr Wittkuhn was content to raise issues, rather than offer answers. He said:
‘As statements of principle, the following propositions in the [Applicants’] submissions … are accepted:
• It is not the case that a communal or group claim can succeed only if every member of a claimant community or group has acknowledged and observed the traditional laws and customs;
• It is a question of fact and degree;
• The question is whether the community or group, as a whole, has sufficiently acknowledged the relevant traditional laws and customs.
Nevertheless, it is observed that 29 members of the claimant group gave evidence …
It is submitted that the Court should consider the likely number of persons said to fall within the description of the “Noongar people” (the imposition and definition of which may be problematical in itself) and to inquire whether the onus of proving a sufficient connection on the part of the group as the whole, has been discharged. Can the evidence of 29 prove a “substantial connection” of a people numbering possibly in the thousands?
Can the evidence of those claiming more specific connection to the Perth and Swan Valley regions … attest to a continuous connection on the part of the group as a whole in relation to the Perth and Swan Valley region?’ (Original emphasis)
748 Mr Wittkuhn made the point that, if it is accepted that Noongar people comprised a single society in the sense of having a single normative system, ‘it does not follow … that the native title holding group is that society’.
749 Later in his submissions, Mr Wittkuhn stated that, if the native title claim is to succeed, in relation to the Perth Metropolitan Area, ‘it could only be on the bases that:
(a) it is proved that the relevant society is “the Noongar people”; and
(b) it is proved that under Noongar traditional law and custom, native title rights and interests vest at the level of that entire society’. (Original emphasis)
I think this is correct, provided it is understood this does not necessarily mean all members of the society must have equal rights to all land and waters that are subject to native title.
(vi) Conclusions about the continuity of acknowledgement and observance of 1829
laws and customs
(a) Some peripheral matters
750 At para 600 above, I set out a finding that there is ‘clearly a present-day “Noongar” network, linking families throughout the claim area’. That finding was based on the evidence of the 30 Aborigines who gave evidence before me but, of course, I did not think the network was confined to those 30 people. Their evidence, coming as it did from people scattered widely throughout the claim area, provided an insight into the way of life of a much greater number of Aboriginal residents of the south-west of Western Australia, and the family and social relationships between those people. I take Mr Wittkuhn’s point about the relatively small proportion of south-west Aborigines who gave evidence; however, as in almost every case, what is important is not the number of witnesses but the nature and quality of their evidence.
751 Before passing to what I regard as the critical questions, in relation to this aspect of the cases, it is convenient to comment on some peripheral matters.
752 First, in paras 602 to 604, I summarised the Aboriginal evidence about spiritual beliefs. I agree with Ms Webb that the concern about the spirit world demonstrated by the evidence might properly be called a ‘preoccupation’, but I do not agree with her that the evidence of rituals used in the claim area to manage spirits ‘is an indication of disunity, rather than unity, of society’.
753 At para 605, I said there was ‘a high degree of consistency in relation to the most widespread beliefs’. I was there referring to the witnesses’ religious philosophies, their store of beliefs. I accept there were differences in their manner of expressing those beliefs. For example, some people were accustomed to propitiate the spirits by speaking to them; some by throwing sand on the water; some by hitting the water with a stick or throwing a stick. However, some Christians pray standing, some seated and some kneeling. Some use rosary beads, or other aids; some do not. Those differences in behaviour do not destroy the peoples’ essential unity as Christians. They are joined together by a common belief in the existence of God, the divinity of Jesus and the power of prayer. Differences in the method of expressing that belief are of no consequence.
754 A similar comment may be made about creation snake stories. There were differences in the details of the stories; many of them apparently attributable to the need to explain features of local topography. But that does not establish societal fragmentation. Some Christians accept the virgin birth, some do not.
755 I need not multiply examples. These are sufficient to demonstrate that the Commonwealth submission seeks to impose on the Noongar community a degree of conformity in belief that we do not apply to the non-Aboriginal community.
756 Second, Ms Webb trivialises the Aboriginal evidence on marriage when she says the marriage rules ‘have conflated to a consideration which … is common to all societies … that people should not marry “too close”’.
757 Australian law forbids marriage between brother and sister (see Marriage Act 1961 (Cth), ss 23 and 23B), but not between cousins. There is probably a widespread belief that marriage between first cousins is undesirable, even though it is not unlawful. However, whatever views some individuals may have, I am not aware of any widespread disapproval of marriage between second (or more remote) cousins. There is certainly no rule to that effect. By contrast, there is obviously a Noongar rule forbidding marriage between second cousins and a strongly held Noongar belief that infractions should be sanctioned by social ostracism. It seems this is a continuation of the rule, noted by several of the early writers, that a man must choose a wife outside the extended family that constitutes the ‘band’ or ‘tribe’ of people who lived together. It is not difficult to see the necessity for that rule, at settlement date. The fact that it persists, throughout the whole claim area, under today’s very different conditions, is a powerful indication of both the unity of the south-western community and its continuity from 1829 to the present day.
758 Similarly, as it seems to me, Ms Webb understates the evidence about death and funerals. It is true that non-Aboriginal notions have impacted heavily on funeral practices. Funerals are heavily regulated by wajala law and strongly influenced by Christian beliefs; no doubt, many Noongars have become Christians. However, the evidence revealed that, despite those factors, some traditional beliefs about death and funerals, which are different to non-Aboriginal beliefs, persist throughout the claim area. They are widely, and strongly, held. I have in mind the relationship between liberation of the deceased’s spirit and the timing of the funeral; the idea that cremation is unacceptable because it may burn the spirit; the importance of being buried in one’s own country (boodja) and the weight of the obligation to attend the funeral of a relative, or even a non-related Noongar.
759 Ms Webb’s submission about hunting, fishing and food-gathering is puzzling. As I understand the situation, there were two reasons why counsel for the Applicants adduced evidence about these matters. First, by proving that many south-west Aborigines maintained these traditional activities, and passed on their skills and beliefs to younger people, counsel sought to show there continued to be an Aboriginal community, distinct from the wider Australian community. Second, the evidence was relevant to establishing particular native title rights and interests, connected to land, that continued to be acknowledged and observed by members of the claimant group. The people who gave evidence about hunting etc claimed to be doing so pursuant to a system of rules.
760 There is, I think, a missing negative in the second sentence of Ms Webb’s submission quoted at para 741 above. I read her as requiring it be shown that ‘other members of the broader urban community [presumably, non-Aboriginal people] do not also undertake’, fishing and food-gathering activities. However, Ms Webb did not develop the submission or address the evidence that showed:
(a) the Aboriginal witnesses did not regard themselves as free to hunt, fish and gather food wherever they wished, as a non-Aboriginal person would do; they thought those activities to be immediately acceptable only within one’s own boodja; elsewhere, only by permission of the local senior elders;
(b) the animals hunted by the witnesses, and the foods gathered by them, extended far beyond those that would ordinarily be taken by a non-Aboriginal person;
(c) unlike a non-Aboriginal person, the witnesses employed traditional Aboriginal techniques, skills and weapons in carrying out these activities;
(d) in carrying out these activities, the witnesses abided by restrictions (for example, about the size of the catch) that they perceived to be imposed upon them by Noongar laws and customs, but which may not be observed by a non-Aboriginal person; and
(e) the Aboriginal witnesses saw their activities as having both a spiritual dimension, requiring them to observe some rules that would not be known to, or observed by, a non-Aboriginal person (for example, the need to leave a gift for the spirits), and a cultural dimension, requiring them to pass on their knowledge to younger people.
761 In the light of this evidence, it seems to me the activities described by the witnesses must be regarded as being different in kind to whatever fishing, hunting and food-gathering activities are carried out by non-Aboriginal people in the claim area.
(b) Continuing observance of rules relating to land
762 The critical question is whether the State and the Commonwealth are correct in arguing there is no longer a normative system for allocating rights and interests in land, within the Noongar community, or, if there is, that system is not a continuation of the normative system that existed at date of sovereignty.
763 I have already extracted the principal points made by counsel in support of this argument. It is possible to summarise those points in this way:
(i) Dr Palmer postulated a normative system relating to land whereby a Noongar person obtained rights over land, as a ‘matter of negotiation and assertion’, based upon one or more of the following factors: descent (either matrilineal or patrilineal), place of birth or affinal relationships;
(ii) A ‘rule’ that makes rights and interests dependent upon choice, and/or negotiation and assertion, is no rule at all;
(iii) The evidence of the Aboriginal witnesses does not demonstrate the existence of a consistent rule as to how a person obtains rights in country through descent. Some witnesses claimed country by reference to patrilineal descent, some by reference to matrilineal descent, some by reference to a cognative system whereby individuals could make a choice between mother’s country and father’s country and some by reference to a more remote ancestor;
(iv) The evidence was inconsistent in relation to the importance of birthplace. Some witnesses thought birth in the area to be an essential factor in claiming rights to particular land, others that it was a relevant (but not essential) factor; others denied it to be relevant at all;
(v) Whatever the balance of evidence about the above matters, the Aboriginal witnesses did not evince or articulate a common understanding of the rules; it is not sufficient that Dr Palmer may have ‘observed patterns of behaviour and then sought ex post facto to articulate a set of rules to explain what has happened’;
(vi) The evidence does not disclose any mechanism for resolving disputes over access to land. Many Aboriginal people have come to live in Perth, without opposition or criticism; therefore, either such movement was considered legitimate (in which case there is no normative system covering Perth) or is illegitimate (in which case the newcomers have no native title rights in the Perth Metropolitan Area);
(vii) The system of local organisation extant at settlement date involved ‘bounded estate (or country) group areas and bands (or residence groups)’. That system no longer exists in the Perth Metropolitan Area. There is no longer a distinction between ‘home area’ and ‘run’ (core and contingent rights). The various witnesses simply made claims to large areas of country that sometimes included the whole Perth Metropolitan Area, and even extended beyond its limits;
(viii) By virtue of the six propositions set out at para 723 above, there is no normative system of law and custom in relation to permission; or, if there is, it is not traditional.
I will address separately each of these points.
764 It is correct to say that, in his report, Dr Palmer referred to the exercise of rights to country being ‘a matter of negotiation and assertion’: see para 707 above. In the course of cross-examination by Ms Webb, Dr Palmer explained what he meant by this:
‘… the way I understand it is that there is room for negotiation or certain social processes but they have to be made and the interaction that takes place socially has to be made by reference to normative principles.’
765 The evidence went on:
‘MS WEBB: Yes. Now, that element of negotiation to realise potential rights, is that negotiation by the individual or is that negotiation by a group of people?
DR PALMER: Well, I think it’s part of an ongoing and, in most cases, probably life long process. So, it can’t take place in isolation. I mean, a person who’s asserting rights to country is going to have no weight put to their rights unless they’re recognised by others. So, it has to be done before what I’d call a jural – maybe in some instances a jural public but within sets of relationships.’
766 It seemed to me that the word ‘negotiate’ was causing a difficulty between Ms Webb and Dr Palmer. I made a comment about the matter to Ms Webb.
‘Is there a danger in this discussion that the word “negotiate” is being used in what might be called a formal European sense? You open negotiations, if you like, to settle a law suit or to take over a company. It’s a formal proposition, often very complex and there will be a structured discussion period and there will be perhaps offer and counter offer and so on. And that’s what we typically think of as negotiation.
Now, I must say I find that concept, and Dr Palmer will correct me if I’m wrong, but it seems to me a little bizarre in the context of, for example, of whether a young Aboriginal person might choose to exercise his or her rights in respect of the mother’s land, which presumably involved going back to that land and seeing how you get on, whether you’re accepted there, and then gradually if you stick around you learn more about it, you become more authoritative over many years.
I take it that Dr Palmer would say that’s a process of life long negotiation, but it’s quite dissimilar from the word “negotiation” as the first example I gave. And I don’t know what sense you’re using the word “negotiation” in your report, doctor, or perhaps you can clarify it.’
767 Dr Palmer did clarify the matter. He said:
‘My difficulty with the question and why we’re stumbling a bit is exactly for those reasons. I felt we were moving into perhaps a misleading area that the term “negotiation” was being used in this rather more absolute sense. I’m nowhere saying that. I’m saying that it’s a matter of social process and, as I said, life – you know, a life long social process in many cases. So, I think that – I think I’m comfortable with what you’ve – the way you’ve put that.’
768 In the light of that evidence, it seems to me erroneous to see a normative problem in the reference to negotiation. Dr Palmer was really talking about recognition of an asserted right, being a right allegedly conferred on the asserter by other rules, such as the rules about descent. He was not saying that a person with no asserted right could obtain rights through a bargaining process.
769 Similarly in relation to choice. At para 307 above, I set out a comment by Dr Palmer about the limits of choice:
‘… the situation with the child is that it has potential rights to country but the realisation of those rights are going to depend on a lot of other things which may happen subsequently to that child. And if they don’t happen, then the child may not be pushing rights as an adult in that country. They may be pushing rights in another country.’
In other words, the child’s range of choice is limited by other normative elements, such as the requirement to live in, and learn about, particular country.
770 It is worth recalling the pronouncement on this matter by Mr Bropho, a senior elder who is obviously much respected by Aborigines in the Perth Metropolitan Area. As recorded in para 562 above, Mr Bropho explained that being a Noongar involved three ingredients: being born to a Noongar father or mother; living in Noongar country; and having learned Noongar ways. This is consistent with Dr Palmer’s views about entitlement to country. The starting point is birth (patrilineal or matrilineal). Then there must be a choice, to live in particular country and to a learning and commitment process.
