FEDERAL COURT OF AUSTRALIA

Narrier v State of Western Australia [2016] FCA 1519

ORDERS

THE COURT DIRECTS THAT:

1.    The parties in proceedings WAD 228 of 2011 and WAD 302 of 2015 confer with a view to agreeing on the orders and determination to be made by the Court to reflect the conclusions reached in these reasons for judgment.

2.    Any submissions on the question raised in [1280]-[1285] of the Court’s reasons to be filed and served on or before 4 pm on 27 January 2017, and to be limited to 10 pages.

3.    Subject to paragraph 4, the parties file any agreed form of orders and determination within 15 working days of the Court’s decision on the submissions filed pursuant to paragraph 2 of these orders.

4.    In the event that the parties are unable to reach agreement as to the form of orders and determination to be made by the Court, each party file and serve its proposed form of orders and determination within 15 working days of the Court’s decision on the submissions filed pursuant to paragraph 2 of these orders.

5.    The proceedings are adjourned to a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    In general terms, this application for determination of native title concerns an area of approximately 13,600 square km, taking in land and waters situated between the towns of Wiluna in the north and Leonora in the south. The west of the claim area extends over Booylgoo Range and part of Montague Range, and the east of the claim area extends over Mount Keith and Mount Sir Samuel. The title given to the claim – Tjiwarl – is the name of a spring located in the eastern part of the claim area.

2    The application is brought on behalf of a group of Western Desert people, who claim through 11 identified apical ancestors.

3    The connection issues which arise in this case concern whether the claim area was Western Desert country at sovereignty and, if so, whether the ancestors of the claim group members acquired rights and interests in the land and waters of the claim area in accordance with Western Desert traditional laws and customs.

4    I have concluded that there should be a determination of native title in favour of the applicant, subject to my findings on extinguishment and s 47B of the Native Title Act 1993 (Cth) (NT Act).

5    I note at the outset that the applicant is required to prove their case on all issues on the balance of probabilities. That includes on connection issues. A proceeding such as this illustrates the importance of recalling the difference between a court deciding, in an exercise of judicial power, that on the balance of probabilities certain events in the past did or did not occur, or certain circumstances did or did not exist, and a decision attended by some more absolute form of certainty which purports to declare absolutely that history ran its course in a particular way.

6    It is also convenient to note at the start of these reasons that the evidence in this proceeding is, to say the least, considerable. I do not refer to all of it in my reasons. There is a need, indeed a requirement, in my opinion, to strike a balance between the length and complexity of the evidence and submissions in a claim such as this and the need for the Court’s reasons to remain accessible and understandable. Over the last decade, several High Court judges have discussed the functions of judicial reasons, which include giving effect to the “open court principle” by allowing public scrutiny of judicial decision-making (see Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [58] (French CJ and Kiefel J)), promoting sound and reasonable judicial decision-making through scrutiny and accountability, and giving effect to the court’s institutional responsibility to the public: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [89] (Heydon J). Pursuing those objectives in reasons for the determination of native title can be challenging. These reasons represent my findings of fact and law based on all the evidence, and I have identified in these reasons the key submissions and evidence which have been material to the conclusions I have reached. Where I have rejected particular evidence, I say so expressly.

TERMINOLOGY USED IN THESE REASONS

7    The parties both used the term “Western Desert Cultural Bloc” to describe an area and groups of people who observed traditional laws and customs associated with the Western Desert region. The term seems to be traced to the work of Professor Ronald Berndt and what has become known as the “Berndt line”, on which considerable argument turned in this proceeding. It is a term I prefer not to use. I will refer to relevant groups as Western Desert people or non-Western Desert people, otherwise by reference to their traditional group names, where those exist. I will refer to relevant areas as Western Desert or non-Western Desert country.

8    These reasons deal with two related proceedings: WAD 228 of 2011 and WAD 302 of 2015, which I will refer to as “Tjiwarl #1” and “Tjiwarl #2” respectively. Tjiwarl #1 was commenced by the filing of a native title determination application on 17 June 2011. Tjiwarl #2 was commenced by the filing of a native title determination application on 22 June 2015. I set out the procedural background to Tjiwarl #1, which is the principal application, at [39] below, and I address Tjiwarl #2 at [45] below. For the reasons I set out at [45]-[47] below, Tjiwarl #2 is an amplification of Tjiwarl #1, by reference to the application of s 47B of the NT Act. I have elected to use the singular word “proceeding” in these reasons when referring to Tjiwarl #1 and Tjiwarl #2.

9    When I use the term “applicant” in these reasons, I refer to the persons who are authorised to be, jointly, the “applicant” for the purposes of s 61(2) of the NT Act (unless the context indicates that another meaning is intended). Therefore, I use the pronoun “they” for the applicant. When I use the terms “claim group” or “claim group members”, I refer to the members of the native title claim group who authorised the making of the native title determination applications for the purposes of s 61(1) of the NT Act. I also use “claimant witnesses” to refer to those persons in the native title claim group who gave evidence in this proceeding. When I use the term “apical ancestors”, I refer to the persons specified in the native title determination application in Tjiwarl #1 whose “birth, or long association with the area covered by the application” forms the basis of the claim to country of the claim group members, who are the descendants of those ancestors.

10    There was a concession by the State in this case about the perpetuation, substantively unchanged, of the circumstances of Aboriginal people living in the claim area from the date of sovereignty in Western Australia (1829) until approximately 1912. A concession of that kind has occurred in other cases and enables the Court to treat the later date as the relevant one for the purposes of ascertaining the nature and extent of rights and interests in land held by Aboriginal people in occupation of the claim area at that time. See, for example, the observations of Dowsett J in Western Australia v Willis [2015] FCAFC 186; 239 FCR 175 (Pilki) at [2]:

In the present case, sovereignty was claimed in 1829. However, as in many other such cases, there was little or no contact between indigenous and non-indigenous persons for many years thereafter. Hence it can be inferred that there was little change in the relevant indigenous society until more intense contact occurred. This case has proceeded on the basis that such contact occurred in the early 1900s.

11    Although, therefore, the Court proceeds by way of inference in relation to the factual circumstances obtaining in 1829 and those obtaining around (in this case) 1912, I shall nevertheless use the term “sovereignty” as encompassing that inference and meaning around 1912 in this case.

12    Throughout the on country hearing, the applicant’s counsel indicated that the witnesses preferred to be addressed by their first names, and that form of address was adopted. However, in these reasons, I return to a more formal style of referring to people by their surnames.

13    Save as to some issues on extinguishment, the only active respondent was the State of Western Australia. The remaining respondents adopted the State’s position and submissions on connection and took no active part in that aspect of the proceeding. Several did make separate submissions on extinguishment issues. I will refer to “the State” when I am dealing with connection issues. When I am dealing with extinguishment issues, and where necessary, I refer to the other respondents by name.

A note on spellings and names

14    Throughout these reasons I use “Ngaiawonga” as spelt by the applicant in their submissions. Daisy Bates, the woman whose records from the early twentieth century feature so heavily in this claim, spelled the term “Ngaiuwonga”. There are various other spellings, but I have elected to use the one chosen by the applicant.

15    Some of the ethnographic and anthropological material uses names for people and languages that are similar, but not the same, as those used by claimant witnesses. For example, the anthropologist Ken Liberman, who worked in the area in the 1970s, used the term “Tjupany” because that is what he understood his informants to use, whereas the claimant witnesses in this proceeding used “Tjupan”.

16    Where appropriate, I have attempted to retain the name, or label, as used by the witness or source. All these labels are, as Dr Clendon (the anthropological linguist called by the applicant in this proceeding) observed, ephemeral: that is their nature.

Transcript misspellings

17    Although the transcript of the on country evidence is highly accurate in terms of the use and spelling of the large number of group and language names used in this proceeding, the same cannot be said of the transcript of the expert evidence, nor of submissions. This has made the transcript difficult to follow and use. Where it is reasonably obvious what the misspelled word should be (for example, Dupon (incorrect) for Tjupan (correct)) I have not made any specific reference to the misspelling. Where the misspelling is less obvious (for example, Gulara (incorrect) for Kurrawa (correct)), I have made a specific reference to the misspelling, so that the way I have interpreted the transcript is clear.

THE MAIN ISSUES IN THIS PROCEEDING

Connection

18    The connection issues in this case are particular, and can be approached by considering four sets of propositions.

19    First, the claim group members are Western Desert people – the State accepts this. Their traditional laws and customs are Western Desert traditional laws and customs – the State accepts this as well. Further, it is common ground that, at sovereignty, Western Desert people comprised a “society” – as that term was used in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 – which had certain shared customary, legal, linguistic and cultural features. It is also common ground that Western Desert society has continued to exist, and Western Desert people continue to be united by their shared observance of traditional laws and customs in relation to, amongst other things, land and waters. Within that broad society exist subgroups with intramurally recognised rights and interests over particular areas of land and waters. That intramural recognition does not affect the observance by the broader group of Western Desert people (or “society”) of substantively the same traditional laws and customs. One of the critical aspects of Western Desert traditional laws and customs for the purposes of this proceeding is that individuals, families, or groups may move from one part of Western Desert country to another and may potentially obtain rights and interests in relation to the country to which they move.

20    Second, there were Aboriginal people in occupation of the claim area at sovereignty. They, or their descendants, remained in occupation when non-Aboriginal people took up a regular presence in the claim area, which appears to have been from the early 1890s. The laws and customs of those Aboriginal people remained essentially the same from 1829 to the 1890s. The State extends a concession about this status quo further forward in time, to approximately 1912. The State contends these people (which the State calls the “Ngaiawonga”) were not Western Desert people. The applicant (who, with reservations, adopted the term “Ngaiawonga” as well) contends they were Western Desert people, and that the ancestors of the claim group members moved into, and acquired rights and interests in, the claim area in accordance with Western Desert traditional laws and customs. It was, the applicant contends, a movement of Western Desert people within geographical areas governed by, and in accordance with, their traditional laws and customs.

21    In their statement of issues, facts and contentions, filed prior to the commencement of the hearing, the applicant said:

Nevertheless, the influx of non-Aboriginal people into the Claimed Area in the late 19th century and early 20th century:

(a)     materially affected the access by the Aboriginal occupants of the Claimed Area to traditional water and food sources;

(b)     resulted in the spread of diseases to the Aboriginal occupants of the Claimed Area; and

(c)     resulted in conflict between non-Aboriginal people and the Aboriginal occupants of the Claimed Area, and/or between Aboriginal people in occupation of the Claimed Area and other Aboriginal people.

The matters referred to in [the paragraph above] contributed to a situation where, by the early 20th century, those Aboriginal people who were in occupation of the Claimed Area at sovereignty, and the biological descendents of the Aboriginal people in occupation of the Claimed Area at sovereignty, died or moved away from the Claimed Area.

22    It should be noted here that, in final submissions, the applicant was less absolute in submitting that all the original Aboriginal occupants of the claim area had either died out or left by or shortly after 1912. The applicant adopted a more nuanced position in final submissions which, as I develop below, is a position I accept.

23    Third, the applicant accepts that if the claim area was not part of the “Western Desert cultural bloc” (or, as I prefer to express it, was not part of Western Desert country) at sovereignty, then the claim group cannot have a connection to the claim area now by or through traditional laws and customs, because the claim group members are Western Desert people and their laws and customs are Western Desert laws and customs.

24    Fourth, it is common ground that most – and the State submits all – of the apical ancestors of the claim group members were born outside the claim area, generally to the east. It is this feature of the evidence which gives rise to what the State describes as the “migration” issue in this proceeding. Nevertheless, there is a complicated factual matrix concerning where the claim group members’ apical ancestors were born and lived, and what (if any) relationships they had with the Aboriginal people occupying the claim area at times between the late 1800s and approximately 1912. The State contends that, even if the Court rejects its submission that the claim area was occupied by non-Western Desert people at sovereignty, the applicant has not proven that, when the ancestors of the claim group migrated to the claim area, they acquired rights to the land in the claim area in accordance with Western Desert traditional laws and customs.

25    In my opinion, from these four sets of propositions, two lines of inquiry emerge. These are the lines of inquiry that I consider arise on the evidence and submissions; they may not dovetail exactly with the sequence of the parties’ submissions, but I am satisfied they reflect the substance of those submissions.

26    The two lines of inquiry are:

(1)    Who were the people occupying the claim area at sovereignty (that is, up until approximately 1912) and what happened to them after approximately 1912?

(2)    When did the claim group members’ ancestors move into the claim area, what was their relationship before that time to the claim area and to the Aboriginal people who held rights and interests in the claim area when the claim group members’ ancestors came to occupy and use the land?

27    The connection evidence and arguments should be assessed with a view to answering these two lines of enquiry. If these questions are answered favourably to the applicant, then the third question will be whether the applicant has proven the other matters required by s 223(1) of the NT Act, namely the content of the traditional laws and customs observed by the claim group members, whether by those laws and customs the claim group members have a connection with the claim area, and whether that normative system has continued substantially uninterrupted since sovereignty.

Conclusions on the two broad inquiries and other connection issues

Summary of my conclusions on who the people occupying the claim area at sovereignty were and what happened to them

28    I have found that the claim area was occupied at sovereignty by Western Desert people. I have found it is more likely than not that the land and waters of the claim area are, and always have been, Western Desert country. It is more likely than not that the people Daisy Bates called the “Ngaiawonga” were Western Desert people. In my opinion, it is impossible to say with any confidence that “Ngaiawonga” is an accurate label to apply to the people who had rights and interests in the land and waters of the claim area at sovereignty.

29    I have found it is unlikely that, as the State contends, none of the original inhabitants were in the claim area in the early twentieth century. I have concluded that some of the original inhabitants of the claim area were still occupying the claim area when the claim group members’ ancestors came into the country on a more permanent basis, and the claim group members’ ancestors had, or established, relationships with those people.

Summary of my conclusions about when the claim group members’ ancestors moved into the claim area, and what their relationship was to the claim area and the Aboriginal people who previously occupied the claim area

30    The evidence in this proceeding suggests that the claim group members’ ancestors entered the claim area at various times, and had varying degrees of connection and contact with the Aboriginal people who occupied the claim area before sovereignty. I have concluded that at least some of the claim group members’ ancestors knew and interacted with the Aboriginal people who were in occupation of the claim area at sovereignty, and were themselves in and around the claim area at or before that time. It is more likely than not that some of the claim group members’ ancestors had, and were exercising, rights and interests in the land and waters of the claim area before Daisy Bates undertook her work to the north of the claim area. I have found that the original occupants of the claim area recognised the claim group members’ ancestors as Western Desert people entitled to acquire and exercise rights and interests in the country of the claim area in accordance with Western Desert laws and customs, and shared with them knowledge of the Tjukurrpa for the claim area.

Summary of my conclusions on the remainder of the s 223(1) connection issues

31    I have concluded that the traditional laws and customs of the claim group which relate to the acquisition, transmission and exercise of rights and interests in land and waters have been continuously recognised and observed by the claim group and their ancestors in substantially the same form since sovereignty. I have found that there have been some adaptations of the traditional laws and customs of the claim group, but that these adaptations are within existing legal principles and do not reflect a lack of continuity with the normative system which existed at sovereignty.

32    I have concluded that the claim group members have established the existence at sovereignty and the continuous acknowledgment and observance of the following rights and interests in the claim area, in accordance with traditional Western Desert laws and customs:

(a)    the right to possess, occupy, use and enjoy the claim area, to the exclusion of all others;

(b)    the right to access, remain in, and use the claim area for any purpose;

(c)    the right to access and take resources for any purpose, including commercial purposes;

(d)    the right to engage in spiritual and cultural activities in the claim area;

(e)    the right to maintain and protect places and objects of significance; and

(f)    the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert law.

33    I have found that the applicant has not established the existence at sovereignty and the continuous acknowledgment and observance of:

(a)    The right to make decisions about the use and enjoyment of the land and waters in the claim area by other Western Desert people; and

(b)    A separate right to “protect resources and the habitat of living resources” in the claim area.

Conclusions on extinguishment

34    The parties agreed there had been partial extinguishment of native title over the whole of the claim area. Accordingly, subject to the Court’s findings on s 47B of the NT Act, the parties agreed that the right of exclusive possession had been extinguished. The remainder of the extinguishment issues concern the parcels of land in the claim area where non-exclusive native title rights may still survive. Most of the tenure and extinguishment issues were agreed between the parties before trial.

35    Four main issues remain in dispute regarding extinguishment. They are:

(a)    Whether the renewals on 1 July 2015 of the pastoral leases that fall wholly or partially within the claim area are valid future acts;

(b)    Whether two miscellaneous licences (L53/161 and L53/177) were validly granted;

(c)    Whether seven specified miscellaneous licences are valid future acts; and

(d)    Whether s 47B of the NT Act applies to disregard extinguishment in specified areas of the claim area.

36    Determining the first three questions requires answering, among other things, the question whether compliance with applicable procedural requirements in Pt 2 Div 3 of the NT Act is a precondition to a future act having force and effect against native title.

37    On the first three matters, I have reached the following conclusions:

(a)    Non-compliance with the procedural provisions deprives a future act of validity in the sense of having full force and effect against native title interests. I have not adopted the obiter statements of the Full Court in The Lardil Peoples v Queensland [2001] FCA 414; 108 FCR 453;

(b)    The renewals of the pastoral leases on 1 July 2015 were valid future acts and each of the leases will be given the full force and effect against the applicant’s native title;

(c)    The grants of the miscellaneous licences L53/161 and L53/177 were invalid and have no force or effect in relation to the applicant’s native title;

(d)    In regard to the other seven specified miscellaneous licences, two are agreed to have been withdrawn and should not be listed on any determination as “other interests”. In relation to L36/129, this is now “dead”, but in any event I concluded that it satisfies either s 24IB(a) or (b) of the NT Act and, accordingly, the grant had full force and effect in respect of the applicant’s native title. I have concluded that the grants of the licences L36/144, L36/148 and L36/152 were invalid because the procedural requirements under either s 24MD(6B) or 24MD(6A) of the NT Act applied to these licences and were not complied with. Accordingly, I have concluded that these three licences are invalid future acts. Finally, in relation to L53/109, I have concluded, as the State appeared to accept, that it was granted without reference to Pt 2 Div 3 and, as such, is an invalid future act. Each of the licences I have found to be invalid future acts has no force or effect in relation to the applicant’s native title.

38    The parties divided the parts of the claim area to which claims under s 47B attach into eight groups, some of which include more than one parcel of Unallocated Crown Land (UCL): UCL 239, UCL 245 and UCL 246; UCL 14 and UCL 15; UCL 247; UCL 11; UCL 4, UCL 5, UCL 6 and UCL 10; UCL 8; UCL 240; and Road 13. I have found that s 47B(2) is not applicable to Road 13. In relation to the seven other areas, I have found that none of the miscellaneous or exploration licences which cover these areas render inapplicable the terms of s 47B. However, I have concluded that the applicant has only proved occupation of two UCL parcels: UCL 245 and UCL 246. In relation to these two UCL parcels, s 47B of the NT Act applies to disregard extinguishment. I have allowed the parties a further opportunity for submissions on the application of s 47B(2) to UCL 11.

THE APPLICATIONS

Tjiwarl #1

39    Tjiwarl #1 is the principal application for a determination of native title over the claim area. I deal with Tjiwarl #2 at [45] below.

40    The authorisation of the claim was referred to a meeting of the wati (initiated men) in accordance with traditional decision-making processes after the wider community could not reach consensus on certain issues (the claim name and the persons comprising the applicant). The meeting of the wati was held in September 2010. After the outcomes of that meeting were conveyed to the community, the authorisation meeting (for the purposes of s 251B of the NT Act) was held on 29 March 2011. The applicant filed the native title determination application on 17 June 2011. The claim was accepted for registration by the Native Title Registrar on 13 January 2012. There is no dispute that the Tjiwarl #1 claim was properly authorised within the meaning of s 61 of the NT Act.

41    At a case management hearing on 12 April 2012, orders were made by McKerracher J referring the application to mediation either by the National Native Title Tribunal or a Registrar of the Federal Court and requiring the parties to inform the Court of their preferred mediator by 20 June 2012. As the parties did not comply with that order, Barker J made a further order (administratively) on 29 June 2012, listing a case management hearing on a date to be fixed.

42    At the next case management hearing on 2 August 2012, Barker J vacated the mediation orders of 12 April 2012 and referred the application to a case management hearing before a Registrar to give the parties the opportunity to agree or otherwise recommend to the Court the processes by which the connection issues might be resolved by negotiation between the parties. A case management hearing was convened by Registrar Gilich on 17 September 2012 and an order was made requiring the applicant to file a statement of issues, facts and contentions, which the applicant filed on 20 November 2012. The State and several other respondents filed separate responses to the applicant’s statement of issues, facts and contentions.

43    A further case management hearing was held on 21 June 2013 to discuss the outstanding connection issues and to agree on a process to address those issues. At the hearing, the parties agreed that the outstanding connection issues could be addressed by the applicant and the State settling a series of questions that could then be the basis of an expert anthropological report by Dr Sackett. An order was made requiring the applicant and the State to settle such questions, which they did. Dr Sackett’s report was filed on 31 March 2014. I observe here that the questions asked at this stage did not, ultimately, cover anywhere near all of the matters on which Dr Sackett’s expert opinion was relevant. As Dr Sackett himself said, although the report comprehensively addressed all the questions asked of him, it was “not the normal native title [report] that would be provided to the court.”

44    Further case management hearings were held on 11 April 2014 and 16 April 2014, at which the State advised the Court that it required until the end of October 2014 to complete both a legal and linguistic review of Dr Sackett’s report. Case management hearings were also held on 1 August 2014 and 5 September 2014 to resolve outstanding issues and further prepare the matter for trial. On 5 September 2014, orders were made provisionally listing the application for trial and setting deadlines for the filing of outstanding documents. An experts’ conference was held on 24 and 25 June 2015 so that the two principal experts who had prepared reports for the Court in this matter could confer and prepare a joint statement.

Tjiwarl #2

45    The Tjiwarl #2 claim was filed on 22 July 2015. The claim group is the same in both applications, although the persons comprising the applicant are different in each proceeding. In these reasons, when I use the singular word “applicant”, I refer to the applicant in both Tjiwarl #1 and Tjiwarl #2 as constituted.

46    The claim area in Tjiwarl #2 covers the UCL parcels in the Tjiwarl #1 claim area that the applicant claims s 47B of the NT Act applies to. These areas were not identified in the Tjiwarl #1 application, where the applicant stated, under a heading addressing the applicability of s 47B, among other provisions:

No information at present, however should any or all of sections 61A(4), 47, 47A and 47B apply then the applicants will seek to ignore extinguishment in those areas.

47    Accordingly, the Tjiwarl #2 application did specifically identify the areas to which the applicant says s 47B applies.

48    On 27 July 2015, I made orders that Tjiwarl #1 and Tjiwarl #2 be heard together.

49    The State initially submitted that the filing of the Tjiwarl #2 application was an abuse of process. The following exchange occurred during opening submissions:

MR RANSON: They’re not opposed, your Honour. If it assists, we maintain the view that there is a difficulty with the Tjiwarl 2 application, and we suspect, ultimately, we will maintain our submission that it’s an abuse of process, but for present purposes we’re content that the evidence that might be relevant to it can be taken in these two weeks - they can be heard together - and - - -

HER HONOUR: And you will develop the grounds on which you say it can be dismissed which may or may not include - - -

MR RANSON: Yes. Your Honour might recall we had foreshadowed an interlocutory application seeking to deal with that before the hearing. We’re now content, on the basis of the amendment, that all of it can be folded into the hearing and dealt with at the same time.

50    The State’s argument was that, in making the Tjiwarl #2 application at a later date, the applicant’s intention was to require the Court to consider two relevant dates when determining (for the purposes of s 47B(1)(c)) whether the claim group members had occupied the areas said to be subject to s 47B. Aside from the passage I have extracted, the argument was not developed in the State’s final oral submissions (although it was mentioned once more in opening) and was not addressed in the State’s written submissions. Given the findings I have made on the occupation issues for s 47B, it is not necessary to determine the State’s argument, if indeed it remained a live submission at the end of the trial. The occupation I have found proven existed in 2011, as well as in 2015.

THE CLAIM GROUP MEMBERS AND THE CLAIM AREA

51    There have been a number of previous applications for determination of native title that have covered some or all of the claim area. Some of the claim group members were actively involved in those applications. I refer to those previous applications where necessary. The State did not submit any of the previous applications precluded a determination of native title in this proceeding.

The basis for membership of the claim group

52    By final submissions, there was some dispute between the applicant and the State concerning the basis on which the applicant proposed to ask the Court to make any determination of native title. The dispute centred on the description of the claim group.

53    Despite the considerable number of pages occupied in final submissions on this issue, in oral submissions at the final hearing counsel for the applicant submitted that the applicant’s case is and has remained as set out in [63] of their statement of issues, facts and contentions dated 20 November 2012. That paragraph states:

The persons who hold the native title rights and interests in relation to the Claimed Area are those persons:

(a)     who, in accordance with the traditional laws and customs of Western Desert society, have a connection to the Claimed Area through:

(i)    their own birth, or long association with the Claimed Area; or

(ii)    the birth, or long association with the Claimed Area, of their ancestors by which they claim country; and

(b)    in respect of whom that claim is recognised according to Western Desert traditional laws and customs.

54    It is also said by the applicant that the reason the claim group members hold rights and interests in the claim area as a group is that they “collectively have rights and responsibilities in relation to the tjukurrpa of the Claimed Area”.

55    Counsel for the applicant then emphasised that the claim group members were set out in [64] of the applicant’s statement of issues, facts and contentions. This states:

The group of persons who satisfy those criteria at present are:

(a)    In respect of paragraph 63(a)(i) – Lenny Ashwin; and

(b)    In respect of paragraph 63(a)(ii), the descendants of:

(i)    Alfie Ashwin;

(ii)    Piman/Charlie Beaman;

(iii)    Tjampula/Jumbo Harris;

(iv)    Nampu/Scotty Lewis;

(v)    Nimpurru/Spider Narrier;

(vi)    Tjulyitjutu/Rosie Jones;

(vii)    Kathleen Bingham;

(viii)    Kurril/Scotty/Ted/Packhorse Rennie Tullock;

(ix)    Pukungka/Dolly Walker;

(x)    Manyila/Trilby; and

(xi)    Dempsey James.

56    I deal with the situation concerning Lenny Ashwin at [63] to [64] below.

57    It is true that in their initial final written submissions, the applicant referred to other pathways such as conception, high ritual knowledge concerning the area, or responsibility for sites within the area. These pathways are referred to in other parts of the applicant’s statement of issues, facts and contentions (such as [15(a)]) as part of the laws and customs of Western Desert people, and the State admits that to be the case.

58    The variations are, I consider, explained by the applicant’s final submissions at [36(b)], which in turn refers to the applicant’s statement of issues, facts and contentions. At [46] of that document, the applicant contends that the “presently acknowledged” laws and customs governing the claim area emphasise parental and grandparental connection and long association with the claim area as pathways to obtaining rights and interests in land and waters in the claim area, rather than some of the other pathways which may in any given circumstances be available under Western Desert laws and customs, for example conception on country. The applicant contends this is an adaptation of traditional laws and customs. The State contests this.

59    Taking those submissions into account, together with what was said in final submissions and the confirmation that the applicant’s claim is as set out in [63] of the statement of issues, facts and contentions, I proceed on the basis that the applicant contends membership of the claim group is to be determined by reference to the smaller set of pathways set out in [63], while recognising that there are a larger set of pathways available under traditional Western Desert laws and customs.

60    I do not consider, contrary to the State’s submissions, that there has been any attempt by the applicant to elevate the claimant evidence about the various Tjukurrpa to some kind of independent pathway to acquiring rights and interests in the claim area. The Tjukurrpa is the principal manifestation of the claim group members’ rights and interests in the claim area; and a principal manifestation of their contended connection to the area. That is how I have understood the applicant to use the Tjukurrpa.

61    There has been a further issue raised by the applicant, concerning the terms of the description of native title holders in any determination of native title. In summary, the applicant contends for a description which embraces people not yet born who might acquire rights through pathways other than descent. The State contests the appropriateness of any such terms in any determination. The State proposes, and I understand the applicant to accept, that any such issues can await the Court’s decision on the contested matters, and then be dealt with by agreement, or further submissions and determination if need be.

62    In this case, aside from the matters I refer to later in these reasons in terms of how the claim group members’ ancestors came to be in the claim area, there were no particular disputes between the parties, nor disputes arising with any other group of people, about who comprised the claim group. Those who claim rights in the claim area identify with one or more of the apical ancestors.

63    However, I should here mention Lenny Ashwin, who was one of Dr Sackett’s older informants and who was specified as one of the people who satisfies the criteria necessary to hold rights and interests in the land and waters of the claim area. Lenny Ashwin’s mother (Pikuyu, her non-Aboriginal name being Doris) was the sister of Alfie Ashwin, one of the apical ancestors in the claim group. Dr Sackett notes in his report that Lenny Ashwin gave at least two differing accounts of where he was born, one of which was that he was born in the claim area.

64    In final submissions the applicant accepted that, because Lenny Ashwin is now deceased and there are no people who seek to claim rights through him, he should not be included in any determination. The applicant also seemed to accept that the evidence about Lenny Ashwin having been born in the claim area (which was said by the applicant to be the source of his rights to country) was equivocal.

The composition of the claim group

65    The claim group includes, in no particular order, the following persons who each gave evidence in support of the application: Jennifer Narrier, Keith Narrier, Richard Narrier, Kado Muir, Allan Ashwin, Henry Ashwin, Victor Ashwin, Edwin Beaman, Leroy Beaman, Shirley Wonyabong, June Tullock, Allan James, Brett Lewis, Luxie Hogarth, Geraldine Hogarth, Douglas Bingham and Dallas Harris. My understanding is that each family group within the claim group had one or more family members who gave evidence.

66    Ms Narrier, Mr Keith Narrier, and Mr Richard Narrier are siblings and are descendants of two apical ancestors: Dolly Walker (Pukungka) and Spider Narrier (Nimpurru). Mr Muir is the half-brother of Ms Narrier, Mr Keith Narrier and Mr Richard Narrier, sharing the same mother. He is a descendant of Dolly Walker (Pukungka).

67    Mr Allan Ashwin, his younger brother Mr Henry Ashwin, and Mr Allan Ashwin’s son Mr Victor Ashwin are all descendants of Alfie Ashwin. Mr Edwin Beaman and his son Mr Leroy Beaman are descendants of Charlie Beaman (Piman).

68    Ms Wonyabong is a descendent of Trilby (Manyila). Ms Tullock is a descendant of Scotty (Ted) Tullock. Mr Allan James is a descendant of Dempsey James. Mr Brett Lewis is a descendant (by adoption) of Scotty Lewis (Nampu). Ms Geraldine Hogarth is a descendant of Rosie Jones (Tjulyitjutu). Mr Bingham is a descendant of Kathleen Bingham. Ms Harris is a descendant of Jumbo Harris (Tjampula).

69    The applicant’s submission, which I accept, is that the claim group members constitute a group capable of recognition under the NT Act because they are all persons who, under Western Desert laws and customs, have rights and responsibilities for the Tjukurrpa of the claim area. The evidence clearly establishes that they recognise each other as members of the group, with rights and interests under traditional laws and customs in all of the claim area, but with differing rights and responsibilities for particular parts of the claim area. The division of responsibility is in accordance with the pathways mentioned above: namely, birth or long association of the claim group member or their ancestors.

A claim for group native title

70    The applicant identifies the nature of the native title rights claimed as group rights. They submit:

A finding of group native title within the broader Western Desert cultural bloc society was made in De Rose v South Australia. The Full Court in De Rose v South Australia (No.2) (2005) 145 FCR 290 at [44] said:

“ … the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks). Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area. The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary judge for identifying Nguraritja … On the appellants’ case, native title rights and interests over the claim area will not cease on the death of the last survivor among them.”

This is consistent with what has been said in a line of cases concerning the nature of a native title claim group under the NTA. In Brown v State of South Australia [2009] FCA 206 at [19] Besanko J said that a native title claim group under the NTA is a group consisting of all the persons who, according to their traditional laws and customs, have the common or group rights or interests comprising the particular native title claimed. At [20] his Honour noted however that: “it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group”.

The facts and findings in De Rose on this issue were also discussed by Lindgren J in Harrington Smith v Western Australia (No. 9) [2007] FCA 31; 238 ALR 1 at [503]ff. In that case his Honour distinguished De Rose on the facts. At [930] he concluded that there were people outside the various claim groups who had rights and interests within or partly within the various overlapping claim areas, and people within the claim groups who had rights and interests at least partly outside the claim area of their claim group. His Honour said: “The level and form of aggregation has been adventitious, resulting from political affiliations at the times when the respective groups were composed. In the overlap areas, individuals might just as well have been in a different group. Pre-sovereignty laws and customs have not dictated the existence of the groups or their composition”. See also [1154]-[1159].

This claim is clearly distinguishable from Harrington-Smith. It is brought on a similar basis to that in De Rose i.e. on behalf of a group that exists in accordance with traditional law and custom, being all the persons who together have rights and responsibilities in relation to the tjukurrpa of the Claimed Area in accordance with the mechanisms referred to in Applicants SIFC [15(a)]. See Applicants SIFC [15(b), (c)], [31], [32], [36]-[38], [42]-[47], [63]. Those mechanisms include, as a necessary condition, recognition. Thus if it is correct to say that group rights do not arise directly from the laws and customs of the society but are mediated through the group (cf paragraph 127), then that is satisfied in this case because those members of the native title holding group from time to time are those whose claim to have rights in the Claimed Area through one or more of the possible mechanisms (or pathways) must be recognised by the group as having such rights. That is the case with the claim group referred to in Applicants SIFC [64].