771 See also Gregory Garlett (para 573): you must ‘have at least one parent who is Noongar’, you must ‘have authority’ and ‘knowledge’ and be ‘grown up by Noongars’.
772 Similarly, with Ms Flowers (para 590): choices are themselves constrained by rules; people mainly follow the father’s line but there is a choice to follow the mother’s line ‘if we want to go and find out’. People get to speak for country by living in it.
773 In the previous section of these reasons, I noted an agreement, in substance, between Dr Palmer and Dr Brunton that, in 1829, land entitlements were acquired by a system that might aptly be described as ‘a general rule of patrilineal descent, subject to exceptions’: see para 350. That description implies that, ordinarily, people will succeed to their father’s country; succession to mother’s country being the exceptional case. It is, I think, undeniable that claims to matrilineal descent are now commonly recognised; succession to mother’s country is no longer the exceptional case. Does this mean there is now no normative system governing land rights acquisition; or, if there is, that it is a different normative system to that applying in 1829?
774 At paras 68 and 69 above, I noted statements in Mabo and Yorta Yorta about the effect of a change in laws and customs relating to land. Perhaps the critical point is the recognition by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, ‘that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement’. That is certainly true of the south-west, the place of earliest European settlement in Western Australia and the location of one of Australia’s largest cities and most intensively farmed rural areas. Moreover, the Aboriginal people in this part of Australia have been personally affected, in a profound way, by European actions. Every one of the 30 Aboriginal witnesses has at least one white male ancestor. If a rule of patrilineal descent had been strictly applied, all these witnesses would have lost their entitlements to country. I have no reason to doubt this would have also been the position of everybody else within the Noongar community. In such a situation, it is only to be expected that members of the community would have widened the application of the exception, so as to allow a claim to country to be made through the mother, equally with the father, and even, skipping a generation, through a grandparent.
775 Further, the evidence shows the disruption inflicted on families by their expulsion from their traditional country and, particularly, by children being taken away from their parents. It is not surprising that many people are ‘mixed-up’, in terms of identification with particular country. For the normative system to have survived, it was obviously necessary to allow a degree of choice of country exceeding what would have been necessary in more ordered, pre-settlement times.
776 In assessing how much change is tolerable, before it must be said the pre-settlement normative system no longer exists, guidance is to be taken from para [89] in Yorta Yorta:
‘… it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty] … not a normative system rooted in some other, different, society … it must be shown that the society … has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.’
In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is ‘rooted in some other, different, society’. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of factors forced upon the community from outside its ranks.
777 The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the pre-settlement community and the continued acknowledgement and observance of its laws and customs.
778 I accept counsel’s comment about inconsistency in the evidence concerning place of birth. In pre-settlement times, this was presumably never an issue; babies would usually have been born in their parents’ country. However, once again, after settlement difficulties arose; people were dispersed from their traditional country. It would have been natural for the community to respond by regarding birth upon country as not essential to recognition of the person’s entitlement to rights over that country; but only provided the person was prepared to commit to an association with that country by living upon it, at least for substantial periods of time, and learning about it. A principle in those terms emerges clearly from the evidence of the Aboriginal witnesses.
779 I turn to the submission that the witnesses’ lack of articulation of the rules about country leads to the inference that there is no such normative system. It is true that some witnesses evinced an unwillingness to speak generally; although some did so. Counsel for the State referred to Jango but, even in that very different case, Sackville J recognised the limits of the non-articulation argument. At [407], he said:
‘I accept that Aboriginal witnesses cannot be expected to recount their laws and customs with anything like the precision that might reasonably be expected of a lawyer expounding common law principles. I also accept that the fact that there may be disagreement among witnesses as to the relevant rules and practices is not, of itself, surprising and certainly not fatal to the applicants’ contentions. Understandably enough, the Aboriginal witnesses are not accustomed to conceptualising their laws and customs in a manner that enables them to respond directly and clearly to the kinds of questions asked by counsel.’
780 All the witnesses in the present cases identified their own country and explained the basis of their claim to it. I see no error in Dr Palmer using these items of individual evidence to discern and describe the set of rules that appears to be in operation. I think he did that in an unexceptional way. Counsel for the Applicants have accurately summarised Dr Palmer’s opinions about land rights and interests (see paras 701 to 704 above). The opinions seem to be soundly based on the early writings and the evidence in these cases.
781 The next submission made by counsel for the State is that there appears to be no mechanism for resolving disputes over access to land; no action has been taken to resist, or protest against, ingress to Perth by Aborigines from other areas.
782 This submission seems to overlook the point made by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr at [16] about it not being necessary ‘to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders’: see para 70 above. In any event, some regard must be paid to the realities of post-settlement life. In pre-settlement times, it seems, intruders were sanctioned by being speared, sometimes fatally. That practice became illegal under European law; so the most effective method of enforcement disappeared. The only remaining method was disapproval, perhaps involving social ostracism. The evidence suggests this still occurs, if somebody comes to another’s land without permission; in particular, if he or she without permission exploits the land, for example by hunting, or purports to speak for it.
783 The submission concerning ingress to Perth, with respect, is unreal. As early as 1836, Armstrong commented upon the unwillingness of Perth Aborigines to ‘drive away or prevent stranger tribes from visiting Perth’: see para 168 above. This was not because there was no relevant norm. The reason was economic necessity; having lost control of their own land, the Perth Aborigines were dependent on the strangers for essential goods. Economic dependence on strangers could only have increased as the Perth urban area expanded.
784 Finally, counsel rightly say the claims made by the witnesses in these cases do not distinguish between ‘home areas’, inhabited by estate groups, and ‘runs’, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission.
785 It seems to me that ‘home areas’ have effectively disappeared. Today’s boodjas are similar in concept to – although probably larger in area than – the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the ‘bands’ or ‘tribes’, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the ‘home area’ element of the pre-settlement normative system was lost.
786 It is worth recalling the comment of Beaumont and von Doussa JJ, in Ward [FC1] at [241], about the effect of European settlement on Aboriginal presence on land. In a comment which would certainly apply as much to the south-west of Western Australia as to the Kimberley, their Honours said:
‘The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.’
787 Finally, counsel argue the permission rules have changed. I do not think they have. Certainly, today, there are more convenient ways of seeking permission than there were in 1829. But it is still the rule that permission must be obtained. Not everybody obeys the rule. However, a law is not abrogated by the disregard of some. Of course, remedies for breach of the rule are today extremely limited. But that does not mean the community has discarded the rule.
788 I earlier referred to counsel’s summary of Dr Palmer’s evidence. I do not need to repeat that summary, or to discuss further Dr Brunton’s points of disagreement with Dr Palmer. However, it is important for me to say that, where points of disagreement exist, I prefer Dr Palmer’s views. Dr Palmer has worked much more extensively with Australian Aborigines than Dr Brunton. In particular, he had contact with Aborigines in Western Australia, over a long period, before the filing of the Single Noongar application and, over a lesser period, in preparing himself to give evidence in relation to it.
789 Further, without any disrespect to Dr Brunton, I thought Dr Palmer’s opinions more perceptively reflected the tenor of the south-west Aboriginal history, as summarised by Dr Host, and the Aboriginal evidence that was given in these cases. No doubt the latter circumstance arose out of the fact that Dr Palmer had the advantage, before he prepared his report, of interviewing several members of the applicant group, and reading summaries of many more interviews conducted by his three researchers. Dr Brunton had not interviewed any members of the applicant group.
790 It follows from the above reflections that I accept Dr Palmer’s opinion that there is, today, a Noongar normative system relating to land.
791 The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta, and ask myself whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’, there can only be one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs’. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society.
(c) Connection with the Perth Metropolitan Area
792 At para 74 above, I mentioned the State’s focus on the Perth Metropolitan area; that is, the area of land and waters that is the subject of the separate question. The State’s focus was supported by other respondents and, to a point, is legitimate. As I indicated at para 82, I accept the Applicants must establish a connection with the area that is the subject of the separate question; however, I believe they are not required to do so in a manner that is divorced from their asserted connection to the whole claim area. I said that, if the Applicants succeed in demonstrating the necessary connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area.
793 I have reached the conclusion that the Applicants have succeeded in demonstrating the necessary connection between themselves and the whole claim area (excluding the off-shore islands and land and waters below low-water mark). Accordingly, in my opinion, they have established a connection with the Perth Metropolitan Area, which is part of the claim area. However, counsel for the Commonwealth submitted:
‘As the subject of the separate proceeding is the existence of native title in respect of only part of the … claim area, it follows from the … Applicant’s case that any native title in respect of the area of the separate proceeding will be held as either group or individual rights, not communal rights ie as rights deriving from a body of traditional laws and customs said to be observed by a community, but not held by all members of the community.’
794 I have difficulty in understanding this submission. Whether native title exists in the area subject to the separate question cannot be affected by the procedure adopted in a particular case. Native title in that area either does exist or does not. If it does exist, this may be because that area is part of a larger area, over the whole of which native title exists; or it may be because there is native title only over the separate question area. It is not necessary that all members of the Noongar community have identical rights over the separate question area, or any special rights at all. It is sufficient they be members of a community of Aboriginal people who continue to acknowledge and observe the traditional laws and customs possessed by them at sovereignty, under which particular rights and interests in that area are enjoyed by some or all members of the community.
795 There is no doubt that Aborigines inhabited the Perth Metropolitan Area at date of settlement. They were members of what I have held to be the single Noongar community, who acknowledged and observed the traditional laws and customs discussed above. Accordingly, it is open to present day members of that community to obtain recognition of the community’s rights in relation to Perth, whether or not there are, today, members of the community who can trace their ancestry to people living in the Perth Metropolitan Area at sovereignty. The result of that recognition, in terms of actual use of particular land in the Perth Metropolitan Area by particular members of the Noongar community is an intracommunal matter to be regulated by the community itself.
796 Although I think it is unnecessary for the Applicants to go that far, I think they have established, upon the probabilities, that some members of the present day Noongar community are descended from one or more Noongars who lived in the Perth Metropolitan Area at sovereignty.
797 The Applicants have not been able to demonstrate an irrefutable line of descent from any such person or persons to any particular, identifiable member of the claimant group. I accept that Ms Fletcher diligently searched the records and found no documentary evidence of such a line of descent. However, the early records are scanty; in relation to Aboriginal births and deaths, non-existent until late in the 19th century. So no weight can be given to the absence of that type of evidence.
798 Counsel for the State mentioned Bates’ statement that, following the deaths of Jubaitch and Fanny Balbuk, there were no more Aborigines traditionally from the Swan Valley area. However, Bates disregarded mixed-blood Aborigines; Bates’ statement therefore tells us nothing about the possible survival of mixed-blood Aborigines from the Swan Valley area. And we know, from the evidence in these cases, that inter-breeding between white males and black females seems to have affected every Noongar family. Unsurprisingly, it commenced fairly early after settlement. So Bates’ statement tells us nothing about the existence of lines of descendant from Noongars resident in the Perth Metropolitan Area at settlement date to members of the present claimant group.
799 Many of the people who gave evidence before Beaumont J and myself claimed ancestors who were said to have been living in the Perth Metropolitan Area at, or shortly after, sovereignty. Some of the claimed ancestors are known historical figures; the doubt is the link between that person and the witness. Others are not known historical figures. While the evidence does not permit me to make a positive finding in relation to the claim of any particular witness, it is highly unlikely that all the claims are wrong. After all, we know some thousands of Aborigines lived in the Perth Metropolitan Area at date of sovereignty. In the ordinary course, those people would now have hundreds of thousands of living descendants. Nineteenth century families (Aboriginal and non-Aboriginal) were usually large. There was a high rate of infant mortality and European settlement must have resulted in loss of Aboriginal lives and forced dispersal of Aborigines to other areas; but it seems most unlikely that the wider Noongar community contains no descendant of any of them.
VI What Noongar native title rights exist today?
(a) Preliminary
800 It follows from my conclusions about the survival of the Noongar community that existed at date of settlement, and that community’s continued observance of some 1829 laws and customs relating to land, that some of the community’s native title rights and interests have survived until this time. In this section of my reasons I will consider, first, the extent of the geographical area over which there might be any surviving native title rights and interests and, second, what are those surviving native title rights and interests.
(b) The geographic limits of any surviving native title rights and interests
801 My findings about the existence of a single Noongar community throughout the claim area (including the Perth Metropolitan Area) mean that, broadly speaking, some native title rights and interests have survived throughout the area that is the subject of the separate proceeding. However, it is necessary to refer, specifically, to two parts of the claim area: the off-shore islands and the land and water below low-water mark.
802 I noted (at para 23) that the claim area contains Rottnest and Carnac Islands. However, no evidence was adduced before me about either of these islands. The islands were referred to in evidence heard by Beaumont J, but it was not claimed that any of them were inhabited at the date of settlement. There is no evidence that, in 1829, the Aboriginal inhabitants of the south-west had means of accessing those islands. On the contrary, both Lyon and Armstrong commented upon the fact that the Swan Valley people, who were closest to the off-shore islands, did not use boats. It will be recalled that Lyon said ‘… there being few islands on the coast, they have not the least inducement to attempt navigation’: see para 152 above. Armstrong wrote: ‘Even the maritime tribes, on an immense extent of coast intersected by frequent and broad estuaries, have no knowledge of the use of canoes, or any substitute’: see para 165 above.