As with De Rose, the claimants do not claim to be a linguistic or dialect group. Also as with De Rose, the Claimed Area principally comprises pastoral stations which fall within a larger area in which the claimants have rights and interests (see Harrington-Smith (No.9) at [512]). The Applicants do not understand those matters raise any issue in these proceedings.

71    The State did not cavil with these propositions and their application to the current proceeding.

72    I accept the applicant’s submissions, and proceed on the basis the group has been sufficiently identified.

The claim area boundaries

73    The northern, eastern and southern boundaries are by reference to pastoral lease boundaries and are therefore arbitrary. The western boundary is by reference to two sets of ranges (Montague Range and Booylgoo Range), thus by geographical features, and is explained in the evidence by the claimant witnesses by reference to the outer limits of the country for which they can speak.

74    Mr Keith Narrier addressed the artificiality of the boundary from the claim group members’ perspective, and by particular reference to the Barwidgee area, outside the north-east claim boundary. His evidence is emblematic of why some flexibility needs to be applied to the evidence (lay and ethnographic) about “areas” and “boundaries”, because lines on maps in the way the NT Act compels them to be drawn do not reflect traditional understandings, in accordance with Aboriginal laws and customs, of boundaries and, it would appear, particularly not for Western Desert people. Mr Narrier explained:

My father’s country is all that there now; that Tjiwarl claim. But he was born in Barwidgee. Both sides are special to him, they didn’t have boundaries like this here today; they just travel around up and down like that. I don’t know why they have the boundary like this; that’s Tjiwarl country they just put it like that. The old people didn’t have this boundary, nup. They still would have went past that boundary, it didn’t make any difference to them, It’s the same today, we don’t have boundaries like this [claim boundary].

75    Mr Allan Ashwin gave similar evidence, in unequivocal language:

We don’t have boundaries, that’s bullshit. Country is country; you go from one waterhole to the next. Like when people used to go before any stations was there, people would go from water to waterhole, where there is permanent water like a spring.

When it’s a good season they go to all the little rockholes from one claypan to the next. There was no boundaries, they know that they go one side there might be a family group over there; they might make a fire and that other family would make a fire and they would see the smoke and go over. There’s a water hole over there they might go and meet, they know that’s their country and this is our country, like that.

Sovereignty: dates

76    It is not in dispute in this proceeding that the date of sovereignty, in relation to Western Australia, is taken to be a reference to 2 May 1829, being the date on which the British government formally took possession of what was then called the Swan River Colony: see Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373 (Native Title Act Case) at 424.

77    The parties, and in particular the State, also accept that there were no Europeans in the claim area, or regions around it, until the late 1800s. The State accepts that the group of Aboriginal people who were in occupation of the claim area in the late 1800s were the same group of people (or their descendants) as those who were in occupation at sovereignty in 1829.

78    As I have already noted, the State also accepts that the same group of Aboriginal people remained in occupation of the claim area into the early 1900s, until around 1912. In final submissions, counsel for the State accepted the proposition that, whichever Aboriginal people were occupying the claim area in around 1912 (at the time Daisy Bates conducted her research, including speaking to some informants who told her about the situation in areas covered by the claim area), were likely to have been the same people who occupied the claim area at sovereignty. The State’s thesis is that those original occupants left or died out and the claim group members’ ancestors moved in from about the 1920s onwards (but mostly between the 1930s and the 1950s) introducing their own Tjukurrpa to the country, and that is what was passed on thereafter.

History of non-Aboriginal presence in the claim area

Early contact with non-Aboriginal people

79    There is no historical record of non-Aboriginal people being present in the claim area before the second half of the nineteenth century. Non-Aboriginal people moved occasionally through the claim area in the second half of the nineteenth century.

80    In 1869, John Forrest’s party passed through the claim area, naming Depot Springs, Mount Leonora and other geographic features, as well as commenting on encounters with Aboriginal residents. In 1892, the Elder Scientific Exploring Expedition crossed part of the claim area.

81    From 1892, David Carnegie prospected in and around Coolgardie and, in 1895, moved to the Lawlers and Lake Darlot areas. He later described the mining camps already established there. Carnegie also wrote of the involvement of Aboriginal people in prospecting expeditions:

A good many prospectors, depending on their black-boys almost entirely, wander from one range of hills to another, dodge here and there for water, keep no count or reckoning, and only return by the help of their guide when the “tucker-bags” are empty ...

(Footnotes omitted.)

82    In 1896, Lawrence Wells passed through the Lake Way area with the Calvert exploration party. May Vivienne travelled through the claim area from 1899 and later wrote and published a book about her experiences. H.G.B. Mason, a surveyor, travelled through the Sandstone region and the western part of the claim area in 1900.

83    As well as Daisy Bates, the anthropologists Norman Tindale, Jud Epling and J Birdsell all spent time in the claim area on expeditions during the 1920s and 1930s.

Early mineral discoveries

84    The early 1890s, when gold was discovered in the area, was the beginning of a more consistent non-Aboriginal presence in the claim area.

85    By 1892, approximately 3,000 prospectors were arriving in Western Australia each month, most of them streaming out to the Eastern Goldfields and Murchison Goldfields. Gold was discovered in or near the claim area:

(a)    at Leinster in 1892;

(b)    at Lawlers in 1894;

(c)    at Leonora in 1894;

(d)    at Sir Samuel in 1895;

(e)    near Wiluna (at Lake Way) in 1896;

(f)    at Kathleen Valley in 1897;

(g)    at Sandstone in the early 1900s; and

(h)    at Vivien in the early 1900s.

Non-Aboriginal settlements

86    As a result of the discovery of gold, more permanent settlements arose across the claim area from the mid-1890s. The claim area overlapped the East Murchison Goldfield, which was proclaimed in May 1895.

87    Within 12 months, there had been 200 gold-mining leases taken up and Lawler’s Patch (Lawlers) had been chosen as the centre of the district. By 1896, gold was also being sought at reefing centres including Lake Darlot, Lake Way and Mount Sir Samuel.

88    From 1895, railway lines were extended from Cue to Mullewa to shorten the distance for carting goods, water and mail, which came across from the Murchison Goldfields district to the west (rather than from the Kalgoorlie area).

89    Town sites were gazetted at:

(a)    Lawlers in 1896;

(b)    Sir Samuel in 1897;

(c)    Leonora in 1898;

(d)    Wiluna in 1898;

(e)    Kathleen (formerly Kathleen Valley) in 1900;

(f)    Vivien in 1906;

(g)    Sandstone in 1906; and

(h)    Leinster in 1981 (although workings developed in the area in 1899-1900 and significant production of gold occurred between 1900 and 1906).

90    By 1900, the population of the East Murchison Goldfield was 1,209. A railway link from Leonora to Kalgoorlie opened in 1902. A weekly mail service operated from Mount Magnet to the East Murchison Goldfield by 1903. Western Australia’s gold production peaked in 1902 and was in decline until 1930, when production began to increase again.

Pastoral activity in the area

91    Pastoral interest in the claim area grew after the initial peak of gold production had passed (that is, from around the start of the twentieth century).

92    By 1903, the East Murchison area was described as a “promising pastoral district”, with The West Australian reporting: “Nearly the whole of the country around Lake Darlot and Sir Samuel has been taken up in leases, and stocking operations are in progress”.

93    By 1928, pastoral operations were well established in the Goldfields from Sir Samuel to Wiluna, including: Lake Violet, Yakabindie, Vandal, Munroe, Mount Grey, Banjewarn, Bandya, Depot Springs, Mount Keith, Albion Downs, Lake Way, and Abercrombie Well.

Aboriginal employment in the pastoral industry

94    Aboriginal people were employed on pastoral leases in the claim area throughout the twentieth century. In 1909, Keyser reported that Aboriginal people were working on a station near Lake Darlot. Aboriginal people “also gave a hand at various times” on Yeelirrie Station in the 1920s.

Government authorities

95    Government authorities such as the Protector of Aborigines operated in the claim area from the early twentieth century. C.A. Bailey inspected the claim area in 1896-1897 in order to provide a report for the Aborigines Protection Board.

96    Travelling inspectors visited the claim area throughout the early twentieth century on behalf of the Protector of Aborigines, reporting on the conditions of Aboriginal residents.

97    In the early twentieth century, rationing for Aboriginal residents was provided at various locations in and around the claim area, including Lawlers and Wiluna.

Other authorities

98    Aboriginal people also encountered other authorities in the claim area over time. Aboriginal people were utilised as trackers or assistants by the Western Australia Police throughout the late nineteenth and early twentieth centuries. A tracker was requested for Lawlers Police Station in 1926.

99    In 1955, the Wiluna Mission was established by the Western Conference of the Seventh Day Adventist Church. The mission also operated a kindergarten and a primary school and sought to arrange station employment for a number of older children in the wider adjoining area.

100    Several hundred Aboriginal families attended the mission in the years of operation, through to 1975. The Wiluna mission became the Nganganawili Village in 1983.

THE COURSE OF THE TRIAL

101    The trial was divided into two parts: an on country hearing dealing with connection issues and a further hearing in Perth dealing with expert evidence and extinguishment issues. Final submissions were also taken in Perth.

Connection hearing in July 2015

102    The connection hearing was held at a number of locations throughout the claim area. When not travelling, the Court convened in Leinster. The Court convened exclusively at Leinster on the final two days of the hearing and also on the fifth day of the hearing.

Day one: 27 July 2015

Henry’s Well/Ngarlpurti

103    After the parties’ opening submissions, the Court travelled to the site of Ngarlpurti, also known as Henry’s Well. Ngarlpurti is associated with the Two Carpet Snakes Tjukurrpa and also with the Dragonfly Man Tjukurrpa. A chain fence cordons off two small rock holes which form part of these Tjukurrpa. The remains of a concrete water tank and a windmill also lay at this site. Ms Wonyabong and Mr Muir gave some of their evidence at Ngarlpurti.

Townsend Well/Tjumpurka (view only)

104    The Court attended Tjumpurka for a view of the site only. The site, which was under water at the time of the on country hearing, is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. No evidence was given at this site.

Lake Miranda/Yulkapa

105    In the afternoon of the first day of the hearing, the Court attended Yulkapa, a red sand hill located inland from the banks of Lake Miranda. Yulkapa is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Ms Wonyabong, Mr Muir and Mr Leroy Beaman gave evidence at Yulkapa.

Day two: 28 July 2015

Yakabindie Claypan/Yakamuntu

106    On the second day of the hearing, the Court attended Yakamuntu, a large claypan located on Yakabindie Station. Yakamuntu, which was underwater at the time of the on country hearing, forms part of the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Both Ms Wonyabong and Mr Muir gave evidence at this site.

Jones Creek/Ngurlu Wiriwiri

107    After attending the Yakabindie claypan, the Court drove to Ngurlu Wiriwiri, also known as Jones Creek. Ms Tullock gave evidence at this site, including that her father was born at Jones Creek, although she was unable to recognise the crossing the Court attended.

Mail Change Well/Tjilpur

108    The Court then attended Tjilpur, which is also known as Mail Change Well. This site is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Mr Muir was the only witness to give evidence at this site.

Logan Spring/Tjiwarl/Tjiwarl Rock and Tjiwarl Soak

109    On the afternoon of the second day the Court attended Tjiwarl, also known as Logan Spring. Tjiwarl, which means “shining”, is the site from which the claim area takes its name. A large gum tree stands at the base of a natural spring. A rock at the base of the spring is carved with the date “1920”. A large rock face is located adjacent to Tjiwarl. Tjiwarl is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. Ms Wonyabong, Mr Muir and Mr James gave evidence at Tjiwarl.

Day three: 29 July 2015

Palm Sping/Pii

110    On the third day of the hearing, the Court travelled to Pii (also known as Palm Spring), a natural spring surrounded by palm trees. The area is also associated with the Two Carpet Snakes and Dragonfly Man Tjukurrpa. The Court was welcomed by Mr Muir and several other male claim group members to the area. Strangers to the area were invited to cleanse themselves with water from the natural spring. Ms Wonyabong and Mr Muir gave evidence at this site, including on the relationship of this site to the Two Carpet Snakes and Dragonfly Man Tjukurrpa.

Yakabindie Homestead

111    On the afternoon of the third day of the hearing, the Court convened in the grounds of the Yakabindie Homestead. Ms Wonyabong and Ms Tullock completed their evidence at the Yakabindie Homestead. Yakabindie Station and the Yakabindie Homestead are important areas for many of the individuals who gave evidence at the hearing.

Day four: 30 July 2015

Pulyku Quarry

112    The Court commenced the fourth day of the hearing at the Pulyku Quarry. The Pulyku Quarry is covered by shale rock and quartz. Mr Lewis gave evidence at the Pulyku Quarry. A mound above the quarry provided a vantage point.

The Lady

113    The Court later attended a site known as The Lady. The site is named after a rock formation that resembles the profile of a female face. The Court convened at the top of a large rocky outcrop. Mr Lewis gave both non-restricted and male gender restricted evidence at The Lady.

Booylgoo Range/Pulyku

114    The final stop on the fourth day of the hearing was at Booylgoo Range, also known as Terracotta or Pulyku. The low mountain range is associated with the wild potato Tjukurrpa. Ms Narrier, whose totem is the wild potato, gave evidence at the site. Ms Narrier demonstrated how a wild potato can be found and showed the Court that vines entangled in trees and shrubbery indicate the presence of wild potatoes in the earth below.

Day five: 31 July 2015

115    The fifth day of the hearing was held at the Leinster Tavern.

Day six: 2 August 2015

Mount Townsend and Mount Marion

116    On the sixth day of the hearing, the Court convened at a location close to both Mount Townsend and Mount Marion on the Sandstone-Wiluna Road. On the way to the location, the Court stopped at a rock hole on Yeelirrie Station Homestead. The area is associated with a Tjukurrpa story restricted to initiated men. Mr Allan Ashwin and Mr Victor Ashwin gave unrestricted evidence before the luncheon adjournment. Following their evidence, a kangaroo was slaughtered and prepared in the traditional way by an initiated male member of the claim group. Mr Allan Ashwin and Mr Bradley Wongawol showed the Court the traditional method of butchering and cooking the animal. Following the demonstration, the Court travelled further along the Sandstone-Wiluna Road where Mr Allan Ashwin, Mr Victor Ashwin and Mr Keith Narrier gave male gender restricted group evidence. Mr Richard Narrier and Mr Henry Ashwin were also present, as was Dr Sackett. Following the restricted evidence, the Court shared in eating the kangaroo that had been prepared and cooked in the traditional way, along with damper cooked by claim group members.

Day seven: 3 August 2015

Leinster Soak/Warkarra and hearing venue

117    The seventh day of the hearing commenced at Leinster Soak, also known as Warkarra. Members of the claim group welcomed the Court to the area through song. A hole was then dug out of the earth. Shortly after the hole was dug out, water rose up from underneath the ground, filling the hole with water. The Court then walked to the top of a rocky outcrop to view the surrounding area.

118    The Court then convened back at the hearing venue, where Ms Luxie Hogarth, Ms Geraldine Hogarth and Ms Harris gave evidence.

Day eight: 4 August 2015 and day nine: 5 August 2015

119    The eighth and ninth days were held at the hearing venue at the Leinster Tavern.

Further tranches of the proceeding held in Perth

Expert and extinguishment evidence: 27-29 October 2015

120    There was a further tranche of the proceeding held in Perth over three days in October 2015, during which Dr Clendon gave expert linguistic evidence, the parties discussed and, in the case of the first respondent, led evidence in relation to extinguishment issues, and the two principal experts who prepared reports for the Court in this matter (Dr Sackett and Dr Brunton) participated in a concurrent expert evidence session.

Final submissions: 8-10 December 2015

121    Final submissions were heard in Perth from 8-10 December 2015.

CLAIMANT WITNESSES

My approach to the claimant evidence

122    There is no suggestion that any claimant witness in this proceeding was doing anything but their best to give accurate and reliable evidence.

123    As the applicant’s submissions point out, there was no real challenge in cross-examination to the credibility of the claimant evidence. There were, however, points of detail which were challenged as to accuracy; where those are significant, I examine them elsewhere in these reasons.

124    Some witnesses may have been more forthcoming than others. Some might be said to have more direct sources. Some might be said to have given more of a contemporary flavour to their evidence: this factor might mean that some witnesses’ evidence has more relevance to historical issues of connection, and other witnesses’ evidence has more weight in relation to continuity. Overall, I found the claimant witnesses to be persuasive. I say more about each witness below. However, there are some propositions fundamental to my approach to what the claimant witnesses have said in this proceeding which I should make clear.

125    In the absence of any challenges to credibility, I have taken what the claimant witnesses have said about their family history and their connection to country as their true understanding. That is in the context of a culture where identification with country, rights to country and entitlement to speak for and protect country are paramount. I do not accept that the claim group members and their ancestors have somehow invaded or usurped the claim area and purport to speak for it without genuine belief that they, and their ancestors, have authority to do so. Acceptance of the State’s case involves accepting that the grandparent generation of the claim group were purporting to do something they were not entitled to do: that is, to speak for country with which they had no traditional connection through laws and customs. It seems to me it also involves accepting that they knew they had no such authority. There is no basis to find that is what they were doing.

126    In a different context under cross-examination, Dr Clendon made a similar point in relation to Bates’ informants:

I mean, what you’re saying is certainly possible, but if people are coming out reporting to Daisy Bates that they are from a particular place and they speak a particular language, it’s likely that they were from that place and they did speak that – that language.

127    An approach of this kind was taken by Selway J in Gumana v Northern Territory of Australia [2005] FCA 50; 141 FCR 457, where his Honour said, in the context of the issue of exclusive possession raised for decision in that case (at [208]):

But on the ultimate question was [sic] whether there was a right of exclusive possession, there was no dispute that the clans had a right of exclusive possession to their country which right was subject to various rights in others — all witnesses were relevantly in agreement as to that fact. Undoubtedly it is possible for a court to reject all of the evidence before it on the basis that none of it is creditable. But in this case there has not been any submission that the witnesses were not telling the truth. If the persons who know the relevant Aboriginal tradition give evidence to the Court that it consists of a right to exclude, then save for issues of credit or misunderstanding I can think of no reason why I should not accept their evidence.

128    In this section, I set out my impressions of each claimant witness, the witness’s family connections, and a brief summary of the witness’s evidence.

129    The findings I make about family connections are based on the claimant evidence and the genealogies that were prepared by Dr Sackett and tendered by the applicant. The State did not object to the accuracy of those genealogies. In some circumstances, I also rely on Dr Sackett’s reports, and his opinions about various family connections. One purpose of considering the family history and connections of the claimant witnesses is to inform the Court’s findings concerning which, if any, Aboriginal people occupied the claim area at approximately 1912. It will be recalled that the agreed position in the parties’ submissions is that the Aboriginal people who occupied the claim area at approximately 1912 can be taken to be the same people, or descendants of the same people, who occupied the claim area in 1829, at sovereignty, and in the 1890s, when non-Indigenous people first made contact with Aboriginal people in this part of Western Australia.

130    The issue of which, if any, Aboriginal people occupied the claim area in approximately 1912 is critical to the determination of a number of the factual issues in this case. It assists in the determination of the State’s “migration” thesis. It assists in determining whether the Ngaiawonga were a separate people and whether (as the State contends in a reasonably absolute way) they died out or moved away from the claim area soon after 1912. It assists in determining how long the traditional laws and customs about which the claimant witnesses gave evidence have connected the claim group members and their ancestors to the country in the claim area.

131    It also assists in evaluating the weight that should be given to historical ethnographic material, such as that prepared by Daisy Bates, and to other ethnographic and anthropological material. Finally, it assists in determining the appropriate context for the consideration of the anthropological opinions expressed in this proceeding.

132    The artificiality of the claim boundaries, as I have noted above, should be borne in mind. When claimant witnesses describe ancestral connection to country, it would be unreasonable to expect them to do so by reference to European boundaries.

133    A good example of the claimant witnesses affirming the artificiality of the claim boundaries is the following evidence of Mr Keith Narrier (in speaking about his father’s birth at Barwidgee):

The old people didn’t have this boundary, nup. They still would have went past that boundary, it didn’t make any difference to them[.]

134    The preponderance of evidence about where ancestors and family members were born is also important. In his first report, Dr Sackett said (at [48]):

… the named apicals and/or their ancestors were said to have been born either on the claim area itself or in areas to the northeast, east or southeast of it. None of the named apicals or their ancestors were recorded as having been born in, or having associations with, lands to the west of the claim area.

135    This is consistent with much of the claimant evidence, some of which I have reproduced elsewhere. A further example is the evidence of Mr Richard Narrier about people from the claim area and the Darlot/Weebo area all being “one mob”, and recounting how his grandfather used to walk between Mungkali (also spelled “Mangkali”), Barwidgee, Weebo, Darlot and the claim area. These are long distances.

136    In a similar way, when Mr Allan Ashwin spoke about meetings between people from the claim area and people to the east at law grounds, he indicated that this kind of interaction had been going on for a long time, observing that he was in his sixties and “it was well before [him] that they were going to those places”. The State’s approach would require me to find Mr Ashwin’s evidence was wholly mistaken, and I do not consider it is.

137    The State does not dispute that the claim group members and their ancestors are Western Desert people. I consider this fact is not insignificant in assessing what conclusions can be drawn from the claimant witnesses’ accounts of these movements from the north and the east into the claim area. It is consistent with the hypothesis that the claim area is Western Desert country. It seems inherently unlikely that Western Desert people would feel entitled to move into non-Western Desert country in times when Aboriginal people were still living largely traditional lives. This might well explain why there is no substantive evidence of the movement of people from the west into the claim area: that is, because that would have involved movement of Aboriginal people belonging to one society into the country of a different society.

138    Finally, I note the terms of a submission made by the State in relation to the apical ancestor Jumbo Harris, whom I discuss below. The State’s submission is:

The evidence of Jumbo’s association with the Claimed Area is of occasional travel through it en route from Leonora to Wiluna. The evidence is that he never resided in the Claimed Area. The evidence is clear that Jumbo was primarily associated with the Thurraguddy area.

(Emphasis added; footnote omitted.)

139    In my opinion, a focus on “residence” – putting to one side how easily or uneasily that sits with evidence about traditional Aboriginal ways of life in these areas – distracts from the approach required by the NT Act. The Act requires assessment of whether a person or group holds rights or interests in accordance with traditional laws and customs over the subject land. It does not ask whether a person “resided” on the land.

140    The distances covered by people, at least until the early twentieth century, are also relevant to assessing whether the claim area was Western Desert country, and more particularly how and why the claim group members’ ancestors moved into it. Ms Harris gave some helpful and reliable evidence on this issue:

My dad and his brothers were born in different places. Uncle Les was born in Darlot, Uncle Dan was born in Laverton, near Mia Mia somewhere. Uncle Arnold was born out in the bush, between Thurragaddy and Mulga Queen. They were born in such different places because my grandparents, Jumbo and Bella, travelled around a lot for law business, and moving with the seasons, for hunting and gathering food. Mulga Queen would be half way for the law business for old peoples. So if they were coming from other side of Tjukarli, they would walk, camp at Mulga Queen and do their law practice. Then people would walk on to Wiluna. In those days it would take 3 to 6 months. There was no horse and cart, they had to walk the distance. My mum and my old aunties told me about that.

141    These are very long distances. The distance between Tjukarli and Mulga Queen is approximately 385 km as the crow flies. The distance between Mulga Queen and Wiluna is approximately 190 km as the crow flies.

Shirley Wonyabong

142    Ms Wonyabong was a somewhat shy and softly spoken witness, but her evidence was very clear, including in cross-examination. She was clear about what she did and did not know and what she could and could not speak about. She sometimes appeared to know much more than she was willing to say.

143    As she gave evidence over a series of days and site visits, her confidence and comfort with the process appeared to increase, which resulted in her volunteering a little more by way of evidence. She knew her country and its Tjukurrpa well, but did not necessarily have a deep knowledge of other customs. For example, she did not follow the ‘skin system’.

144    I accept her evidence that her knowledge was based on what she had learned from, and been told by, her family. Although it is clear she also learned some information from station owners, in my opinion the connections to her country were forged when she was very young and included receiving knowledge about her country from family members who were consciously passing that knowledge to her. For example, her witness statement included the following passages:

My dad told me that Yeelirrie and Albion Downs was my country, our country. I get my country through my mother Trilby, and through my father, but more from my mother. My connection to the country around Wiluna is through my father. Only some of your family tree got to be from the country. You can claim both sides of your family.

…

My father used to talk to me about the Wangkalara hill near Albion Downs and he talked to me about Palm Springs. He learned about it because he was a man, and all the old mens knew. The old men know the dreamtime stories. They never told me where they learned the stories; they just told me that they knew it from a long time.

145    In oral evidence, she also indicated that traditional knowledge about a “small soak” had been given to her by “Aunt Angeline and my father” and that “[a] lot of old people”, including her aunt Doris Fahey, had told her that her cousin Scotty Tullock had been born at Jones Creek, in the claim area.

Family connections

146    Ms Wonyabong said her father, Micky Wonyabong, was born “somewhere north of Granite Peak station”, on the Canning Stock Route north of Wiluna. Her source for that information was family research papers. That location is a fair way north, and a little east, of the claim area. According to Dr Sackett, Micky Wonyabong was born in 1898 and died in 1973. Dr Sackett also noted that he came from the area of the Birriliburu native title consent determination (see Patch on behalf of the Birriliburu People v Western Australia [2008] FCA 944 (Birriliburu); see also BP (Deceased) on behalf of the Birriliburu People v Western Australia [2016] FCA 671), which on the evidence is a determination over an area to the north-east of the Wiluna determination (see WF (Deceased) on behalf of the Wiluna People v Western Australia [2013] FCA 755 (Wiluna)). Ms Wonyabong’s mother, whose name was Trilby or Manyila, was born in a shearing shed on Barwidgee station. That appears to be just outside the north-eastern part of the claim boundary, but as the northern and eastern boundaries of the claim area are artificial boundaries I do not consider that Trilby being born there is material to the issues in this proceeding. The position would be no different if she had been born a few kilometres south-west inside the artificial boundary of the claim area.

147    Earlier ethnographers referred to by Dr Sackett described Trilby as a Tjupan woman from around Wongawol. Relying on these sources, Dr Brunton in his supplementary report expresses a view that Trilby was born in Wongawol. However, I prefer Ms Wonyabong’s own evidence about where her mother was from: namely, that she was born on Barwidgee station. It is unclear where the “Tjupan” label came from, or who first attached it. Ms Wonyabong did recount that her mother’s parents came into Barwidgee from Wongawol, and she relates this to violence against Aboriginal people by a pastoralist named Tommy Mellon that occurred around Wongawol. While Ms Wonyabong could not give an approximate date on which her grandparents moved from Wongawol, other evidence (including the oral evidence of Mr James and an opinion of Dr Sackett) indicates that the violence to which she referred took place in the early 1930s.

148    Ms Wonyabong claims through her mother’s side. She herself was born in either Wiluna or Meekatharra, but she explained that, unlike when a person is born on country, being born in a town “doesn’t make that place your country” and instead “[your] place is where [your] mother and father are from”. Her evidence was that, at the time she was born, her parents were living on Yeelirrie station in the claim area, where she was conceived. Hence she could “talk for Yeelirrie”, as well as other places in the claim area. Her cousin, Harvey Scadden, was born on Barwidgee station, and his mother (Ms Wonyabong’s mother’s sister) lived in Yeelirrie and Yakabindie in the 1940s.

149    Ms Wonyabong gave evidence that her parents met at Yakabindie in about 1942 and travelled together to Yeelirrie in 1942 or 1943. Ms Wonyabong was born in 1949. She has one sister, Lizzie, who is about the same age as her. If Trilby was in her mid-twenties or so when she had her two daughters, that would mean Trilby was born in the early to mid-1920s. Recalling that Ms Wonyabong’s father was born, according to Sackett, in 1898, this might mean her mother was considerably younger than her father. However, Ms Wonyabong’s evidence was also that, at some stage prior to meeting her father, her mother lived with a non-Indigenous man on Banya station, closer to Darlot and near Mulga Queen. Her mother was looking after Harvey Scadden at that time. This might indicate that her mother was born earlier, perhaps in the first decade of the twentieth century, and was somewhat older when she gave birth to Ms Wonyabong and Lizzie. The evidence is inconclusive on this matter.

150    If Ms Wonyabong’s mother was born on Barwidgee station, this seems to me to be close enough to the claim area (on the evidence, about 9 km as the crow flies) that it is appropriate to describe her mother as “from around” the claim area, recalling that birth on country is one of the pathways to rights and interests in country (and bearing in mind the State does not dispute that Ms Wonyabong’s family are Western Desert people). Ms Wonyabong’s evidence was that she could speak for certain areas in the north-east of the claim area. Her mother may have been born in the area only 8-10 years after Bates was interviewing those who identified to her as “Ngaiawonga”.

Kado Muir

151    Mr Muir was a confident and articulate witness. Like Ms Wonyabong, he gave evidence at several different sites and took the Court walking around several sites, including Tjiwarl (also known as Logan Spring). At Pii (also known as Palm Spring) he and several other younger men conducted a ritual which he said was necessary to “greet” the water snake that lived in the spring, and to avoid the visitors being harmed. When asked about this ritual and why it needed to be performed at this site, while no rituals had been required at Tjiwarl, I found his explanations lacked depth.

152    At times, I found it difficult to determine whether Mr Muir’s knowledge had been gained through his own studies and reading or through the handing down of knowledge in traditional ways. That is not to diminish the breadth of his knowledge and his genuine desire to be as well-informed as he can about his culture and about the country to which he has a connection. Nor is it to doubt the sincerity of the connection he feels to the claim area.

153    What I found difficult to ascertain, however, was whether Mr Muir’s knowledge was gained in traditional ways and can properly be described as knowledge of laws and customs which have been continuously practiced in the claim area since sovereignty. My impression was that he possessed a hybrid of knowledge: part gained in traditional ways and part gained by other means. That may explain, for example, why his account of the skin system differed from others. It may also explain why aspects of what he said about the Tjukurrpa differed from other accounts. I do not mean this as a criticism of Mr Muir, and certainly I do not question his genuine commitment to his people and his community. However my uncertainty about the sources of his knowledge has led me to place less weight on some of his evidence.

Keith Narrier

154    Mr Keith Narrier was obviously uncomfortable about the process of revealing to a woman matters which are usually kept only between wati. To begin with, he simply listened, but as the evidence continued he began to interject more – sometimes to supplement or explain what was being said, sometimes to correct. On one occasion he interjected to stop Mr Victor Ashwin, clearly being of the view that Mr Ashwin had gone far enough in what he said. This was, it seems to me, a living application of traditional law: the enforcing of limits set by traditional law to ensure that normative rules about who can possess certain knowledge are preserved, even in the face of the competing imperative to prove connection to country.

155    Mr Narrier was the oldest wati to give evidence. Although I cannot reveal in these reasons the content of what he said during the restricted session, it was clear to me from what he said that his knowledge about the connection of the generation before his with the country in the claim area was direct and reliable. It was also clear that, not only had he been taught the laws and customs he described, he lived by them and saw the world through them.

156    In his open evidence, Mr Narrier was also not especially forthcoming. However, I formed a positive impression of him during the restricted session and I am prepared to give weight to his written statement, especially given his recognised seniority within the claim group.

Jennifer Narrier

157    Ms Narrier gave some brief evidence at Booylgoo Range about the Tjukurrpa associated with that site and about the bush potatoes found there, the bush potato being Ms Narrier’s totem. She also gave evidence about how the bush potato became her granddaughter’s totem as well.

158    Ms Narrier gave evidence that Booylgoo Range was her Dreaming. She stated that the story for that country comes from the Tjukurrpa and was told to her by her mother. I extract some of her evidence about the connection between the Tjukurrpa and the landscape of this country below at [706].

159    She was clearly a knowledgeable person and well-respected by others in her community. Her answers in cross-examination about what would happen to Aboriginal people from other areas who came to Booylgoo Range were telling: she laughed and was clearly puzzled by the question, not understanding how it could be asked. She replied that they would not come to this place without someone like her, as if the question was ridiculous. It was a telling example of the gulf between the way Aboriginal laws and customs work and the way non-Aboriginal people view the land and entry onto it.

160    Her evidence on country was given confidently and with authority. The contrast when she came to give the remainder of her evidence in Leinster the next day was, in my opinion, a paradigm example of why it is so important in native title proceedings to allow Aboriginal and Torres Strait Islander people to give evidence on country rather than in a courtroom setting. Despite having her granddaughter seated next to her, it was apparent Ms Narrier felt very uncomfortable speaking in a more formal setting, with a considerable number of lawyers seated around her and a formal assembly of people in a public gallery. Although the same number of people (and indeed, for the most part, the very same people) had been in attendance when she gave her evidence on country, her demeanour was quite different. She spoke so softly it was difficult to hear, her answers were short, and she had lost the expansiveness she exhibited the day before. There were many questions she was clearly unwilling to answer at all and sometimes she did little more than shake her head. Counsel for the State presented her with several written documents which seemed to confuse her, such was her state of nervousness. I mean no criticism of the State’s counsel but use this as an example of Ms Narrier’s very different demeanour in unfamiliar and challenging surroundings.

161    While Ms Narrier had clearly gone through her written statement with great care, it was also apparent that, even for her as a senior woman, there was a tremendous gulf between what she was prepared to say in writing – which would be shown to the Court and to other lawyers but otherwise not publicly broadcast – and what she was prepared to say orally, for all to hear. Again, this indicates the difficulties in asking Aboriginal and Torres Strait Islander people, in particular those whose adherence to traditional customs is apparent, to behave in ways which are culturally foreign to them.

162    Having seen her the day before, I have no hesitation in accepting the evidence in her written statement, although if she had only given evidence in the courtroom setting one could see how a judge might, quite wrongly, find her a less than impressive witness and be prepared to discount the weight of her evidence. That would have been, in my opinion, a grievous misreading of its importance, entirely due to the foreign setting in which she was required to speak.

Richard Narrier

163    Mr Richard Narrier remained relatively quiet during the restricted evidence session and he was not forthcoming during his open session evidence either. I was not able to form much of an impression of him. I am satisfied his witness statement is reliable, but little was added through his oral evidence.

Family connections: Kado Muir, Keith Narrier, Jennifer Narrier and Richard Narrier

164    I place these claimant witnesses together because they share the same mother: Dolly Walker, also known as Pukungka, who is a named apical ancestor. The father of Mr Keith, Mr Richard and Ms Jennifer Narrier (with their other full siblings, Roslyn and Graham, who did not give evidence) was Frank Narrier and his father was Spider Narrier, also known as Nimpirru. Spider Narrier is a named apical ancestor. Mr Muir’s father is a non-Indigenous man (although Mr Muir gave evidence that his father had been initiated and taught traditional knowledge) and so his claim is through his mother.

165    Mr Keith Narrier is the eldest of all his siblings. He gave evidence that his father, Frank Narrier, was from around Wiluna and was born at Barwidgee. I take that to mean the area of Barwidgee station, rather than the dot on the map representing the homestead. Frank Narrier was one of Mr Liberman’s informants for his Yeelirrie Uranium Project report, written in the 1970s, and Mr Liberman records Frank Narrier’s place of birth as Barwidgee and his approximate age – in 1976 – as 45 years. Mr Keith Narrier’s grandfather, Spider Narrier, came from around Wongawol, although Mr Narrier’s evidence was that he had “been around this [Tjiwarl claim] area a lot”.

166    Mr Richard Narrier’s evidence about his grandfather, Spider Narrier (whom he never met), was that he was from “around Mungkali”, quite a long way north-east of the claim area, but that he used to “walk around Mungkali, Barwidgee, Weebo and Darlot and all this country [in the claim area] too”. Mr Keith Narrier’s description of Spider Narrier’s movements was slightly different and included his father and grandfather doing “a lot [of] jobs” around Yeelirrie, then going to Sandstone, back to Albion Downs and back to Barwidgee. His father and grandfather are buried at Barwidgee and he characterised the area around Barwidgee as his father and grandfather’s country. It is therefore clear that, in Mr Narrier’s mind, Barwidgee is, in addition to the claim area, part of his father’s and grandfather’s country. Contrary to the State’s submissions, I do not understand his evidence to be drawing some kind of demarcation between the area around Barwidgee and the claim area. I have no evidence regarding why the area around Barwidgee was not included in this claim, but I am not prepared to infer it was because the claimant group members disavow it as part of their ancestors’ country.

167    Dolly Walker was born at Skull Creek. The exact location of Skull Creek is not revealed by the evidence, although, from the claimant evidence, it appears to be near the town of Laverton. Laverton is, as the crow flies and based on the scales on the maps in evidence, about 180 km south-east of the southern end of the claim boundary.

168    Mr Keith Narrier was born in August 1951. He did not know when either of his parents were born, nor did he give evidence about how old either of them were when he was born, but his date of birth would place his grandparents as the generation who were occupying, or who moved into, the claim area in the first or second decade of the twentieth century.

169    Mr Keith Narrier claims through both his father and his mother, although, as the State correctly submits, his evidence was that his mother’s claim was through her husband rather than in her own right. However, he also seemed to consider his mother’s country to be south-east of the claim area, around Leonora and Laverton. This is somewhat contrary to the evidence of Mr Muir, who claims through Dolly Walker and whose evidence is that she had rights and interests in the claim area in accordance with traditional laws and customs. Further, as the State submits, while Mr Keith Narrier’s evidence was that a woman could obtain rights to country through marriage if the marriage lasted “a long time”, Mr Allan Ashwin indicated in his evidence that his wife “can’t claim this country” because she is not from the claim area.

170    Ms Narrier was not able to add much to the picture about her parents and paternal grandparents. She was born in 1957 and so is younger than Mr Keith and Mr Richard Narrier (Mr Richard Narrier having been born in 1954). She deferred in her evidence to Mr Keith Narrier’s knowledge about her grandparents. Her evidence was that her parents “must have been from this way, from the desert round Wongawol and Carnegie”, although she recalled that her mother was born in Skull Creek around Laverton. Ms Narrier places her mother’s country as around Albion Downs and Mount Keith, which are in the north-east corner of the claim area. She also stated that Yakabindie and Yeelirrie were part of her mother’s ngurra (home), but the basis on which she did so was unclear. Her evidence was that this was the area her mother “felt … was mostly her country”.

171    Ms Narrier said her mother’s mother had a nickname of “Hairpin” and her mother’s father was called Pinika, but that is all she knows of them. Like Mr Keith Narrier, she claims through both her father and her mother. Consistently with the evidence of Mr Muir, it is Dolly Walker who Ms Narrier says taught her the most about her country. Her evidence is that Dolly Walker learned those places from her own mother, although she was not able to give any more detailed evidence about her maternal grandmother.

172    Mr Muir did give a little more evidence about his maternal grandmother. His evidence was that she had moved into the Darlot area from the Mangkali area in the 1940s. He explained this by saying she was a “giveaway [wife]” to one of the Darlot elders. Mr Muir gave evidence that his grandmother had lived in Yeelirrie, Darlot, Weebo, Albion Downs, Yakabindie, Agnew, Leinster and “eventually” in an area towards Meekatharra. She was born in the early 1900s, “if not before then”, and died as an old woman in the 1960s.

Leroy Beaman

173    Mr Leroy Beaman was born in 1989. He gave evidence on two occasions. On the second occasion, he seemed more comfortable, giving his evidence with a degree of maturity beyond his years. Nevertheless, there were times he appeared uncertain. For example, when asked about skin systems he seemed somewhat unsure of the rules governing whether a person would take the same skin as one of their parents, or a different skin. When asked about his daughter’s skin, the following exchange occurred:

MR RANSON: … And you’ve got a daughter, I think, who’s got a skin, as well? And which one is she? What skin has she got?

LEROY BEAMAN: She got milangka.

MR RANSON: Panaka [sic]. And how does she get that - - -

MR WRIGHT: I think – sorry. Your Honour, I heard the witness differently.

LEROY BEAMAN: Mm?

MR WRIGHT: Sorry. Which one is she?

HER HONOUR: Just say your answer again - - -

MR RANSON: Sorry, your Honour.

HER HONOUR: - - - that was given.

LEROY BEAMAN: Oh, my daughter’s purungu.

MR RANSON: Oh, purungu. Okay.

LEROY BEAMAN: I think.

MR RANSON: I – the reason I thought you said panaka – and I – is in paragraph 99 of your statement, where you say:

My daughter is a panaka.

LEROY BEAMAN: Yes, I missed – that was a mistake, spelling.

MR RANSON: So that’s a mistake?

LEROY BEAMAN: Yes.

MR RANSON: She’s purungu, as well?

MR RANSON: Yes.

LEROY BEAMAN: Okay.

MR RANSON: So she gets the same one - - -

LEROY BEAMAN: Yes.

MR RANSON: - - - from you. And does that – that idea of skins: does a person figure out what their skin is by looking at their father or by looking at their mother?

LEROY BEAMAN: Their father.

MR RANSON: Father. It comes down the father’s side? That’s why – that’s why it’s passing down through you?

LEROY BEAMAN: Mm.

174    There were also some differences between the content of Mr Beaman’s evidence and that of older people such as Ms Narrier and Ms Wonyabong. For example, there appeared to be more fluidity in how he understood children could choose, and move between, the countries of their parents, or countries into which they had moved as children or young people, in order to claim connection to that country. Whether this could be explained by some adaptation in laws and customs was unclear.

Edwin Beaman

175    As I have described above, Mr Edwin Beaman is the father of Mr Leroy Beaman and claims through his father, Roy Beaman, who was born in Wiluna and worked on stations in the claim area, especially Yakabindie. Mr Edwin Beaman’s evidence was that Roy Beaman was a wati and that he “walk[ed] on” to Yakabindie station to get a job when he was about 15 or 16 years old. Mr Beaman said his father identified as Tjupan and denied that his father identified as Koara.

176    Mr Beaman was clear in his evidence about what he could and could not speak about. For example, he gave clear evidence that Mr Brett Lewis could speak for the area around Depot Springs, but he could not.

Family connections: Leroy and Edwin Beaman

177    Mr Leroy Beaman is the son of Mr Edwin Beaman and, accordingly, I discuss their family connections together in this section. Both Mr Leroy Beaman and Mr Edwin Beaman claim through Charlie Beaman, also known as Piman or Piiman, their great-grandfather and grandfather respectively. Dr Sackett records Piman’s year of birth as about 1900. It seems from the evidence that Mr Leroy Beaman and Mr Edwin Beaman might also claim through Ada Beaman, their great-grandmother and grandmother respectively, although I note she is not named as an apical ancestor. Nevertheless, I discuss their evidence about her below because, in my opinion, it is relevant to some of the questions in this proceeding about who occupied the claim area in the early twentieth century.

178    Mr Leroy Beaman’s grandfather, and Mr Edwin Beaman’s father, was Roy Beaman. Roy Beaman was Charlie Beaman’s son. Roy Beaman was also one of Mr Liberman’s informants. Mr Liberman records Roy Beaman as being approximately 45 years old in 1976, which would mean he was born in or around 1931. That appears consistent with Mr Edwin Beaman’s evidence that he (Mr Edwin Beaman) was born in 1967. Mr Edwin Beaman’s evidence was that his father was born “there in Wiluna”, although he doesn’t know whether it was on the Aboriginal reserve, or in the township. Mr Leroy Beaman’s evidence was that Mr Roy Beaman was the first person, at age 15, to go and work for non-Indigenous people on Yakabindie station. Interestingly, Mr Liberman records Roy Beaman as being born at Leonora: that is, to the south of the claim area rather than to the north of it. This is not the only time where there appears to be interchangeability between areas to the north and to the south of the claim area, with the concept of “Wiluna” possibly being a rather flexible one. Either way, whether he was born to the north or to the south, Roy Beaman was born close to the claim area.

179    Mr Leroy Beaman’s grandmother and Mr Edwin Beaman’s mother, Ms Joyce Bond, was born in Mulga Queen and her parents were from around the Warburton Ranges. Mr Edwin Beaman said of his parents:

At Warburton [Ranges] they have the same law as here [Tjiwarl claim area]. That’s why my parents could understand each other. My mum spoke Ngyaanyatjarra language and my father spoke Tjupan but they could understand each other.

180    Mr Leroy Beaman described his great-grandmother Ada Beaman as being from “in-between Yakabindie and Mt Keith”. Both these places are in the east of the claim area. Assuming his great-grandmother was more or less the same age as his great-grandfather, this would place her in the claim area prior to the dates at which Daisy Bates was gathering information north of the claim area. These dates are consistent with the evidence of Mr Leroy Beaman and Mr Edwin Beaman that Ada Beaman bought a house in Wiluna (the first Aboriginal person to do so) in the 1950s, which would place her in her early 50s at this stage. I do not accept, as the State suggests, that this evidence may show Charlie and Ada Beaman did not stay very long in the claim area, and went instead to Wiluna. Whether both Charlie and Ada Beaman went to Wiluna, how long they stayed there and, indeed, whether Ada Beaman lived in the house are not the subjects of any evidence.

181    I do not understand the State to have challenged Mr Leroy Beaman’s evidence about where his great-grandmother was from. This evidence, together with what else is known about Ada and Charlie Beaman, would suggest they were indeed in the claim area at about the time Daisy Bates was gathering information.

June Tullock

182    Ms Tullock gave some brief evidence at Jones Creek about 12 km directly north of Yakabindie station in the mid-eastern portion of the claim area. Ms Tullock said Jones Creek was the birthplace of her father, an acknowledged law man. However, she did not recognise the crossing where the Court sat to hear this evidence. She was adamant the crossing was not concreted in the past when she had visited, but, more than this, her evidence was that she did not recognise the trees and surrounding country. In other words, she had in her memory a different crossing to the one which she had been asked to identify as the birthplace of her father.

183    Nevertheless, both on this occasion and subsequently, and despite questions from the State and various documents being shown to her that might contradict what she said, she adhered firmly, and in my opinion genuinely, to her evidence that her father had told her he was born at Jones Creek and that other relatives had confirmed this to her, including her father’s aunt.

184    Ms Tullock gave the balance of her evidence at Yakabindie. On this occasion, her evidence was clear. Like Ms Wonyabong, she was prepared to be quite firm about what she did and did not know and what she could and could not speak about. Her explanation for why the claim area was her ngurra was that it was the birthplace of her father, but also that she grew up there, had been taught about the area, and knew the traditional stories. Her claim was thus more complex than simply descent.

Family connections

185    Ms Tullock was born in 1946 at Wiluna. Her mother came from Brookton and the Moore River mission, was “sent” to Meekatharra, and then went to Wiluna with Ms Tullock’s father. Ms Tullock’s father was Ted Tullock, also known as Scotty Tullock or Kirril. Scotty Tullock was the eldest of three boys and his mother was called Biddy Foley or Nyuringka. According to Ms Tullock, Biddy Foley was a “full blood Aboriginal woman”. Doris Foley was one of her sisters. Trilby (or Manyila) was another sister.

186    Ms Tullock’s evidence was that she could claim the Tjiwarl area through her father and her paternal grandmother. Her grandmother died before Ms Tullock was born and Ms Tullock frankly admitted she “wouldn’t have a clue” when her father was born.

187    Dr Sackett records that Scotty Tullock believed his father was John Anaeus Tolloch, a non-Indigenous man who perished south of Wiluna in January 1897. As Scotty Tullock died in approximately 2005, that would have made him very old indeed, but Dr Sackett also records that other locals have disputed Scotty Tullock’s view of his age and that one man, Tony Green, stated that Scotty Tullock began shaving in approximately 1931 or 1932. On the evidence, I consider it more likely that Scotty Tullock was born in approximately 1915, as stated by Dr Sackett, and not in the late nineteenth century. This is consistent with Ms Tullock’s family history, to the effect that Scotty Tullock had three children before Ms Tullock was born, all of whom were stolen. He had those children with another Aboriginal woman. Ms Tullock is the second eldest of Scotty Tullock’s second family. It would seem her father must have been well into his thirties by the time Ms Tullock was born. That would place his date of birth at around 1915.

188    Dr Sackett states that Scotty Tullock’s mother was Biddy Foley (or Nyuringka), who was said to have been born at Waru, a place to the north-east of Lake Carnegie, on the Carnegie pastoral lease. Based on the scale of the maps in evidence, Lake Carnegie is about 200 km from the north-eastern edge of the claim boundary. Ms Tullock’s evidence was that she had never heard that her paternal grandmother was born out there and she repeated that her father was born in the claim area and so her grandmother was in the claim area at the time he was born. That is, around 1915.

189    Dr Sackett records claims by Scotty Tullock that he was Tjupan man, having been through primary initiation rites in Wiluna and then also further initiation rites on Barwidgee station.

190    There was some debate at trial about whether Scotty Tullock was in fact born at Jones Creek. The issue has significance because the State’s case is that none of the apical ancestors were born in the claim area, and were certainly not in the claim area around 1912 when Daisy Bates was conducting research to the north of the claim area.

191    Ms Tullock was adamant that her father was born at Jones Creek. Her father told her this, and he in turn was told this by his aunt, Doris Foley, who Ms Tullock described in the following way in her evidence:

Because she [Doris Foley] used to tell him off and growl about him when he used to – when he went up north. She said you wasn’t … She said you never born wherever, you know they say? He was born in Jones Creek … And she was a very close family and she had a lot to do with us growing up.

192    Ms Tullock also gave some evidence about her great-grandmother, Biddy Foley’s mother, being poisoned with flour at a place she called “Poison Creek”, which on further questioning Ms Tullock clearly considered to be located within the claim area near Yakabindie, although she said she had never looked at it on a map. In other words, she was placing Scotty Tullock’s own grandmother in the claim area, at least towards the end of her life. This must have been well before 1915.

193    When shown, in cross-examination, birth certificates of herself and her brother which had an entry to the effect that Scotty Tullock was born in Kalgoorlie or Leonora, Ms Tullock denied these were accurate.

194    The birth certificates were neither proved nor tendered. I do not accept they are a reliable record of where an Aboriginal man, such as Scotty Tullock, was in fact born. There is any number of explanations, other than accuracy, for why towns such as Leonora and Kalgoorlie might have been nominated, whether by an official, by Mr Tullock, or by someone else, and I note there is no evidence Mr Tullock nominated either of those towns as his birthplace. There is no other evidence about Mr Tullock living in these towns.

195    Dr Sackett’s opinion is that Scotty Tullock was born at Jones Creek. I am satisfied on the balance of probabilities that Scotty Tullock was born in the region of Jones Creek, in approximately 1915. I am also satisfied his grandmother was in the claim area at this time, as well as (obviously) his mother.

196    Ms Tullock also gave some evidence about “Koyl” being an uncle of Scotty Tullock. “Koyl” is one of the names given to Jinguru, one of Bates’ informants. Ms Tullock did not know what had happened to him, but gave the following evidence:

My dad spoke of him and as a – he was his uncle. He only just saw him on and off you know through the years because that old bloke sort of moved around a lot. … And he was always in trouble, so they called him when he was passing through like they did in the early days. … But I think he belonged around here to these people.

197    I consider this to be a good example of one of the claimant witnesses speaking reliably from her memory, unaffected by the circumstances of this claim. Ms Tullock’s recollection of Jinguru being seen as a troublemaker is consistent with Bates’ account of him being imprisoned on Rottnest Island. Despite the considerable amount of evidence about Jinguru in this proceeding, Ms Tullock did not embellish or expand her account. I am satisfied she spoke from her genuine recollection of her oral family history and I found her account reliable and persuasive.

Allan James

198    Mr James gave some brief evidence at Tjiwarl, known also by its European name of Logan Spring. He claims that country through his father, Dempsey James. On the second occasion he gave evidence, at Leinster, he gave a firm account of his knowledge coming from what his father had told him. He was quite clear regarding how he understood rights to country arise.

Family connections

199    Mr James was born in 1968 at Kalgoorlie hospital. His father was Dempsey James, who was born in about 1922, although Mr James thinks it could have been before that. Dr Sackett’s first report places Dempsey James’ year of birth as 1924.

200    Dempsey James was born “under a tree” near Wongawol. His father was non-Indigenous. Mr James’ evidence is that his father ran away from Wongawol and came into the claim area when he was about eight or nine years old, staying with a “mob” at Albion Downs. This would have been in the early 1930s. He gave some evidence about who the “mob” at Albion Downs might have been. He says (at [17] and [30] of his witness statement):

Dad told me that there was a mob that lived near the old homestead at Albion that he knew and he stayed with them for a while, before he got a job there as a station hand. Those old people stayed at the old homestead until the last of them, an old man nicknamed old Wati, passed away. I never saw that old Wati but my sisters have memories of old Wati visiting Albion and our place for weekly stores.

…

Most of the people that I have memories with are people from this claim. The only memory that I have is that there was a mob at Albion already when he came across. The language wasn’t that “that mob were here before us” it was just “that old mob that were here”. I never heard any names for those old people.

201    Mr James also gave evidence about his understanding and living memory of the history of Aboriginal occupation of and connection with the claim area. At [39]-[40] of his witness statement, he says:

From my living memory the people that were living in this area had always been there; there was always a connection to this country. I don’t have any other memories that there was any animosity or clash between different groups as regards to ownership …

My dad never spoke of anyone who came before him for this country but he did say that there were families around there at the same time that he moved across to Albion that he knew from Wiluna way.

202    And, at [63] of his witness statement, he discusses his understanding of the migration of people from east of Wiluna into the claim area in the early 1900s:

What the timeframe of that migration was, I’m not sure, but my understanding is that there was a lot of law business happening over in this claim area anyway, so the migration wasn’t such a noticeable thing, because they were often going to that area.

203    Dempsey James’ mother was Fanny James or Tjilu, also called Tjilunga Tjilu, who was said to have been a Tjupan woman born in about 1905 at a hotel located about 30 km from Agnew or Lawlers and, according to Dr Sackett’s first report, inside the claim area. Dr Sackett records Tjilu’s mother as a woman called Biddy (not Biddy Foley, Scotty Tullock’s mother), who was said to have been from Wongawol. There is no evidence about where Biddy lived or travelled.

Brett Lewis

204    Mr Lewis was an impressive witness. His adopted father was a senior law man named Scotty Lewis or Ngumbu. Although Mr Lewis was adopted, this did not prevent his father from sharing a significant amount of knowledge with him. However, as Mr Lewis candidly recognised, there were limits on the knowledge his father could pass on to him because Mr Lewis had not been through the law. Mr Lewis gave open evidence and then some evidence with a limited number of women present.

205    My impression was that Mr Lewis knew his country very well, that he knew the stories associated with it, and that he had been taught those stories by his father, who, as a lawman for the area, had authority to speak for the places Mr Lewis discussed in his evidence. Even though Mr Lewis himself declined to characterise his role as speaking for the country, he accepted that he had been chosen to give evidence about certain parts of the country because he knew them best.

206    On his second tranche of evidence at Leinster, Mr Lewis remained a most impressive witness. He was very clear about what he could and could not say about Koara country: he could speak about country that was his father’s country and identified as Koara, because his father shared knowledge with him about those areas; but he otherwise could not draw boundaries in respect of country which other people spoke for. In the course of cross-examination about the boundaries of Koara country, the following exchange occurred:

MR RANSON: Well, you – you tell me. Where do you think that Koara country runs to today in this claim area?

BRETT LEWIS: I’m just taking it off my father’s side. The – you know, where he was custodian and looked after and called it his – his area. So I’m not saying it’s not Koara claim or it’s not Tjiwarl country or whatever. So I’m just talking on behalf of what he told me in that area where we went yesterday. So … I’m not saying, “Well, no, that’s Koara; no, this is part of Tjiwarl”, or this or that. No, I’m not saying that. … I’m just talking on behalf of the area that my father showed me and was custodian of.

MR RANSON: Yes. Yes. I know that’s the area - - -

BRETT LEWIS: Yes.

MR RANSON: - - - you’re talking for - - -

BRETT LEWIS: Mm.

MR RANSON: - - - in this claim.

BRETT LEWIS: Yes.

MR RANSON: But if – let’s pretend there were no Native Title claims at all,

anywhere … and I met you here and said … “Where is Koara country?”.

BRETT LEWIS: I would - - -

MR RANSON: Where would it go?

BRETT LEWIS: I’d say, well, that’s the country I can take you to and talk to and show you, Booylgoo, Depot, because that’s what I’ve been told from my father. And I’d say that’s his ngurra, that’s his tjukurrpa, that’s his parna. So that’s – you know, that’s his country.

MR RANSON: Okay.

BRETT LEWIS: But not only his country, and there’s other families too. So – but I’m just here telling you that’s what he told me. That’s his run. He – he looked after that area.

…

MR RANSON: So – so, in your mind, that – that idea of Koara country … is mixed up with where your father’s country – and I don’t mean mixed up in the sense that it’s wrong, but it – your idea of where Koara country is is connected to where your father’s country was.

BRETT LEWIS: Yes.

MR RANSON: Okay.

BRETT LEWIS: You know, it’s connected to the – to this Tjiwarl area and … other overlap claims that was put on there in the past.

…

MR RANSON: It may be a very specific question. So if we went to Mount Keith, where the mine is? … Is that still in Koara country in your mind, or is that north?

BRETT LEWIS: Oh, I – I wouldn’t say it’s in Koara country or it’s not in Koara country or that it’s in – in the – somebody else’s country. But I – I go off of the people who speak for that country.

MR RANSON: Okay.

BRETT LEWIS: Who – who’ve got knowledge and can tell, you know, stories and the tjukurr [an abbreviation of Tjukurrpa] about that country. So I’m not going to sit here and say, “No, that’s Koara country. No, that’s not Koara country”, because I – I’m not about that.

207    In my opinion, some of the cross-examination of Mr Lewis revealed confusion on the part of the State about the approach claim group members took to speaking about their rights to country. Mr Lewis’ evidence made clear the distinction between being a member of a group entitled to an area of country and being a person who could speak publicly and authoritatively about particular parts of that country.

Family connections

208    Mr Lewis was born in 1965 in Leonora hospital. His adopted father, Scotty Lewis, was born around 1917 or 1919 in Lancefield, just outside Laverton. Mr Lewis described his father’s birth in his evidence: his father’s parents were on a ceremony trip and his grandmother, who was heavily pregnant, gave birth to his father while on that trip. She then stayed in Lancefield while his grandfather continued on to Burtville for the ceremony. Burtville was, Mr Lewis stated, a “big ceremony ground” in those times; that is, in the early twentieth century.

209    Burtville was also a goldfields township about 30 km south-east of Laverton. I find Mr Lewis’s evidence about Burtville to be an example of a place being identified by its European township name, but I consider no significance should be attached to the use of that name: what is significant is the general region indicated by Mr Lewis’s evidence. The “Lancefield” to which Mr Lewis referred was Lancefield gold mine, located about 8 km north of Laverton. Again, I take this evidence as indicating the general region in which these events occurred, rather than the reference to the Lancefield gold mine meaning any more than this.

210    Mr Lewis’s adoptive mother was originally from just outside the Warburton Ranges, much further to the east. He described in his evidence how she came to be at Mount Margaret Mission, rather closer to the claim area:

My mother’s name was Mary Forward. My mother’s Wongai name was Liddiwarra, which means long neck. She comes from Blackstone, Jameson, Wingellina; out beside the Warburton Ranges. She was part of the Simms family. She came over when she was about ten years old. She came over traveling for ceremony. She came down towards Tjuntjuntjarra, Neale Junction way, for ceremony, and then she come back to Burtville to the big ceremony ground there. When she got to Burtville, for the ceremony, nearby Laverton was a bit of a town. The missionaries were running around and catching kids for Mount Margaret Mission. She got caught, and stayed there in the mission for a few weeks before she run away, and came through towards Lancefield, Nambi and Leonora with the mob. She never went back to her home country to live.

211    Mr Lewis’s evidence was that he was never told the names of his grandparents because people did not like to say the names of those who had died. This evidence, which I accept, is an example referred to by Dr Sackett as part of the explanation why there is little positive identification of those Aboriginal people who may have been occupying the claim area and its surrounds at sovereignty or first contact. But given Mr Lewis’s evidence about his father’s date of birth, it is clear that his grandparents were adults in the early twentieth century, around the time of Daisy Bates’ work.

212    As Dr Sackett noted, one important aspect of Mr Lewis’s evidence was the way he described how his father acquired knowledge of country and sites. Mr Lewis recounted being shown sites by his father that “he had been shown by the old people”. Who these old people were is contentious. On some occasions these references were, as Dr Sackett pointed out, likely to be references to the claim group members’ ancestors. However, given Mr Lewis’s father’s age, this can only be a reference to Aboriginal people who held traditional knowledge about the Tjukurrpa and sites of the claim area in the late 1920s or early 1930s. There is nothing in the State’s working hypotheses (or those of Dr Brunton) about who those people might be. On the other hand, the applicant’s thesis is clear: there were at least some people in the claim area, or who knew about the claim area, who recognised the entitlement of people like Mr Lewis’s father to learn the Tjukurrpa and learn about the sites in the claim area.

213    Scotty Lewis told Mr (Brett) Lewis about Scotty Lewis’s uncles and aunties at Darlot and Weebo “coming through here”. Taking into account Mr Lewis’s other evidence in his witness statement at [35] (where he described his father telling him about the “old people” who came from Weebo and “[t]hrough Agnew and Yakabindie station to North End, and through to the Barwidgee area” – all places in the eastern part of the claim area or close to it), and the evidence he gave when at the site of ‘The Lady’, in my opinion this was a reference to the movement of Western Desert people from around Darlot into the claim area, and areas close to it.

214    One story told by Mr Lewis, about his father having a job as a tracker for the Leonora police, placed his father in and around Leonora when he was approximately 20 or 25 years old: that is, in the late 1930s or early 1940s. Mr Lewis described his father being given a pushbike with cane wheels, and how his father would ride it up and down the Leonora road, taking the law stick to Agnew (which is on the southern boundary of the claim area) and across to Darlot and to Dada, which are both to the east of the claim area. Where Scotty Lewis was before this is unclear on the evidence.

215    However it is clear from the remainder of Mr Lewis’s evidence regarding how he learned the Tjukurrpa and about the sites and lands of the claim area, that his father was intimately familiar with all parts of the claim area, and in particular with the western parts. I am prepared to find that, at least from some point in the 1930s, Scotty Lewis was recognised as one of the men who had knowledge of the Tjukurrpa and sites of the claim area. How and when he acquired that knowledge is less clear.

Victor Ashwin

216    Mr Victor Ashwin is the son of Mr Allan Ashwin. Both father and son gave evidence on country out near Mount Townsend and Mount Marion in a restricted men’s session, as well as in Leinster. The evidence in the restricted session was given partly individually and partly by the group, in the sense of one man adding, supplementing or correcting what another had said.

217    Mr Victor Ashwin had been chosen by the group of senior men present in the restricted session to give the principal evidence in that session. All men present were wati. He was the youngest of the four witnesses. He clearly took his role very seriously, and was careful and deliberate in what he had to say. I accept he has been chosen as one of the wati who is to carry on the law and knowledge for this claim area. That said, his age nevertheless has an effect on the weight I place on historical aspects of his evidence. The fact-finding in this case is complex, and there are parts which focus on trying to piece together what happened at earlier points in history, both in and outside the claim area. Then there are other parts which focus on understanding what are the traditional laws and customs said to connect the claim group members with the land and waters in the claim area, and to have always done so. On the latter topic, I give substantial weight to Mr Victor Ashwin’s evidence. On the former topic, I give less weight because he is, as far as I can see, one generation further removed from events than his father, Mr Allan Ashwin. I place more weight on Mr Allan Ashwin’s evidence in those circumstances. I emphasise that approach is not intended to challenge or diminish Mr Victor Ashwin’s standing within his community, but rather to recognise that, being a younger man, his knowledge and experience of some historical matters is further removed than that of his father’s generation.

Allan Ashwin

218    Mr Allan Ashwin was an impressive witness. He spoke with great authority and I had the strong impression that he spoke from direct knowledge and experience, in particular from long and close association with old people from the claim area, including his own ancestors.

219    The fact that he is one generation closer to those old people than his son, Mr Victor Ashwin, gave me some cause to rely more heavily on his evidence. That is not to detract from Mr Victor Ashwin’s evidence; rather, it is to acknowledge that closer connections by way of being of a different generation can enhance the reliability and persuasiveness of descriptions of historical events.

220    Mr Allan Ashwin was not only a witness of great depth of knowledge, but was also quick to correct what was said by others if he saw it as inaccurate or incomplete. In this sense, I find he was intent on ensuring the most accurate evidence was given by the claimant witnesses.

Henry Ashwin

221    Mr Henry Ashwin is the younger brother of Mr Allan Ashwin and the uncle of Mr Victor Ashwin.

222    Mr Henry Ashwin was not comfortable in the restricted session. It appeared to me that he did not really approve of it occurring with a female judge, although he did seem to acknowledge the necessity for it. He was the person who interjected the most to warn Mr Victor Ashwin when he thought Mr Ashwin was saying too much. He left about halfway through the restricted session.

223    I drew no adverse inference from his departure: rather, it seemed to me he simply felt he was unable to stay any longer in circumstances where he was clearly concerned that what was occurring was not in accordance with his traditional laws and customs.

224    Mr Henry Ashwin’s discomfort at sharing his knowledge outside his own community continued when he gave open evidence in Leinster. I have no difficulty relying on his witness statement because I consider him to be a genuine and honest witness. However, little was added through his oral evidence.

Family connections: Victor, Allan and Henry Ashwin

225    Mr Allan Ashwin was born in approximately 1951. He was born in Weld Springs in what he described as “Windidda country”. Windidda pastoral station is approximately 165 km north-east of the claim area. Mr Ashwin is a native title holder under the Wiluna determination. His father’s name was Alfie Ashwin or Wamultjukurr, although Mr Victor Ashwin also gave evidence that Alfred Ashwin’s Martu name was Yalpie, and this name was sometimes used in the evidence instead. Alfie Ashwin’s sister was Doris Foley. Mr Allan Ashwin’s evidence was that his father was born “around Barwidgee”. Again, I do not take that to indicate only the location of the homestead of Barwidgee station, but rather to encompass other parts of the station itself. He was a lawman for parts of the claim area (Yeelirrie, Albion Downs and Yakabindie). Neither Mr Allan Ashwin nor Mr Victor Ashwin gave evidence about Alfie Ashwin’s date of birth, but Dr Sackett records that he was born near Barwidgee in approximately 1920.

226    Alfie Ashwin’s father was Tom Wanal or Jinapika, who is buried at Six Mile Creek near Wiluna. He died when Mr Allan Ashwin was going to school, perhaps in the late 1950s or early 1960s. This means, given the approximate date of birth of Alfie Ashwin (1920), that Tom Wanal may have been born around the turn of the century, or earlier.