803 Noongars visited the off-shore islands after settlement. As already mentioned, in 1832, Lyon spent some weeks on Carnac Island with Yagan and two other Perth Aborigines. Noongars must have been amongst the involuntary visitors to Rottnest Island during the long period, in the 19th century, when it was used as an Aboriginal gaol. However, there is no evidence of pre-settlement use of any of the islands, or even of the existence of an oral tradition about such use.
804 Mr Wilkes told Beaumont J that Noongar country includes the islands, for which he gave the Noongar names. He also spoke about their creation. There is no doubt, from this and other evidence (including the writings of both Moore and Armstrong), that there are oral traditions, amounting perhaps to spiritual beliefs, about the creation of the islands. In Aboriginal tradition, the off-shore islands were once part of mainland Western Australia; a tradition that may well be correct, given the lower sea level during the last ice age. However, contrary to the submission of counsel for the Applicants, the existence of this tradition would not justify the Court in treating the off-shore islands as part of the geographic area that is subject to surviving native title rights and interests. The normative system relating to land and waters in 1829 did not extend to the off-shore islands.
805 The Applicants face a similar position in relation to land and water below low-water mark. As I have said, the only evidence is that, at date of settlement, the south-west Aborigines did not use any kind of boat. No doubt they fished coastal and estuarine waters, but they must have been restricted to places they could reach from dry land or by wading. Any determination made in these cases must take account of that limitation, with the result that it is unnecessary to choose between Mr Bodney’s claim of native title to a limit of twelve nautical miles from the coast and the Applicants’ claim of three miles. Neither of those claims can be justified. Low-water mark constitutes the seaward limit of any area subject to native title.
(c) What are the surviving rights and interests?
(i) The Applicant’s claims
806 It will be apparent that many laws and customs of the 1829 Noongar community have not survived until today. That does not mean all native title rights have perished. In Ward HC at [95], Gleeson CJ, Gaudron, Gummow and Hayne JJ used the metaphor ‘bundle of rights’ to describe the nature of native title. The metaphor implies that one or more rights may survive, even though others have disappeared. I agree with the submission of counsel for the State that ‘it is not the case … that once the threshold requirements of s 223(1) (a) and (b) [of the Act] have been met, the Court must recognise as native title all of the rights and interests that existed under all of the traditional laws and customs at sovereignty’; the recognised rights and interests ‘are those rights and interests which are possessed under the laws and customs as presently acknowledged and observed (insofar as those laws and customs are still capable of being characterised as “traditional”)’. (Original emphasis).
807 Counsel for the State went on to describe the loss of rights by non-acknowledgement and non-observance as a form of ‘extinguishment’. However, the term ‘extinguishment’ is usually used to refer to a loss of rights though acts attributable to the legislative or executive branches of government. It is confusing, and potentially misleading, to use the same term to refer to a loss from a quite dissimilar cause. There is no difficulty in saying that a particular right has been lost through a failure of the relevant community to continue to acknowledge and observe it.
808 I see no point in attempting to list the rights that have perished, supposing it were possible to do this with any reasonable confidence. The preferable course is to take the list of native title rights and interests asserted by the Applicants and consider which of them (if any) have survived until the present time.
809 However, I say immediately that I do not propose to return an answer to sub-question (iii) of the separate question that would purport to specify the precise wording of any determination that may ultimately be made. The form of a determination concerning the nature and extent of native title rights and interests is always a matter of public importance. The parties ought to have a further opportunity of discussing that form. Hopefully, they can reach agreement about it; if not, any dispute may be resolved by another judge, in the same way as the second Ward Full Court resolved some outstanding disputes about the wording of the determination made in that case: see Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 [‘Ward FC2’]. What follows is simply my finding about the rights and interests that have been established by the evidence and which, it seems to me, ought to be included in a determination, subject to further consideration of their precise wording.
810 The native title rights and interests asserted by the Applicants were set out in Schedule E of the application filed on 10 September 2003. That Schedule is reproduced at para 25 above. It commences with a claim to a general (but non-exclusive) right of ‘occupation, use and enjoyment of the lands and waters [that is, the whole of the claim area other than lands and waters excluded by a past act attributable to the Commonwealth or the State] in accordance with and subject to [the Applicants’] traditional laws and customs (or current laws and customs as they have adapted and changed from those traditional laws and customs)’. The Applicants acknowledged ‘that these rights may co-exist with other statutory or common law rights in relation to some lands and waters, subject to the force and operation of laws of the Commonwealth and the State’.
811 Schedule E to the application claims a determination that the Applicants’ ‘right to occupation, use and enjoyment of the lands and waters’, in the claim area, includes seven specified rights. I will return to these seven claimed rights.
812 Schedule E also makes a claim of ‘exclusive possession, occupation, use and enjoyment’ of six specified types of land. In due course, I will discuss that claim.
(ii) Section 223(1)(c) of the Act
813 In Yorta Yorta at [77], Gleeson CJ, Gummow and Hayne JJ explained the requirement, in s 223(1)(c) of the Act, that any proved rights and interests be ‘recognised by the common law of Australia’. They said:
‘The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.’ (Citations omitted)
814 In the present cases, it is convenient to say immediately, no party has contended that any of the native title rights and interests asserted by the Applicants in Schedule E of their application, if established pursuant to paras (a) and (b) of s 223(1), is not recognised by the common law of Australia. None of the asserted rights and interests is ‘antithetical to fundamental tenets of the common law’. All of them are identical, or similar, to rights and interests that have been recognised in earlier determinations of this Court. Accordingly, it is not necessary for me to return to s 223(1)(c) in relation to any particular rights and interests which I might find, on the evidence, to satisfy the requirements of paras (a) and (b) of s 223(1).
(iii) The claim to a right of occupation, use and enjoyment of the lands
and waters
815 The Applicants accept, as they must, that their asserted rights and interests do not extend to land or waters over which native title has been extinguished by a past act attributable to the Commonwealth or the State, including a grant of freehold title. Given the extent of urbanisation, and intensive farming, in the claim area (especially the Perth Metropolitan Area) a very large proportion of the claim area will be affected by this exclusion. It is nonetheless important to consider rigorously the Applicants’ claim to occupation, use and enjoyment.
816 In their written closing submissions, counsel for the Applicants sought to justify a broadly-worded determination about occupation, use and enjoyment in this way:
‘The rights and interests which the Noongar people currently possess under their traditional laws and customs are the same as the rights and interests which existed at sovereignty, notwithstanding adaptations and changes to the relevant laws and customs. The Noongar people still assert and exercise those rights and interests to the extent to which they are able to do so. Within the Metropolitan Claim area, they still hunt for kangaroo in the Perth hills and for turtles in the local swamps. They continue to protect and to pass on knowledge about their sacred sites and about the Wagyl. They still “speak for” that country, principally, these days, through their involvement in site surveys and by registering and otherwise acting to protect, their sacred sites. The Noongar people have a history, well before the commencement of the [Act], of taking strong protest action to prevent development within Perth which might harm sites associated with the Wagyl.
The obvious practical difficulties which stand in the way of the Noongar people exercising a right of exclusive possession, occupation, use and enjoyment in an urban and semi-urban environment, does not preclude the Court from recognising the existence of that right. … the definition of “native title” and of “native title rights and interests” in s.223(1), is “directed to the possession of the rights or interests, not their exercise”. The following passage from the judgment of Merkel J in [Rubibi] at [117], is on point:
“I have some concern as to how a right of exclusive possession and occupation can operate in any practical way in urban and other areas in common use by the general community. However, as was explained in Neowarra, the difficulty in practical enforcement of a native title right is not a proper ground for denying its existence. Further, as usage is closely linked with the issue of extinguishment I have concluded that the existence and extent of the right is to be considered in that context, rather than in the context of practicality.”
In this proceeding, the Court is determining the existence and the content of native title as a separate question, without regard to the issue of extinguishment.’ (Citations omitted)
817 Counsel referred to a comment of Sundberg J in Neowarra at [364]:
“Because the rights and interests of Aboriginal peoples must be possessed under their traditional laws and customs, they must be looked at from the perspective of the claimants; as the anthropologists put it, from an emic as opposed to an etic perspective. Section 223(1)(c) would seem to confirm that the ‘rights and interests' in par (a) are to be viewed emically, and then must pass the test posed by par (c), namely that the Aboriginally-viewed rights or interests are recognised by the common law …”
818 Counsel went on:
‘The Aboriginal witnesses gave evidence using various terms and concepts to describe their rights and interests as derived from their laws and customs. While the witnesses did not use the common law expression "possess, occupy, use and enjoy the land to the exclusion of all others", that is what the rights and entitlements of which they gave evidence amounts to.’
819 Counsel cited Ward HC, where Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [88]-[89]:
‘It may be accepted that, … “a core concept of traditional law and custom [is] the right to be asked permission and to “speak for country”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.
The expression “possession, occupation, use and enjoyment … to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of “possession” of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.’
820 Their Honours went on to remark that, although ‘the right to be asked for permission and to speak for country is a core concept in traditional law and custom’, ‘it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom’. They said at [90]:
‘It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with “country” in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.’
821 I take this to mean that, even in a case where the Court determines the applicants have rights of exclusive possession, occupancy and use of the relevant land or waters, it ought also to determine any claims they make concerning particular rights and interests pertaining to that land or those waters.
822 Counsel for the Applicants went on:
‘In a case where the evidence establishes a more modest collection of rights and interests, it would be necessary for the Court to employ a form of words that may amount to a list of the rights and interests, or a list of activities. But that is not the case here. In Mabo the Court declared that the Meriam people:
“... are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.”
Although that was not a determination made under the [Act], it is a formulation that has been reproduced in s.225(e) and it is a formulation that has been adopted in various cases decided under the [Act].
A right to possession, occupation, use and enjoyment of land to the exclusion of all others is a right that can be enforced and protected by the common law and, accordingly, will be “recognised by the common law” under s.223(1)(c).’ (Citations omitted)
823 Counsel for the State submitted that the evidence of the Aboriginal witnesses ‘does not support a conclusion that a general right to speak for country is equivalent to ownership of the land’. Counsel said:
‘Very few witnesses spoke of a “right” to speak for country. For example almost all witnesses, when asked to identify the country for which they spoke, were able to do so and could often identify the basis upon which they claimed to be able to speak for that area. Witnesses also generally expressed a view that they should not speak for other's country and could in some cases identify the people who spoke for other areas.
However this ability to speak for a particular country was generally not expressed in terms of the concept of a “right”. Those witnesses who did speak of having a “right” to speak for particular country often did so in the context of explaining why they had the ability to speak for a particular area and not in the context of “owning” the land.’
I have omitted counsel’s references to the evidence. I accept the correctness of their summary.
824 Counsel for the State went on:
‘Even if such comments can be construed as a right to speak for country … the content of the supposed “right” to speak for country was not explored with the Aboriginal witnesses by the … Applicants' counsel and absent such exploration, it cannot be said that a right to speak for country is equivalent to ownership of land. Evidence was not led from the Aboriginal witnesses as to whether an ability to speak for particular country gave rise to any incidents of ownership or any corresponding duties or responsibilities. On the basis of the evidence given by the Aboriginal witnesses the “right” to speak for country lacks any content. At most the evidence demonstrated that people had an ability to speak for particular country and a belief that they should not speak for other's country. The rights in land that flow from that remain to be considered by reference to the evidence.’
825 I reject the State’s submission that the witnesses’ claimed rights to speak for land ought not be construed as a claim of ownership. The submission ignores what the majority Justices in Ward HC called ‘a core concept of traditional law and custom’. It also ignores the point made by Sackville J in Jango about articulation of rights: see para 779 above. The witnesses in the present cases were clearly saying they understood there to be a normative system under which people gained entitlements, in a manner that each of them described, to particular areas of land; being land for which the person was then entitled to speak. The evidence of each witness reflected his or her perspective, but the sum of that evidence was a normative system, covering the whole claim area, under which rights of occupation, use and enjoyment were enjoyed by various people as members of the Noongar community.
826 A more substantial argument against this part of the Applicants’ claim was advanced by counsel for the Commonwealth. Ms Webb drew attention to Ward FC2. In that case, counsel for the native title applicants argued for a determination recognising ‘non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs, including, as incidents of that entitlement’ certain specific rights. Counsel for two respondents argued for the substitution of ‘being’ for the words ‘including, as incidents of that entitlement’.
827 The Court accepted that argument, pointing out that para (b) of s 225 required ‘a determination of … the nature and extent of the native title rights and interests in relation to the determination area’. At [21], the Court said:
‘A statement about the right to “occupy, use and enjoy” (or merely “use and enjoy”) in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.’
828 The evidence indicates that Noongar people have continued, since sovereignty, to occupy, use and enjoy those parts of the lands and waters of the claim area to which they have had legal access. It will, therefore, be appropriate to make a determination of a non-exclusive right (at least) to occupy, use and enjoy the claimed land and waters of the Perth Metropolitan Area (excluding all off-shore islands and waters below low-water mark). However, the specific rights attached to that general right ought to be exhaustively stated. I now turn to the seven specific rights asserted by the Applicants.
(iv) The seven specific asserted rights
829 All the respondents who have put submissions seem to accept that if, contrary to the submissions of some of them, native title exists in the Perth Metropolitan Area, it includes the right to ‘live on and access the area’, as claimed in para (a) in Schedule E of the application.