227    Mr Allan Ashwin’s paternal grandmother was Telfa Ashwin. Mr Ashwin described her country as “around Windidda and Yelma and Wongawol, Lorna Glen around Carnegie and all that area”.

228    Mr Allan Ashwin’s mother was Rosy Wongawol or Tjipinka. She was Martu. His maternal grandfather was from Carnegie country, near Wongawol, and her name was Nimangka or Tjinapika. His maternal grandmother was a Martu woman named Lilly Wongawol or Munta. According to Mr Henry Ashwin (Mr Allan Ashwin’s brother), Rosy Wongawol was from the Birriliburu determination area (near Glen Ayle pastoral station), not Tjiwarl.

229    There was no sense from the evidence of Mr Allan, Mr Henry or Mr Victor Ashwin that their ancestors had consciously moved into country they were not familiar with, or with which they had no connection. Rather their evidence suggested (as did that of some of the other witnesses) that their ancestors moved around country to which they considered they had rights, interests and connections – evidenced from their passing on of knowledge to the claim group members’ parents and to the claim group members themselves. Indeed, Mr Allan Ashwin’s evidence was that there were already connections between the old people in the claim area (which I understood to be a reference to those Aboriginal people who were in and around the claim area prior to the start of the twentieth century) and families such as his own, through law business.

230    The State submits that there is no direct evidence of when Alfie Ashwin might have first come into the claim area, but that the Court should find it was during his children’s childhood in the 1950s because he migrated to work at Yeelirrie and Albion Downs. I doubt that is the case if he was born in Barwidgee, immediately adjacent to the claim area, but I accept there is simply an absence of evidence on this point.

Luxie Hogarth

231    Ms Luxie Hogarth was an elderly witness whose memory was fading a little, but her evidence was nonetheless clear in terms of her own family and life history. She did not add substantively to the contents of her witness statement. She did confirm, in reasonably firm terms, the status and role of Waiya, who seems to be the oldest ancestor of the claim group, and of the Hogarth family in particular. She also gave some evidence about having met Rosie Jones, or Tjalajuti, who was Waiya’s daughter and the ancestor of Ms Hogarth’s husband, Wimmie Redmond.

232    However, Ms Hogarth made it clear that the claim area is not her ngurra and that what she knows comes from a long and obviously close and loving marriage to her husband. That does not necessarily diminish the weight to be attached to that knowledge, but simply places her evidence in a slightly different category.

Geraldine Hogarth

233    Ms Geraldine Hogarth spoke eloquently and in detail about her country and her people’s customs and laws as she understood them. She clearly felt very strongly about past injustices and the need to speak out now to claim country. In that sense she was one of the more forthright witnesses in the proceeding.

234    I was impressed by her evidence in the sense that it was given genuinely and from her heart. I accept what she says is what she has learned, especially from her “uncle-dad”. It was clarified in cross-examination that her participation in the Wongatha claim (see Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 (Wongatha)) stemmed from a claim to that country through her mother, and can be put to one side.

Family connections: Luxie and Geraldine Hogarth

235    As Ms Luxie Hogarth is the mother of Ms Geraldine Hogarth, I have grouped them together for the purpose of discussing their family connections.

236    Ms Luxie Hogarth was born in 1941 at Moore River at Mogumba Mission, which is on the coast of Western Australia north of Perth, although her mother was from Darlot and was only visiting her sister at Moore River when Ms Hogarth was born.

237    Ms Luxie Hogarth was the oldest witness in the proceeding. Her mother’s name was Kugila, or Daisy Cordella, and her father was a Bunuba man from the Kimberleys named Peter Hogarth. Kugila was from Darlot and Ms Hogarth’s evidence was that “[h]er mother, and her grandmother, and her grandfather, they were always there, living in the Darlot area”. I have made findings at [340] to [352] above about what comprises the Darlot area.

238    Ms Luxie Hogarth’s husband was Wimmie Redmond, who is now deceased. Ms Luxie Hogarth claims through Mr Redmond as his wife and Ms Geraldine Hogarth claims through Mr Redmond as his daughter. Mr Redmond’s grandmother was Rosie Jones, or Tjalajuti. There was more evidence about Rosie Jones than there was about her children (that is, Mr Redmond’s parents). This is consistent with some of the observations made by Dr Sackett (with Dr Brunton making a similar statement) to the effect that, under Western Desert laws and customs, a person can take the country of a grandparent. This issue came up in the expert evidence in the context of a dispute about the inferences that could be drawn from the Bates material, which did not itself show examples of connections to country through grandparents. Dr Brunton concluded the absence of examples in Daisy Bates’ material of people taking rights in country through grandparents meant the taking of rights in country by the Ngaiawonga was not in accordance with Western Desert law. Dr Sackett disagreed, saying:

Western Desert people are able to take the country of a grandparent, but they need not do so. That there is no evidence in the Bates materials of it happening does not mean that it did not happen. In any event, as Dr Brunton points out, there are cases in the Bates materials were [sic] it is wholly unclear how or why a person was Ngaiuwonga. It is possible that some of these cases were instances of people taking the country/identity of a grandparent.

239    This is an example where Dr Brunton too readily sought to draw absolute conclusions from the absence of information in the Bates records. I prefer the opinion of Dr Sackett. In relation to Wimmie Redmond, I consider the emphasis on him acquiring knowledge and rights from his grandparents is consistent with Western Desert laws and customs being practised over the claim area early in the twentieth century.

240    Dr Sackett’s evidence records earlier anthropologists being told by Rosie Jones’s great grandson:

Nyinyitjim/ James Calyun (SSN 6/129), said of her, “She’s from that area there, in the [claim] map.” His view in this regard was supported by other family members at a meeting in Leonora on 1 March 2011, where it was held that Tjulyitjutu/Rosie was born in Tjiwarl country.

241    What Ms Luxie Hogarth knew about Rosie Jones/Tjalajuti was that she lived around Albion Downs, Yeelirrie and Wiluna. This was also Ms Geraldine Hogarth’s evidence, although she added Agnew-Lawlers and Sir Samuel to the list. Rosie Jones was married to Andy Fisher, who was therefore Wimmie Redmond’s paternal grandfather, who seems to have been from Wongawol. Ms Luxie Hogarth’s evidence is that, later, Andy Fisher was with another wife called Dulcie Fisher who was an aunt to, amongst others, Ms Shirley and Ms Lizzie Wonyabong. I note this as an illustration of the connections between the families in the claim group.

242    Ms Hogarth’s evidence was that Andy Fisher and Rosie Jones showed her husband the country in the Tjiwarl claim area and told him all the Tjukurrpa for the area.

243    Rosie Jones’s father was Waiya. Waiya was therefore Wimmie Redmond’s great-grandfather. If Ms Hogarth’s husband, Wimmie Redmond, was her age, then his grandmother, Rosie Jones, would have been born in the nineteenth century. Ms Hogarth met Rosie Jones when Ms Hogarth was about 18, which would be around 1959 or 1960. Ms Hogarth said that Rosie Jones was then older than Ms Hogarth was at the time of her evidence; namely 75. If Rosie Jones/Tjalajuti was about 75 in 1960, that would mean she was born in about 1885.

244    That would place Waiya’s date of birth well back in the nineteenth century. However, Ms Geraldine Hogarth’s evidence was that Waiya was buried on Albion Downs, but that he was still alive in the late 1950s. Dr Sackett’s report also records that he was buried on Albion Downs, although it would appear his informant for this was Ms Geraldine Hogarth herself. Therefore, even if he was an old man in the 1950s, that would mean he may have been born around 1870. This might mean Ms Hogarth’s estimate about Rosie Jones’s age when she met her in 1960 is not quite accurate because it does not leave enough of an age gap between father (Waiya) and daughter (Rosie Jones). Further, Rosie Jones being born in the nineteenth century does not fit quite so well with the age of Wimmie Redmond, even allowing for him to have been born (as the eldest son, it must be recalled) quite a few years before Ms Hogarth in 1941.

245    On balance, these discrepancies are small. On any view, the evidence of Ms Luxie and Ms Geraldine Hogarth would have Waiya born in the last quarter of the nineteenth century and his daughter born around or before the turn of the century.

246    Ms Luxie Hogarth’s evidence about Waiya was:

I never saw old Waiya, but I heard from my husband, who told me the story about his parents and grandparents, roaming around that middle country – round Albion Downs and that spring called Pii – and then back to Wiluna, and all around that area. Pii, that spring, it belonged to that old man Waiya, and he looked after that area right until he passed away. He was buried there too. Waiya, his last name was Hill. My husband said that he was his great-great-grandfather. My husband told me all the story for Waiya.

…

My husband was telling me about the tjukurrpa, and I got to listen to him, learn what he told me. But I can’t talk for that country, because that’s his parents’ country. My husband told me that his great, great grandfather – old Mr Hill – he was looking after that spring Pii at Albion Downs, and then he got old and passed away there. And that snake must still be there. Mr Hill was looking after that tjukurr because he belonged there, he was from there. He must have been taught to look after it. If he hadn’t looked after it, the water would go dry and it would be nothing, he’d know no stories for that area.

247    The account of a connection between Waiya and the site known as Pii, and the Tjukurrpa there, is important. Given the age of Waiya, it is probable in my opinion that this responsibility existed early in the twentieth century, or perhaps in the late nineteenth century.

248    Ms Geraldine Hogarth was born in 1959 in Leonora. Her early years were spent on Yeelirrie station. She was brought up by her “uncle” father, Wimmie Redmond, not by her biological father. She identified Wimmie Redmond as coming from Wiluna and said his country included Lorna Glen (which is in the Wiluna determination area), Wongawol, Albion Downs, Yeelirrie, Agnew and Sir Samuel. The last four places named are inside the claim area. Her evidence was that, although she does not know when Wimmie Redmond was born, he was a “bit older than my mum”. As I have noted, Ms Luxie Hogarth was born in 1941, so it is a reasonable inference that Wimmie Redmond might have been born in the mid-1930s.

249    Ms Geraldine Hogarth gave evidence about longstanding connections and relationships between Western Desert people to the east of the claim area and people in the claim area. She described having been told by the old people about a “road” from Darlot to Mount Sir Samuel and about women coming from Darlot to Depot Springs to perform a ceremony in relation to the Seven Sisters Tjukurrpa. Consistently with this, she also explained that the “mob” from Darlot and Wongawol were the same people as those from Albion Downs and Yeelirrie because “we follow the same law”.

250    In his first report, Dr Sackett records that Rosie Jones was born in around 1910 and died in 1979. That places her, and her father Waiya, in the claim area a little later than the Hogarths’ evidence. However, even on this hypothesis, both Rosie Jones and Waiya would have been in the claim area by the time of Bates’ reports in 1912. There is no suggestion they identified themselves, or that anyone else identified them, as “Ngaiawonga”. The State accepts the Hogarths are Western Desert people. It follows that it must accept their ancestors were also Western Desert people.

Dallas Harris

251    Ms Harris’s evidence was clearly given and measured, in the sense that she was forthright about accepting the limits of her knowledge and in disclosing the fact that she had spent a considerable amount of time away from the country in the claim area. Nevertheless, she has returned to the area and it is clear she feels a strong connection to it. She claims through her father’s family and gave some helpful evidence about their activities in the claim area.

Family connections

252    Ms Harris claims through her paternal grandfather, Tarrukati, also known as Tjampula. Ms Harris’s evidence was that he was also called “Jumbo Harris” because non-Indigenous people could not say his Aboriginal name. Ms Harris was born in 1969 in Leonora hospital. She has two older brothers.

253    Her mother was Eileen Harris (née Jones), who was born in Wiluna and grew up in the Wiluna determination area. Ms Harris is also a native title holder on the Wiluna determination.

254    Her maternal grandmother was Kitty Hill (or Yungkutjuru) and she came from Carnegie station, which is in the Wiluna determination area to the east of the Tjiwarl claim area.

255    Ms Harris’s father was James Harris, and her evidence was that he was born in a creek bed “along on the Agnew to Leonora road, in Lawlers country”. Agnew is a town sitting just outside the claim boundary to the south, and Leonora is further south and a little east, with the township of Lawlers in between them. Ms Harris said her father grew up at Mount Margaret mission, which is further east towards Laverton.

256    Ms Harris’s evidence was that her father’s parents travelled around a lot on law business and with the seasons, moving from east of Mulga Queen, then back through Mulga Queen and onto Wiluna, every three to six months. Dr Sackett’s research confirmed that the family did appear to move around through those areas.

257    Ms Harris’s paternal grandfather had the same name (Tarrukati) as a creek near Carnegie, and she learned that the area around the creek was her grandfather’s country. Her paternal grandmother was from Mount Margaret Mission. Ms Harris’s evidence was that Jumbo Harris came from an area called Thurraguddy Creek (or Tarrukati), between Windidda and Mungkali, close to Carnegie. Dr Sackett describes this area in the following terms in his Tjiwarl Registration Report (Attachment 2 to his first report in this proceeding):

Tarrukati is a site (in the vicinity of places mapped as Thurraguddy Creek, Thurraguddy Bore and Thurraguddy Trucking Yards) on Wongawol Pastoral Lease, on the Wiluna claim area.

258    As the crow flies that is about 160 to 170 km from the north-eastern boundary of the claim area. According to Ms Harris, that is where she was told Jumbo Harris “came from and grew up … hunted … and practiced his culture”. As Dr Sackett points out in his first report, this area was on the Wongawol pastoral lease and was the area where, in the early 1930s, there was considerable violence and antagonism towards Aboriginal people.

259    Ms Harris’s evidence was that her grandfather Jumbo’s “boundary” would have been from Thurraguddy Creek, down to Leonora, around Kaluwiri (which is the centre of the claim area) and up to Wiluna. She identified in her evidence the old people who told her about this.

260    Ms Harris’s evidence was that, after her grandfather married her grandmother, they moved towards the goldfields area and “came in from the bush” to Leonora. She was told by her aunties that they were “the first old people at the old reserve in Leonora”.

261    Ms Harris does not put any dates around these events in her evidence. Dr Sackett estimates in his first report that Jumbo Harris was born in about 1890. He also notes that Norman Tindale showed Jumbo Harris and Telpha (or Telfa) Ashwin as siblings, but the Harris family dispute this.

262    On the evidence, and accepting Dr Sackett’s evidence about Jumbo Harris’s date of birth, it seems that Jumbo Harris was moving in and around the claim area with his parents at or around the turn of the century.

Douglas Bingham

263    Mr Bingham claims through his mother, Kathleen Bingham, whom he thinks was born in about the 1920s. Her father, Mr Bingham’s grandfather, was (he said) “one of the big law men” for the Tjiwarl area, although in oral evidence he said he was from the Laverton area, which is some way south-east of the claim area. In his witness statement, Mr Bingham identified his grandfather as Mickey Warren, but in oral evidence he stated that he called both Mickey and Tommy Warren (who were brothers) “grandfather” and that both were law men.

264    During cross-examination, Mr Bingham said that Ruby Shay was a sister to Jumbo Harris, but it was difficult to tell whether he was sure about that or just agreeing with the question put to him. That relationship is suggested by Dr Sackett but not confirmed.

265    Mr Bingham seemed a little reluctant to be giving evidence, which might be explained by the fact that, at the time, his brother Irwin was in hospital and Mr Bingham said Irwin would be the one to do the talking in this trial, if he could.

266    Mr Bingham gave evidence about having seen people using spears and spear throwers to give tribal punishment at funerals and gatherings, including recently, although he admitted that, if the police saw that, people would get into trouble. He was clear that he could not “get into that” because it was a tribal thing.

267    He is a wati, and gave some restricted evidence.

Family connections

268    Mr Bingham was born in 1962 in Meekatharra but grew up with his maternal grandmother at Cunyu station, which is about 80 km north of Wiluna. His father was from Fitzroy Crossing in the Kimberleys, but Mr Bingham said he does not think he could claim in that area because he does not know it. His evidence was that his mother was from around Leonora and “from that Tjiwarl area”. Dr Sackett’s report records Mr Bingham informing Dr Sackett that his mother was born in the Kathleen Valley in the claim area, and that is where she took her European name from. It appears this had been said before to Dr Sackett in preparation of his Tjiwarl Registration Report, where (at [41]) Dr Sackett records Mr Bingham as explaining his rights and interests in the claim area by saying “Well my mother bin born here”.

269    He is the youngest of 10 siblings, with four sisters and five brothers, so his parents may have been born in approximately 1920, or perhaps earlier. Dr Sackett in his report puts Kathleen Bingham’s date of birth as circa 1924.

270    Mr Bingham’s evidence is that both his maternal grandparents were from the claim area. His maternal grandfather was Mickey Warren, who was “from around this Tjiwarl area” and “one of the big law men around there”. His maternal grandmother, Ruby Shay, was also from the claim area – she died in Wiluna but Mr Bingham does not know where she was born. Dr Sackett records Kathleen Bingham’s father as having been born in approximately 1900 and her mother, Ruby Shay, as having been born in approximately 1910, although he also names Tommy Warren rather than Mickey Warren as Kathleen Bingham’s father. Dr Sackett also records information from Mr Bingham that Ruby Shay might have been born in the country covered by the Weebo pastoral lease, to the near east of the claim area, and that Ruby’s mother was born in the Darlot area. Mickey Warren was one of Mr Liberman’s informants and Mr Liberman recorded Mickey Warren as being approximately 75 years old in 1976, which places his date of birth at around 1901.

Timmy Patterson

271    Mr Patterson was not called to give evidence in the proceeding, but his witness statement was tendered as an exhibit. I am prepared to accept the evidence set out in his witness statement.

272    Mr Patterson’s evidence is that he is a member of the Gingirana native title claim group and a native title holder under the Birriliburu determination, the Martu determination (see Peterson v Western Australia [2013] FCA 518) and the Wiluna determination. He was born in or around 1950 and his parents were both Kiyajarra, although later in life his mother married a Putijarra man who raised Mr Patterson as his son. He is a senior wati and elder, but his evidence is that the Tjiwarl claim area is not his country and he cannot speak for it.

EXPERT EVIDENCE

Dr Mark Clendon

273    Dr Clendon is an anthropological linguist. He was called by the applicant. At the time of giving his evidence and preparing his reports, Dr Clendon was a lecturer and independent researcher associated with the University of Adelaide. Dr Clendon has worked extensively with Western Australian languages and has prepared a number of reports for native title claims. Dr Clendon prepared two reports for use in the proceeding.

Dr Clendon’s first report dated 29 May 2015

274    Dr Clendon’s first report was prepared in the proceeding after receiving a brief from Central Desert Native Title Services (CDNTS), the solicitors for the applicant. In his first report, Dr Clendon draws conclusions about the Aboriginal languages spoken in the Tjiwarl claim area by reference to Jinguru’s wordlist and the “Lawlers word list” referred to by Daisy Bates. The three languages he identifies are (using his spelling) the Western Desert, Wajarri, and Badimaya languages. Dr Clendon’s report refers to Dr Sackett’s first report of January 2014 and Dr Brunton’s first report of March 2015.

Dr Clendon’s supplementary report dated 4 August 2015

275    Dr Clendon’s supplementary report dated 4 August 2015 was prepared to address the opinions expressed in his earlier report at paragraphs [5], [7]-[10], [13], [15]-[19], [21]-[25], [32], [41] and [43] by reference to two important Badimaya language resources that came into Dr Clendon’s possession after preparing his first report.

Dr Lee Sackett

276    Dr Lee Sackett prepared three expert anthropological reports in the proceeding at the request of the applicant. I have set out Dr Sackett’s qualifications and experience at [484].

277    It was Dr Sackett’s evidence that he commenced research into the claim area in 2000 or 2001 for what was then known as the Sir Samuel native title claim. The Sir Samuel claim was discontinued and a number of other claims, including the Tjiwarl claim, were made.

Dr Sackett’s first report dated January 2014

278    Dr Sackett’s first report was filed in the proceeding on 31 March 2014 and is dated January 2014. This report was filed in accordance with orders made by Barker J on 21 June 2013 and orders made by Registrar Daniel on 18 October 2013. Dr Sackett undertook the research contained in his first report for the purpose of the claim passing through the registration test with the Native Title Tribunal. Dr Sackett’s first report amplifies his Tjiwarl Registration Report and also addresses specific questions the solicitors for the State asked to be addressed in the report, and which CDNTS included in their brief for the report dated 20 September 2013. Dr Sackett’s report provides an analysis of the claim area and an analysis and opinion on the origins of the claim group.

Dr Sackett’s further expert report dated May 2015

279    Dr Sackett’s further expert report was filed in the proceeding on 29 May 2015. This report was filed pursuant to orders made by Barker J on 5 September 2014, as varied by me on 1 May 2015 and later on 20 May 2015. The purpose of Dr Sackett’s further expert report was to respond to the expert anthropological report by Dr Brunton filed by the State on 6 March 2015 and to address any revised opinions that may have arisen in response to Dr Brunton’s report.

Dr Sackett’s supplementary expert report dated August 2015

280    Dr Sackett’s supplementary report was filed on 3 September 2015. This report included Dr Sackett’s opinions after hearing the evidence of the claimant witnesses at the connection hearing and responded to a series of questions put to him by the applicant following the connection hearing. The report also covers any additional evidence in reply to the evidence contained in Dr Clendon’s linguistic reports of 29 May 2015 and 4 August 2015 and Dr Brunton’s first report, and new and altered opinions arising from the conference of experts.

Dr Ron Brunton

281    Dr Ron Brunton was called by the State. Dr Brunton has been involved in the discipline of anthropology for fifty years. Dr Brunton obtained his PhD in anthropology from La Trobe University and has lectured at Macquarie University, La Trobe University and the University of Papua New Guinea. Over the last twenty five years, Dr Brunton has focused on a number of issues related to Australian Aboriginal people including native title, cultural heritage, social welfare and reconciliation. Dr Brunton has been retained by the State to provide anthropological reports for a number of native title claims in Western Australia and has also provided anthropological reports for respondent parties to native title claims in South Australia and Queensland. Dr Brunton prepared two reports for this proceeding.

Dr Brunton’s first report dated March 2015

282    Dr Brunton’s first expert anthropological report dated March 2015 responds to a number of questions posed by the State and provides detailed comments on Dr Sackett’s first report. In summary, the specific questions Dr Brunton was asked to address in the expert report included his opinions on the identity of the people and groups of people who held native title rights in the claim area at sovereignty, whether the pre-sovereignty community maintained its identity and has continued to acknowledge and observe traditional laws and customs without significant interruption from sovereignty to the present day and whether any persons have rights in the claim area.

Dr Brunton’s supplementary report dated October 2015

283    Dr Brunton’s second report was filed in the proceeding on 2 October 2015 and was limited to providing any new or altered expert opinions having regard to the Aboriginal witnesses at the connection hearing, any additional expert opinions arising out of the expert conference, and any additional evidence in reply to Dr Sackett or Dr Clendon.

Joint report filed by the expert witnesses and the conference of experts

284    On 5 September 2014, Barker J ordered that any experts whose reports have been filed in this proceeding must attend an experts’ conference before a Registrar of the Court to confer and prepare a joint statement addressing a list of issues to be agreed upon and prepared by the parties. On 23 October 2015, the applicant and the State filed a joint list of questions to be asked of both Dr Sackett and Dr Brunton, focusing on anthropological issues about which the experts’ opinions differed.

285    The joint questions asked of Dr Sackett and Dr Brunton covered a range of issues, separated broadly into four categories: the nature and characteristics of the society of people occupying the claim area at sovereignty; the rights and interests in land that the occupants of the claim area possessed at sovereignty; the nature of the society of the claim area at present; and the claim group members’ connection to the claim area.

286    The experts’ conference was held on Wednesday 24 and 25 June 2015 in Perth. The joint report was finalised and filed on 2 July 2015.

287    Dr Sackett and Dr Brunton also participated in a concurrent evidence session on 28 and 29 October 2015. The parties agreed upon and filed a joint list of questions to be resolved at the concurrent evidence session. The hearing on 28 October commenced with counsel for the applicant and counsel for the State leading evidence in chief from their respective experts. The concurrent evidence session followed, where the Court led the experts through the questions that had been settled by the applicant and the State and the experts responded to each of these questions in turn. Some of the concurrent evidence was given in a male gender restricted session. Both of the experts were then cross-examined and re-examined.

Evaluation of the expert witnesses

288    All three expert witnesses were diligent and cooperative in their approach to the evidence in this matter. None expressed opinions that were unreasonable or obviously without foundation. I have set out elsewhere in detail my reasons for accepting Dr Clendon’s evidence, but in summary I found his expertise impressive, and his opinions measured and appropriately qualified, but nevertheless firm in their ultimate conclusions.

289    As between Dr Sackett and Dr Brunton, I generally prefer the evidence of Dr Sackett. This is especially so when dealing with the claimant evidence – not only because Dr Sackett had access to the claimant witnesses and Dr Brunton did not, but also because of Dr Sackett’s much longer and deeper familiarity with Western Desert people and their customs and laws, in and around the claim area. I also preferred the evidence of Dr Sackett in other aspects of the case. I found Dr Brunton’s approach too document-based, and too literal. He tended to treat sources he worked with as having some absolute authority, without in my opinion making appropriate allowance for the time and context in which they were produced or recognising that they are only part of the picture. He tended to analyse the sources with a degree of precision that was greater than they could properly bear. He was also too ready to draw inferences from what was not in the material, which again stemmed, in my opinion, from his tendency to see these sources as absolutely authoritative. This is no reflection on his qualifications and experience, which I accept are of a high standard. Nor is it a reflection on his approach during the trial, which was always cooperative. Rather, it is his perspective and method with which I have some difficulty.

APPLICABLE LEGAL PRINCIPLES

290    It is fair to say there was no real dispute between the parties – at least on connection issues – about the applicable legal principles, although there were differences in emphasis. It is also fair to say that the State’s submissions tended to dissect and divide the components of s 223 in a way which I would prefer not to adopt entirely. For example, in [162] of its submissions, the State presents a summary of the “elements” of proof of native title, and contends there are five steps. I do not read the authorities as requiring a five step process in the order set out by the State.

291    The legislative scheme of the NT Act was recently reviewed and explained by a Full Court of this Court in CG (Deceased) on behalf of the Badimia People v Western Australia [2016] FCAFC 67; 240 FCR 466 at [6]-[38]. At [7]-[8] the Full Court said:

The main objects of the Native Title Act (s 3) include providing for the recognition and protection of native title and establishing a “mechanism for determining claims to native title”. The first of these objects, in particular, is intended to reflect the statement of intention in the Preamble to the Act that the people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)     to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The overview of the Native Title Act, set out in s 4, explains that the Act “recognises and protects native title” (s 4(1)) and, essentially, “covers two topics” (s 4(2)), being:

(a)    acts affecting native title (see subsections (3) to (6));

(b)     determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

292    It is as well to set out the terms of ss 225 and 223. Section 225 provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)     to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

293    Section 223 relevantly provides:

Common law rights and interests

(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.

Hunting, gathering and fishing covered

(2)     Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

294    I have discussed the applicable principles in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2) [2014] FCA 528; 317 ALR 432 at [121]-[131] and [135]-[137] and I adopt those passages, and need not repeat them.

295    By way of further elaboration, there are two passages from Jagot J’s reasons for judgment in Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229, which I would respectfully adopt. Her Honour’s decision was upheld by the Full Court (Wyman v Queensland [2015] FCAFC 108; 235 FCR 464), including on her Honour’s analysis of the applicable legal principles. At [450], Jagot J stated:

As explained in Yorta Yorta, native title, being rights or interests in relation to land or waters, “survived the Crown’s acquisition of sovereignty and radical title” but such rights and interests “owed their origin to a normative system other than the legal system of the new sovereign power”, the normative system being “the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned” (at [37]). Accordingly, “it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty” (at [38]).

296    In this proceeding, the normative system upon which the applicant relies is the system of traditional laws and customs followed by Western Desert people.

297    And at [454]-[455] her Honour stated:

As to laws and customs, in Yorta Yorta at [42] it was said that:

... because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.

In this regard, “normative content” means established behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society (Akiba v Queensland (2010) 204 FCR 1; [2010] FCA 643 (Akiba) at [171]-[173]). The “body of persons united in and by its acknowledgment and observance of a body of law and customs” is thus said to be a society for this purpose (Yorta Yorta at [49]), albeit recognising that the word “society” does not appear in s 223 which focuses on “communal, group or individual rights and interests” (see Akiba at [162]-[165]). For the purposes of the NTA if a society ceases to be a body of persons united in and by its acknowledgment and observance of a body of law and customs, then the adoption of former traditional laws and customs by a new society will not make those laws and customs traditional, at least not for the purposes of the NTA (Yorta Yorta at [53]).

298    In the present case, it is said by the applicant that both the Aboriginal people who occupied land and waters in and around the claim area at and before sovereignty, and the claim group members and their ancestors, were united in and by their acknowledgment and observance of a body of laws and customs found amongst Western Desert people.

299    At [180]-[181], the Full Court in Wyman made the following points about continuity:

Ultimately, what the plurality said in Yorta Yorta at [89], having observed that acknowledgement and observance of traditional laws and customs must have continued “substantially uninterrupted since sovereignty”, is important in this regard. Their Honours noted that this qualification must be made to recognise that European settlement has had “the most profound effects” on Aboriginal societies and that it is “inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement”. The plurality then added:

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.

This last quoted dicta emphasises at least three things. First, as the State submits, that change to laws and customs caused by European settlement cannot simply be ignored. Secondly, that it is almost inevitable that change will have occurred. Thirdly, nonetheless, if it can be shown that there is still a “normative system”, out of which rights and interests arise, which is rooted in the sovereignty system, then those rights and interests may be recognised under the NTA.

Depending upon the evidence that is led in any case, claimants may establish that they continue to have a normative society rooted in the classical, sovereignty society out of which rights and interests contended for continue to be possessed, even where a range of rules and practices under laws and customs have ceased to be followed.

300    The applicant contends that there is sufficient continuity of observance of traditional laws and customs to satisfy the threshold, principally because of the continued recognition and adherence to the Tjukurrpa, but also to other traditional laws and customs. They contend (and the State does not dispute) that there can be some change or adaptation of traditional laws and customs, so long as the normative system which existed at sovereignty can still be discerned, and remains the source of the rights and interests in land and waters: see Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [74].

301    The extracts above make it clear there is no need for biological descent to be established. The applicant is correct so to submit. What is critical is proof, on the balance of probabilities, of an enduring normative system of traditional laws and customs out of which rights and interests in land or waters arise for the group who makes the claim (and it is the observance of this normative system which unites the claim group members as a group). The content of that normative system (with allowances as described in Bodney) in each given case will determine how people acquire rights and interests in land or waters, and how they are united as a group (or not, as the case may be). This may, or may not, involve biological descent.

302    The State submits (at [139] of its submissions) that there must be a “sufficient” continuing acknowledgement of relevant traditional laws and customs, namely enough acknowledgement to still produce and sustain rights in a society which has vitality enough for a normative system. It referred to De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290 at [58], [63] and Jango v Northern Territory [2006] FCA 318; 152 FCR 150 at [352], [358], [364], [366], [378], [395]. It is uncontroversial that there must be continuing acknowledgement and observation of traditional laws and customs connected to the possession of rights and interests in land or waters (see, for example, De Rose (No 2) at [60]). However, introducing language such as “sufficient” or “vitality enough” might tend to put a gloss on the description in Yorta Yorta at [47]:

Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.

303    In my opinion, this passage does not suggest “vitality” is an independent requirement. Rather, it suggests (as the meaning of vitality implies) that the system of traditional laws and customs is a living system amongst the members of the claim group, or society.

304    Relying on Bodney at [178] and [186], the State also made the following submission:

Bodney confirms that it is necessary to demonstrate connection to all parts of an application area. Connection to a broad region or places simply in the vicinity of the area claimed is insufficient. Further, a substantial absence of any real acknowledgement and observance of traditional law and custom by persons associated with a particular area would be fatal for native title over that area, even if it could be shown that other claimants, associated with other areas, continued to acknowledge and observe traditional laws and customs.

(Footnotes omitted.)

305    The passages at [178] and [186] of Bodney do not use the term “all parts” and I consider the State’s submission is put too absolutely.

306    At [178] and [179] of Bodney, the Full Court said:

It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra [2003] FCA 1402 at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants’ assertion of connection is to be sufficiently manifest over the claim area as a whole — the more so, in communal claims, if rights and interests are held differentially across the community — though there can be cases where, because of long-standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffıths v Northern Territory (2006) 165 FCR 300 at [561]-[562].

What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs:

(i)    to examine the traditional laws and customs for s 223(1)(b) purposes as they relate to that area; and

(ii)    to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.

(Emphasis in original.)

307    At [186], the Full Court said:

What we wish presently to emphasise is that if those persons whom the laws and customs connect to a particular part of the claim area have not continued to observe without substantial interruption the laws and customs in relation to their country, they cannot succeed in a claim for native title rights and interests even if it be shown — which it has not been — that other Noongar peoples have continued to acknowledge and observe the traditional laws and customs of the Noongar: cf De Rose FC (No 2) 145 FCR 290 at [57]-[58]. As the Full Court noted in Alyawarr FC 145 FCR 442 at [92], continuity of observance of laws that connect is itself “a manifestation of connection”. A substantial absence of any real acknowledgment of traditional law and observance of traditional custom, as these related to the Perth Metropolitan Area, would occasion a substantial failure to maintain connection with that area which could not later be revived for contemporary recognition: Mabo (No 2) 175 CLR at 60.