830 Although no party has put any specific submission about the rights claimed in para (b) of Schedule E, it seems to me that any determination should include this asserted right. There is ample evidence that Noongar law has always permitted the relevant native title holders to use and conserve the natural resources of their area.
831 I think there is a problem about subparas (ii), (iii) and (iv) of para (c). These matters may all be part of the continuing laws and customs of the Noongar community (although I think subparas (ii) and (iii) are too widely drafted), but they are not ‘rights and interests … in relation to lands and waters’, as required by s 223(1) of the Act: compare Alyawarra at [165]. In answering the separate question, I propose to omit sub-paras (ii), (iii) and (iv).
832 In relation to sub-para (v), counsel for the State submitted:
‘We have already submitted above that initiation and corroborrees are not part of any contemporary system of law and custom in the Perth Metropolitan Area. It is not clear what other social, religious and cultural activities might be contemplated by this right. The [State] submits that the general right to access and live on the land is sufficient and this specific right should not be recognised.’
I agree. I will omit this sub-paragraph. However, the Applicants should be allowed to revisit this subject, perhaps providing a more tightly worded text, before the form of the determination is finally settled.
833 This leaves only sub-paras (i) and (vi) of para (c). I think these asserted rights have been established by the evidence and ought to be included in the answer to the separate question. However, the wording of sub-para (vi) is awkward and too broad. It needs to be recast, so as to be limited to the type of activities disclosed by the evidence.
834 Paragraph (d) seems to be both uncontroversial and justified by the evidence. It should be included in the answer to the separate question, although worded more tightly.
835 Paragraph (e) asserts a right to control access and use of the lands and waters by all Aboriginal people, not only Noongars. However, the evidence justifies only recognition of a right concerning Aboriginal people who seek access to, or use of, the claim area in accordance with traditional law and custom. Upon that basis, the criterion is acknowledgement of the binding force of traditional law and custom. Such a criterion avoids the reproach levied in Alyawarr at [151] of being based merely upon Aboriginality. I think para (e) should be included.
836 Paragraphs (f) and (g) are uncontroversial and amply supported by the evidence. They should be included in any determination. However, the wording needs to be tightened in such a manner as to relate these rights directly to land and waters.
(v) The claim for exclusive possession
837 The concluding part of Schedule E asserts a claim of ‘exclusive possession, occupation, use and enjoyment’ of the following six listed types of area:
(a) any areas where there has been no previous extinguishment of native title;
(b) any area of natural water resources that is found not to be tidal;
(c) any areas affected by category C and D past and intermediate period acts;
(d) s47 Pastoral leases held by native title claimants;
(e) s47A Reserves act covered by claimant applications; and/or
(f) s47B Vacant Crown Land Covered by claimant applications.
838 No attention was paid, either at trial or in submissions, to these six paragraphs of Schedule E. No evidence concerning any of them was led; no specific submission was put. Absence of previous extinguishment (para (a)) is an obvious prerequisite to recognition of a native title claim but it is not self-evidently sufficient to justify a determination of a right of exclusive possession. The same comment may be made about non-tidal waters (para (b)).
839 In their closing submissions, counsel for the Applicants contended for an answer to the separate question that would recognise, in relation to land and waters above high-water mark, rights of ‘possession, occupation, use and enjoyment to the exclusion of all others’. However, such a broad answer would go beyond the exclusive possession claims of paras (c), (d), (e) and (f) of Schedule E.
840 The question whether the Applicants are entitled to a determination of exclusive possession over lands and waters falling within paras (c), (d), (e) and (f) is a complex one. Like the matter of extinguishment, it can be addressed only on a case-by-case basis, in which the tenure of the particular parcel of land is taken into account. If the parties decide to take the course of examining, parcel-by-parcel, the land within the Perth Metropolitan Area, they can then consider to what extent the Applicants are entitled to exclusive possession over particular parcels falling within para (c), (d), (e) or (f). I leave this matter open.
841 In the result, I propose to provide an answer that will recognise, subject to formulation of the precise wording of the determination and application of the principle of extinguishment by past acts attributable to the Commonwealth or the State, the right of the Noongar people to occupy, use and enjoy lands and waters in the Perth Metropolitan Area, excluding off-shore islands and lands and waters below low-water mark, (‘the area’) for the following purposes:
‘ (a) to live on and access the area;
(b) to use and conserve the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites within the area, that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge about the area, and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.’
VII The Bodney applications
(i) Nature of the applications
842 As explained in section I of these reasons, Mr Bodney has five native title applications before the Court: see paras 5, 17-21, 32, 39 and 46 above.
843 The persons on whose behalf the five applications were brought are identified on the respective applications, or amended applications, for determination as follows:
(i) WAD 137 of 1998 (amended application): ‘the native title claim group known as Ballarruk and Didjarruk. The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union)’;
(ii) WAD 138 of 1998 (original application): ‘Ballarruk People Bodney Family Group’;
(iii) WAD 139 of 1998 (original application): ‘Ballarruks-Bodney Family Group’;
(iv) WAD 140 of 1998 (original application): ‘Ballarruk Family Group’;
(u) WAD 149 of 1998 (amended application): ‘the Native Title Claim group is known as the Ballarruk and Didjarruk People. The claim group consist of the biological descendants of the union between Melba Armitage (Bluffie) and William Bodney’.
(ii) Mr Bodney’s evidence
844 At the hearing conducted by him, Beaumont J admitted into evidence a document (exhibit AA) that was filed by Mr Bodney and entitled ‘Evidence of the history and geneology [sic] of the Bodney Family Group by the applicant Corrie Christopher Bodney’. The document contained the following introduction:
‘This document contains the preservation evidence that will be given by the Applicant Corrie Christopher Bodney on behalf of the Bodney Family Group to their claim to Native title Rights and interest to their traditional lands, and waters of the Whadjuk Territorial boundaries in accordance to Aboriginal Lore and under Common Law and the amendments of the Commonwealth Native Title Act 1993 and 1998.’
845 The document included a ‘genealogy’ in which Mr Bodney said he was born on 1 November 1932 to William Bodney and Melba Armitage, the ‘daughter of (Bee Gee) William Armitage and (Beerangun) Louise Gentle’. He went on to identify a great-great-grandfather, Weenjeitch (who was said to be Ballarruk), and a great-grandmother, Kagaman (who was said to be Didjarrak). These people were said to be ancestors on Mr Bodney’s mother’s side; his father was a white man.
846 In the genealogy, Mr Bodney referred to the ‘traditional lands of the Ballarruk and Didjarruk peoples, my people’. He set out some history, including a reference to Captain Stirling meeting ‘Yallowgonga a Didjarruk, Yangan his wife a Ballarruk, Elall a Ballarruk, Nandarra a Ballarruk, Moya, the mother of Yagan a Ballarruk and it goes on’.
847 The description of Yallowgonga as Didjarruk and his wife as Ballaruk seems consistent with Dr Brunton’s belief that ‘Ballarruk’ and ‘Didjarruk’ were the names of moieties, or skin groups, rather than ‘tribes’. However, Mr Bodney went on to say:
‘I will be giving oral evidence and documentary in support of our native title claim, to our traditional lands the Whadjuk territory, the (kailup) of the Ballarruk and Didjarruk clan group before possession took place by Captain Fremantle and Captain Stirling of the lands and waters of my ancestors and predecessors in the year of 1929 [sic].’
848 Later in the document, Mr Bodney wrote:
‘The Ballarruk and Didjarruk peoples are the clans group that have liven the Whadjuk country since the beginning, it was the policy of the elders that we keep in the blood line and skin group that has been a part of our tradition since time immortal. This method was carried out by incestuous acts amongst the clan members to keep the numbers at a reasonable level. Sister and brother children had approval, sister children could not they had the same family line name. Uncles could marry their nieces, the daughters of their brothers. The system worked this way in accordance with the Lore [sic], two couples with the same family name could not, this was not recognized, it would be the wrong way. This custom and culture, and the lore [sic] was carried out until the white man took possession of our traditional land, the Whadjuk territory, but this still goes on today, sorrowfully I say.’
At no stage, did Mr Bodney (or anybody else) adduce any evidence that would verify or explain these statements.
849 I am not sure I fully understand what Mr Bodney was saying in this part of his document, but his statements seem not inconsistent with ‘Ballarruk’ and ‘Didjarruk’ being the names of skin groups which regulated choices of marriage partners.
850 Later, Mr Bodney said:
‘The Ballarruk and Didjarruk clan groups are the original peoples of the region known as the Whadjuk territory before possession was taken by the white man of this state in the year 1829.’
851 I need not refer to the remainder of the genealogy, which is predominantly an historical narrative. Nor is it necessary for me to refer to all Mr Bodney’s comments about particular places and Aboriginal practices. However, the opening paragraph of the section called ‘birthing places’ increases my suspicion that Mr Bodney used the label ‘clan groups’ to cover what really were skin groups. In that paragraph, he said:
‘My great, great grandfather and great great grandmother were born in the area of the Whadjuk country. So was my great, great, great grandfather Koobert a Ballarruk, and my great great great grandmother Binyan a Didjarruk. All born in our traditional country, the Whadjuk territory long before the white man took possession of the lands and waters of my peoples, and other Aboriginal peoples lands and waters, in other parts of this country now known as Australia.’
852 Mr Bodney gave oral evidence before Beaumont J on four separate days. On the first day, 5 June 2003, Mr Wright asked Mr Bodney how a person became a Ballarruk. Mr Bodney replied: ‘you get the blood lines of the people who were here before colonisation or British sovereignty of the State’.
853 The evidence went on:
‘MR WRIGHT: Right. And so is there some sort of rule as to who is a Ballarruk and who’s not?
CORRIE BODNEY: Well, you can’t be a Ballarruk unless you have those bloodlines. I mean, no one is involved or taken into our Ballarruk Aboriginal Corporation unless they have the connection to the bloodline of the traditional people.
MR WRIGHT: Right. And does that Ballarruk bloodline have to flow through just men or just women?
CORRIE BODNEY: It doesn’t make any difference how a person was – the passing down of traditional property rights and land in question from one generation to a generation comes down through the mother’s side.
MR WRIGHT: Right. But in terms of your identity, if I can call it that, as a Ballarruk person, that can come, what, through your mother’s side and through your father’s side?
CORRIE BODNEY: Yes. Not so much my father because he was not, you know, an Aboriginal.’
854 Mr Bodney went on to say that claiming through the female side is ‘the way it goes to traditional custom throughout the south-west of the region of the Swan coastal clan’.
855 Mr Wright asked Mr Bodney whether there are other Ballarruk people apart from the Bodney Family Group. He responded: ‘No, we are the last living descendants of the traditional original indigenous people of this region’.
856 Mr Wright asked Mr Bodney to explain the term ‘Didjarruk’. Mr Bodney replied: ‘Didjarruk is the other clan group who were the traditional owners of this particular piece of land known as the Whadjuk territory.’
857 Mr Bodney confirmed ‘there were two clans, Ballarruk and the Didjarruk’.
858 Mr Bodney said someone becomes a Didjarruk ‘by your bloodlines’. He added: ‘one goes back on the mother’s female side of line … if your mother was a Didjarruk, well then you’re a Didjarruk’. Mr Bodney said: ‘the Ballarruk … and Didjarruk are the clan groups in this area, and they had the right to marry into one another, you know’. Mr Bodney told Mr Wright that ‘a Ballarruk and Didjarruk could marry’, but it was ‘against the law for a Ballarruk to marry a Ballarruk or a Didjarruk to marry a Didjarruk’.
859 Mr Wright asked whether Ballarruk came from any particular place. Mr Bodney replied:
‘Well, the Ballarruk and Didjarruk, their traditional land is what is known as the Whadjuk territory, yes, and it stretches some [sic: ? distance], as I say, west of Rottnest when I made my claim to Clackline in the east and between Gingin and Mount Cook to the south … In that area is all the traditional lands of these people’.
860 Mr Wright asked Mr Bodney about ‘Nagarnook’. Mr Bodney replied: ‘they’re a group mostly to the north of Perth’. He said Tondarup are ‘a group further to the south’.
861 Mr Wright asked ‘whether there were any rules about whether Nagarnook and Tondarup people can … marry Ballarruk or Didjarruk people’. Mr Bodney responded:
‘Well, before they could not do that, but since colonisation that sort of rule has been sort of no long stands, so I mean, Ballarruk, Didjarruk, Nagarnook, Tondarup, they can marry into each other now.’
862 Mr Bodney went on to say that his children recognise themselves as Ballarruk, although he himself is Didjarruk. I find that confusing, because Mr Bodney made clear that the children did not claim through their mother. He said:
‘Their mother is a Neerogu from a different territorial boundary, and she knows that she cannot make a claim to Native Title rights and interests in this region because it’s outside her territorial boundaries and it would be going against traditional Aboriginal customary law.’
863 Mr Wright asked Mr Bodney about the word ‘Noongar’. He gave this evidence:
‘MR WRIGHT: Now, do you count yourself as a Noongar person?
CORRIE BODNEY: Not as part and parcel now of recognition of one another as Noongars, being a black man.
MR WRIGHT: But would a black man from say the north-west of Western Australia, would that person be called a Noongar?
CORRIE BODNEY: No; he’s a different – he’s a different calling altogether.
MR WRIGHT: So Noongar is a black man from a certain region?
CORRIE BODNEY: Well, the same from the south-west division.
MR WRIGHT: Right. And does that include the Whadjukk territory?
CORRIE BODNEY: It does now, yes.
MR WRIGHT: Did it traditionally, in your understanding?
CORRIE BODNEY: No. I believe that word was brought into our dialect maybe 150, 200 years ago. Is not a word that’s been used freely by people.
MR WRIGHT: So traditionally you would say that the Whadjuk territory was occupied by the Ballarruk and Didjarruk.
CORRIE BODNEY: That’s right.’
864 Mr Bodney gave this evidence about ‘runs’:
‘A run is a traditional tracks to places and question of hunting grounds and Wilgee grounds and camping grounds; that’s part of a track where we move throughout the territorial boundaries, that’s runs. And it’s like it’s used occasionally through seasonal parts of the year when food is better in one place to another and for the ecology they move from one territorial – in from one area to another.
MR WRIGHT: And how do the runs relate to these estates?
CORRIE BODNEY: Well, like I say, being all of the same people, but one still acquired permission, you know, from families, from other families to go through the country.
MR WRIGHT: Right. So a run might pass through a number of different estates?
CORRIE BODNEY: Yes.
MR WRIGHT: But you’d get permission from those people of those estates?
CORRIE BODNEY: That’s right, yes.’
865 Mr Bodney went on, that day and on three later days, to give evidence about various customs and beliefs and his association with particular places visited by the Court. None of that evidence assists me better to understand his evidence about Ballarruk and Didjarruk ‘clans’. He was not asked to define that word.
866 As he elected not to give further evidence before me, I was unable to put to him my essential difficulty with his evidence: how can it be that a husband and wife are in separate land-owning ‘clans’, as distinct from separate skin groups?
(iii) Other evidence
867 At paras 632-634 above, I referred to some evidence of Mr Wilkes. He said he was Ballarruk and knew which groups he could marry. As far as he was concerned, Ballarruk was a skin group. Dr Brunton and Dr Palmer thought Ballarruk and Didjarruk were moiety names, which I understand to mean the same thing.
868 Perhaps a further indication that Ballaruk and Didjarruk were moiety groups, rather than ‘tribes’, is Mr Bodney’s reference to them occupying Whadjuk territory. Neither Ballarruk or Didjarruk were identified as tribes by Bates or Tindale.
(iv) Submissions
869 Although I invited him to do so, Mr Bodney did not put to the Court any submissions in support of his applications. The only submissions I have about these applications are from counsel for the Applicants and counsel for the State.
870 The Applicants’ comment is recorded at para 41 above. The Applicants acknowledge ‘that Mr Bodney and those represented by him are members of the Noongar people as described in the Single Noongar claim’; however, they do not acknowledge ‘that Mr Bodney and some members of his family have exclusive connection with or rights and interests in relation to, the land and waters claimed in the various Bodney claims’.
871 Counsel for the State relied upon Dr Brunton’s evidence. They added:
‘In any event, even on Mr Bodney’s evidence all the members of the Ballaruk and Didjarruk society have died except for his family. It is clear from the evidence referred to … above that that constitutes a very small group. The evidence does not establish that the members of that group continue to acknowledge and observe traditional law and custom. Mr Bodney agreed that he was the most knowledgeable of the whole group and that traditional knowledge had not been passed down to his other brothers and sisters. Hence, in our submission event on Mr Bodney’s case taken at its highest the Aboriginal society he identified as being in the Perth Metropolitan Area at sovereignty cannot be said to have remained vital and intact.’
(v) Conclusions
872 Leaving aside the matter of authorisation, Mr Bodney’s applications involve several problems.
873 First, it is not clear there was ever a community of people, identifiable as ‘Ballarruk’ or ‘Didjarruk’ (or ‘Ballarruk and Didjarruk’), that held, in that capacity, rights and interests in relation to land; as distinct from their capacity as members of a larger group, such as a Single Noongar community or a Tindale-sized tribe. Mr Bodney frequently stated that Ballarruk and Didjarruk lived on Whadjuk territory, which suggests he himself sees the Ballarruk and Didjarruk as being part of the Whadjuk people, or at least subject to their laws and customs. Mr Bodney has never suggested the Ballarruk and Didjarruk people (or either group separately) had their own identifiable territory.
874 Furthermore, it seems to be clear that Mr Bodney understands it to have been permissible for Ballarruk to marry Didjarruk (and, of course, vice versa), but not for members of either group to marry within their own group. After marriage, the partners are said to have retained their original classification, of Ballarruk or Didjarruk; the children followed their mother’s classification. In the absence of expert evidence to the contrary, I would take this to mean that Ballarruk and Didjarruk were moieties or skin groups; rather than ‘tribes’; or ‘clans’, as Mr Bodney called them. In other words, neither the Ballarruk or the Didjarruk, or the two of them combined, is ‘a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged’: see De Rose (No 2) at [38].
875 Even if I am wrong about this, three difficulties remain. First, Mr Bodney has not established any connection between himself, and the small group of people on whose behalf he claims, and anybody living at the date of settlement who is identifiable as Ballarruk or Didjarruk. Second, as the State pointed out, Mr Bodney has not demonstrated continued adherence to whatever laws and customs relating to land were followed by Ballarruk and Didjarruk people. Finally, Mr Bodney’s claim is irreconcilable with my finding that, at date of settlement, the relevant communal rights, for s 223 purposes, were the rights held by the single Noongar community. No doubt, as the Applicants accept, Mr Bodney is descended, through his mother, from members of that community. That means he is entitled to enjoy whatever native title rights and interests are recognised in the foreshadowed determination in favour of the single Noongar community. However, such a determination is inconsistent with recognition that native title rights are held by some members of that community in a different capacity.
876 Mr Bodney’s five claims fail on the merits; so it is not necessary for me to deal with the challenges to authorisation. I propose to order that all five applications be dismissed.
VIII Disposition of proceedings
877 I propose to make an order, in each of the Bodney applications (WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998 and Part WAD 149 of 1998) that the proceeding be dismissed.
878 In the Perth Metro portion of the single Noongar application (Part WAD 6006 of 2003), I propose to answer the separate question (see para 47 above) in the following way:
(i) but for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;
(ii) the persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;
(iii) without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:
(a) to access and live on the area;
(b) to conserve and use the natural resources of the area for the benefit of the native title holders;
(c) to maintain and protect sites, within the area, that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge, about it and the traditional laws and customs pertaining to it;
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.
879 I propose to order that the Perth Metro portion of WAD 6006 of 2003 be remitted to the list of the Western Australian Provisional Docket Judge, French J.
880 Perhaps one or more of the respondents will wish to appeal my conclusions. As my orders are not final orders, leave to appeal would be needed. However, it will no doubt be convenient for any appeal to be brought forthwith, rather than after final orders have been made; so perhaps leave would be given.
881 If no appeal is brought, or any appeal is unsuccessful, it would be sensible for the parties to discuss the future course of the case. In the ordinary way, the next step would be for the State to undertake a tenure search in relation to all parcels of land in the Perth Metropolitan Area. This would be necessary in order to determine in which parcels native title has been extinguished and in respect of which parcels there is a viable claim to a right of exclusive occupation, possession and use. However, the task of searching all parcels of land within the Perth Metropolitan Area would be enormously costly and time-consuming. It would necessarily involve considerable delay in finalising this proceeding. Having regard to those considerations, the parties might prefer to concentrate their attention on a limited number of larger parcels, in relation to which there is a reasonable likelihood of frequent use by members of the Noongar community. I have in mind parcels containing substantial areas of undeveloped – or sparsely developed – land, perhaps including national parks.
882 A relatively early positive determination in relation to those properties may better serve the interests of the Noongar community than a lengthy pursuit of a determination over every legally available parcel of land; and this course is likely to be both less expensive to the State and conducive to earlier certainty about the status of any particular parcel of land.
883 These are matters for the parties to determine, but I commend to them a discussion along these lines.
IX Postscript: the State’s notice of motion of 25 August 2006
(i) Content of the motion
884 By 25 August 2006, I had written most of what is set out in the preceding sections of these reasons. On that day, and without any prior leave, or even notice to me, the State filed a notice of motion seeking the following relief in relation to matter WAD 6006 of 2003.
(i) rescission of the order made on 1 April 2005, as subsequently varied (see paras 38 and 46-47), for prior determination, in a separate proceeding, of a separate question concerning the existence of native title in the Perth Metropolitan Area;
(ii) an order for a new trial of the separate proceeding before a different judge;
(iii) an order, pursuant to s 84C of the Act, that Part A of application WAD 6006 of 2003 be struck out; and
(iv) various orders concerning discovery of documents, and the furnishing of answers to interrogatories, relevant to the identity of the native title claim group and the authorisation of the Applicants to bring application WAD 6006 of 2003.
885 The filed notice of motion was supported by the affidavit of Alicia Warren, a solicitor employed in the State Solicitor’s Office. Ms Warren annexed to her affidavit a large number of documents relating to the course of this litigation. Her affidavit contained no information that cast light upon the question whether or not the Single Noongar application had been properly authorised. Ms Warren referred to two decisions of French J, given in the years 2003 and 2004 in relation to other applications, and said she was ‘not aware of any procedures undertaken to obtain authorisation for the lodgment of application WAD 6006 of 2003 other than the procedure considered’ in those cases. Upon the basis of those matters, Ms Warren expressed the opinion that ‘there is a serious question whether application WAD 6006 of 2003 is authorized’.
886 The motion was also accompanied by a 12 page submission signed by Mr Wright, Mr Ranson and a new counsel, Ken Pettit SC.
887 The Western Australian District Registrar did not immediately fix a return date for the notice of motion. When the matter was referred to me, I formed the view that, in the circumstances of the case, it might be preferable to dispense with an oral hearing and to invite the parties to put in writing any submissions they desired to make. My associate communicated this view to the parties and sought comment. No party sought an oral hearing. Subsequently, on 1 September 2006, the State submitted a further written submission.
888 Written submissions were made by the Commonwealth, on 7 September 2006. They supported the orders sought by the State.
889 Counsel for the Applicants, Mr Wittkuhn on behalf of his local government clients and Mr David, on behalf of NLC, filed written submissions opposing the orders sought by the State. The State furnished written submissions in reply.
890 Paragraph (b) of rule 11(3) of Order 78 of the Federal Court Rules (‘the Rules’) provides for the appointment of a directions hearing upon lodgement of an application to strike-out a native title claim. Of course, such a hearing is unnecessary if a strike-out application is to be dealt with by way of written submissions. As all responding parties seemed content with this course, on 8 September 2006, I made an order dispensing with compliance with Order 78 rule 11(3)(b), in relation to the notice of motion of 25 August 2006.
(ii) Reaction to the motion
891 For two reasons, I was surprised to receive and read the notice of motion and its accompanying documents.
892 First, I was surprised that the State’s legal advisers had acted discourteously to the Court. The oral hearing of this matter occupied 20 days. It was followed by lengthy written submissions, prepared over a period of some months, and a video-link hearing on 23 June 2006. At the conclusion of that hearing, I reserved my judgment. I told the parties I had already done some work on non-contentious matters in the case and wished to deliver judgment as soon as I could. While I did not specify a date for judgment, I indicated this would be relatively soon. It would have been obvious to the State’s legal advisers that the task of considering the evidence, and preparing my reasons for decision, would be an enormous one, involving many hundreds of hours work for myself and each of my personal staff. Having regard to my closing comment on 23 June 2006, it should have been apparent to the State’s legal advisers that, by 25 August 2006, I might be well advanced on this task; as was the case. Particularly under those circumstances, I believe, common courtesy required them to notify me of their intended action and to ascertain the least inconvenient course for them to take. They did not do this. The notice of motion came to me ‘out of the blue’. Having regard to their content, the motion and supporting submissions amounted, in effect, to a unilateral demand that I stop whatever work I was doing on the case until the State’s motion could be dealt with on its merits.
893 My second reason for surprise arose out of the fact that the motion represented a complete U-turn by the State. It will be recalled, from paras 29-33 above (which I wrote before I received the State’s motion), that the reaction of the State (and the Commonwealth) to the Single Noongar application was to protest that this application would unacceptably delay determination of the question whether native title exists over land and waters in and around Perth. On 8 October 2003, Mr Ranson referred to the long history of Perth claims and contended there was ‘a substantial public interest in their early resolution’. Mr Ranson argued it would be practicable, and desirable, to hear that aspect of the Single Noongar application which related to the land and waters within the Combined Metro claim area, in advance of any hearing concerning the balance of the Single Noongar claim area. No doubt the inspiration for that proposal was that, on 4 April 2003, Beaumont J had made an order, under Order 29 rule 2 of the Federal Court Rules (‘the Rules’) in relation to the Combined Metro application. His Honour had ordered that the ‘connection issues’ in that case be heard as a separate question from and before all other issues in the case. This was done in response to an application by Mr Wright, on behalf of the State, for his Honour to ‘split the trial … between connection and extinguishment issues’.
894 I was impressed by the argument put by Mr Ranson on 8 October 2003; and that was the genesis of the separate question. On 9 October 2003, with the active encouragement of the State, and the agreement of all other parties, I made the orders set out in para 32. They included order 6, providing for the hearing of a ‘separate proceeding’ in relation to the land and waters covered by the Combined Metro claim.