308    These observations were made, as the extracts demonstrate, in relation to a claim over the Perth metropolitan region, and their Honours’ observations must be understood in that context. There is no issue of the kind raised in Bodney in the present proceeding.

309    If the point the State is attempting to make, relevantly for this proceeding, is that to secure a determination in the terms sought the applicant must establish the continued observance of traditional laws and customs in relation to the whole of the claim area by members of the claim group (rather than other people), and not just the eastern portion, then I accept that is the case.

310    I deal with the claim in De Rose and the first Full Court decision (De Rose v South Australia [2003] FCAFC 286; 133 FCR 325) again in the section of these reasons dealing with the more permanent movement of the claim group members’ ancestors into the claim area. However, the following observations from that decision at [218]-[219] are also apposite:

We should add that the “usurpation” thesis perhaps carries with it overtones of a Eurocentric notion of “occupation”. The joint judgment in Ward (HC) at [14], pointed to a difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests because the “spiritual or religious is translated into the legal”. Their Honours also suggested (at [14]) that the:

… difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer.

Similarly, there is a danger that a term such as “occupation” of land, as applied to Aboriginal people of the Western Desert Bloc, may create a false reference point. Such language, which is not found in s 223 of the NTA, tends to convey an impression that the holders of native title must have enjoyed physical possession of defined tracts of land in ways not dissimilar from the European settlers who arrived in the twentieth century. It may be appropriate to apply the language of “occupation” to a freeholder or leaseholder, or even to the settled existence of the Meriam people whose claims were upheld in Mabo. But as the evidence in the present case makes clear, the Western Desert peoples were comparatively few in number and led a lifestyle that required adaptation to the extraordinarily harsh conditions of the land. The relationship between them and the sites or tracks of spiritual significance to them is not readily captured by the familiar language of Anglo-Australian property law.

311    The approach to the analysis of native title claims must be sufficiently flexible and adaptive so as to cover the range and variety of traditional laws and customs, and living and environmental conditions, in which these claims arise. The manner in which people “occupy” the arid lands of inland Australia is, literally, a world apart from the manner in which people “occupy” the verdant land and waters of the Torres Strait. The law’s approach must not be so inflexible as to favour one kind of traditional life, laws and customs, over another. That would be to frustrate both the objects and purpose of the NT Act and to cast aside the High Court’s decision in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1.

312    Further, the fact that the characterisation of the claims to native title shifts in emphasis, especially where there are unique or unusual issues, may be expected: De Rose [2003] FCAFC 286; 133 FCR 325 at [229].

313    The applicant also made submissions about the civil standard of proof and the drawing of inferences. They referred to the judgment of Bennett J in AB (deceased) on behalf of the Ngarla people v Western Australia (No 4) [2012] FCA 1268; 300 ALR 193 at [724] and the authorities there referred to, especially Selway J’s judgment in Gumana at [201] where his Honour said:

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. That was not the case in Yorta. It is the case here.

314    It is worthwhile setting out a little more of Selway J’s judgment in Gumana which, with respect, is persuasive. At [194]-[196], his Honour said:

Ultimately the evidence of the existence of the relevant Aboriginal tradition and custom as at 1788, and of the rights held by the particular clans in 1788 and thereafter pursuant to that tradition and custom, is based upon evidence derived from what the Yolngu claimants currently do and from what they have observed their parents and elders do and from what they were told by their parents and elders. Mr Gumana, who was perhaps the eldest of the Yolngu witnesses who gave evidence, described it this way:

MR KEELY: Where does – so as I understand the answer given through the interpreter, “rom” is your word for law. And where does that law come from?

GAWIRRIN GUMANA: Rom is come from land, and also from the sea. That’s what we call rom.

MR KEELY: And is that something that you know about?

GAWIRRIN GUMANA: Yes, because my father told me – or not only my father, but people, old people – about land and sea and the water.

MR KEELY: So, your father and other old people told you about land and sea and water?

GAWIRRIN GUMANA: Yes.

As already discussed, there is nothing peculiar or unique about this sort of evidence. It is oral evidence of a custom. It is evidence of fact, not opinion. To the extent that it consists of what Mr Gumana was told by his father and by other old people it constitutes a recognised exception to the rule against hearsay.

However, there is still a problem with it. On its face the evidence of what Mr Gumana and the other Yolngu witnesses were told by their fathers and other elders is not able, by itself, to establish what the facts actually were as at 1788. On its face all that it may be able to establish is that the witnesses and the relevant elders believed that there was a long standing custom that predated them.

(Emphasis added.)

315    His Honour then described (at [198]) the common law’s solution to this problem: namely to infer from proof of a current custom that the custom had continued from time immemorial. His Honour held:

The inference was a strong one: see 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.

316    A similar approach has been taken in Canada. Re Kitchooalik and Tucktoo (1972) 28 DLR (3d) 483 was a customary adoption case rather than a native title case, but the principle applied was the same. At 488, the Court said:

It is said that the Court of these Territories cannot recognize or give effect to custom adoptions by the Eskimo. While the Indian Act, R.S.C. 1970, c. I-6, recognizes such adoptions by Indians there is no corresponding legislation for Eskimos. From this, it is argued that Parliament did not intend to extend recognition of this practice to these people. Custom has always been recognized by the common law and while at an earlier date proof of the existence of a custom from time immemorial was required, Tindal, C.J., in Bastard v. Smith (1837), 2 M. & Rob. 129 at p. 136, 174 E.R. 238, points out that such evidence is no longer possible or necessary and that evidence extending “... as far back as living memory goes, of a continuous, peaceable, and uninterrupted user of the custom” is all that is now required. Such proof was offered and accepted in this case.

317    The work of inferential reasoning in relation to claimant evidence was also the subject of earlier observations by the Full Court in De Rose [2003] FCAFC 286; 133 FCR 325 at [259], and I respectfully adopt that approach:

In Yorta Yorta (HC), the joint judgment endorsed (at [59]) an observation by the trial Judge in that case that:

… the difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated.

For obvious reasons, the Aboriginal witnesses could not give direct evidence of the way in which pre-sovereignty population shifts were viewed by the traditional laws and customs of the Western Desert Bloc. The primary Judge was therefore forced to rely on inferences from necessarily incomplete evidence. Bearing that in mind, in our view, the evidence was sufficient to support the inference he drew, namely that population shifts to and from the claim area that occurred in the twentieth century were consistent with and recognised by the traditional laws and customs of the Western Desert Bloc, in the sense that, under those laws and customs, the newcomers could acquire the status of Nguraritja in relation to sites or tracks on or near the claim area.

318    There is no difficulty in a Court preferring, as more reliable and persuasive, the evidence of Aboriginal witnesses over the evidence of anthropologists or anthropological sources. In De Rose at [264]-[265], the Full Court said:

As the primary Judge made clear at several points in the judgment, it was because of the testimony of the Aboriginal witnesses that he was prepared to find that the four-fold test for determining Nguraritja was acknowledged by the traditional laws and customs of the Western Desert Bloc. He plainly regarded that evidence as more cogent and persuasive than the writings of Professor Berndt on this particular issue.

His Honour took this view notwithstanding that he was by no means uncritical of the evidence of Aboriginal witnesses. As we have noted, he rejected the evidence of certain witnesses on important issues. His Honour’s acceptance of their evidence as to the ways of becoming Nguraritja plainly took account of his assessment of their reliability and understanding of the questions. His Honour must also have taken into account the fact that they were recounting elements of an oral tradition.

319    Contrary to the State’s submissions (at [83]), I do not accept that where the claim group members gave evidence about their own beliefs and practices, and their own understanding, in 2015, of the traditional laws and customs which give rise to their connection to the claim area, the principles set out above can have little or no application because the claim group members’ ancestors moved into the area from elsewhere. That contention assumes the applicant has failed in their case and the State has succeeded on its migration thesis.

320    Rather, the claim group members all gave evidence of what they understood the position had “always been” in the claim area, in terms of the laws and customs which existed in accordance with Western Desert traditions, and governed the connection of people to the land and waters in the claim area. They spoke of what was within their own living memories, and within the knowledge (and living memories) of their parents, grandparents and other family members. Whether their ancestors were habitually resident within the boundary of the claim area or not does not, in my opinion, affect the ability to draw inferences of the kind explained by Selway J in Gumana. The claimant evidence was about traditional laws and customs that applied in the claim area, and which united a particular group of Aboriginal people because they all observed it, and recognised they were bound to live their lives according to it.

321    The Supreme Court of Canada has recognised and emphasised the important and unique role of evidence given by Indigenous people from an oral tradition. In Mitchell v MNR [2001] 1 SCR 911, drawing on the earlier decisions of the Court in R v Van der Peet [1996] 2 SCR 507 and Delgamuukw v British Columbia [1997] 3 SCR 1010, McLachlin CJ said (at [37]-[39], Gonthier, Iacobucci, Arbour and LeBel JJ agreeing):

Nonetheless, the present case requires us to clarify the general principles laid down in Van der Peet and Delgamuukw regarding the assessment of evidence in aboriginal right claims. The requirement that courts interpret and weigh the evidence with a consciousness of the special nature of aboriginal claims is critical to the meaningful protection of s. 35(1) rights. As Lamer C.J. observed in Delgamuukw, the admission of oral histories represents a hollow recognition of the aboriginal perspective where this evidence is then systematically and consistently undervalued or deprived of all independent weight (para. 98). Thus, it is imperative that the laws of evidence operate to ensure that the aboriginal perspective is “given due weight by the courts” (para. 84).

Again, however, it must be emphasized that a consciousness of the special nature of aboriginal claims does not negate the operation of general evidentiary principles. While evidence adduced in support of aboriginal claims must not be undervalued, neither should it be interpreted or weighed in a manner that fundamentally contravenes the principles of evidence law, which, as they relate to the valuing of evidence, are often synonymous with the “general principles of common sense” (Sopinka and Lederman, supra, at p. 524). As Lamer C.J. emphasized in Delgamuukw, supra, at para. 82:

[A]boriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples. However, that accommodation must be done in a manner which does not strain “the Canadian legal and constitutional structure” [Van der Peet at para. 49]. Both the principles laid down in Van der Peet – first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit – must be understood against this background. [Emphasis added.]

There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence. As Binnie J. observed in the context of treaty rights, “[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse” (R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14). In particular, the Van der Peet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Evidence advanced in support of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency from the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing “due weight” on the aboriginal perspective, or ensuring its supporting evidence an “equal footing” with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment. While the evidence presented by aboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case” (Van der Peet, supra, at para. 68), neither should it be artificially strained to carry more weight than it can reasonably support. If this is an obvious proposition, it must nonetheless be stated.

322    Ultimately the Court concluded there was insufficient evidence to support the claim of an Aboriginal right of the kind that would allow the respondent to cross the border with the United States carrying goods purchased in the United States without having to pay duty. The Court’s conclusion is illustrative of the approach it had earlier set out:

As discussed in the previous section, claims must be proven on the basis of cogent evidence establishing their validity on the balance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim. With respect, this is exactly what has occurred in the present case. The contradiction between McKeown J.’s statement that little direct evidence supports a cross-river trading right and his conclusion that such a right exists suggests the application of a very relaxed standard of proof (or, perhaps more accurately, an unreasonably generous weighing of tenuous evidence). The Van der Peet approach, while mandating the equal and due treatment of evidence supporting aboriginal claims, does not bolster or enhance the cogency of this evidence. The relevant evidence in this case – a single knife, treaties that make no reference to pre-existing trade, and the mere fact of Mohawk involvement in the fur trade – can only support the conclusion reached by the trial judge if strained beyond the weight they can reasonably hold. Such a result is not contemplated by Van der Peet or s. 35(1). While appellate courts grant considerable deference to findings of fact made by trial judges, I am satisfied that the findings in the present case represent a “clear and palpable error” warranting the substitution of a different result (Delgamuukw, supra, at paras. 78-80). I conclude that the claimant has not established an ancestral practice of transporting goods across the St. Lawrence River for the purposes of trade.

323    Giving due weight to Indigenous evidence from an oral tradition will inevitably involve drawing inferences about how and over what period of time the traditional laws and customs spoken of have given rise to rights and interests in land or waters. The Court’s approach must be sufficiently flexible to accommodate this, while bearing in mind the limits articulated by the Canadian Supreme Court in Mitchell, and being astute to ensure there is sufficient evidence for the discharge of the legal burden of proof.

324    It will be obvious that, therefore, I do not entirely accept the State’s related submission on this issue: namely that the position at sovereignty must be proved through expert or historical ethnographic (and therefore, inevitably European) evidence. Such evidence is to be considered along with the evidence of Aboriginal witnesses but it has no more necessary intrinsic probative value, and may suffer from weaknesses affecting its probative value, such as lack of understanding and the inability to test its provenance and reliability. For example, and as I set out later in these reasons, the work of Daisy Bates has some of these weaknesses.

FINDINGS ON CONNECTION ISSUES

A note on places referred to frequently in the evidence

325    There are several places, or areas, the geographical location and extent of which should be clarified. This can be done with more certainty for some than others.

Yander – as referred to by Daisy Bates’ informants

326    “Yander” was not a term used frequently by the claimant witnesses but it was one of the principal geographical terms recorded by Daisy Bates as identifying where her Ngaiawonga informants were said to have connections.

327    In answer to a question asked of him by the solicitors for the applicant for his first expert report, Dr Sackett summarises how the location of Yander arises. The question asks about the laws and customs of what the parties have now called the Ngaiawonga in relation to rights and interests in land. Dr Sackett provides the following summary answer:

Unfortunately, we do not have statements by the original occupants of the claim area as to their laws and customs regarding acquiring rights and interests in land. What we do have, though, is (1) a summarizing statement by Bates on the subject and (2) information contained in a few Ngaiuwonga Pedigrees, specifically those she linked to an area named Yander. These, as it happens, are somewhat contradictory. At the same time, taken as a whole, they offer at least glimpses into the situation at about the time of settlement. (While, as will be seen, Yander lies to the north of the claim area, the Pedigrees show people from the wider Ngaiuwonga area.)

328    Dr Sackett describes the way Daisy Bates set out, in summary, how people acquired rights and interests in land and waters:

Regarding the law and custom of the claim area, and the region more generally, Bates stated that:

[e]very pool, spring or lake in every tribe is associated with the family or group occupying the vicinity, or with some individual member of that family, whose birth occurred beside the pool, etc. Such pool belongs to the family of the person born there as long as the family exists.

Elsewhere, Bates elaborated on this, averring that “[i]t appears from the association of certain individuals with certain pools, that these have been the camping grounds of a local family or group, consisting of fathers and sons only.” I take this to mean that as Bates saw it, any given tribe (and for her the Ngaiuwonga constituted a tribe) was divided into, or made up of, local patri-groups; these in turn were associated with, or held, the local component places and countries that made up the total tribal area.

At the same time Bates wrote of families or patri-groups, she spoke of Ngaiuwonga “tribelets”, ie of intermediate subdivisions of the Ngaiuwonga people – of some type of grouping above the family or patri-group level, but below the tribal level. As Bates related it, these, at least at times, took their name from a named place in the area of the subdivision.

Yander possibly was one of these latter. It certainly is a name that figures regularly in Bates’ Ngaiuwonga genealogies. That is, she labelled some Pedigrees relating to Ngaiawonga people as “Yander” Pedigrees, and associated some of the people named in such Pedigrees with an area called Yander. Concerning this later point, she, for example, stated that “Jinguru [one of her primary informants] is from Yander.”

This said, it needs to be noted that there is ambiguity in the location of Yander, and inconsistency in the rendering of the term Yander. At times Bates said Yander was Lake Way; other times she said it was a place some 60 kilometres west of Wiluna township. On these latter occasions, Lake Way was said to be Wilurna or Wilurira. Bates also seemingly rendered Yander as: Yarnder, Yarnderi, Yanderguna and Yander bubba.

(Citations omitted.)

329    As Dr Sackett subsequently concluded, Daisy Bates’ records did sometimes link specific individuals with named places, but said nothing about the nature or source of their associations with those places, nor indeed whether they had associations with other places. The area Bates variously called “Yander” or some like formulation was one such place.

330    Commenting on these opinions, Dr Brunton’s view was that Yander was likely to be near Lake Way, although a little to the south-west. He based this on a map Daisy Bates obtained at Rottnest Island which has “Cork Tree” written under the word “Yarnder”. Dr Brunton identified a bore called “Cork Tree Well” on the Geoscience Australia database, and obtained its coordinates, which would place this bore inside the north-eastern boundary of the claim area, about 5 km in from the boundary. In response, Dr Sackett noted that, elsewhere in her records, Ms Bates showed Cork Tree not as Yander but as Yalgojibi. Dr Brunton nevertheless maintained that Yander could be near Cork Tree.

331    It does seem that the place Ms Bates identified with some of her informants as “Yander” (and its variations in her records) lies somewhere either just in, or just out, of the north-eastern boundary of the claim area, bearing in mind that Lake Way pastoral station is shown on the maps in evidence as only about 5 km from the claim boundary.

332    There is no evidence why a place which seemed to play such a significant part in Bates’ geographical records apparently has no identifiable parallel on maps created by Europeans, while most other places identified by Aboriginal informants could be aligned with a geographical feature, a mining or pastoral location, or a settlement.

333    On the balance of probabilities, I am satisfied on the basis of Dr Sackett’s evidence, considered with that of Dr Brunton, that the “Yander” and similarly spelt places recorded by Bates (as identified by Dr Sackett) was at or very close to the north-eastern boundary of the claim area.

334    It is not possible to make any findings, in my opinion, about the size of this place Yander, nor to be certain whether it was an area, or a site.

Lake Way – as referred to by Daisy Bates’ informants

335    On the evidence before me, “Lake Way” can mean one of three things. First, it can be a reference to the pastoral station called Lake Way Station, which is marked on the maps in evidence as being about 5 km outside the north-eastern boundary of the claim area. I infer this is the location of the station homestead.

336    Second, it can be a reference to the lake itself, which is some way further north of the claim boundary. The lake is very large (it appears to cover about 460 square km), and is generally a dry salt pan, save for exceptional floods. There is, and has been for some time, mining activity in the lake.

337    Third, according to some evidence given by Dr Sackett in his supplementary report, there was, at least during the gold rush time, a township called Lake Way. Dr Sackett records an early European prospector – Lawrence Wells – noting in April 1892:

At several of my [gold] discoveries of that year (notably Mount Sir Samuel, Lake Darlot, and Lake Way) there are now townships and goldfields (Wells 1902:5)

338    The evidence before the Court does not suggest a township still exists at Lake Way.

339    When the references are taken in context, it seems more likely to me that the claimant witnesses, when they spoke of Lake Way, were using the term reasonably interchangeably as between the pastoral station and the lake itself, simply to indicate a vicinity. It seems unlikely they were referring to a township established during (and perhaps only during) the late nineteenth century gold rush in the area. Where evidence was given about working on Lake Way, it was generally clear it was the pastoral station the witness was referring to.

Darlot

340    Lake Darlot is another large salt pan lake to the east of the claim area. Running north to south and taking in Lake Darlot are a number of places referred to in the evidence: Barwidgee, Mount Grey, Yandal and, to the south of Lake Darlot, Weebo.

341    The use of “Darlot” as a name for locating people and places was familiar to Dr Sackett from his earlier anthropological work on claims in this region.

342    Dr Sackett recounts how Lake Darlot was another place where Lawrence Wells discovered gold in about 1892. Other records to which Dr Sackett refers place the discovery of gold in the Darlot area (which, in this context must refer to Lake Darlot) at about 1894. Dr Sackett then refers to a historical account of the Darlot area by Lyn Hatch (Darlot: The Centennial Publication 1894-1991 (Plutonic, 1994)), where the author describes the establishment, around 1901 onwards, of pastoral stations in the area, following upon the discovery of gold, and the eventual amalgamation of three leases to become three large pastoral stations: Weebo Station, Banjawarn Station and Melrose Station.

343    As Dr Sackett observes, the claimant witnesses tended to use the term “Darlot” in several different ways. Sometimes there were references just to Lake Darlot itself. For example, Mr James’ evidence was that there were groups of Western Desert people at Lake Darlot (the “Birriliburu mob” was one he referred to). He thought they called themselves “Koara”, and he recognised they had similar traditions or customs to his own mob, however he then said: “but they are about a different part of the country”.

344    Other witnesses referred to Darlot in terms of a larger region or area. For example, Ms Geraldine Hogarth’s evidence was that all her grandchildren could “say that the Darlot area is their country, because my mother’s grandmother was born there”. This reflects the evidence Ms Hogarth’s mother, Ms Luxie Hogarth, gave. Ms Luxie Hogarth’s evidence was:

My mother was from Darlot. Her name was Kugila and her whitefella name was Daisy Cordella to start with. Then my mother married my father, and she became Daisy Hogarth. Her mother, and her grandmother, and her grandfather, they were always there, living in the Darlot area. My mother taught me how to live in the country, and she showed me a lot of things, on the Darlot side.

345    In oral evidence, Ms Geraldine Hogarth said:

MR WRIGHT: And I just wanted to just clarify one thing about your grandmother on your mum’s side, your mother’s mother, what’s your understanding as to where she’s from?

GERALDINE HOGARTH: From Darlot, Lake Darlot, at that place, yes.

MR WRIGHT: So, the actual lake?

GERALDINE HOGARTH: Oh, no around that area Darlot when we talk about Darlot, yes.

346    When Ms Luxie Hogarth was asked during her evidence in chief to explain what Darlot means and whether it refers to a particular place or a large area, she answered:

It’s just a big area where all my – my grandmother and grandfather and they all lived there, and to the great, great grandfather and all – and my – that’s where my mother stay and us family lived there in that area.

347    There is no more precise indication from Ms Geraldine or Ms Luxie Hogarth’s evidence regarding what region they had in mind when they gave this evidence. Given their evidence was frequently an account of what they had been told in oral tradition, it seems likely that little more specificity was given when the information was passed on. Of course, those who were the first generation conveying this information would have had a more specific idea of the geographical boundaries of the region they identified as “Darlot”, because they would have been speaking about their country, the country in which they had rights and interests. That was likely internal knowledge, so to speak, embedded in the person passing on the information. But as the information is handed down, unless more inquiries are made or questions asked, the later generations may not have the same internal knowledge of the particular geographical region the speaker had in mind. That is why the Court is particularly assisted by a person with the knowledge, experience and expertise of Dr Sackett, acquired over a long period of working with Aboriginal people in the wider region that includes the claim area and the areas to which the witnesses refer. He is better placed than the Court to try and fit pieces of the jigsaw together: it is then up to the Court whether it accepts his evidence, and how that evidence fits with the matters the applicant has the burden to prove.

348    Two witnesses did attempt to describe in a geographical sense the area they, at least, meant when they used the term “Darlot”.

349    Mr Muir’s evidence was that he meant “Darlot, Weebo, Wardadda, Darda, Yandal; mostly the country to the east of the Tjiwarl claim”. In the next part of his evidence, he contrasts this description with other areas:

That’s where most of the people lived in my grandmother’s time when my mum was a little girl, in Darlot. They moved around following ceremonies even my mum was a little girl, walking from Mulga Queen through Croft, north of Darlot, using a yiwarra [a traditional track] that goes through Henry’s Well and Townsend Well. That’s really the walking journey that people took into this claim. That’s the yiwarra, the pathways. Following the dragonfly, the Tjiinkuna dreaming.

350    I note from the maps in evidence that Croft does not appear on them.

351    Mr Lewis also gave evidence that when people say “Darlot” they are talking about the area running north to south between Yandal and Weebo with Lake Darlot in the middle. I take this evidence to mean that is what Mr Lewis understands by the region he calls Darlot, and further what he understands when other people within the claim group, and perhaps outside it (the latter being less clear), use that regional description.

352    There is a reasonable level of consistency between the evidence of Mr Muir and Mr Lewis, and between that evidence and Dr Sackett’s understanding of how the term is used. For the purposes of my findings in this proceeding, I take references to Darlot to be references to the area east of the claim area between approximately the stations of Yandal in the north and Weebo in the south, with Lake Darlot in between them.

Wongawol

353    Just as with the references to Darlot, it became apparent during the on country evidence that the name “Wongawol” was used to refer to possibly different places, or a region which is not defined or easily discernible on any of the maps in evidence.

354    On one of the maps in evidence (Map 3 of the applicant’s bundle), Wongawol is shown as a pastoral station approximately 150 km as the crow flies from Barwidgee, which means it is approximately 155 km outside the north-eastern edge of the claim boundary.

355    Dr Sackett’s view is that the claimant witnesses use “Wongawol” in at least two ways. First, as a reference to the pastoral station. This is clear from the way Mr Allan Ashwin used the name in parts of his evidence, where it is one of several pastoral stations being referred to:

I was born at Weld Spring, Banja on Prenti Downs, which used to be part of Windidda country. I grew up around Wiluna and Albion Downs. I still went back to the places I was born when my old man was working around Windidda and Wongawol. I used to go out there as a kid and more or less grew up at Windidda and Wiluna.

…

After Yeelirrie I went to work on Windidda. But I’ve worked all over this area. Yakabindie, Albion Downs, Mt Keith, Lake Mason, Lake Way and Matuwa, Jundee, Glen Ayle, Carnegie, Wongawol. I’ve mainly lived and worked in this area my whole life. I spent some time in Meekatharra district and Leonora district and worked up at Yandeyarra, around Kalgoorlie for Main Roads patching roads, I used to do the road from Withcimulda to Kalgoorlie.

356    Another example is his evidence about his grandmother Telpha Ashwin:

My grandmothers [Telpha Ashwin] country was from around Windidda and Yelma and Wongawol, Lorna Glen around Carnegie and all that area. When she was living with old Arthur Ashwin, he the one who started Lorna Glen and Yelma Stations and started Dada over towards Darlot. He started them properties up.

357    Ms Harris’s evidence about her mother’s country was:

My mother was born in Wiluna, and grew up in Carnegie, Windidda, Wongawol, all around that station area [in the Wiluna determination area].

358    In the case of both Darlot and Wongawol, although he set out how earlier ethnographers and anthropologists had recorded peoples’ self-identification with these areas by reference to a variety of labels, which were sometimes related to language or dialect and sometimes not, Dr Sackett’s opinion is that the use of station names by people had no real relevance to the analysis of the movement of people from the Darlot or Wongawol areas into the claim area. I accept that evidence. Rather, pastoral stations are an obvious contemporary reference point.

359    All that need be found in relation to Wongawol is that in a particular context it may refer to the pastoral station, and in another context it refers to a larger region, no doubt including all or part of the pastoral station, but which was considered by the ancestors of those witnesses who spoke about the region as their country under traditional laws and customs. There is no dispute that, whatever the outer limits of this region, it is a considerable distance to the east of the claim area.

Wiluna

360    I have put a reference to Wiluna here because of some of the evidence given by the claimant witnesses in particular, which I consider should be noted. While there is no lack of clarity about where the Wiluna township is (having been established in approximately 1898), nor about the area covered by the Wiluna native title determination (which was in evidence in Map 13 of the applicant’s maps), what is striking is the way in which some of the claimant witnesses would speak about Wiluna and Lawlers in combination, as if they considered them to be the same area. As can be seen on the map attached to these reasons, Lawlers is south of the claim area, and Wiluna is north of the claim area. It seems to me this may be a little like the “Darlot” references in the evidence, where station names are used to refer to what is actually quite a large area, rather than a specific location on a map, which is where the European mind naturally goes.

361    For example, Ms Geraldine Hogarth, when speaking of her paternal grandmother Alice Redmond Curtin (whose Wongai name was Koyungati), said she came “from this Wiluna area, and she was born in Lawlers”.

362    Similarly, Mr Lewis gave the following evidence:

Before this boundary, we had a Koara claim. It’s just a name change. Before then they had the Sir Samuel claim. It’s just changing names. Before native title claims come along, people would talk about their ngurra by using the pastoral station names. That was how you described your area. If you said, “I’m going back to Depot” you would mean you were going back to “Depot, Booylgoo and Kaluwiri”.

363    I take references to “Wiluna” in the evidence to be references to a region, rather than express references to where the township is located (and shown on a map). In context, as the evidence to which I have referred demonstrates, it may include quite a large region that takes in all or part of the claim area.

References to where people “lived”

364    There is no historical town or Aboriginal community located in the claim area. Leinster was established for those working in, or servicing those working in, the mines in the region.

365    The townships which grew up as a result of Europeans entering the area prospecting for gold, and establishing pastoral stations, were mostly outside the claim area, although some surround it.

366    Aside from working on the pastoral stations and thereby remaining within the areas they identify as their country, the claim group members and their ancestors were compelled to locate themselves in or near the townships created by Europeans if they wished to access regular supplies of food, services, work, housing and the like.

367    Therefore, where the evidence is that a person was born in towns such as Lawlers, Leonora, or Wiluna, or “lived” in one or more of those places, contrary to the thrust of the State’s submissions, I do not consider this as evidence capable of demonstrating lack of connection with the claim area. It might not be positive evidence of connection, but nor is it evidence against it. People “lived” where they could, and if they remained close, in Western Desert terms, to the area they identify as their country, the fact they could not, or did not, find a place to “live” inside a boundary that did not exist at the time they were making these choices is of little relevance to the matters of which the Court needs to be satisfied.

Preliminary matters

Use of geographical locations close to the claim area

368    As I have already noted, the parties accept the boundaries for this claim area are arbitrary as to the north, the south and the east. The western boundary, it is accepted, runs along geographical features. This fact assumes some importance in the way evidence about people who occupied areas just outside the claim area should be treated, especially historical evidence.

369    The undisputed evidence is that, like its surrounds, the claim area would have been sparsely populated by people living a traditional life. To sustain life, large areas of country were required. Geographical features assume importance for practicalities such as finding shelter, food and water, as well as for ceremonial and spiritual reasons. There is a tendency however, since European contact, to identify regions by reference to European towns or pastoral stations: even Aboriginal witnesses tended to do this, although in my opinion their evidence was inevitably more nuanced and talked about an “area” near a town or “around” a pastoral station. This indicated, it seems to me, a consciousness that Europeans, including people such as anthropologists, lawyers and judges, will identify with town names and pastoral station names, so descriptions were put in this way. They are, in my opinion, no more than rough approximations of larger areas the Aboriginal witnesses are generally referring to. Much more authentic and reliable in descriptive terms are references to geographical features which figure in traditional laws and customs, or have practical significance, such as waterholes, shelter or paths and routes between significant places.

370    Unless there is clear evidence to consider otherwise, in my opinion where evidence refers to places relatively close in geographical terms to the claim boundaries, there is no reason to consider that evidence is irrelevant as not touching on connection with country inside the claim area. Its relevance must be assessed by factors wider than the line drawn on a map for the purposes of this claim under the NT Act. Those lines are ultimately the lines on which the Court’s orders and determination may be based, but it is mistaken to see those lines as reflecting anything precise about the country to which the claim group members and their ancestors may be connected by traditional laws and customs. An example is the place identified on the maps in evidence as Lake Way (rather than the lake itself), which is approximately 5 km from the north-eastern part of the claim boundary. When this place is spoken of in the evidence, it is usually difficult to discern whether the speaker is referring to the area of the lake, to the European named pastoral station, or both (or neither). But this area is so close to the claim area that it is counter intuitive to suppose that people living a traditional life and who were connected by traditional laws and customs to the Lake Way area did not also have connections to country inside the claim boundary. Unless, for example, a previous native title determination had made it clear that there was a different landholding group immediately adjacent to a claim boundary which, in my opinion, is the kind of “clear evidence” one would need to make a different assumption.

The content of Western Desert Laws and Customs and the “Western Desert Cultural Bloc”

371    Although there was no dispute between the parties that the claim group members are Western Desert people, and no dispute that the areas from which their ancestors came were Western Desert areas, it is necessary to make some findings on the features of Western Desert traditional laws and customs because the Court is asked to determine, amongst other things, whether it was these laws and customs which governed peoples’ relationships with the land in the claim area at sovereignty.

372    These matters can be set out with some certainty because they were the subject of admissions by the State in its response to the applicant’s statement of issues, facts and contentions. I also set out below some relevant evidence from Dr Sackett on this issue.

373    As an introductory matter, I consider it useful to reflect on the population size of the groups to be discussed. In a paper published in 1959, Professor Berndt gives his own estimates of the historic and current (as in 1959) population size of Western Desert people: see Berndt R, “The concept of ‘the tribe’ in the Western Desert of Australia” (1959) 30 Oceania 81. First, it is necessary to bear in mind the area to which Professor Berndt referred to as the Western Desert covered more than 647,000 square km (Professor Berndt’s estimate in square miles was 250,000). In this context Professor Berndt estimated that in 1959 the maximum population for the region covering Jigalong, Wiluna, Leonora, Laverton, Mulga Queen, Mount Margaret, Cosmo Newberry, the Warburtons, the Blackstone range and Winggalina, the Rawlinsons and up to Lake McDonald might be 2,000 to 2,200 people. He estimated no more than 3,200 Aboriginal people would be living in the entire Western Desert. The estimate he gave of the pre-European contact population was approximately 10,000 for the same region and 18,000 for the Western Desert as a whole.

374    In this part of his paper, Professor Berndt gives some examples of 1957 and 1959 population sizes in some of the places to which he refers. He estimates (for example) that in 1957 there were 46 Aboriginal people in Leonora, 243 people in Laverton and 48 in Wiluna. I make this point to illustrate that in the critical years with which this proceeding deals – the first and second decades of the twentieth century – the original inhabitants of the claim area, and land around the claim area, were likely to have been few in number. So when claimant witnesses in this case speak about the “old people” in and around the claim area and how their own ancestors may have mixed with them, it need not be thought there were very large numbers of such people. Numerical strength is not the issue, nor a criterion for connection.