895 As recounted at para 38 above, I later made a formal order, entered on 6 April 2005, under Order 29 rule 2 of the Rules for determination of a separate question. The question then formulated was subsequently amended, so as to reach the form set out in para 47 above. However, those amendments did not change the essence of the question, as first framed. That essence was to require the parties first to address, and the Court first to determine, whether native title existed in relation to land and waters in the area of the separate proceeding (that is, the area covered by the Combined Metro application plus Mr Bodney’s additional nautical miles of ocean), as distinct from the land and waters in the remainder of the Single Noongar claim area; and, if native title existed, who held the relevant rights and interests and what was their nature and extent. Those issues were to be considered separately from all other issues in the case, including issues of extinguishment, and, if it had been raised, any issue of authorisation.
896 It is important to emphasise that the orders to which I have referred were urged upon me by counsel for the State. Mr Wittkuhn is correct in stating, in his recent written submission, that ‘the State actively and dominantly encouraged the [C]ourt to pursue the separate question’. Yet now, nearly three years later, and after expenditure on the case of what must amount to many hundreds of thousands (if not millions) of taxpayers’ dollars, the Court is asked to rescind the orders for a separate question, to abandon the work that has been done and to make the case start again; to order a new trial, before another judge. This would inevitably involve a further prolonged delay in resolving the issue of native title in the Perth region.
897 I see no point in speculating about the State’s reason for its volte face, or even as to whether this course has been approved at Ministerial level. I am aware that Ministers in the Western Australian government have, from time to time, represented themselves to be in favour of determination of native title claims, upon their merits, as expeditiously and inexpensively as possible.
898 However, that is all by the way. If the course now proposed by the State’s counsel is what the law requires, so be it. It is my duty carefully to consider whether that is the case.
(iii) The State’s submissions in support of the motion
899 In their written submission, counsel for the State said: ‘The separate question does not involve the issue whether the separate proceeding or WAD 6006 of 2003 was authorised for the purposes of s 61(1) [of the Act]. That question is within the separate proceeding and WAD 6006/2003 generally’.
900 Counsel went on to say their client seeks an order terminating the ‘hearing of the separate question, because the hearing has fallen into irremediable procedural error’. They gave two reasons:
‘(a) The procedural error is that evidence relating to authorisation and other issues is relevant to the separate question yet, on the present course, will be excluded from consideration in the separate question.
(b) That error, if circumstances were different, might be remedied by including in the separate question all such other relevant issues and evidence. However, it is now irremediable because Wilcox J, on retirement in February 2007, will not have determined those issues, and another Judge cannot take over a complete the present trial and cannot be bound in a new trial by any finding of Wilcox J.’
In fact, I will be retiring on 30 September 2006, a few months before the expiration of my commission in February 2007.
901 Counsel then said:
‘The separate question as formulated is in fact and law not separate from the issue of (a) authorization, (b) occupation under sections 47A and 47B [of the Act], (c) partial extinguishment and (d) final orders.’
902 Counsel then set out some submissions concerning the importance of authorisation. They referred to authorities, including my own decision in Moran v Minister for Land and Water Conservation [1999] FCA 1637.
903 Counsel went on:
‘The issue of authorisation entails evidence. Once raised as a contested issue, as it clearly has been in respect of the separate proceeding and WAD 6006/03 (and in the Bodney claims) evidence must be adduced in terms of s.251B [of the Act]. The evidence concerning authorisation will relate to:
(a) the identity of the native title claim group;
(b) the traditional law and custom as to decision making;
(c) unity of decision making rules, and hence unity of alleged single Noongar society.
Those issues are relevant (indeed central) to the connection case, presently within the separate question.’
In support of their reference to authorisation being raised as a contested issue, counsel cited several documents annexed to Ms Warren’s affidavit. I will return to them.
904 Counsel referred to the description, in the application, of the native title claim group and to say this requires, for the purposes of examining authorisation, ‘findings as to who is a Noongar person, who are the descendents of the ancestors and families named in the application, and what are the Noongar customs and traditions for incorporation into the group’. Counsel went on:
‘These same issues are obviously relevant to, and have already been raised in, the trial of the separate question, in the context of whether there is a single Noongar society and whether there has been continued acknowledgment and observance of a single normative system of law and custom by Noongar people. Some evidence as to traditional decision making processes has already been received in the trial of the separate question. Questions were asked by counsel for the Commonwealth that went to the issue of traditional decision making. Objection was taken that the questions concerned the authorisation issue, which was not being heard, but the questions were allowed by Wilcox J on Ms Webb’s submission that the questions also went to whether there was unity of Noongar society. That exchange and that ruling show that the separate question is not distinct or severable from the authorisation issue.’
905 Counsel then referred to two cases heard by Mansfield J, Risk and Edward Landers v South Australia [2003] FCA 264. In each of these cases, authorisation of the claimants was challenged, but Mansfield J deferred ruling on the challenge until he had heard the evidence about the existence of native title.
906 Counsel went on:
‘By contrast, in the present case, the order for the separate question has caused the result that evidence heard in the context of authorization will be excluded from the hearing of s.223 matters by Wilcox J. That is so notwithstanding that the excluded evidence will actually become part of the trial (unless there is a new trial as advocated by the [State]). That result:
(a) proves that the separate question and authorisation are not separate;
(b) may embarrass the Judge who is to hear authorisation; and
(c) causes insoluble problems on appeal when the whole of the evidence (ie before both Judges) is applied to the findings of either Judge.’
907 Counsel for the State submitted that issues that could later arise, such as ‘occupation’, partial extinguishment and formulation of the final determination, could provide evidence that would have been relevant to determination of the separate question. Counsel said:
‘Determination of those issues requires, not mere mechanical reference to the evidence led at trial, but a consistent understanding and interpretation of it, by one Judge. That shows the matters are not severable.
… the submission is made that the separate question is not separate because evidence will emerge later in the separate proceeding relevant to the separate question but unavailable for its resolution. It will be unavailable, not because the two matters are in truth separate, but because the adopted process has incorrectly separated them. In light of the history, it could not be said that the [State] acceded to the process.’
908 Counsel then submitted:
‘The decision to entertain the separate question failed to take account of an appeal.
Usually, a separate question under FCR Order 29 rule 2 is amenable to appeal. An answer in respect of the separate question will be binding for the remainder of the proceedings unless appealed at that stage. In deciding whether to grant leave to appeal the Full Court will have to consider:
(a) that further evidence will be led in the remainder of the trial which will also be relevant to the connection issues (ie to the separate question), and could later be brought to bear in an appeal on the same issue of connection; and
(b) the application may fail anyway for want of authorisation, which would render the appeal pointless.
Those considerations effectively prevent an appeal on the separate question by either side. Accordingly, the originally perceived advantage of the separate question (namely, that on one result there would be no need to deal with extinguishment) does not exist.’
909 I will return later to the correctness of these submissions. For the moment, I merely make two comments. First, it is unfortunate that counsel for the State did not appreciate these perceived problems about the course they had successfully urged on me during the period of two years that elapsed between the making of an order for the separate proceeding and the commencement of the hearing. Second, although I cannot speak for counsel, I have, at all times, foreseen the possibility of an appeal against whatever finding I might make on the separate question. Appeals against first instance decisions about the existence or non-existence of native title are commonplace.
910 Counsel for the State then put a ‘jurisdictional argument’: as I must retire on or before 17 February 2007, I ‘will not hear any issue in the separate proceeding other than the separate question’; a new judge will need to hear the rest of the separate proceeding. Counsel referred to The Queen v Lewis (1988) 165 CLR 12 at 15 (‘Lewis’). The High Court there said:
‘… it is of fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality. If through force of circumstances that cannot be done then the hearing must be commenced de novo unless there is some other more convenient arrangement which has the consent of all the parties and is not inimical to the proper adjudication of the matter.’
911 Counsel for the State commented:
‘Under that principle, one Judge must deal with the whole of the separate proceeding, including the issues of authorisation, extinguishment (including the effect of partially extinguishing acts), application of ss47A and 47B [of the Act] and the form of the final determination, and including issues of traditional connection which are presently within the separate question.’
912 Counsel accepted the rule they had stated is ‘subject to an exception that an “ancillary, severable and distinct matter” may be severed and determined by another Judge’. Counsel said:
‘The question whether a matter is “ancillary, distinct and severable” is similar to the criteria for deciding whether to hear a separate question under Order 29 r2 (although one involves a Judge binding himself in a trial, while the other involves a Judge binding a different Judge).’
913 Counsel went on to detail supposed possible inconsistencies between the conclusions I might reach in relation to the separate question and the conclusions of another judge at a later stage. Counsel also argued that, once raised as a contested issue, authorisation should be dealt with as soon as convenient so as not to waste time and resources in a large trial; although, of necessity, a decision on the issue might sometimes be delayed until the evidence is complete.
914 Counsel said that, by its notice of motion, the State ‘formally raises the issue of authorisation for determination’. They submitted s 84C(2) of the Act therefore required that ‘no further steps are to be taken in the proceedings until the strike out application is considered’.
915 The State submitted that the strike-out motion should be dealt with ‘as part of a new trial of the separate proceedings’. Counsel then said:
‘There must be a new trial upon the retirement of Wilcox J because of the principle mentioned above. Therefore, the new Judge will not be bound by any finding made by Wilcox J (as is the rationale for the general principle). Therefore, the utility of the separate question being heard by Wilcox J is nil.
That conclusion is supported by the following. A new Judge, in a new trial, could only have regard to the evidence, and the reasons and findings of Wilcox J in the separate question, pursuant to s.86 [of the Act]. Each party to the new trial may be heard on the question whether reasons and findings should be adopted. Consent of the parties is unlikely. The new Judge will then be in the position of having to decide whether, on merit, he or she should adopt the findings of Wilcox J when the parties remain in contest on those very findings and the new Judge has heard no or little evidence relevant thereto.
In summary, the present position is untenable. The only solution lies in the relief sought by the First Respondent in its motion: abandonment of the separate question, new trial and new Judge, and the standing over of the trike out to the new Judge.’
(iv) The evidentiary background
916 Counsel for the State identified eight documents that allegedly supported its submission about authorisation having been ‘raised as a contested issue’: see para 903 above. They were as follows:
(a) The Applicants’ outline of case filed on 28 February 2005. This document identifies the claimant group. Its only reference to authorisation is in para 1.3 where the statement is made that SWALSC, as the representative body pursuant to s.203AD of the Act, ‘has certified that … all the persons in the native title claim group have authorised the named applicants to make the application and deal with matters arising in relation to it (s.203BE(2)(a))’. [This manner of putting the matter slightly misstates the scheme of s 203BE. Section 203BE(1) requires the relevant representative body to certify an application but s 203BE(2) forbids it doing so unless it is of the opinion that the persons in the native title claim group have authorised the applicant to make the application.]
(b) The Commonwealth’s response to the Applicants’ outline of case, dated 29 March 2005. In that document, the Commonwealth listed some issues. Under the heading ‘Contentions’, the Commonwealth said:
‘The Applicant must satisfy the Court that the application is made under Part 3 in accordance with section 61(1) [of the Act] in that the Applicant has been authorised by the native title claim group to make the application.
If the application is not made in accordance with section 61(1) [of the Act] the Federal Court has no jurisdiction to hear and determine the application other than to dismiss the application.’
(c) The State’s response to the Applicants’ outline of case, dated 31 March 2005. In that document, the State referred to the Applicants’ reference to authorisation and said it does ‘not admit that application WAD 6006 of 2003 is authorised by all the persons who claim to hold native title to the land and waters the subject of the application’.
The State went on to say that, ‘in any event, the Court has jurisdiction to hear and determine the preliminary question because the land and waters the subject to the preliminary question are the subject of the Bodney claims (WAD 137, 138, 139, 140 and 149 of 1998) and the pre-combined claim WAD 142 of 1998)’.
(d) A formal order, dated 1 April 2005, but entered on 6 April 2005, recording a number of orders previously made by me at directions hearings. Order 3 of this document sets out the question ordered, pursuant to Order 29 rule 2 of the Rules, to be separately tried. That question does not include any reference to authorisation. Order 20 (which had been made at a directions hearing on 15 February 2005) stated:
‘If any party wishes to challenge the authority of the Applicant [sic] to make claim WAD 6006/03, that party is to file a strike-out motion with supporting affidavit evidence by 31 March 2005.’
It should be noted that 31 March 2005 was the day upon which the State filed its response to the Applicants’ outline of case, but the State did not then file any strike-out motion in relation to authorisation. Under those circumstances, it may be inferred that the State had made a considered decision to allow the special question to proceed to trial and judgment, without there being any prior investigation of the matter of authorisation, and this despite the State’s unwillingness to admit that the application was properly authorised.
(e) An extract from the State’s written submission concerning the application by NLC to strike-out WAD 6006 of 2003 confirms this inference. After noting their client’s unwillingness to admit that WAD 6006 of 2003 was properly authorised, counsel said:
‘However, the [State] does not seek a strike out of the application prior to the hearing. Rather, and consistently with the question of whether the Bodney applications are properly authorised, the [State] proposes to deal with the question of the validity of the single Noongar claim (which necessarily includes the issue of authorisation) as an issue at trial and proposes to make submissions on that issue once all of the evidence has been received.’
(f) An extract from the transcript of oral argument on 5 August 2005 concerning the NLC strike-out application. There seems to be no reference in that extract to the State’s position.
(g) An extract from the Commonwealth’s opening statement, filed on 7 October 2005. This document included the following statement:
‘The Commonwealth’s Response to the … Applicants’ Outline of Case raises whether the application in WAD 6006 of 2003 is properly authorised. It is contended by the Commonwealth that the Applicant has the onus of satisfying the Court that the Applicant is authorised by all persons of the native title claim group to make the application. Section 251B of the [Act] states the requirements for authorisation.
The issue is important because it goes to the jurisdiction of the Court: if the application is not authorised by the native title claim group, there is no valid application before the Court and therefore the Court lacks the jurisdiction to [sic] conferred by section 81 of the [Act].’ (Citations omitted)
(h) Extracts from the transcript of counsel’s opening addresses on 11 October 2005. Those extracts include the following passages:
‘MR WRIGHT: Now, there is an issue or authorisation has been raised - - -
HIS HONOUR: Well, is that encompassed in the question - in the preliminary question?
MR WRIGHT: The question of authorisation?
HIS HONOUR: Mm.
MR WRIGHT: Well, it - certainly not on its terms. It's the Commonwealth that seems to be presenting an argument, mainly, about authorisation as being a jurisdictional precondition to these proceedings in their entirety. And that's not a position that the State shares.
HIS HONOUR: I must say, I don't quite know how authorisation got into this case. When did it - who raised it as an issue?
MR WRIGHT: Well, your Honour, it was raised in relation to Mr Bodney's claims.
HIS HONOUR: Oh, yes, I know that, but I'm talking about the Noongar claim. Where does the authorisation issue arise there?
MR WRIGHT: Well, I think it arose because the applicants in their outline of case, as one of their contentions, was that the claim has been authorised - -
HIS HONOUR: Yes.
MR WRIGHT: - - - which is the requirement, obviously, under the Native Title Act. And it's something the State does not admit, and the Commonwealth, I believe, does not admit that the claim is authorised. And - -
HIS HONOUR: But is it denied? Is it challenged? I mean, if there's a challenge to authorisation, it should have been the subject of a motion to strike out, shouldn't it?
MR WRIGHT: Well, your Honour will remember that you made a direction about that, and the position that was put by various parties, including the State and the Commonwealth, I believe - or at least - I'll speak for the State, was that we didn't want to press a strike-out application because the issue of authorisation is really tied up with all the evidence that one is going to hear in the trial, and therefore your Honour acceded, as I understand it, to the issue of authorisation being held over as an issue that would be part of this trial, and that was the position - - -
HIS HONOUR: In other words, it's not before me in this hearing.
MR WRIGHT: Well, it is, as I understood it. The issue was now going to form part of an issue in this proceeding rather than your Honour hearing a separate preliminary question about authorisation.’
917 Mr Wright confirmed that neither the State nor the Commonwealth had filed a strike-out motion in respect of the Single Noongar application. I commented that I was ‘not quite sure how it’s before me’. The discussion went on:
‘MR WRIGHT: Well, your Honour, if it is an issue that you must decide, if you were to find Native Title, and we say it is - the difference between us and the Commonwealth, I'll say, is that we say if you find there's no Native Title you don't need to address the question of authorisation.
HIS HONOUR: Obviously.
MR WRIGHT: But if you find that there is Native Title, then you must be satisfied that the claim is authorised, because the claim is not - it is not a properly brought claim if it's not authorised.
HIS HONOUR: Yes, but not in this hearing, because it's not embraced by the preliminary question.
MR WRIGHT: Well, then - then I'm not sure - - -
HIS HONOUR: If I found - if I made a finding that there was Native Title and that the people who have the Native Title rights are a particular people, or group of people, or community of people, however described, I think you're probably quite right in saying that, in the light of that, other parties, such as your client, can look and say, "Well, hang on. They're the people who've got the Native Title. Was this claim authorised by those people?", and if not, you can make a strike-out application at that stage.
MR WRIGHT: Yes. Yes, I - - -
HIS HONOUR: But I don't understand how I would deal with authorisation at this hearing.
MR WRIGHT: Yes, well, your Honour, we'd be content with what you just put forward, in terms of it being an issue that might arise once we've - once you've answered the preliminary question.
HIS HONOUR: And, I mean, I make it quite clear that the same statement is not true of the authorisation of the Bodney claims, because that was raised as an issue, … and that was specifically adjourned to this trial, so, at the end of the day, I'm going to have to rule on that.’
918 During her opening address, Ms Webb reminded me of the terms of the Commonwealth’s response to the Applicants’ outline of case. She referred to the terms of s 251B of the Act and contended that authorisation ‘goes to the jurisdiction of the Court’. I questioned whether that was correct, pointing out that the Court must have jurisdiction to conduct a hearing to determine whether a particular application was authorised. However, I agreed that authorisation ‘goes to jurisdiction to make a determination of native title’. I went on:
‘I don't for a moment doubt that it's necessary, before they can obtain a determination of Native Title, for the Single Noongar claimants to establish authorisation.
MS WEBB: Yes.
HIS HONOUR: But the question is when that should be done. Now, perhaps unfortunately, when the parties were considering the best response to this, the best way of handling this - and I don't put all the blame on the - if there's an oversight, I don't put all the blame on the parties. I was party to what happened. Nobody said, “Now, hang on. We'd better include as a preliminary question the issue of authorisation”.
MS WEBB: No, your Honour. No.
HIS HONOUR: So, in effect, it’s not on the agenda, and I don't know that Mr Hughston’s in a position to deal with it at this hearing. If he is and the parties all agree that it should be dealt with at this hearing and it can conveniently be dealt with, then I've got no difficulty about that. But I think it would be somewhere unfair to force that on him and any other parties who want to - who are interested in that issue, without there being a proper opportunity. And so the difficulty is that this issue was not thought about when we devised the preliminary question.’
919 Ms Webb responded that her client was not putting authorisation forward as a preliminary question, but wished to raise it during the hearing. She pointed out that the Commonwealth had raised the matter of authorisation some time earlier. However, she acknowledged that this ‘was well after the dimensions of this hearing had been settled between the parties’ and appropriate orders made. I then said:
‘that, simply, is the difficulty. You see, there won't be any formal orders as a result of this hearing. All that would happen is that answers would be given to the preliminary questions, then that would be on the record, and it would be up to the parties to decide what is the next step.
And if you - you or other respondents say, “Well, we have an issue about authorisation”, that may have to be the next matter that is dealt with in connection with the claim, desirably before issues of extinguishment were dealt with. But that's the difficulty. But I agree with you, absolutely, that if there's a question about authorisation, the court can’t exercise its jurisdiction to make orders, but it could answer preliminary questions, I think, because they would have no legal effect in the sense of affecting people's rights. They are just steps along the road to determining the rights.
Now, as I say, if Mr Hughston is prepared to take in the issue of authorisation at this hearing, then I’m very happy to cooperate in that being done. We may have to revisit the ambit of the preliminary questions for that purpose, but that can be done. But that – that’s where we are, but if the court has said, “Well, there's going to be a hearing on subject X”, to then go into X plus Y without any formal amendment, it seems a very strange thing to do.’
920 Ms Webb said that if, during the course of the hearing, ‘the evidence indicates there hasn’t been authorisation we … would feel … we had … a strike out application, we would bring that’. She said that the Commonwealth thought it premature to make a strike-out application at the moment ‘but the issue is raised so the Applicants are well aware that it’s a matter we’re concerned about’.
921 I commented that Ms Webb had put Mr Hughston on notice that, ‘along the track, he’s got to deal with authorisation’. I added:
‘But I think not at this hearing … Unless as I say, if all the parties agree it should be so, then I will cooperate in making appropriate orders to put that on the agenda. At the moment, it’s not on the agenda ... And I don’t think that should be changed except by agreement.’
922 There was no further discussion about widening the ambit of the matters to be considered during the hearing that commenced on 11 October 2005. In their submission on the notice of motion, counsel for the Applicants asserted they were never asked to agree to this course. I have no reason to doubt the truth of their assertion. Certainly, no application was made to me, by any party, for an order amending the form of the separate question, except in relation to definition of the geographic area. No strike-out motion was thereafter filed by any party until that of 25 August 2006.
(v) The Applicants’ submissions on the strike-out motion
923 The submission of counsel for the Applicants is lengthy. However, its substance may be gleaned from the summary contained in paras 3 to 5. Those paragraphs read:
‘The … Applicants submit, firstly, that the hearing has not fallen into any procedural error. The separate question, as framed, is an appropriate question for the Court to decide separately from any other question in the proceeding under Order 29 r 2. In this respect the Court has a broad discretion in determining whether it would be just and convenient for an order to be made under O 29 r 2.
Secondly and in any event, orders 1, 2 and 3 of the Notice of Motion should be dismissed because the [State] induced the Court to adopt the separate question procedure and thereafter acquiesced in that procedure by participating fully in the hearing of the separate question.
Thirdly, orders 4 through to 10 of the Notice of Motion should be dismissed for the following reasons:
(a) The Court’s power to strike out an application under s.84C is used sparingly and with caution and only when the Court is satisfied that the moving party has made out a very clear case that the applicant has not complied with the relevant section. The only evidence which the First Respondent has adduced in support of the Notice of Motion is the affidavit of Alicia Clare Warren, sworn 25 August 2006, and that affidavit does not provide any evidentiary basis to strike out the [Single Noongar] Application. The Orders sought for discovery and interrogatories amount to no more than “fishing” expeditions.
(b) The Court made programming orders, well before the commencement of the hearing of the separate question, which required any party who wished to challenge the authorisation of the [Applicants] to file and serve a notice of motion with supporting affidavit evidence by 31 March 2005. The [State] did not file a notice of motion within the period contained in the order nor has it subsequently sought leave to file a Notice of Motion out of time. All of the matters which are deposed to in Ms Warren’s affidavit and which lead her to believe that there is a “serious question whether application WAD 6006 of 2003 is authorised” were within the knowledge of the [State] prior to those programming orders being made.
(c) Again, the [State] has acquiesced in or waived, any entitlement which it may otherwise have had to insist that issues of authorisation should be dealt with at the same time as issues of native title connection.’ (Original emphasis)
(vi) Issues raised by the State’s motion of 25 August
924 It seems to me the State’s notice of motion and submissions raise four separate issues:
(a) Was the order for the separate question validly made?
(b) If not, is it now open to the State to complain about the order?
(c) Has the order for the separate question had the result of excluding evidence relevant to issues arising under s 223 of the Act?
(d) Must authorisation be dealt with prior to determination of the separate question?
I will deal separately with each of these issues.
(vii) Validity of the order for the separate question
925 Order 29 rule 2 of the Rules provides:
‘The Court may make orders for –
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.’
It will be noted that the rule does not impose any limitation upon the nature or scope of a question that may be ordered to be tried separately from other issues in a case. The desirability of making an order under Order 29 rule 2, and the scope of any question, are both matters left entirely to the discretion of the Court. The Court would, of course, normally be guided by the parties as to those matters but, ultimately, they are matters entrusted to the judgment of the particular judge seized of the case.
926 The State’s reference to Lewis does not advance its argument on this issue. That was a very different case. The Northern Territory Court of Criminal Appeal had heard argument as to whether the respondent should be allowed to amend his grounds of appeal against a criminal conviction. After completion of the argument on that matter, the Court reserved its decision and adjourned sine die. Subsequently, without any further hearing, the Court gave the respondent leave to amend the grounds of appeal, granted leave to appeal, allowed the appeal and set aside the conviction. The Crown appealed against these orders to the High Court. The Crown argued it had been denied natural justice because it was not heard on the merits of the amended grounds of appeal. The High Court agreed. Their Honours made the comment quoted in para 910 above. However, they did not say a proceeding may never be broken into separate questions. Even in the circumstances then under consideration, the Justices acknowledged the possibility of a change in the composition of the Court ‘which has the consent of all the parties and is not inimical to the proper adjudication of the matter’. The decision, in the present case, to order trial of a separate question had the consent of all the parties and was not inimical to the proper adjudication of the Single Noongar application.
927 Counsel for the State acknowledged the rule they propound is subject to an exception where a matter is ‘ancillary, severable and distinct’. The issues identified in the separate question meet this description. No doubt that is why the State urged the separate question upon me.
928 A reader of the State’s submission, who was unfamiliar with contemporary legal practice, could be forgiven for deducing that an order for the trial of a separate question is an extraordinary event. Nothing could be further from the truth. It is an everyday event for members of this Court to use Order 29 rule 2, even to the extent of separately considering a major issue (for example, liability in advance of quantum of damages in a commercial or intellectual property case) that depends on disputed facts.
929 While I agree that a decision to order determination of a separate question is one to be made carefully, and after consideration of the views of the parties, there is no limit on the Court’s discretion to take this course.
930 Counsel for the Applicants set out four considerations which, they claimed, support the Court’s decision to make the Order 29 rule 2 order in this case:
‘(a) An earlier order to the same effect had been made by Beaumont J in the Perth Metro claims and the Court had already heard a considerable amount of evidence from Aboriginal witnesses directed towards that separate question.
(b) The [State] (and other Respondents) had informed the Court that there was a substantial public interest in an early resolution of the native title claims over the Perth Metropolitan area.
(c) The [State] had also informed the Court that there was no real prospect of the Perth native title claims being resolved by mediation and agreement.
(d) There was a likelihood that if the claims proceeded to a full hearing of all issues, the hearing of the extinguishment issues would be both costly and time consuming and yet, depending upon the Court’s decision on the separate question, it may have been unnecessary to proceed to a hearing of extinguishment and other issues.
(e) Finally, the attitude of all of the represented parties was that the Court should proceed to make the order sought under O 29, r2.’ (Citations omitted)
Each of these statements is both factually correct and supportive of the order.