375    In terms of language, there is one Western Desert language with a large number of varieties or dialects associated with different people and different areas. As Dr Clendon’s evidence shows, labels given by Western Desert speakers to themselves by reference to language are ephemeral and it is difficult to draw any links between dialect and rights to country, especially since many Western Desert people were multilingual in Western Desert dialects, and in other Aboriginal languages. Just as with their language, groups of Western Desert people did not identify themselves with a single Indigenous name.

376    The source of laws and customs for Western Desert people is the Tjukurrpa. It governs all aspects of their lives, including rights to land, social rules and spiritual practices.

377    One of the key features of Western Desert society which differs from other Aboriginal societies is the way that individuals and groups gain association with, and rights and interests in, particular areas of land. It is not simply by descent, whether biological or adoptive. It is broader than that – hence the expression used frequently by Dr Sackett in his evidence of “multiple pathways” to rights and interests in land and waters. A person may acquire rights and interests by conception or birth on country, growing up or initiation on the country, or the acquisition of knowledge through long residence. Rights and interests may also be acquired in ways more familiar in other Aboriginal societies: namely, descent from a person who has the requisite connection. A landholding group for a particular area is determined through a shared association amongst the group members with sites associated with the Tjukurrpa in particular parts of the land and waters.

378    Since there are multiple pathways, landholding groups tend to be more open and fluid, and individuals may have access to a number of different parts of country through different pathways. None of the pathways is exclusive of another. Nor are these groups formed along patrilineal or patrilocal lines. The rights and interests of different groups in particular areas are recognised by other groups.

379    There are rules about strangers or visitors entering country – access can be refused and conditions can be imposed, including that the visitor or stranger has to be accompanied by a person recognised as having authority in respect of the area. Access to and disclosure of knowledge about sites and rituals associated with sites can be restricted on the basis of gender, age and ritual knowledge. Sanctions can be imposed for non-adherence to these kinds of rules. Spiritual features of the landscape have to be respected and cared for, including by the observance of rituals and practices specific to certain sites or features. There needs to be particular and appropriate transmission of knowledge relating to those features, which also means restrictions on which members of the group have, and can use, that knowledge. In contrast to some of the laws and customs about how people gain rights and interests in country, none of the rules I have set out in this paragraph were suggested to be unique to Western Desert society, but were said to be features of that society.

380    In his first report, Dr Sackett traced the development of the concept of a Western Desert society, which he described in the following terms:

In discussing the places of origin of the apicals and their ancestors I mentioned the Western Desert. The idea of the Western Desert as a culture area has its roots in the work of AP Elkin.

Based on research undertaken in 1930, AP Elkin concluded that peoples in and from the southwest of the Northern Territory, the western half of South Australia and the southeastern portion of Western Australia “are characterized by a number of common features in their social organization and beliefs, which not only serve to link them together, but also to mark them off from [the peoples in the southeast of the Northern Territory, southwestern Queensland, and eastern half of South Australia].”

Specifically, Elkin said:

(a)     people in the area had neither patrilineal nor matrilineal moieties (and that the presence of alternate generation levels and sections should not be construed as suggesting they did).

(b)     “[a]ll the tribes of [this area] have practically the same kinship system, and, indeed, use much the same terms”.

(c)     there were birth totems, wherein not only did a person’s totem depend “on his place of birth and the totem associated with that place”, “this totemism is ceremonial; the totemite ... [if] a fully initiated male, is taught the myths and ceremonies which enshrine the story of the culture-hero or heroes associated with the totem”.

(d)     a common mythological “theme ... is associated with the totemism of the area and enshrines the exploits of the totemic heroes of the time long past. The one term, djugur ... denotes a person’s totem and the myth of his particular totemic hero”.

(e)     another totem was “the species associated with a person’s conception”.

(f)     conception was thought to occur when “spirit-children enter women in the guise of food”.

(g)     “[t]he pattern of cicatrization on the backs of all fully initiated men of all tribes in this area is the same”.

It also should be noted, although Elkin himself did not do so, that the people he worked with, and the peoples of the Western Desert more generally, spoke dialects of the same unnamed Western Desert Language, meaning the area on the whole had certain common social, cultural and linguistic features.

Ron Berndt developed and extended on Elkin’s work, saying that Elkin’s “common features” extended across a much greater area of land than even Elkin had considered. As Berndt presented it, that area, which he said constituted the Western Desert Cultural bloc, was made up of two parts. One part extended:

eastward from Kalgoorlie, Laverton and Leonora as far as Oodnadatta; and south from the central mountainous core (including the Everard, Musgrave, Man, Tomkinson, Petermann, Warburton and Rawlinson Ranges) to the Trans-continental Railway Line, including Lake Phillipson, Ooldea, Cundeelee and so on. This part has been called the Great Victoria Desert.

The other part ran:

from the Rawlinsons north-west past Lakes Gregory, Nabberu and Carnegie to Wiluna, and to Jigalong ... and [was] bounded on the north (beyond the Canning Stock Route) by the southern and eastern Kimberleys.

(Citations omitted.)

381    To reiterate the particular nature of Western Desert society, I adopt the following description by Dr Sackett:

Unlike patrilineal landholding groups, Western Desert landholding groups are neither fixed nor predictable; they, as Myers observed, “are not a given.” Rather, Western Desert landholding groups, traditionally at least, were emergent bodies. That is, rather than it being the case that the landowners of a country were constituted as a group through their shared defined descent from prior land holders, they were landowners of the country through their shared associations with and to the land itself.

(Citations omitted.)

382    As the applicant sets out in their final written submissions, there was agreement between Dr Sackett and Dr Brunton on two key matters pertinent to this issue. First, and in broad terms, the matters to which I have referred above, including the “multiple pathways” to rights to country, which, as Dr Sackett expressed in his evidence (with Dr Brunton agreeing), means there is the “possibility of taking father’s country, mother’s country, grandparent’s country, growing up in the country, learning about it and making claims to it on the basis of one’s knowledge of the country, and particularly, birth [on] country”.

383    Second, country associated with Western Desert people is not represented by a clear line which can be drawn on a map, with Western Desert society on one side and another kind of Aboriginal society on the other. Instead, the characteristics of Western Desert society “fade” (or perhaps become less apparent as a point of difference) until the point is reached that, overall, the Aboriginal society would be characterised as a non-Western Desert society. The relevant example accepted by both Dr Sackett and Dr Brunton in the regions around the claim area are the communities to the west of the claim area, around Cue and Meekatharra, which both experts agree are comprised of non-Western Desert people.

384    The argument is then about the applicant, representing a landholding group which occupies country in between lands now clearly recognised (at least anthropologically) as lands of Western Desert people (such as the Warburton Ranges) and lands clearly recognised (at least anthropologically) not to be so (such as Cue and Meekatharra). I should add here that, as the evidence in this case discloses, the claimant witnesses themselves also see clear distinctions between their own laws and customs and those of the people to the west of them.

My conclusions

385    It is clear, as both Dr Brunton and Dr Sackett accept, the concept of a Western Desert society (even if one leaves out the “cultural bloc” part of the label) is an anthropological concept. More recently, it can also be said to be a native title concept, as Dr Sackett also noted in his first report. Dr Brunton said in his evidence, and I agree, it is not an emic reality. Its function is to enable a classification of groups of Aboriginal people by non-Aboriginal people, whether for the purpose of study (as by the early anthropologists) or for the purpose, in more contemporary times, of ascertaining a landholding group for the purposes of the NT Act.

386    To that extent, care must be taken in the way the concept is used. It is partly for that reason that I prefer not to use the phrase “Western Desert Cultural Bloc” which is an expression coined by Professor Berndt. The Court is not engaged in any anthropological study or existential classification of Aboriginal people: rather, the Court is engaged in determining whether the applicant has proven the matters required for a determination of native title. Central to that task is proof of matters in s 223 of the NT Act, which do not include any necessary determination of who might be correct on where a line can or should be drawn about the extent of the rights and interests in land of other groups who may identify as Western Desert people.

387    Rather, the utility of the classification process in which anthropologists and Courts have engaged is to see whether there is a single set of laws and customs which unite a particular group of people in their connection to particular areas of land and waters, and to decide whether those laws and customs are traditional ones. In that sense, the anthropological analysis about the traditional laws and customs of Western Desert people is important. But it is not a classification of where the traditional laws and customs of Western Desert people begin or end as an independent exercise.

388    It is also for this reason that I would, with respect, take a different approach from the one taken by Lindgren J in Wongatha.

The place for inferences in contested issues about laws and customs in the claim area at sovereignty

389    This was the subject of detailed submissions by both the applicant and the State. The role and application of the approach set out by Selway J in Gumana was contested. In any native title case, there will be an important role for inferential reasoning, because of the passage of time between the circumstances at or before sovereignty, and the circumstances prevailing at the time the Court must determine whether the requirements of s 223 of the NT Act are satisfied.

390    A case such as the present poses additional challenges in the use of inferential reasoning. That is so for two reasons. First, the additional questions posed by the movement of the claim group members’ ancestors (or at least some of them) into the claim area in the early twentieth century requires more steps in inferential reasoning than might usually be the case. Second, the paucity and nature of any broadly contemporaneous evidence concerning the situation in 1912 also means the applicant must rely on inference, and on expert evidence, to a greater extent than may be the case in some other claims.

391    Relying on Sackville J’s judgment in Jango at [460]-[464], the State submits that the applicant needs to adduce “anthropological evidence to establish the link between current laws and customs (or those observed in the recent past) and the laws and customs acknowledged and observed by the claimants’ predecessors at the time of sovereignty”. The claimant evidence alone cannot, the State submits, establish that the laws and customs to which they depose are “traditional”, in the sense of existing at the time of sovereignty. The State repeated this contention at several points in its submissions. In my opinion, the State seeks to elevate Sackville J’s observations in Jango to some kind of legal requirement, which they are not. There is no legal requirement that ethnographic or anthropological evidence must directly establish the existence, nature and content of laws and customs observed by the Aboriginal people who occupied a claim area at sovereignty. Inferential reasoning may operate on anthropological and ethnographic evidence and opinion, just as it may on the evidence of claimant witnesses.

392    In Jango at [441], Sackville J said:

In Yorta Yorta (HC), as I have noted, the joint judgment pointed out that laws and customs do not exist in a vacuum, but derive from all forces that go to make society. In that case, the content of the laws and customs was known, but there was no society which continued to acknowledge and observe them. Here it is the content of the laws and customs that is in issue.

(Citations omitted.)

393    In the present case, unlike Yorta Yorta, the issue is not whether there is a present society which continues to acknowledge laws and customs. The State ultimately conceded continued acknowledgement by the claim group of Western Desert laws and customs. Nor, unlike Jango, is the content of those laws and customs in real dispute – save for perhaps the question whether the traditional rights and interests identified by the applicant include a right to take resources. The issue in the present case is the identity (or characterisation) of the people who, at sovereignty, recognised and practiced what the State accepts were traditional laws and customs giving rise to rights and interests in the land and waters of the claim area. The question is: whose traditions? Traditions of the Western Desert people, or not?

394    The State also relied on remarks by Lindgren J in Wongatha (at [345]), to the effect that:

… the permissible drawing of inferences requires careful consideration of the practice or activity, the frequency or rarity of its occurrence as observed, the circumstances of earlier times in so far as they are known and the general probabilities.

395    So far as it goes, there is little to object to in these remarks: they represent an orthodox approach to inferential reasoning. However, the application of this approach will be very much dependent on the evidence adduced, and the arguments put, in any given case.

396    The State also relied on observations of Barker J in CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204 at [116], to the effect that a Court must carefully weigh earlier ethnographic data, to determine whether the claim group members’ understanding of the pre-sovereignty position had been affected by post-sovereignty events. While those observations may have been pertinent to the issues raised before his Honour, the present situation is different. It is not the State’s case that “post-sovereignty events” affected the claim group members’ understanding of the pre-sovereignty position. The State did not identify any such events, and did not submit the claim group members laboured under any misunderstanding of the pre-sovereignty position. The State’s case was that the claim group members’ ancestors had “imposed” Western Desert laws and customs on the claim area. The State did not really dispute that the laws and customs to which the claim group members deposed were traditional. Rather, it said they were not “traditional” to this claim area: it contends they were imported. That is quite different from the circumstances in Badimia to which Barker J’s remarks were directed.

397    The emphasis on historical European evidence in the State’s submissions continued with somewhat in terrorem submissions, said to be based in part on the Full Court’s decision in Bodney. The State submits it would be a “serious error” for the Court to:

… simply draw inferences from contemporary Aboriginal evidence about the nature and identity of traditional laws and customs and traditional “society” in the Claimed Area at sovereignty. Moreover, if the Applicant is unable to identify the system for allocating rights and interests in land at sovereignty, then the Applicant cannot succeed.

398    The phrase “serious error” was taken from the Full Court’s decision in Bodney, but in my opinion (and contrary to the State’s submissions) the Full Court was describing another kind of difficulty when it used that phrase.

399    The “serious error” to which the Full Court in Bodney was referring was not a failure to take anthropological evidence into account at all, nor a failure to take it into account in assessing what the normative system of laws and customs was at sovereignty. Rather, as the passages at [84]-[95] make clear, the Full Court identified error in the trial judge’s failure to have regard to anthropological evidence from the period after settlement and up to the time of determination (for example, evidence from the 1970s – put forward in that case by Dr Brunton – that the Noongar people had “lost” their customs and traditions). As the heading to this part of the Full Court’s reasons makes clear, the error the Full Court was describing related to the way the trial judge dealt with evidence regarding the continuity of traditional laws and customs.

400    This is quite a different issue from the one raised in this proceeding, which concerns – as I have noted – the characterisation of the laws and customs which governed rights and interests in the claim area at sovereignty. In any event, there is no sense in which any evidence – ethnographic or anthropological – is being “ignored”. The real question is what records such as those created by Daisy Bates are capable of proving, and what are they not capable of proving. The State’s reliance on Bodney is in my opinion misplaced.

Onus of proof

401    The State submits that onus will be important in this case, in particular because there is doubt concerning the identification of the Aboriginal occupants of the claim area at, and before, sovereignty.

402    The State submits that, to discharge its onus, the applicant will need to confront the presence of another explanation based on historical records (essentially, the position put by Dr Brunton), which especially by reference to the work of Daisy Bates, lays a factual foundation for a conclusion that non-Western Desert people inhabited the claim area. In that sense, the State submits the applicant cannot discharge its onus.

403    The applicant must prove their case on the balance of probabilities. They need not exclude or resolve all doubts, disconformities and possibilities. They must persuade the Court that the thesis for which they contend is more likely than not. To the extent that, at some points, the State’s submissions appeared to suggest a higher onus, they must be rejected.

404    There are a number of ways to approach the parties’ competing theses in this case, and to fit them into a framework of onus of proof. In my opinion, a matter which is critical to bear in mind, and which the State’s submissions tend to overlook or diminish, is that the Court must evaluate all the evidence before it in terms of its reliability, persuasiveness and probative value. No category of evidence starts with any presumptions of reliability, accuracy or superiority. That includes the materials of Daisy Bates.

The work of Richard Kingsford

405    Mr Richard Kingsford is one of the anthropologists whose work is referred to by both Dr Sackett and Dr Brunton. The purpose of Mr Kingsford’s Masters thesis was to consider the laws and customs of the Yamatji groups of the Murchison region. It is common ground that the Wadjari and Badimia groups were not Western Desert people and were located further west of the claim area and of Daisy Bates’ Ngaiawonga. In his thesis, Mr Kingsford expressed the view that Wadjari and Badimia are “distinct languages … associated with a distinct territory and a distinct people, and enduring over time”. Mr Kingsford noted that the Wadjari and Badimia language units conform to the characteristics of a tribe. Mr Kingsford observed the Yamatji view of “wanmala”, being the country to the east of Meekatharra, as acting to reinforce ethnocentrism, or Yamatji solidarity against the wanmala.

406    In terms of the local organisation and laws regarding rights in land applicable to Wadjari and Badimia, Mr Kingsford reported that a person may be affiliated to the “estate” of his or her father, mother and mother’s brother, and/or birth. However, he went on to say that the weight of evidence tends to favour patrilineal descent and a person should preferably be born near a site associated with his or her father or mother. He contrasted the position of the Western Desert people. He said that the Western Desert people accepted that childbirth may not be possible in a desirable location as a result of the large distances sometimes covered by people in the search for food. Mr Kingsford also said that, in contrast, Western Desert people are generally more mobile and place greater emphasis on long mythic tracks. Mr Kingsford described the local organisation of the Yamatji and some Western Desert groups as similar or comparable, despite considering that there was a closer parallel to the Aranda region which adjoins the east of the Western Desert.

407    Overall, the applicant submits that two conclusions can be drawn from the work of Mr Kingsford:

(a)    Firstly, what can be said with confidence is that linguistically and culturally Wadjari and Badimia country, to the west of Meekatharra, is distinct from the Western Desert. That is, there is a line beyond which the country and people are clearly not part of the Western Desert cultural bloc, and that line is to the west of the Claimed Area.

(b)    Secondly, in terms of their laws and customs, even the Murchison Yamatji groups such as Wadjari and Badimia are likely to have observed somewhat similar laws and customs in relation to rights in land, to those of the Western Desert cultural bloc … The differences are matters of degree, and may be explicable in terms of the differing environments.

408    The State submits that it is somewhat surprising that the applicant argues that weight should be given to Mr Kingsford’s work given that neither Dr Sackett nor Dr Brunton placed any reliance upon Mr Kingsford’s work. The State submits that Dr Sackett was not asked about this issue, nor did he express a view about the cogency or reliability of Mr Kingsford’s opinions. In his oral evidence, Dr Brunton suggested that Mr Kingsford had relied on two or three informants in his work and, although his thesis was comprehensive, it contained “inconsistencies that were difficult to reconcile”, there were “many things missing” and there were “problems with his accounts”.

409    The State referred to the decision of Badimia, where Barker J observed that the applicant’s expert anthropologist said that Mr Kingsford’s maps were not intended to be geographically accurate or to represent tribal boundaries. Further, the State pointed to Barker J’s observation that Mr Kingsford’s work may have depended too much on the views of persons in the 1980s and their life experiences on pastoral stations.

410    Ultimately, the State submits that the conclusions sought to be drawn by the applicant from Mr Kingsford’s work are not supported by the material itself. There is nothing in Mr Kingsford’s work, the State submits, which indicates there is a line west of the claim area which separates the Western Desert from other groups. Further, the State submits that Mr Kingsford’s account of descent-based “estate groups” does not correspond with Western Desert notions of “multiple pathways” for rights in land.

411    The State’s submissions have force. The proposition I accept from the applicant’s first suggested conclusion (at [407] above) is that, linguistically and culturally, Wadjari and Badimia country – to the west of Meekatharra – is distinct from the Western Desert. So much was essentially common ground between the parties and the experts.

412    Otherwise I do not place any weight on Mr Kingsford’s work. In particular, the concept of a “line” being drawn to the west of the claim area based on Mr Kingsford’s work is no more persuasive to me than the “line” identified by Professor Berndt.

Other historical anthropological material

413    As the parties’ submissions demonstrated, Aboriginal people in and around the claim area have been the subject of inquiry and study from the early twentieth century. After Daisy Bates, Norman Tindale worked in and around the area in the 1940s and then Professor Berndt worked in the area in the late 1950s and early 1960s. With Mr Tindale was another anthropologist called Jud Epling. He did some field work in the early 1950s which has some bearing on one of the (many) labels Aboriginal people in the region of the claim area have given themselves: Tjupan. Mr Tindale again considered the location and composition of Aboriginal people in the area in the early 1970s. I refer to the work of Mr Tindale, Mr Epling, and Professor Berndt as necessary in making my findings.

414    Dr Brunton referred to the work of Professor Robert Tonkinson. I accept the applicant’s submissions (and Dr Sackett’s opinion) that the work done by Professor Tonkinson is not of any relevance to the issues to be decided in this case.

The importance of Ken Liberman’s work in the 1970s

415    It is necessary to spend some time on Mr Liberman’s work because of the various uses to which the parties put it in their final submissions. I take a different view of his work to the view I take of Mr Kingsford’s work. As I understand it, Mr Liberman was awarded his PhD after he completed his work in the claim area. Accordingly, I have not used the title “Dr” when referring to Mr Liberman. In not doing so, I intend no disrespect to Mr Liberman.

416    The work of Mr Liberman which is in evidence before me (aside from the opinions of Dr Sackett and Dr Brunton based on, or reporting on, Mr Liberman’s work) is an extract from a report Mr Liberman prepared in 1976, and revised in 1978 entitled “A Survey for Aboriginal Sites: Yeelirrie Uranium Project”. The entire report is not in evidence before me, because it essentially contains two parts: an ethnographic part and an archaeological part. The parties agreed the archaeological part is not relevant to the issues to be determined by the Court and it was not tendered. What is in evidence is, as I understand it, a complete copy of the ethnographic part of Mr Liberman’s report, although the gender restricted part of his report was tendered separately and is subject to the same confidentiality orders as the other gender restricted evidence in this proceeding.

417    Yeelirrie is the name of a pastoral station approximately in the middle of the claim area, but slightly towards the northern half of the claim area. It is an area about which Ms Wonyabong, Mr Allan Ashwin, Mr Henry Ashwin, Mr Victor Ashwin, Ms Narrier, Mr Richard Narrier, Mr Keith Narrier, Mr Muir and Ms Geraldine Hogarth gave evidence in particular.

418    In the introduction to the report, B J Wright, the Registrar of Aboriginal Sites for the Western Australia Museum describes the report as part of an environmental impact study of the Yeelirrie Uranium Project, which was at that stage a project being investigated by the Western Mining Corporation. The report was undertaken under the auspices of the Western Australian Museum. In the introduction Mr Wright (who undertook the archaeological part of the report, along with Mr Liberman and a number of other people) describes the research done by Mr Liberman (for the ethnographic part of the report) as having been done in:

… the Cue, Meekatharra, Wiluna and Leonora area during the period from September to November, 1976. An attempt was made to locate and consult Aborigines –

(a)    who were born in the Yeelirrie area;

(b)    who had lived a traditional life in the Yeelirrie area;

(c)    who have worked on Yeelirrie during the lifetime of people in the foregoing categories;

(d)    who have lived on nearby pastoral properties or towns, and who may know traditions concerning the Yeelirrie area.

419    The report noted it was not possible to locate any Aboriginal people in group (a), but people in the remaining categories were found and participated in the investigation.

420    It can immediately be seen that one of the critical distinctions between Mr Liberman’s work and that of other earlier anthropologists is that it was expressly focussed only on a region inside the claim area and, indeed, right in the middle of the claim area.

421    The report commences with the observation that when Yeelirrie was established as a pastoral station in 1924 “there appears to have been no group of Aboriginal people occupying the area”. Mr Liberman suggests this is consistent with accounts reproduced further on in the report, to the effect that many Aboriginal people moved “away from their traditional territories towards centres such as Cue, Meekatharra, Wiluna and Leonora soon after the establishment of those towns towards the end of the last century”. The State’s submissions seek to have the Court place some weight on these factual observations and I return to them below.

422    Broadly, Mr Liberman identified two groups of people as having connections to the claim area – and, therefore, to the sites he was instructed to investigate for the purposes of the report. He found there was a dialect group he called the Tjupany (Tjupan) to the north of Yeelirrie and another, which he called Kuwarra (Koara), to the south. Dr Sackett notes in his Tjiwarl Registration Report that one of Mr Liberman’s informants told him that Tjupany was the “oldest name around. Other names have come later”. I deal with my conclusions on the evidence about these dialect/identity labels, such as Tjupan, Kuwarra or Koara, Ngalia and the like at [449]-[461] of these reasons.

423    In his report, Mr Liberman refers to his informants in a de-identified fashion. However, there is a confidential annexure to the report which identifies his 38 informants. Several of those people were relatives and/or ancestors of the claim group members, including: Diamond White and Frank Narrier (the sons of Spider Narrier), Jimmy Hennessey (the husband of Spider Narrier’s daughter, Mavis White/Narrier), Ken and Adeline Hennessey (the son and daughter of Jimmy Hennessey and Mavis White/Narrier), Micky Warren (who Mr Douglas Bingham identified as his grandfather) and Roy and Croydon Beaman (the sons of Charlie Beaman (Piman)).

424    As Dr Brunton recounts, there were only four informants whom Mr Liberman considered had lived a “traditional life” – by which, as Dr Brunton observed (and Dr Sackett agreed) he seemed to mean a life based heavily on hunting and foraging rather than depending on European rations or employment with Europeans. Those four people are described by Dr Brunton in his report:

These four were all women, around eighty years of age, who had lived in the vicinity of Yeelirrie either as small children, or in one case, as a young woman. And all had a Western Desert language speaking background:

•    Reila King who was born around 1898 at Hillview Station, which is around 50 km south east of Meekatharra, the daughter of Jack Merrick, who was probably a white man, and an unknown Kuwarra speaking mother;

•    Dolly Ward, born in the 1890s at Lake Violet, around 50 km east of Wiluna, the daughter of a Nanga speaking woman, and a European father, who had lived at Yeelirrie as a young woman;

•    Annie Leak, born in the 1890s near Glen-Ayle, which is around 250 km north east of Wiluna, whose mother spoke Tjupany, and whose father spoke an unknown dialect;

•    Nellie Graham, born in the 1890s at Kulele Creek, a little north east of Wongawol, whose mother and father spoke Purtitjarra.

(Citations omitted.)

425    One of the difficulties with Mr Liberman’s report, in common with some of the earlier ethnographic material, is pointed out by Dr Sackett in his supplementary report:

We do not know whether the accounts presented by Liberman were edited or the wholly complete versions, at least as far as his informants were concerned, of the stories he recorded. We cannot know if he might have asked questions to elicit further details from informants. It is clear that some of the versions he related were the product of more than one voice, ie he associated them with more than a single informant. As for the claimant statements, we know each tells his or her own version of the Tjila myth-story. But again, we cannot know whether more time or questions might have led to a more detailed version of events.

426    In his supplementary report, Dr Sackett spends some time analysing the different versions of the Two Carpet Snakes Tjukurrpa, including those recorded by Mr Liberman, both for the Yeelirrie report and then later in 1980 (in a published journal article).

427    Dr Sackett draws two critical propositions from Mr Liberman’s work. The first is an opinion, which Dr Sackett shares, that the existence of different versions is not problematic for the authenticity (if that be the correct word) nor the provenance of a Tjukurrpa. Dr Sackett states:

No two tellings of the Tjila Kutjara [the Two Carpet Snakes Tjukurrpa] story are the same. A comparison of the versions recorded by Liberman and those put forth by claimants indicates that this is not a recent phenomenon. In fact, as Liberman saw it:

such discrepancies [between versions] must be considered a natural phenomenon characteristic of widely spread communities carrying on the same Dreaming. There is no question of which one is the correct version…

(Citation omitted.)

428    The second proposition concerns what can be said about the continuity of traditional laws and customs in the claim area. Dr Sackett states:

By my reading, Bates did not report any rendering of the Two Snakes story. Rather, it appears first to have been recorded in the area of the claim in the mid-1970s by Liberman. However, Liberman saw the story as having an earlier history, writing:

it is clear that the major Dreaming track in the region is that of the two Carpet Snakes. This track comes from Ngaanyatjarra and Martutjarra territories (both Western Desert areas) and enters the Kuwarra [ie Koara] region. As recently as thirty years ago Ngaayatjarra and Martutjarra people participated in ceremonies with Kuwarra people at sites associated with the Carpet Snake Dreaming (ngalpiri and tjampua)…

That is, by Liberman’s reckoning, ceremonies relating to the Tjila Kutjara were last performed on the Tjiwarl Claim area in the mid-1940s.

However, there is no reason to suppose the Dreaming and its associated rites were new to the area in the mid-1940s. That is, that Bates did not mention the Tjila Kutjara does not mean the Dreaming necessarily was any less important to people in the early years of the last century (and to people before them) than it was to Liberman’s informants in the mid-1970s or is to Tjiwarl Claimants today.

Liberman did not discuss or relate how his informants came to have and hold their knowledge of the Tjila Kutjara.

429    Dr Sackett goes on in this section of his supplementary report to express his opinion, which I have accepted elsewhere, that notwithstanding Daisy Bates’ failure to record any such Tjukurrpa in the area (bearing in mind Ms Bates did not in fact work in the claim area) and that the first European recording of it was by Mr Liberman, when one considers the claimant evidence, it is apparent that the oral tradition of the Tjukurrpa extended back to sovereignty and earlier.

430    In this sense, Mr Liberman’s work in the late 1970s is consistent with the opinions of Dr Sackett, whose evidence I have generally accepted in this proceeding. However, there is a further aspect of Mr Liberman’s report which is important in this proceeding.

431    Mr Liberman also concluded that the claim area was Western Desert country, and that its original inhabitants were Western Desert people. Although Dr Sackett agreed with Mr Liberman’s conclusion, he did not agree with his reasoning, or the basis for that reasoning, and this is a matter which should be set out. Nor did he agree with some of Mr Liberman’s findings, such as that Tjupan people were some of the original inhabitants of the claim area. Dr Sackett’s view is that, although Tjupan people are “very much” Western Desert people, they also came down into the claim area at some time. Clearly, Dr Brunton disagreed with the conclusion that the original inhabitants were Western Desert people.

432    The basis for Mr Liberman’s conclusion that the people in the claim area had always been Western Desert people was largely linguistic. That is, the dialects spoken by the two sets of speakers Mr Liberman identified in the claim area – the Tjupan or Tjupany to the north of Yeelirrie and the Kurrawa or Koara to the south – had much in common with Western Desert dialects, and much less in common with Badimia and Wadjari to the west. Mr Liberman also relied on the fact that the Two Carpet Snakes Tjukurrpa was essentially consistent across the claim area and came from the land east of the claim area.

433    In his report, Mr Liberman said:

Speaking in Ngaanyatjarra, a dialect from the Warburton Ranges, I was capable of communicating in the Aboriginal dialect with both Kuwarra and Tjupany people, whereas it was not possible for me to communicate with the Patimaya and Watjari people further west.

…

Finally, it is clear that the major Dreaming track in the region is that of the two Carpet Snakes. This track comes from Ngaanyatjarra and Martutjarra territories (both Western Desert areas) and enters the Kuwarra region. As recently as thirty years ago Ngaayatjarra [sic] and Martutjarra people participated in ceremonies with Kuwarra people at sites associated with the Carpet Snake Dreaming (ngalpiri and tjampua) and several Martutjarra men were instrumental in getting another site in the Kuwarra region west of Berndt’s line, Weebo, declared a “protected area” under the Aboriginal Heritage Act (1972).

Given this evidence, the western limit of the Western Desert cultural bloc must be extended westward to include the Kuwarra and Tjupany people. This would incorporate the Yeelirrie location as part of the Western Desert Aboriginal area.

434    Although Dr Sackett’s ultimate opinion was broadly consistent with the conclusion in Mr Liberman’s final paragraph, both Dr Sackett and Dr Brunton disagreed with Mr Liberman’s analysis. They did not accept the location Mr Liberman had given to speakers of the Tjupan and Koara dialects, nor did they consider language as important a marker as Mr Liberman did. For example, Dr Sackett confirmed that in his opinion the Tjupan were more in the eastern and north-eastern regions of the claim area, rather than right in the middle of it as Mr Liberman proposed. However, as I have noted, Mr Liberman’s overall conclusion was that he was dealing with Western Desert people, with rights and interests in land arising from traditional Western Desert laws and customs. That was Dr Sackett’s opinion as well and, as I explain in these reasons, they are opinions with which I agree.

435    Dr Sackett was also cross-examined and then re-examined on observations he made about Mr Liberman’s analysis in a report Dr Sackett prepared for the Wiluna determination.

436    The relevant observation was made in the Wiluna report by Dr Sackett while he was discussing Mr Liberman’s analysis of the Two Carpet Snakes Tjukurrpa as indicating the Yeelirrie area was Western Desert country. Dr Sackett’s comment in brackets at this stage of his report was the following:

(I’m not sure that a shared Dreaming and shared ritual participation can safely be read as indicating shared culture.)

437    Dr Sackett, in re-examination, explained what he meant in the following way:

… that Dreamings, because they go in and out of the desert or across cultural or social boundaries, they needn’t be the – the people that share that Dreaming needn’t be of the same culture.

438    What he had also said earlier in cross-examination, is that the doubt he expressed here was about Dreamings leaving the Western Desert. I infer what Dr Sackett meant by this clarification is that where a Dreaming travelled through the Western Desert and then left it, just because the Dreaming came out of the Western Desert and was known to people outside the Western Desert did not make those people Western Desert people. That, it seems to me, must be a correct proposition.

439    Notwithstanding this, what Mr Liberman’s informants told him, especially about the Two Carpet Snakes Tjukurrpa, was seen by Dr Sackett as significant. This extract from his cross-examination explains why:

Yes. Liberman’s informants were what he said were Dupan [Tjupan] people, effectively, in relation to that issue?---Some were, not all of them.

Yes?---He described some of them as Dupan [Tjupan], yes.

Those Dupan [Tjupan] people, on your view, are not – be careful, bearing in mind my conversation with your Honour earlier – that your view about the Dupan [Tjupan] is they’re not locals in the sense that they weren’t there at sovereignty, in the claim area?---No. But they learned from people that were, in my view.

Yes. There’s no direct evidence that they learned. That’s your assumption?---But it’s an assumption based on the stories that people tell, how their old people learned from older people. And these stories hook up with other stories in some way, shape or form.

Yes?---It’s not like the Jilla Kogara [Tjila Kutjara] are there and only there. It’s an extensive dreaming with the same features as it moves through the countryside.

(Emphasis added.)

440    Thus, Mr Liberman’s work is of some real significance. It was recorded and completed well before the native title regime was introduced. As both the applicant submits and Dr Sackett’s evidence supports, the accounts given by Mr Liberman’s informants about the Tjila Kutjara are broadly consistent with the accounts given by the claimant witnesses. Further, Mr Liberman’s informants (mostly aged between 50 and 80 years in the 1970s) were speaking from what they had been told by their elders, which would place their elders in the claim area before Daisy Bates was working there in 1912.

441    As Dr Sackett observed, the assumption (based on the way oral history generally operates in Aboriginal societies) is that the old people who spoke to Mr Liberman had been told the Tjila Kutjara by their old people. There is no suggestion – and I do not accept – that they had invented it. It is more likely they were telling it for the area around Yeelirrie because others, who were authorised to do so, had told them.

442    At another point in his report, this is precisely the point Mr Liberman makes about what one of his informants told him about Mr Micky Wonyabong. Mr Wonyabong is Ms Shirley Wonyabong’s father, and Mr Liberman’s informant was describing what Mr Wonyabong knew about sites, and laws and customs in the Yeelirrie area. This is what Mr Liberman records:

Mick Wonyabong worked on Yeelirrie Station for a period of ten years, from 1942 to 1952. He was a Puntitjara man who was born near Wongawol Station. He told Informant PP that he had heard the traditions about the sites at Yeelirrie from “the old people” from the area.

443    Mr Liberman observes at the start of his report (and repeats throughout it) that there were, at the time of his research, no Aboriginal people alive from the original descent groups in the area. The State submits I should take those remarks from Mr Liberman at face value as they support its thesis that the claim group members’ ancestors simply migrated into the area and imposed Western Desert laws and customs on the area.

444    I find the position to be more nuanced. First, it must be recalled that Mr Liberman was dealing only with the country on Yeelirrie station. I see no basis for extending his remarks about there being no original Aboriginal inhabitants to the whole claim area. There is no suggestion he was sufficiently informed to make any more widely applicable assertion. In relation to Yeelirrie, what Mr Liberman recorded is that Micky Wonyabong was told, between 1942 and 1952, about sites around Yeelirrie by the “old people”. While those “old people” may well not have survived into the 1970s when Mr Liberman was conducting his research, what Mr Wonyabong had related to Mr Liberman’s informant was the passing on of knowledge, not the imposition of it.

445    Second, it seems to me that even allowing for the state of affairs he believed existed on Yeelirrie (that is, that there were no “original” inhabitants left), Mr Liberman nevertheless remained of the opinion that the land at Yeelirrie was Western Desert country, and the way he reconciled what he was being told in the 1970s with what could be seen as traditional laws and customs for the area was through what he described as the “Desert Praxis”. In his report, he described the Desert Praxis in the following terms:

The relationships with the Dreaming tracks discussed do not represent a reality which is past. Contemporary Aborigines in the areas concerned continue to have an active relationship with the tracks. Any active relationship implies also that the relationship is not stagnant; and I would propose that this relationship is best viewed as a praxis held by Aboriginal people. That is to say; Aborigines have the capacity for continued interpretation of the landscape according to the structural properties of the networks of tracks and Dreaming activities we have been discussing. Any human interpretive order will not long survive as a passive schema. In realising its interpretation, such a conceptual world-view becomes projected onto wordly phenomena, transforming the world, and reflexively, itself in the process. Such an active, dialectical relationship is characteristic of any live conceptual system.

As we are dealing with a praxis which is still a live, emerging reality, it must be acknowledged that the locations of specific tracks may be shifted according to the discovery of new “evidence”. Therefore, it is not surprising to find instances, such as occurred at Warburton only months ago, where a new deposit of smooth, large white stones was evaluated as evidence of where the Kangaroos passed during the Dreaming. This resulted in a shift of the perceived location of the track of several hundred metres.

446    This being the way Mr Liberman saw the practice of laws and customs for Western Desert people, he then went on to describe what he appeared to have considered actually happened:

This discussion of Desert praxis is relevant to our study at hand, in that many traditional Aborigines, associated with the Carpet Snake Dreaming track and Dingo Dreaming track in regions to the east of the study area were aware that these world-creative powers entered the territory we are now examining. They may not have known each particular site, but they may have some spiritual affiliation with the track as a whole just the same. As they migrated westward, their adoption of the Dreaming sites of those people who were originally located in the western regions is to be understood as a natural consequence of the Desert Aborigines’ spiritual praxis. Their concern for sites to which they may not be related genealogically must be acknowledged as valid.

447    Described in this way, there is no “imposition” of laws and customs, but rather the continuation of existing practices in new areas where traditional spiritual affiliation with Dreaming tracks already existed.

448    Therefore, I do not accept the State’s submissions (and Dr Brunton’s opinion) that Mr Liberman was describing a “replacement” of the rituals of the original inhabitants with the rituals of people from further east. Rather, he was describing how members of the same society as those who occupied the area originally could move into the area, and continue to observe the Tjukurrpa of the area into which they moved.

References in the evidence to Tjupan, Koara and Ngalia

449    I have put these self-identifying labels used by witnesses in this proceeding together under one heading, although the evidence (and the opinions of Dr Sackett and Dr Brunton) leads me to different conclusions about each of them. As I have noted elsewhere in these reasons, the labels or names used by Aboriginal people to identify themselves, and to identify themselves with a group, are fluid. On some occasions, sufficient links can be drawn between multiple sources referring to the use of specific names or labels so that it can be said with some confidence that people who use a name or label have a connection with particular country. Sometimes that is not the case. The examples of Tjupan and Ngalia reflect, in my opinion, each of those possibilities.

450    In his Tjiwarl Registration Report, Dr Sackett notes that several of the older claim group members, who are now deceased, had identified as Tjupan and had identified the language they spoke as Tjupan. In this proceeding, several witnesses also identified the language they spoke as Tjupan, including Ms Wonyabong, Mr Richard Narrier, Mr Allan Ashwin, Mr James and Ms Tullock. Ms Tullock also used Tjupan to describe a group of people, when she spoke of “the Tjupan and the Wongai mob”. Mr Leroy Beaman also used the identifier Tjupan to describe his group membership:

I say I’m a Wongai, but really my blood flows Tjupan. I’m Wongai through my dad’s mother and Tjupan through my dad’s dad. I’m more of a Tjupan person.

My father Edwin Beaman is a Wongai through his mother or Tjupan man, through his father.

451    Dr Sackett notes that a colleague of Mr Tindale’s, Mr Jud Epling, was the first anthropologist to mention Tjupan. This occurred in 1953, after some fieldwork, which resulted in Mr Epling recommending that Mr Tindale change an entry on his 1940 map from “Pini” to “Tjubun” in relation to identifying the group occupying country in the eastern part of what is now the Tjiwarl claim area. Dr Sackett records that Mr Tindale did not agree, and did not change the entry, but in his 1974 version of the map, he did add “Tjubun” as an alternative entry. It is clear that Tjubun is another spelling of Tjupan.

452    When Professor Berndt was working in the area from the late 1950s through to the 1980s, Dr Sackett records that Professor Berndt saw the people he described as “Djuban” (again, another spelling for Tjupan) as different people, occupying different country, from the people whom he described as “Biniridjara” (which he equated with Mr Tindale’s “Pini” or “Birni”). Professor Berndt located the Djuban people east of Wiluna and north of Mulga Queen (which, depending on how far north of Mulga Queen, would take the area close to Wongawol). He located the Biniridjara people north-west of Lake Carnegie, which would appear to place their country north of Wongawol and up towards the Canning Stock Route.

453    As I have noted in the section of these reasons where I deal with the work of Mr Liberman in the 1970s, as well as identifying them as Western Desert people, Mr Liberman located those he identified as “Tjupany” in country around Yeelirrie station. In his work, Mr Liberman appeared to hold the view that the Tjupan or Tjupany (around Yeelirrie) and the Kuwarra or Koara (further south), were the original occupants of the area. However, neither Dr Sackett nor Dr Brunton agreed with this view, and during their concurrent evidence in this proceeding both expressed the opinion that Tjupan or Tjupany (and, Kurrawa or Koara, it would appear) peoples had moved into the claim area from further east. I note here that the transcript of the expert evidence records Kurrawa as “Gulara” and this is one of the many misspellings which make it rather difficult to follow the evidence in the transcript.

454    Notwithstanding this qualification imposed by Dr Sackett on some of Mr Liberman’s conclusions, Dr Sackett did agree with Mr Liberman’s conclusion that the “close similarities” in language between people who identified as Tjupan or Tjupany (and Kuwarra or Koara – see below) supported a conclusion that these people were Western Desert people. This lead Dr Sackett to reach the following overall conclusions:

In my view, two things emerge from this. First, the reports of researchers from earliest to more recent appear to track a shift in name: from ‘Pi’ni to Tjupan. At the same time, they appear to track a shift in the area of the ‘Pi’ni/Tjupan to the west.

Whatever the case in this regard, in my view the evidence is solid that the Tjupan were/are part of the Western Desert/Western Desert society. As best can be determined, Tjupan origins were/are in lands to the northeast/east of the Tjiwarl claim area. In other words, those lands are comfortably east of the western extents of the Western Desert/Western Desert society. It is not surprising, then, that Liberman found his Tjupany to be culturally and linguistically Western Desert.

That is, in my opinion, Tjupan was/is merely one of the Western Desert Language’s many dialects. Its speakers originally occupied Tjupan lands, and shared a language and culture with their Western Desert neighbours.

455    The views of Dr Brunton and Dr Sackett on Mr Liberman’s work and the identification by some claimant witnesses in this proceeding as Tjupan are consistent with the basic thesis underlying the applicant’s contentions in this proceeding: namely, that there was a movement of Western Desert people into the claim area from areas to the east, including the areas that Dr Brunton and Dr Sackett appear to agree were the areas the Tjupan and Kuwarra had previously occupied. The experts’ positions remain as they otherwise were in this proceeding: namely, that Dr Brunton is of the view that notwithstanding the more recent presence of Western Desert people in the claim area (including those who identify as Tjupan and did so to Mr Liberman in the 1970s), at sovereignty the people who occupied the claim area were not Western Desert people and did not have connections with the country of the claim area according to Western Desert laws and customs. Dr Sackett remains of the view the original occupants did have such connections.

456    In my opinion, the evidence from the claimant witnesses about their and their ancestors’ identification as Tjupan, and the use of Tjupan as a way of speaking, together with the opinions of Mr Liberman and Dr Sackett, confirm the view I have formed that the claim group members’ ancestors were, as Western Desert people, moving within Western Desert country when they moved into the claim area. It also confirms my view they were doing so in accordance with the traditional laws and customs of Western Desert people, including in accordance with the recognition of such of the older Western Desert occupants of the claim area as remained when the claim group members’ ancestors came into the country.

457    I take the same approach, and reach the same conclusions, to the evidence relating to claimant witnesses, and evidence about their ancestors, identifying as Koara or Kuwarra. The apical ancestors who were identified in this way include Mr Charlie Beaman and Mr Scotty Lewis. The claimant witnesses who identified in this way include Mr Bingham, Mr Lewis and Ms Geraldine Hogarth. There were some claimant witnesses who appeared to see the label “Tjupan” as now a label identifying language rather than anything else. This was Mr Leroy Beaman’s evidence:

I speak a few languages. I speak my mother’s language, Yamatji-Wajarri, and I speak my grandmother’s language, Ngaanyatjarra. That’s because she grew me up and around her we were talking her language.

I understand the Tjupan language around here, it’s similar to Ngaanyatjarra. Things are the same. The Tjupan language is the language for this claim. Auntie Maxine speaks Tjupan and a few other families from that area speak it too. Like the Narriers, they speak that. I speak a little bit of it, but not too much, it’s a bit of a tricky language because they got their own language there. Ngalia and Tjupan, they got the same tongue. They different names for it but they the same, all one, but they just different group names.

My mum’s language is different again, a long way different.

458    As for the label “Ngalia”, the witness who used that as a way of identifying himself in this proceeding was Mr Muir. Dr Sackett did not have the same kind of opinion about the use of this label. He notes in his Tjiwarl Registration Report that this label or way of identifying was used by Mr Muir’s mother Ms Dolly Walker, who is one of the apical ancestors in this claim, but who had also been a claim group member on a native title application called Ngalia, which overlapped almost entirely with the Birriliburu application. Indeed, on the evidence before me, there were several claims which were either dismissed or discontinued which used the word “Ngalia” in the title of the claim.

459    Dr Sackett was of the view that although some references to Ngalia could be found in ethnographic literature (such as that by Mr Tindale), it was “questionable” whether the Ngalia reported in such research (or their descendants) would have had any traditional rights and interests in lands in the Birriliburu claim area or in the Tjiwarl claim area. Dr Sackett noted the evidence given by Ms Walker’s older brother in the Wongatha proceeding, which also suggested he did not identify as Ngalia, nor associate this label with his ancestors. Dr Sackett states:

Patjata/Paddy made a couple of remarks apropos of the idea of Ngalia identity. Asked what “tribe” his mother was a member of, he said “Mantjintjarra Ngalia”. Asked what language his mother spoke, Patjata/Paddy answered “Mantjintjarra”. Asked if he knew of “any other tribal name” she called herself, he replied “No”. Then, asked how many languages he spoke, Paddy said “Mardu Ngalia”.

(References omitted.)

460    Dr Sackett concludes that Ngalia is a label which has emerged in the Walker-Muir family as a self-identifier, but without any support as a group identifier on any wider basis. I accept Dr Sackett’s opinion on this, although, as he goes on to note, the label is not really the central issue. To the extent it is important to confirm which identifiers are common to members of the claim group, while I accept that Tjupan and Koara are common to some family groups within the claim group and are consistent with the ethnographic and anthropological evidence before me, Ngalia does not fall into this category. That said, it seems to me that the final point made by Dr Sackett on this issue is the more important one:

In my view, what is crucial here is not what, if anything, Ngalia might be, but the fact that the few Walker-Muir family members who self-identify as Ngalia associate the name with country that is clearly in the Western Desert/Western Desert society. That is, they are, however they self-identify, part of the Western Desert society.

461    That proposition is not really contested by the State. What is contested is the connection which is then drawn to association with the claim area by reason of traditional Western Desert laws and customs, at sovereignty, and thereafter.

The use of Daisy Bates’ material and the “Ngaiawonga”

462    This became a critical question in the assessment of the competing contentions on connection, and the weight to be given to large parts of the evidence on connection.

463    In summary, I accept the applicant’s submission that caution should be exercised in the treatment of Ms Bates’ material, including her material about the people she called the Ngaiawonga. In particular, I accept the applicant’s submissions that positive conclusions should not be drawn from the absence of information in Ms Bates’ material, and that the reliability and weight to be given to her material (and the experts’ use of her material) should be approached on a case by case basis.

464    That said, it is correct that Ms Bates was an eyewitness to certain events she recorded, although she did not venture into the claim area itself. As an eye witness, her notes do provide contemporary accounts (at least as at 1910 or 1920) of what those she spoke to said to her. There is no basis to believe she did anything other than try and faithfully record what she was told, indeed both Dr Sackett and Dr Brunton accept she was careful and methodical. The real issue is the reliability, breadth and representativeness of her source material, and the fact we cannot know the accuracy of its relationship to the people who were occupying the claim area at sovereignty. Nor can we know what questions Ms Bates asked, how knowledgeable her informants were, and how much of what she was told she actually recorded, how much she correctly understood, what the level of interpreting was like, if there was interpreting, and so forth.

465    In those circumstances, I accept that Ms Bates’ notes have some probative value where they reflect what she recorded she was told. In that sense, her word lists have an acceptable level of probative value. That is not because I accept they should be treated as complete or exhaustive, but because we can be reasonably confident she was careful and methodical in writing down what she was told, without any determination being made about whether what she was told was all, a large or a small part of people’s language range. To that extent, I accept her word lists are a sufficiently reliable source for Dr Clendon’s opinions, at least in terms of what they positively record. It is, as I explain elsewhere, not possible to draw inferences from what they do not record.

466    I turn now to explain in more detail why I have reached those conclusions.

Daisy Bates’ experience and travels in Western Australia

467    In his report, Dr Brunton sets out in some detail the background of Ms Bates, and I base my findings on his material, supplemented where necessary by what is contained in Dr Sackett’s report. I have also consulted the full version of the anthropologist Dr Isobel White’s book on Ms Bates’ work entitled The Native Title Tribes of Western Australia (National Library of Australia, 1985), a substantial extract of which was in evidence before me. Both experts agreed Dr White’s edited work of Ms Bates’ journals is the authoritative source for a description of Ms Bates’ work. Dr Brunton described Dr White as “an accomplished anthropologist and specialist on Aboriginal culture who became intimately familiar with Ms Bates’ voluminous manuscripts in the process of editing them for publication”. I see no difficulty in circumstances where both experts agree about the qualifications and quality of Dr White’s work in my referring to the entire book. In particular, I have drawn on the “Introduction” in Dr White’s book for what I set out below about Ms Bates’ background and attitudes. I have been unable to locate any similar details about Ms Bates in previous native title decisions.

468    Ms Bates was born in October 1859 in County Tipperary, Ireland. She was born Daisy Mary O’Dwyer, and was orphaned by the time she was in her teens. She studied French and German, having as White observes a “facility for learning languages” which would be useful in her work in Western Australia. She obtained a free passage to Australia and arrived in Townsville in January 1883, aged 24. Dr White observes that “we have no record of how she spent the rest of 1883”, but in early 1884 she began working as a governess on various pastoral stations in Queensland, and then on a property south of Sydney. It appears that she married in Charters Towers in Queensland in March 1884, but this marriage was kept secret (and her then husband turned out to be the infamous “Breaker Morant”). Dr White explains how strong the evidence is, nevertheless, that the marriage occurred. Despite this marriage, she got married again in February 1885, in Nowra New South Wales, to John Bates, the son of a drover. A year later she gave birth to a son. She parted company with Mr Bates soon after and travelled alone with her child to various parts of Australia. In 1894, when the child was around seven, Ms Bates left him in the care of the Bates family and went to England to pursue a career in journalism. She returned to Australia in 1899, and Dr White records that she arrived in Perth with the intention of investigating allegations (made in, amongst other places, The Times in London) that the settlers were ill-treating Aboriginal people. She reunited with her husband at this stage and the two journeyed north from Perth searching for a property. It is unclear whether her son went with them. She also befriended people such as Bishop Matthew Gibney, the Catholic Bishop of Western Australia, and spent time at places such as the Beagle Bay Trappist Mission on the western side of the Dampier Peninsula, in the far north of Western Australia. She spent time droving with her husband until they finally parted company and she returned to Perth and to her work as a journalist.

469    It was in this capacity, in May 1904, that Ms Bates wrote a piece for The Times rejecting criticism that Aboriginal people on pastoral stations in Western Australia were worse off than American “negro slaves”. Dr White reports that Ms Bates had previously disagreed with Bishop Gibney’s criticism of the chaining of Aboriginal prisoners. Ms Bates claimed they “preferred” to be chained by the neck as this left their hands free. She wrote, and Dr White states that Ms Bates apparently believed, “[n]o State in the Commonwealth is doing more for its aboriginal population than this State”. I note these matters because May 1904 was when Ms Bates commenced her work for the Western Australian government that was to form the material relied on by the parties, and especially by the respondents, in this proceeding.

470    Dr White records that, in May 1904, Ms Bates became an employee of the Western Australian government in the Department of the Registrar General. Her task was to collect and write a compilation of the languages of the Aboriginal people of the State. What it was in her background and experience that was thought to qualify her for such a task remains a mystery. Once she had begun this work, Dr White reports that Ms Bates read whatever books she could find on anthropology, and collated the work of previous investigators, looking also at the main publications about Aboriginal people which existed in other States. In her book, Dr White reports on Ms Bates’ investigations on this project between 1904 and 1910 in the following way.

471    After a year in Perth working in a government office, Ms Bates set up a tent with some Aboriginal people on an Aboriginal “reserve” about 10 km from the centre of Perth. She then visited various “reserves” in the south-west of Western Australia, in particular a “reserve” north of Albany. In 1907 and 1908 she travelled to Esperance and, Dr White states, “as far north as the Goldfields, everywhere meeting Aborigines and collecting information from them”. In 1909 and 1910, she was back in an office in Perth sorting and writing up her material, writing journal papers, newspaper articles and giving speeches. In 1910, she was given permission to go on an expedition with Professor Radcliffe-Brown. Dr White describes the difficulties of Ms Bates’ working relationship with Professor Radcliffe-Brown, and describes how Professor Radcliffe-Brown “abandoned” Ms Bates at Sandstone, a town not far to the west of the southern part of the claim area. The rest of the expedition then proceeded to the “lock hospital” at Bernier Island. This “lock hospital” was a place to which Aboriginal men with venereal disease were forcibly removed and imprisoned.

472    Ms Bates’ main involvement with Aboriginal people in Western Australia appears to have started in May 1904, when she was commissioned by the Western Australian government to prepare a publication on the Aboriginal languages of the State. Dr Brunton described, by reference to other secondary sources, that Ms Bates’ brief was later expanded to cover social and cultural information as well. Ms Bates was not trained in anthropology or any other related discipline.

473    Ms Bates did join the expedition at Bernier Island, although Dr White records that Ms Bates “stayed mostly at the adjoining island, Dorré, where there was a similar institution for women”. From these islands, Dr White records Ms Bates as moving to work in the Peak Hill area, which was a Goldfields area in the Murchison region, about 120 km north of Meekatharra. It seems that after this time in Peak Hill, Ms Bates spent time writing up the information she had collected, and when Professor Radcliffe-Brown returned to England in 1912, Dr White reports that he took “some or all of the manuscript of the book with him”. As Dr White describes in some detail, the Western Australian government then refused to publish it because of the expense and the manuscript remained unpublished until Dr White took the project up in the 1980s. Dr White reports that Ms Bates subsequently lived on Rottnest Island for a time, interviewing Aboriginal prisoners there, as well as spending time in the south of Western Australia at Eucla.

474    Ms Bates ended her days at Ooldea in South Australia. In another text (White I, “Daisy Bates – Legend and Reality” in Marcus J (ed), First in their Field: Women and Australian Anthropology (Melbourne University Press, 1993)), Dr White describes Ms Bates’ time at Ooldea, and some of the attitudes towards Aboriginal people that Bates expressed during that period, including in published newspaper articles:

She always regarded miscegenation as unspeakably horrible and believed, as did many of her contemporaries, that ‘half-castes’ shared the bad traits of both races and the good traits of neither. She was not afraid to say so, providing a reason for the dislike and disdain she inspired in those Aborigines who were forming political organisations in the 1920s and 1930s.

…

Though she learnt some of the languages spoken at Ooldea and wrote down long vocabularies, her other findings lack the quality of her work among the Western Australian Aborigines, and do not, in my opinion, enhance her reputation. She became more and more deluded in certain respects. Examples are her absolute conviction that the Aborigines of the Western Desert habitually killed their fellows in order to eat them and that a pregnant woman looked forward to the end of her pregnancy so that she could eat the baby. She even wrote about these so-called discoveries in the major newspapers, so it is no wonder that her reputation went down with the academic community and among those who were trying to help the Aboriginal cause.

475    I note that Dr White herself travelled to Ooldea to interview some older Aboriginal people who had known Ms Bates when she lived there. The following observation from Dr White is, in my opinion, telling:

I found it rather sad that they did not remember her with the respect and admiration that her dedication to them and their parents and grandparents would seem to warrant, but remembered rather the curious figure she cut with her old-fashioned clothes and her parasol.

476    Of course, this observation may also reveal something of Dr White’s own attitudes to Aboriginal people, but it is a reminder that looking at Ms Bates’ work from a European perspective may provide much less than the full story of how she was regarded by Aboriginal people, and what information they were prepared to share with her.

477    Dr Brunton’s report made the following additional points about Ms Bates’ experience. He notes, as Dr White does, Ms Bates’ work and travels with Professor Radcliffe-Brown. He notes also that while working as journalist for The Western Mail, Ms Bates visited the Murchison region in December 1903, reporting on the mining industry there.

478    Dr Brunton notes this visit seems to have lasted for a few weeks and, according to her biographer Ms Elizabeth Salter, during this time Ms Bates “made the most of the opportunity to study the Aborigines of the district”.

Evaluation of Daisy Bates’ material

479    It is fair to say Ms Bates’ attitude towards Aboriginal people had positive and negative aspects and it is not possible, from this historical distance, to be clear about how her attitudes influenced her work. The work she did which is relevant to this proceeding arises from some short-term visits by Ms Bates to an area not far from the claim area, for other purposes. During these visits, Ms Bates pursued, at some unspecified times, her interests in Aboriginal people. Dr Brunton’s conclusion drawn from the list of Ms Bates’ visits to the Murchison region, Peak Hill, Sandstone, the lock hospitals and Rottnest Island is that “while the time she spent on her investigations in the region was comparatively short by contemporary anthropological standards, it was nevertheless substantial, particularly for its time”. Whether or not, measured against time spent with Aboriginal people by other Europeans in the early twentieth century, the time Ms Bates spent in the area should be considered “substantial” is not a matter that assists the assessment of the reliability of her material in this proceeding.

480    Dr Brunton places some reliance in his account of Ms Bates’ work on Dr White’s observation that Ms Bates’ methods were “not common in anthropological research for many years to come”, because they involved “going to live with the people themselves, setting up her tent amidst their huts and makeshift shelters, sitting on the ground and sharing her food with them, observing their behaviour and listening to their accounts”. However, this appears to be a reference by Dr White to what Ms Bates did in her time in Perth on the “reserve”. This was not, at least on Dr White’s account, the manner in which Ms Bates gathered the information used by Dr Brunton and Dr Sackett in this proceeding.

481    Dr Brunton refers to Dr White’s opinion that many people “who were regarded as anthropologists at the beginning of the century would not qualify today, first because they had the wrong ideas, second because as fieldworkers they did not ask the right questions, and third because their fieldwork was not up to today’s rigorous standards”. Dr Brunton then refers to Dr White’s conclusion on Ms Bates’ work, measured against those criteria, which is that although Ms Bates – together with her contemporaries – would not qualify in terms of current standards by the first or second criteria, Ms Bates would pass muster on her fieldwork methods because she was “a splendid observer and an ever-patient listener”. Dr Brunton then refers, with apparent approval, to Dr White’s concluding observations that:

On the positive side are her genuine additions to knowledge about the Aborigines of the west and her innovative methods of discovering knowledge. The reasons on the negative side are serious, but entirely due to her being a product of her own generation whose beliefs and values she shared. The balance is, in my opinion, in her favour.

482    In my opinion, whether Ms Bates was a “splendid” observer or an “ever-patient listener” is a conclusion which is difficult, if not impossible, to glean from her material, without a great deal more evidence and information about the circumstances in which she gathered her material. There are no independent and detailed accounts in evidence about how she behaved with her Aboriginal informants. We do not know whether she recorded all she was told, or was selective. As both experts conceded, we know nothing at all about her methods. We simply have what we have. I am not prepared to accept Dr Brunton’s characterisations of Ms Bates on these issues.

483    Having set out the amount of time Ms Bates spent in areas which could be broadly described as in the same region as the claim area (matters of weeks only), it is as well to emphasise my own opinions on what Dr Brunton (himself, and relying on Dr White) has to say about the quality of Ms Bates’ work. It cannot, in my opinion, be measured against contemporary anthropological work. I take Dr Sackett’s qualifications and experience as a relevant comparison. This is not to ignore the qualifications and experience of Dr Brunton, but the relevant comparison here is between the work done by Ms Bates, and the work done by a contemporary anthropologist who was able to work closely with Aboriginal people for the purposes of understanding their accounts of laws and customs in the claim area. Dr Brunton, as he freely admitted, did not have this opportunity and worked entirely from secondary sources.

484    Dr Sackett obtained a Bachelor of Arts in Anthropology from (then) Fresno State College in 1969, and was awarded Masters of Arts in Anthropology from the University of Oregon in 1971. He earned his Doctor of Philosophy in Anthropology from the University of Oregon in 1975, with his preliminary doctorate work focussing on the ethnography of Aboriginal Australia. His PhD research included fieldwork undertaken in 1972 and 1973 with Aboriginal people then living in and around Wiluna. Wiluna is just to the north of the claim area, and the consent determination under the NT Act in relation to that area is the subject of [758] to [779] of these reasons. Many of the claim group members are also native title holders in the Wiluna determination. The country in the Wiluna determination was recognised by this Court (and agreed by the State) to be Western Desert country. Dr Sackett’s PhD was supervised by (then) Dr Tonkinson and informally supervised by Professor Berndt, both of whom I refer to elsewhere in these reasons. Dr Sackett then spent 20 years teaching anthropology at the University of Adelaide, including teaching Aboriginal anthropology. He continued to do research in Aboriginal anthropology and returned to Wiluna for the best part of a year at one stage during this time. From 1998 to the present time, Dr Sackett has been involved in the provision of anthropological research and advice to various Aboriginal land councils, organisations and claim groups. He has been involved in eight Western Desert native title claims between 1994 and 2013. From his PhD work in the Wiluna area, he came to know and was familiar with some of the apical ancestors for the Tjiwarl claim group. He prepared a report in 2009 for the Wiluna claim. His research in the claim area began in January 2000 and continued through until 2006 under a brief from the then Goldfields Land Council. He then worked, as I have noted, on the Wiluna claim in the late 2000s. His Tjiwarl Registration Report was completed in November 2011. It then appears from the evidence that Dr Sackett has been preparing reports and continuing his research into the claim group and their connections to country from about September 2013 to September 2015 (when his final report in this proceeding was filed).

485    Taken overall, Dr Sackett has spent more than 20 years working with Aboriginal people in and around this claim area (including in the Wiluna determination area), and with Western Desert people, spending very large amounts of time indeed with them, and getting to know them over several generations: their families, their laws and customs and the way they explain their connection to country. It was apparent to me during the on country hearings that Dr Sackett had a strong and respectful relationship with members of the claim group and I have no reason to doubt, having seen his approach and his manner of interacting with them, that he would have had the same kind of relationship with the apical ancestors of the claim group with whom he worked in earlier times, especially (but not only) during his PhD research around Wiluna.

486    While it might be correct to describe (as Dr White does, and Dr Brunton accepts) Ms Bates’ work in the early twentieth century as “genuine additions to knowledge about the Aborigines of the west and … innovative methods of discovering knowledge”, it pales against the qualifications and experience, but more importantly the depth and longevity of the work, of an anthropologist such as Dr Sackett with the Aboriginal people of these areas.

487    Thus, while historians, and those who write about historical anthropology, may have genuine and valid cause to refer positively to Ms Bates’ fieldwork methods as ahead of her time, and admirable, when a Court determining native title examines such material, it must do so, in my opinion, through the same prism as it deals with any other opinion evidence. Where suitably qualified and experienced experts who have been called to give expert evidence in the proceeding itself adopt the information, opinions, or conclusion of early ethnographers, anthropologists or non-Aboriginal people visiting claim areas or regions near claim areas, that may lend additional reliability to those source materials. However, ultimately it is a matter for the Court to determine the reliability, strengths, weaknesses, and relevance of all the material put forward to support or contradict factual propositions which form part of a party’s case or submissions.

488    I accept the applicant’s submissions at [166]:

While Bates undertook a detailed recording of genealogical information and information about kinship, which did include some information about places to which her informants were associated, she did not conduct any systematic inquiry into the laws and customs under which Ngaiawonga and other surrounding groups obtained rights to country. As Dr Sackett explained … in the context of discussing Bates’ genealogies and the differing views of the anthropologists based on them, Bates:

“…didn’t provide us with the material that we might want. She didn’t say, “Well, we’ve got generation levels here. We don’t have them there.” She didn’t say, “This is the rule for taking country.” Whether she provided us with some genealogies from which we might extract insights into that rule, but she doesn’t head them by saying, “Well, you could see here that patriliny is at work,” or you can see here that people are taking country through birth, through their mothers, their fathers, and so force [sic]. So I – so to – to come back to the answer, I – I suppose that we’re looking at the same body of material but coming to different conclusions because, I suppose, of the limits in the material and the limits in itself and some of the ambiguity in the material.”

(Citations omitted.)

489    In my opinion, Dr Sackett’s approach more reasonably and realistically measures the limits of Ms Bates’ material than that of Dr Brunton. Dr Brunton tends to take too literal an approach to Ms Bates’ material, including drawing inferences from what is not there without, in my opinion, giving enough weight to the absence of any information about why Ms Bates wrote down what she did.

My approach to Daisy Bates’ material

490    The approach I propose to take to Ms Bates’ material is as follows:

(a)    Where her own notes are in evidence, either directly or indirectly through the reports of Dr Brunton and Dr Sackett, and where those notes record matters that she saw or heard, I broadly accept they are a reliable record of what she saw or heard.

(b)    There are, as both experts acknowledge (as does Dr White in her work) many inconsistencies in names and spellings, which means that a complex reconstruction process must often be undertaken to try and match the people and places Ms Bates records with other information, whether contemporary or historical. Where such reconstruction has been undertaken by Dr Sackett or Dr Brunton (or both) then I will take that reconstruction into account in reaching my own findings on particular factual issues, where required.