(viii) Is it open to the State to complain about the order for a separate question?
931 On this issue, I agree with counsel for the Applicants. Counsel quoted the principle stated by the House of Lords in Marsh v Marsh (1945) AC 271 at 285: ‘If a litigant has himself induced, acquiesced in or waived the irregularity, he cannot afterwards complain of it.’ In the present case, supposing there had been an irregularity, the State has done all three of these things.
932 I earlier set out how the separate question came to be directed, pointing to the central role of the State in that course being taken. The documents identified by Ms Warren clearly indicate that the State made a considered decision to proceed to trial on the separate question without filing a prior strike-out motion, which could either have been resolved before the hearing that commenced on 11 October 2005 or deferred for consideration during that hearing. The transcript of 11 October 2005 shows that both the State and the Commonwealth appreciated that I took the view that the matter of authorisation was not before me at the hearing which commenced that day, but I would be agreeable to widening the hearing agenda, in order to include that issue, if all the parties agreed. Neither the State or the Commonwealth seems to have taken any action to obtain the agreement of other parties. Each of them plainly made a considered decision to accept the situation I had indicated. On that basis, the parties and the Court embarked upon a long and expensive hearing. No new factor having since emerged, the State (and the Commonwealth) now seek to reverse their considered earlier decisions and throw away all the work that has been done. The word ‘unconscionable’ springs to mind. Whatever happened to the long-standing principle that the Crown sets an example to others by behaving as a model litigant?
933 The only justification for this behaviour advanced by the State is a suggestion that it recently learned, with surprise, that I would not hear all the issues that might arise in relation to the Single Noongar application; or at least that part of it that relates to the Perth Metropolitan Area. I wish to remain polite but I have to say that is disingenuous nonsense. Right from the beginning, I made it clear to the parties that I proposed to follow Beaumont J’s course and determine issues of connection, in relation to the Combined Metro claim, prior to any consideration of issues of extinguishment. Of course, everybody understood that, if the Combined Metro applicants failed to prove connection, that would be the end of the case; I would make a dismissal order. However, everybody also understood that, if connection was proved, it would be necessary for the parties to embark upon an enormous task in relation to extinguishment. More than once, during directions hearings, I made comments about my leaving that to someone else to worry about. Given that exploration of extinguishment issues might have involved several years’ delay in finalising the case, nobody associated with it could possibly have believed I would necessarily deal with all its issues. I am obviously of a ‘certain age’. My date of birth has always been easily ascertainable.
934 The situation that originally applied did not change when the Single Noongar application was filed and it was decided to formulate a separate question about the Perth Metropolitan Area. This was done in order to adhere to the strategy adopted by Beaumont J: to determine connection issues in relation to Perth, in advance of all other issues that might arise in connection with that part of the Single Noongar claim area. When I made the order for the separate question, I assumed the only residual matters (if the Applicants succeeded in establishing connection) would be extinguishment and settling the precise terms of the Determination of Native Title. I made that assumption because I had not then been told that authorisation was in issue. When this was made clear to me, on 11 October 2005, I made the offer indicated in the transcript, but neither the State nor the Commonwealth chose to follow it up.
(ix) Has the separate question order excluded relevant evidence?
935 In relation to this issue, counsel for the State identified three supposed areas of difficulty: occupation, partial extinguishment and formulation of the Native Title Determination.
936 Under the heading ‘Occupation’, counsel said:
‘Some of the facts that go to prove occupation for the purposes of ss.47A(1)(c) and 47B(1)(c) NTA are also relevant to the issues of whether native title exists and, if it exists, what rights are held.
Questions in the form “where do you live, camp, congregate, hunt, gather or fish” are relevant to both issues. Those questions in the separate question will be relevant to occupation under ss.47A and 47B [of the Act] before the next Judge and vice versa.
Any such evidence heard by the next Judge will be unavailable for resolution of those questions by Wilcox J.’
937 Sections 47A and 47B of the Act relate, respectively, to Aboriginal reserves and vacant Crown land. Each section sets out circumstances under which prior extinguishment is to be disregarded. Those circumstances include that, when the native title application was made, ‘one or more members of the native title claim group occupy the area’. It follows that, if there is a dispute between the parties in relation to the question whether extinguishment should be disregarded in relation to any land covered by ss 47A or 47B, the Applicants will need to put evidence of occupation before the judge who determines extinguishment issues; just as they will need to put evidence in relation to any other extinguishment issue. However, that possibility would not have provided any reason for me to exclude any evidence that might have been adduced (whether in chief or by cross-examination) by any party that was relevant to the issues arising out of the separate question. In fact, so far as I recall, nobody sought to ask questions about occupation of lands falling within s 47A or s 47B. The argument about ‘occupation’ seems to have no relationship to this case.
938 In relation to partial extinguishment, counsel for the State pointed out that, in Ward, the High Court made clear that ‘issues of partial extinguishment cannot be determined unless the native title rights are precisely articulated’. Counsel went on:
‘A determination that native title exists and comprises the right to possess, occupy, use and enjoy an area to the exclusion of all others is an inadequate basis for addressing partial extinguishment. It is impossible to know what level of specificity of the native title rights is required until the relevant partial extinguishing acts have been identified. Hence the two issues are not severable.’
939 I agree with the first sentence of this passage. I also agree that it is necessary to identify any relevant partial extinguishing acts before settling the final form of a Determination of Native Title. That is why my answer to the third sub-question of the separate question left open the final form of the Determination. The final form can be settled between the parties, or by a judge, in the light of any agreement or evidence concerning extinguishment. However, the circumstance that it would be inappropriate to offer a conclusive answer to the sub-question about the nature and extent of the subsisting native title rights does not mean it is inappropriate to consider the issues raised by the separate question, and to provide answers to them, provided only that the answer to the third sub-question does not purport to be a final answer.
(x) Conduct of the strike-out motion
940 Counsel for the State seem to believe that the effect of filing the strike-out motion was to prevent anybody taking any further action in relation to the part of WAD 6006 of 2003 before me until, at some future date and after processes of discovery and interrogatories, some judge heard that motion; in particular, I would be unable to provide answers to the separate question or announce my findings about the evidence led before me. If counsel are correct, the filing of a strike-out motion, at any time, has an effect similar to obtaining an injunction against a judicial officer. Apparently, according to the State, this is so, even in a case where a party has failed to comply with a direction that any strike-out motion be filed by a particular date, has not sought an extension of time or leave to file out of time, and files an application that is unsupported by any evidence that indicates, in the words of s 84C(1) of the Act, that the relevant application ‘does not comply’ with s 61 or s 62 of the Act.
941 The proposition is breath-taking. In my opinion, it is also incorrect.
942 First, s 84C(1) provides a condition precedent to the making of a s 84C(1) strike-out application: the native title application must be one that does not comply with s 61 or s 62 of the Act. That does not mean that a strike-out applicant must first have obtained a finding of non-compliance (that would be an absurd position) or have filed, with the strike-out motion, irrefutable evidence of non-compliance. However, I think it does mean that the person must support his or her strike-out application with evidence that discloses at least an arguable case of non-compliance. As the question whether or not a particular application was properly authorised is a matter of fact, it is necessary to provide some evidence about what happened, or did not happen, in connection with authorisation. In the present case, the only evidence filed in support of the strike-out motion was the affidavit of Ms Warren. However, despite the circumstance that the State has had a long time to think about the issue, Ms Warren’s affidavit contains no evidence of that nature; no material that would justify a Court in finding even an arguable case of non-authorisation. Consequently, as it seems to me, the State’s strike-out motion fails to satisfy the condition precedent specified by s 84C.
943 Second, in enacting s 84C, Parliament must be taken to have been cognisant of the fact that this Court has always applied case-management techniques to matters coming before it. Specification of a date for the taking of a particular step in the litigation, including the filing of any strike-out motion, is a commonplace event in this Court. There is no reason to think that Parliament intended to prevent the Court taking that step in relation to a s 84C application; indeed, the contrary. The obvious purpose of s 84C is to avoid the trouble and expense of trials of unauthorised claims. It is conducive to that purpose for the Court to require any party who wishes to put authorisation into issue to do so at an early stage, so that the matter may be dealt with before the trial or, if the judge sees fit, in an ordered way at the trial. It is inimical to the purpose of s 84C(2) to allow a party to ignore a direction about filing a strike-out motion by a particular date, engage in a lengthy hearing and then raise an issue of authorisation without supporting evidence.
944 The principles I have enunciated do not exclude the possibility of a judge giving leave to file a strike-out motion after the specified date. That important qualification is ensured, in this context, by the inclusion, in s 84C(1), of the words ‘at any time’. It might happen, in a particular case, that there was no reason to doubt the application had been properly authorised until certain evidence emerged during the trial. In such a situation, it might be expected that leave would be given. However, that is not suggested to be the situation in this case. As counsel for the State acknowledged in their submission, Ms Webb put questions to many witnesses that were relevant to authorisation. I allowed those questions, not on the basis that authorisation was at issue in this hearing, but on the alternative argument of Ms Webb that they also went to the unity of Noongar society. My impression that the answers to those questions gave Ms Webb (and the State) no joy is supported by Ms Warren’s failure to refer to any of them.
(xi) Disposal of the motion
945 In my opinion, the State required leave to file its strike-out motion out of time. Leave was not sought. Furthermore the motion was not supported by evidence of an arguable case of non-compliance. It follows that the motion ought not to have been filed. The motion having been filed, it ought now be dismissed.
946 The Applicants seek an order for their costs of the strike-out motion.
947 Section 85A(1) of the Act provides that, unless the Court otherwise orders, each party to a native title proceeding must bear his or her own costs. Counsel for the Applicants described this provision as the ‘starting point’ but went on:
‘Where, however, the Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the conduct of the proceeding, the Court may order the first mentioned party to pay some or all of those costs: s.85A(2). The … Applicants seek all of their costs of defending the motion under s.85A(2) because, for the reasons set out earlier in these submissions, the [State] has acted unreasonably in bringing that motion.’
948 The State responded to that submission by saying:
‘To the extent that the [State’s] motion would have been less inconvenient if brought earlier, the paramount explanations are the confusion about how and when the issue of authorisation would be dealt with, and the Court’s failure to explain its own retirement intentions. It cannot, in those circumstances, be either unreasonable or decisive of the motion for the [State] to raise these issues before judgment is handed down.
For the reasons submitted above, the occasion has not yet arisen to consider costs of the strike out application.’
949 It will be apparent that I do not accept the ‘paramount explanations’ identified by counsel for the State. The situation in relation to authorisation was fully discussed between myself and Mr Wright (and Ms Webb) on 11 October 2005. I made my position clear and both Mr Wright and Ms Webb were content to proceed on that basis. There was no ‘confusion’ at any time during the hearing or the making of submissions. I treat the comment about my ‘failure to explain [my] retirement intentions’ with the contempt it deserves.
950 This is a case where a party has acted unreasonably and thereby put another party to avoidable expense. It is appropriate to depart from the usual rule specified in s 85A(1) of the Act and to accede to the Applicants’ application for costs of the motion.
951 No costs application has been made by any other party. Having regard to its support for the motion, it would be inappropriate to make a costs order in favour of the Commonwealth. It seems WAFIC has not incurred significant costs in relation to the motion. Perhaps Mr Wittkuhn’s clients have done so. However, they have not sought a costs order. I propose to reserve the costs position of other parties. Any applications may be made to the provisional docket judge, French J, to whom I will remit the further carriage of this proceeding.
(xii) Concluding comment
952 In my opinion, it would be desirable for all parties carefully to review these reasons for decision and consider their desirable future action. This is litigation, and litigation is normally adversarial. However, this litigation is not a private squabble about money. It is litigation that deals with matters of great importance to the indigenous people of south-west Western Australia and, indeed, to all Western Australians. This litigation has significant implications for what has recently been called ‘reconciliation’ between indigenous and non-indigenous Australians. It ought not be conducted like a game, where one side must triumph over the other. I believe it would be worthwhile for the government and local government respondents carefully to consider to what extent, if at all, their proper functions would be impeded by a formal Determination along the lines suggested by my answer to the separate question. On the other side, it would be worthwhile for the Applicants to consider how they might assist to ameliorate any genuine problem. In short, it would seem to be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.
| I certify that the preceding nine hundred and fifty-two (952) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. |
Associate:
Dated: 19 September 2006
| Counsel for the Applicants: | Mr V B Hughston SC and Ms T L Jowett |
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| Solicitor for the Applicants: | Ms C Cooper, South West Aboriginal Land & Sea Council |
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| Counsel for the State of Western Australia: | Mr S Wright and Mr G Ranson of the State Solicitors Office |
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| Counsel for the Commonwealth of Australia: | Ms R Webb QC |
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| Solicitors for the Commonwealth of Australia | Australian Government Solicitor |
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| Counsel for Western Australian Fishing Industry Council (Inc) | Mr M McKenna of Hunt & Humphry |
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| Counsel representing some Local Government Authorities | Mr P L Wittkuhn |
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| Solicitors for some Local Government Authorities | McLeods Solicitors |
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| Mr C R Bodney appeared in person |
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| Mr K Miller appeared in person |
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| Date of Hearing: | 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 31 October 2005 1, 2, 29 November 2005 5, 6, 7 December 2005 17 February 2006 23 June 2006 |
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| Date of Judgment: | 19 September 2006 |
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