(c)    Ms Bates’ records should, in my opinion, be taken for what they are, but should not be seen as purporting to supply the universe of the relationship between Aboriginal people and areas of land in the early twentieth century in the areas she visited. In other words, I decline to view them as anything like a complete picture. There is no evidence about what proportion the people she spoke to formed of their overall group or community, whether they were representative or not, whether they were entitled or authorised to speak to Ms Bates on behalf of their group or community or not, whether they were in fact outliers from their group or community, who translated for Ms Bates and how expert they were, what questions she asked, what proportion of what she was told she wrote down, and what her methods were with the information she did choose to write down. Her short visits in and around the claim area cannot be seen as anything like a comprehensive “tour” through all parts of the region. Even if they were, the nature of Aboriginal and non-Aboriginal relationships in that time inevitably means there can be no confidence about how much she really saw in each area, let alone how much she understood what she was seeing.

(d)    In evidence, both Dr Sackett and Dr Brunton agreed that there was nothing known of these matters.

(e)    Where Ms Bates’ information is used, as it is by Dr Brunton, to draw out conclusions on which the Court is asked to rely, I decline to do so because I have no basis (and nor does Dr Brunton, in my opinion) for knowing how comprehensive or reliable the sample provided by Ms Bates is. The overall population sizes of the groups where she spoke to some individual members are not known. As I have noted, the representativeness of the individuals in terms of their relationship to other group members is not known. The reliability of what Ms Bates was told is not known: that is, was the informant reliable? With current anthropological work with informants, the anthropologist may express an opinion about the reliability of a particular informant or, at least, is available to be questioned about such issues. Even if one accepts (as Dr Sackett, Dr Brunton and Dr White all seem to) that Bates attempted to be “meticulous” in what she wrote down from her informants, it is difficult to decide whether she was being meticulously wrong or meticulously right in what she was writing down.

(f)    It should not need to be said, but Ms Bates’ work is not to be given any preference, or particular weight, because she was a European writing about Aboriginal people at a time when the voices of Aboriginal people themselves were not permitted to be heard: see generally my comments in Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168; 215 LGERA 1 at [225].

491    A telling exchange occurred during the concurrent session, while Dr Sackett was being cross-examined. I reproduce it to illustrate the point I consider important. It concerns the presence or absence in Ms Bates’ records of accounts of the Tjukurrpa identified by the claim group members:

[MR RANSON]…. This is in response to Dr Brunson [sic] making the point that Daisy Bates, although she had recorded quite a number of dreaming stories – we’ve talked about some of those this morning – she hadn’t recorded the … story amongst the Ngarlawangga [sic] informants that she met. And you say there’s no reason to suspect, given that Liberman recorded it in the 70s and was told it had been there for some time, there’s no reason to think it wasn’t there when Bates was recording. So your premise there is that it was probably there but she just didn’t record it?---Didn’t record it.

You would accept that it’s equally possible on the evidence that she didn’t record it because it wasn’t there?---Well, she didn’t record it. That’s … it’s like some of the other things we’re facing with her data. They’re - - -

But it’s possible?---It’s possible, true.

(Emphasis added.)

492    The point Dr Sackett was making, correctly in my view, is that there is no basis whatsoever for the conclusion that Ms Bates’ records are a complete account of all aspects of the lives, beliefs, practices, laws and customs of the people whose information she records. Rather, they say what they say – and even then, there are many inconsistencies and difficulties in interpretation. Piecing together what Ms Bates has recorded requires, as in my opinion Dr Sackett went on to make clear after the extract I have just quoted, checking her work for consistency with other sources where there may have been more thorough, transparent and focussed recording of information (the example given by Dr Sackett was Mr Liberman’s work in the 1970s).

493    A similar approach should be adopted to the work of other early anthropologists and ethnographers. Their work was undertaken in a society where Aboriginal people were treated wholly unequally: they were not entitled to vote or participate on an equal footing in Australian democracy at any level of government, they were susceptible to forcible removal from their places of residence, and they were required to hold “passes” to move about in certain regions. If they were part of the workforce at all, it was in subjugated positions working for non-Indigenous people and generally being paid little or no wages, and certainly not being paid equal wages for equal work with non-Aboriginal people. These matters are now well recognised. Acknowledging those matters does not involve attributing any lack of good intentions to those researchers, or diminishing their work to nothingness. However, nor should their work be elevated unduly because it is from an earlier time. The contemporaneity or historic nature of the material is not in and of itself an indicator of reliability, accuracy or completeness. In contrast, the way it might be used by experts who give evidence in the case, and assessed as reliable or accurate, may be a different matter.

Daisy Bates’ informants

494    Consistently with my observations to this point, there is very little information available about Daisy Bates’ informants.

495    In their respective reports, Dr Sackett and Dr Brunton referred to Jal (or Jaal) and Jinguru, who were two of Ms Bates’ Ngaiawonga informants. Ms Bates described Jal as “a rather powerful Lake Way district native”. Jinguru was from Yander, but was imprisoned on Rottnest Island. Dr Sackett recorded the following account of Jinguru provided in Ms Bates’ material:

Bates … related how her informant Jinguru had, along with some other men, killed a man they held responsible for magically causing the death of his mother. As Jinguru told her “I was 12 months in jail for that”. Following this, Jinguru killed two other men; his “brother died from the mobarn [magical practices] of these fellows and he had to revenge his brother’s death”…

496    In its written submissions, the State contends that “most of Bates’ informants were not residing in the Claimed Area by the time she spoke to them”. In their written submissions, the applicant contends that “[e]ven where the informants are known, we have relatively little information about them”.

497    There was some opinion evidence that Jinguru was the same person as “Koyl”, an uncle of Scotty Tullock. Both Dr Sackett and Dr Clendon expressed an opinion in their oral evidence that Koyl (or Coyle) was another of Jinguru’s names.

498    The conclusion that Koyl and Jinguru were the same person is of significance in determining how long the claim group members’ ancestors have been in or around the claim area. Given the opinions of Dr Clendon and Dr Sackett, I am prepared to find that Koyl and Jinguru were, on the balance of probabilities, the same person. Dr Sackett’s opinion about how the claim group members’ ancestors may have acquired knowledge through people such as Jinguru is important. So is the familial connection between Jinguru and the Tullock family.

The use of “Ngaiawonga” as a description of the people in the area at sovereignty

499    The significance of Ms Bates’ description of people for whom she recorded genealogies and other details as Ngaiawonga people is at least twofold. First, it is evidence capable of identifying the group of people said to be in occupation of the claim area at sovereignty and assisting to decide what happened to them and what, if any, relationship the claim group members have to these people. Second, and on the assumption that the Ngaiawonga people were in occupation of the claim area at sovereignty, Ms Bates’ material about them is part of the evidence on which the decision whether they were Western Desert people rests.

500    What is meant by the use of that word “Ngaiawonga”? This requires consideration, primarily, of the evidence of Dr Clendon, together with the opinions of Dr Brunton and Dr Sackett.

501    Dr Clendon confirmed, and both parties accept, that the literal translation of Ngaiawonga is “I speak”. Several claimant witnesses also identified the term in this way. Ms Geraldine Hogarth understood it to mean “my talk” or “my language”. Mr Victor Ashwin understood it to be translated as “this” and “speak” in a Western Desert language. Mr Muir understood it to translate as “my speech”. It is also true that several witnesses whose evidence I considered the most reliable (such as Ms Wonyabong and Mr Lewis) had never heard of the term. It appears neither had Mr Patterson, despite his status in the Wiluna claim area, which is geographically closer to where Ms Bates was working.

502    Dr Sackett’s Tjiwarl Registration Report describes how Ms Bates used the descriptor Ngaiawonga (my spelling). First, he notes in the fifth footnote that:

Bates herself did not draw any ‘tribal’ maps for the area, halting with rough verbal descriptions of the locations or directions of the tribes of the region. In fact, she appears to have been of the view that, at least in this area, “definite [‘tribal’] boundaries” would have been difficult-to-impossible to map.

(Citation omitted.)

503    He then continues:

Bates made a number of further points about the Ngaiuwonga and their neighbours. Of significance here, she noted that Ngaiuwonga country embraced not just the immediate “Lake Way district”, but lands to the north, and, as well, country south to “Mt. Sir Samuel, and Lawlers”, ie Ngaiuwonga lands extended southwards to the southern portions of the lands of the Application area. (Bates sometimes referred to the Wiluna to Lake Nabberu and Carnarvon Ranges Ngaiuwonga as the northern Ngaiuwonga, and to the Wiluna to Sir Samuel and Lawlers area Ngaiuwonga as the southern Ngaiuwonga.)

In much the same way that Bates reported that the ngaiu of Ngaiuwonga meant “I, me” she noted the ngadha of Ngadhawonga likewise meant “I, me”. While it is possible that this sort of dialect/language, and group, distinguishing occurs in non-Western Desert areas, it certainly is common across the Western Desert, where dialect names or labels commonly flag or point to instances of difference. (This probably is best known in the case of the Pitjantjatjara and Yankunytjatjara, and vice versa. The Pitjantjatjara speak the Western Desert dialect which uses or has [the -tjara suffix means ‘has’ or ‘having’] the word pitjantja [meaning ‘to come’ or ‘to go’]. The Yankunytjatjara [who happen to be neighbours of the Pitjantjatjara] speak the Western Desert dialect which uses or has the word yankunytja [meaning ‘to come’ or ‘to go’].

(Emphasis in original; citations omitted.)

504    In his report, Dr Brunton did not disagree with this analysis, but added that Ms Bates also spoke of local groups associated with particular areas, indicating their names came from the dialectical variations in the first person pronoun. He continued:

In one document she wrote of the Ngaiuwonga as located around Balju Springs near Mount Alice, the Ngaiawonga around Yarnder (or Yander, Yarnderi), Wiluna and towards Lawlers, and the Ngai-yuwonga between Yarnder and Lawlers (which is just to the south of the claim area). Insofar as these ‘tribelets’ seem to have had different rules about the intermarriage of sections or skins, and even differences in one of the section names, distinguishing between them seems justified ... But the different labels for the groups are not applied consistently in her manuscript.

(Citations omitted.)

505    I make some findings at [326]-[334] concerning where “Yander” is likely to be located, because it is of some significance in the fact-finding about not only who lived in the claim area at sovereignty, but about where people came from who moved into the area.

506    Despite his qualifications, Dr Brunton himself was content in his report to speak of the “Ngaiawonga” as a single group of people: see for example where Dr Brunton referred to the Ngaiawonga identity at [126], [128], [130], [132], [142], [144], [146], [166] and [170].

507    However, both Dr Sackett and Dr Brunton agreed that “Ngaiawonga” was a dialect label and not a land owning group. I understood their evidence on this to mean that they accept that the way the people to whom Ms Bates spoke identified themselves to her was through the language they spoke. Their agreement on this issue is significant, as is the development of this issue by Dr Clendon.

508    Dr Clendon’s evidence, which I accept, was that Western Desert language has a spread of regional varieties or dialects and all native speakers can communicate with and understand each other, although the more geographical separation there is between dialects and varieties, the more difficult this might be. His evidence also was that to the west of the claim area, Western Desert language “gives way” to non-Western Desert languages in the Kartu family, relevantly the Badimaya and Wajarri languages. His evidence was based on the word lists collected by Ms Bates from her informants Jaal and Jinguru, and four informants from Lawlers. In cross-examination, he explained this as follows:

MR RANSON: …So, back to the Lawlers list, now, Lawlers is or was a historic mining town and it was quite prosperous and large, I think, at the time of – at Bates’ time?---That’s my understanding, yes.

Yes. And that word list was compiled from four different individuals that she named?---Yes.

Do we know anything about those individuals, who they were or where they were from?---I don’t know anything about them, no.

And Bates doesn’t provide any detail about that other than - - -?---Not that I could see from her document.

And there’s no explanation as to how those individuals came to be in Lawlers at the time that she recorded the material?---Not – not – not to my understanding.

So, while you might be able to attach the words in that list to those four individuals, it’s not necessarily the case, is it, that you can attach them to a particular point on the map in that sense, can you?---Well, except that she does say they are of Lawlers, and from my reading of her work she was fairly meticulous, because the point of this – the point of all these exercises was to document language where – in – in its geography, where language occurred, and it seems to me highly likely that she would have sought reassurances from them that they were actually from the Lawlers or – Lawlers, or from that area.

Okay?---Because that was the purpose of these word lists, was to show how language varied and altered across a landscape.

…

You said there [referring to Mr Clendon’s first report]:

Four people contributed to the Lawlers word list. It may be that we are seeing here two or more different languages from different regions of Western Australia.

So it seems to me you were leaving open that possibility, there, that these individuals may have come from different places, in fact?---Certainly. It’s a possibility.

Yes?---I don’t think it’s a strong possibility; I don’t think it’s a probability, but it must be a possibility.

If that isn’t the case, if they were – let’s assume, for argument’s sake they were all locals to Lawlers, how would you account for the two or more different languages in that circumstance?---Because they were offering words that were shared between Wadjari, Badimaya and the Western Desert language in that area. It was an area where, almost certainly, Badimaya and Wadjari were spoken, as well as the Western Desert language. Leonie Dunn and, I think it was, James Bednell locate Badimaya country directly to the south-west of the Tjiwarl claim area. It would be extremely likely that, as I was talking about before, that people in there were multilingual.

You mention that – use that expression that Bates “was offered” two or three different languages?---Yes.

From my layperson’s look at the words lists, there’s no – there’s not really an explanation from Bates in there as to precisely what the exercise was, is there? She’s not – she doesn’t really explain exactly what questions she was asking, so how do you come to that interpretation that she was being offered alternatives, as opposed to - - -?---Well, she had a word list – well, she had a – she had, I guess, a pro forma, and these questions, like, “Kangaroo”, “Where shall I find water?”, whereas these questions recur in each of her word lists that I’ve looked at in this area.

Yes?---And I would imagine a situation where there’s four men sitting with her, and one of them offers a response in a Western Desert language, another one offers a response in, perhaps, Badimaya, or, perhaps, the same man offers her – gives her three different alternatives.

Okay. So she, in your mind, was actually engaged in a slightly comparative exercise in that sense?---Well, no, she would not have known that they were different languages.

Okay?---I mean, she was not a linguist. She appeared – everything I can see – especially, the fact that she wasn’t distinguishing between languages – she did not know that she was being offered two or three different languages.

But in your opinion, that’s what was happening?---Yes.

Yes. Okay. I understand that. Now, if I can take you, Dr Clendon, to your supplementary report, just dealing, still, with this Lawlers word list, and to paragraph 5 on page 4 of that report?---Yes.

And that’s your conclusion about that list, effectively, or a description of that list, and you say it shows a large portion of the language in there is Western Desert language, a portion of it is Wadjari, and the third portion is a language or languages, the identity of which have been uncertain. But I think, as you’ve said to us this morning, and, perhaps it’s already indicated in the report – I must say I’ve taken it from the report already – you seem – your best guess is that that was Badimaya- - - ---Well, I know- - -

- - -based on that- - -?----I know a lot of it is Badimaya, yes.

Yes. And that was information you didn’t have at the time of your first report?---That’s correct.

…

Now, that Badimaya dictionary is a relatively recent publication?---Yes.

And, without wishing to be unfair to anyone, it’s a fairly sparse dictionary. It’s not as detailed, for example, as the Wadjari one. Is that fair characterisation?---No, it’s not as detailed as the Wadjari one and it’s nowhere near as detailed as the Ngadjunmaya.

Yes. And you make an interesting comment at paragraph 6 after – just after where we were, which seems to me to suggest that, perhaps, if we had a more comprehensive Badimaya source, it might be that even a higher proportion of the words in the Lawlers word list might---?---That’s absolutely possible, yes.

509    Despite the State’s submissions to the contrary, in my opinion Dr Clendon’s evidence was clear that, in his opinion, the self-description recorded by Ms Bates indicated her informants’ principal language was a Western Desert language, accepting (as he did) that some of the informants were clearly multilingual, including in non-Western Desert languages or dialects.

510    I deal with Dr Clendon’s evidence in more detail at [711]-[756], where I find that his opinions and conclusion provide support for the proposition that the people who occupied the claim area at sovereignty were Western Desert people. For the moment, the relevance of his opinions is to confirm that Ms Bates’ use of the term “Ngaiawonga” appears to have stemmed from no more than the self-identification given by Jaal and Jinguru (and possibly others) about what they considered to be their principal language.

511    Thus, “Ngaiawonga” appears to have been a self-description used by Ms Bates’ informants, but as a way of identifying the principal language they spoke, perhaps without intending (or knowing) that Ms Bates would adopt it as a nomenclature for the people they had described themselves as part of. What is most significant is that their principal self-identification was with a Western Desert language. It does not have any further significance than that. I accept Dr Clendon’s opinion that at sovereignty there were two regional dialects spoken by those Aboriginal people who occupied the claim area – Tjuparn (or Tjupan, Tjupany, or Djubun) and Mantjintja – both of which formed part of the Western Desert Language. I find that Ms Bates’ use of the label “Ngaiawonga” was a label she derived from words spoken to her by her informants, as a way of identifying themselves by reference to their language. She came to use it, as Dr Clendon identifies in his report, in a mistaken way, but it is nevertheless a label which has “stuck” and which the parties and experts in this proceeding have been content to use. It should be given no higher status than that.

What area did the Ngaiawonga occupy?

512    Ultimately, both Dr Sackett and Dr Brunton agreed that Ms Bates’ material indicated the people she described as “Ngaiawonga” occupied the whole of the claim area as their traditional country. Dr Brunton said, in his first report at [512]-[514]:

As noted in the previous chapter, Bates’ account of the places at which the Ngaiuwonga were to be found does appear to encompass the whole of the claim area. She specifically stated that the people she identified as ‘south Ngaiuwonga’ had their burna – which she translated as ‘home’, and elsewhere as ‘group area’, and which Kingsford said can mean ‘estate’, ‘home country’, ‘language territory’, etc – included ‘Wiluna, Lake Way, Mt Sir Samuel and Lawlers’. This would indicate that she saw these places as comprising the country with which the south Ngaiuwonga were traditionally identified, and in which they would have what are now seen as native title rights. While this includes only the eastern third of the claim area, two other kinds of statements can be cited to show that the Ngaiuwonga’s country extended over more of the claim area.

The first are references to the ‘runs’ or associated sites of individuals who were identified as Ngaiuwonga – Lungu and Wilamada – being in the Barrambie and Sandstone districts, to the west of the claim area. As both of these men were deceased and in the first or second generation above Bates’ informants for the genealogies on which they appeared, it seems reasonable to assume that the links to these sites predated European settlement. The genealogy on which Lungu appeared was headed ‘Ngaiuwonga south’. Bates also identified Mt Townsend, in the north west of the claim area, with Peter Yandarga, who was said to be both Ngadawonga and Ngaiuwonga, although he was of a younger generation and one of Bates’ informants.

The second kind are statements about the supposed Ngaiuwonga local group, the ‘Ngaiyu’, in the Boolygoo Range area, which is in the south west of the claim area, and at Mt Holmes, outside the southern boundary. (However, as noted in paras 43-44 for example, there are problems about the consistency with which ‘Ngai-yu’ or ‘Ngaiyu’ was applied). As already stated in para 74, and as will be readily apparent from Maps 9 and 10, Bates also located Ngaiuwonga far to the south and south-east of the claim area, usually camped with members of other tribes, although in my opinion, some of these locations, such as those around Leonora and Laverton, reflect post-European, and possibly temporary movements.

(Citations omitted.)

513    When one takes all the geographic references in these passages, it is clear that all parts of the claim area are included. Lawlers is just to the south of the claim area. Booylgoo Range is in the south-western part of the claim area. Mount Townsend is in the north-west corner of the claim area. Sandstone is not far outside the south-western boundary of the claim area. Wiluna is to the north of the middle of the claim area. Lake Way is right on the northern boundary of the claim area, to the east of Wiluna.

514    Dr Brunton made what was no more than a passing suggestion that the southernmost parts of the claim area may have been occupied at sovereignty by Badimia people. However as the applicant submits, no Badimia people came forward to make a claim over any part of the area, despite a recent claim to areas to the west. The better view is that the whole of the claim area was occupied at sovereignty by a group of people whose own descriptions of themselves may never be fully ascertained, but who Ms Bates called Ngaiawonga.

Dr Brunton’s analysis of Ngaiawonga marriage patterns

515    Dr Brunton conducted a detailed analysis of marriage patterns based on Ms Bates’ genealogies and the identification of places referred to in her notes. He concluded that “by far the heaviest concentration of marriages [of Ngaiawonga to non-Ngaiawonga people] … lie in an arc from the north to the west, with an additional marriage located in the south western quadrant.” Dr Brunton concluded that this pattern “presumably reflects a concomitant paucity of social interaction” with people to the east, which he said is very difficult to reconcile with the idea that the Ngaiawonga were Western Desert people. Had they been, Dr Brunton said he would have expected at least a more even distribution or, more probably, a skewing to the east. Dr Brunton considered the data he used was based on a representative sample of Ngaiawonga people.

516    In his further expert report, Dr Sackett expressed doubts that Ms Bates’ data was a representative sample of the people in the claim area, pointing out that Ms Bates did not undertake fieldwork in the Yander area, but rather worked in the Peak Hill-Meekatharra and Sandstone areas, as well as Rottnest, Bernier and Dorré Islands. Sackett commented that “had Bates recorded information at Wiluna or Sir Samuel, the picture generated might have been very different indeed.”

517    Dr Sackett’s view was that intermarriage between Ngaiawonga and non-Western Desert groups to the west was not inconsistent with the Ngaiawonga being Western Desert people. He referred to data from other areas suggesting that, where Western Desert and non-Western Desert peoples elsewhere abut one another, they interact and marry.

518    As the applicant submits, the ultimate issue is whether at sovereignty the Ngaiawonga and people to the east constituted a single society and, even if Dr Brunton’s analysis of Bates’ data does reflect some preference amongst some Ngaiawonga located in the west of the claim area for marrying people further to the west over people further to the east, it does not follow that the Ngaiawonga and people to the east had different laws and customs. I agree with the applicant’s submissions. More importantly, for the reasons I have outlined, I do not consider it is possible to conclude that Ms Bates’ data was representative. I do not consider her materials provide a reliable source for any overall conclusion about the marriage patterns of Aboriginal people occupying the claim area at sovereignty. They record what a small number of people told her. It was not even a remotely comprehensive study, it was conducted outside the claim area, and it had a focus on lands and people to the west.

519    Finally, I accept Dr Sackett’s view that there is no necessary inconsistency between the Ngaiawonga being Western Desert people and such marriage patterns as exist showing interactions and marriage with non-Western Desert people. As Dr Clendon also noted, it was a feature of Western Desert societies that their mobility over large areas meant there could be much interaction with other societies.

What happened to them?

520    The question of what happened to the Ngaiawonga is vexed.

521    In their statement of issues, facts and contentions, the applicant states:

Nevertheless, the influx of non-Aboriginal people into the Claimed Area in the late 19th century and early 20th century:

(a)    materially affected the access by the Aboriginal occupants of the Claimed Area to traditional water and food sources;

(b)    resulted in the spread of diseases to the Aboriginal occupants of the Claimed Area; and

(c)    resulted in conflict between non-Aboriginal people and the Aboriginal occupants of the Claimed Area, and/or between Aboriginal people in occupation of the Claimed Area and other Aboriginal people.

The matters referred to in paragraph 29 contributed to a situation where, by the early 20th century, those Aboriginal people who were in occupation of the Claimed Area at sovereignty, and the biological descendents of the Aboriginal people in occupation of the Claimed Area at sovereignty, died or moved away from the Claimed Area.

522    The State is correct to point out that, initially, Dr Sackett’s opinion was that:

… evidence suggests there was something of a decimation of the original population of the Tjiwarl area, through the consequences of introduced diseases, dispossession, violence, forced (and possibly voluntary) removals.

523    Prior to this conclusion, Dr Sackett had discussed in more detail the evidence for his conclusion. It seems apparent from his discussion that the effects of European diseases such measles and influenza were devastating. Venereal disease was also a noted problem, leading, as I have noted above, to some Aboriginal people being removed in inhumane ways to “lock hospitals” on the islands of Bernier and Dorré. What proportion of the population was removed in this way is not revealed by the evidence. For whatever combination of reasons, the original occupants were finding it hard to survive in the most basic of ways. Dr Sackett extracts a report from the Chief Protector of Aborigines in 1902, which said the local people:

wander about in a starving condition from one mining centre to another; their own water-holes appropriated by the white race, the few animals completely destroyed, and therefore [they have] nothing but grasses and insects ... to rely on.

524    Dr Sackett refers to the work of E Watson, in his 1968 autobiography (Watson E, Journey under the southern stars (Abelard-Schuman, 1968)) which provided, amongst other things, an account of the expedition of Professor Radcliffe-Brown, accompanied by Ms Bates and Mr Watson, in the Murchison area in 1910. Dr Sackett quotes Mr Watson as saying that, although there was some intramural fighting:

it was rather the diseases brought by the white man. Whole countrysides were killed by measles and influenza …

(Citation omitted.)

525    An informant to another anthropologist, quoted by Dr Sackett, and who lived around Sandstone in the early part of the twentieth century was reported as saying that there were:

“[t]wo bouts of severe influenza among the Aborigines [which] decimated their numbers ... as they had no resistance to it.”

526    Dr Sackett notes these effects were, in his opinion, occurring from, or even (in the case of disease) before, the settlement of this area by Europeans, and the effects continued throughout the First World War. He also notes the evidence establishing, in his opinion, how low the numbers of children were during the early part of the twentieth century in the area, although he observes that caution is needed in taking too literally contemporaneous observations on these issues, because many Aboriginal families were astute to conceal their children, lest they be removed by the authorities. Dr Sackett continues:

All the same, evidence from Bates suggests there were few(er) children to hide. In fact, Bates’ Pedigrees point to something of a fracture in the reproduction of the local population. Take, for example, those for Jal, Jangari, Kaligurdaji, Ngaiajara, Wonga and Janjimara. These were people Bates identified as Ngaiuwonga, and associated with country to the near north of the claim area.

(a)    Jal was shown with four wives, but only one child.

(b)    Neither Jangari, nor his sister, nor his three brothers, one of whom had three wives, were shown as having children.

(c)    Kaligurdaji, said to have been about 60, had a son and two daughters, none of whom themselves was shown with children.

(d)    Ngaiajara, said to have been about 75, had two sons, neither of whom was shown with children.

(e)    Wonga, said to have been about 50 and twice married, was shown with no children.

(f)    Janjimara, said to have been about 60, was shown with no children.

(Citations omitted.)

527    Dr Brunton substantially agreed with Dr Sackett’s assessment of the decimation of the population in this period, describing it as a “demographic catastrophe”.

528    From these propositions, the State submits that the last Ngaiawonga people appear to have died, or moved out, in the immediate period after 1912.

529    I do not accept that a finding with that degree of certainty can be made on the evidence. Rather, the situation was more fluid and complex than the State submits.

530    Dr Sackett’s initial conclusion was that he knew of no descendants of the original occupants. He did not revisit this conclusion in his supplementary report, or in oral evidence.

531    What I take Dr Sackett to mean by his statement is that, in his considerable and long-ranging studies concerning the connection of contemporary Aboriginal family groups with country in and around the claim area, he has not come across any people who claim to be descendants of the “original occupants” of the claim area. That is, no-one else is claiming rights and interests in this country under traditional laws and customs. I take him to be saying no more than that. And in my opinion, it would be difficult to put the statement in any more absolute terms. The evidence in this proceeding is replete with accounts of forced removals of Aboriginal adults and children from their country, of Aboriginal people fleeing violence from and mistreatment by early European settlers, of Aboriginal people moving to avoid starvation and the ever encroaching tide of gold prospectors, combined with the tremendous toll taken on Aboriginal people from introduced disease and illness. There are, accordingly, any number of reasons why no other descendants may be visible. That proposition does not deny, of itself, the connection of the claim group members through traditional laws and customs to the claim area.

The role of Tjukurrpa in the applicant’s claim

532    The evidence – claimant and expert – about the Tjukurrpa is what provides a frame of reference for my own navigation through the legal landscape of the applicant’s claim and the State’s fundamental criticisms of it.

Explaining the Tjukurrpa

533    The Tjukurrpa is a central part of the world view of all the claimant witnesses. Translation of its meaning and significance into written non-Aboriginal language has its challenges. In the findings I make in the following section, I rely to a significant extent on the evidence of Dr Sackett, whose opinions about the Tjukurrpa I accept.

534    Dr Brunton does not disagree to any real degree with how the Tjukurrpa might be described, nor about the role it plays in Western Desert laws and customs. His point of disagreement concerns whether the members of the claim group have “imposed” their own Tjukurrpa on the claim area with the consequence that they have a new and post-sovereignty relationship with the land, rather than a “traditional” one for the purposes of the NT Act.

535    Dr Sackett’s description of the Tjukurrpa is:

For Western Desert people, proof of the reality of the Tjukurrpa was/is seen in the way lives were/are led and experienced, and the landscape was/is organized and related. Put another way, as Western Desert people saw/see it (in what for Westerners would be circular logic), if it were not for the Dreaming and the Dreaming beings, things would not be the way they are.

In my experience and opinion, Western Desert people, Tjiwarl Claimants amongst them, view the Tjukurrpa in a couple of intertwined ways. At one level, it was the time when (1) the world was given shape and (2) a way of life for humans to follow was laid down. Both acts were carried out by supernatural Beings who themselves are referred to as Tjukurrpa.

536    Many of the commentators, anthropologists and ethnographers to whom Dr Sackett refers in his supplementary report use the description “religious” to describe the characteristics of the Tjukurrpa. There is, based on the evidence I have heard, no doubt a spiritual dimension to the way the claim group members understand the Tjukurrpa. The Tjukurrpa comes from mythical beings that shape and mould the landscape, but its nature and function is not limited to being a spiritual, religious or mythical account of the creation of the landscape and natural world in which Aboriginal people live.

537    Rather it is also, as Phillip Toyne and Daniel Vachon described it, in a book to which Dr Sackett referred, the “rational and moral order to their existence”: see Toyne P and Vachon D, Growing Up the Country: The Pitjantjatjara struggle for their land (McPhee Gribble Publishers/Penguin Books, 1984). Scott Cane, also quoted by Dr Sackett, described it as “‘the Law’, to which they consider themselves beholden”: Cane S, Pila Nguru: The Spinifex People (Fremantle Arts Centre Press, 2002).

538    Thus combining many concepts in one word, the Tjukurrpa is past and present, myth and reality, belief and law. It connotes beings who have always existed and still occupy the landscape, and that continued presence is part of the reason that there is a body of rules of behaviour which exists around sites and knowledge related to the Tjukurrpa. Transgressions have a real and immediate effect. The Tjukurrpa is not consigned to history, but rather is a living guide for the lives of Aboriginal people.

539    Tjukurrpa does contain, as Dr Sackett elucidated, something that to a non-Aboriginal person might seem like circular logic. This extract of Dr Sackett’s evidence from the concurrent evidence session makes the point well:

MR RANSON: It’s on page 9. Dr Sackett, there you say:

For Western Desert … proof of the reality of the Tjukurrpa was and is seen in the way lives were and are led and experienced and the landscape was and is organised and related. Put another way, as Western Desert people saw it or see it, in what, for Westerners, would be circular logic, if it were not for the dreaming and the dreaming beings, things would not be the way they are.

So what you’re saying there is: Aboriginal people look at the landscape, they interpret it as having been created in the dreaming and then they use the way the landscape is as proof of the truth of the dreaming. Does that make sense?---You’re close. They’re told about the significance of the landscape – what’s in the landscape. They’re taught it by elders, their parents or somebody else. So they’re taken to and shown places and told about it. But the proof that that happened is evident because it’s there.

Is that - - -?---To go back to the example of the hill, south of the Wiluna, the Lawrence Wells – those little … beings were frightened and ran and tried to get into their burrow and in so doing pushed up the hill as evidence that that happened.

540    Some evidence given in the restricted session by Mr Victor Ashwin and Mr Allan Ashwin was also persuasive about the nature of Tjukurrpa. I set it out here because, although given in the restricted session, I do not consider it touched on any restricted subject matter. The evidence was given in the context of questions about handing over rights to country, a topic to which I return later in these reasons. However, it is the emphasised passage which is important to the present topic:

MR RANSO[N]: Oh, okay. That was going to be my next little question was, that handing over, was that handing over the law, the men’s law or was it handing over the country or was it both?

VICTOR ASHWIN: Both. It comes hand in hand.

MR RANSO[N]: Yes.

ALLAN ASHWIN: Can’t hand them - - -

VICTOR ASHWIN: You can’t have one or the other.

MR RANSO[N]: Okay.

VICTOR ASHWIN: You got to have the law and the country where the Tjukurrpa went through.

MR RANSO[N]: So when that law gets handed over, the country comes with it maybe.

ALLAN ASHWIN: Mmm.

VICTOR ASHWIN: Can’t – Tjukurrpa went through the country. Tjukurrpa is the country, that’s what I’m explaining to you.

(Emphasis added.)

541    The claimant evidence demonstrates that the Tjukurrpa of the claim area links the land and waters of the claim area with land and waters outside the claim area, especially (but not entirely) to the east, and a long way across the Western Desert region. In linking the land and waters, it also links the people of the country of the claim area with the people of country through which the Tjukurrpa travelled, and in which it existed, and exists. Dr Sackett confirmed in his evidence that this was his understanding of the effect of the claimant evidence.

542    However, as Mr Victor Ashwin emphasised in the passage I have set out above, the linking occurs because Tjukurrpa is the country.

543    Ms Wonyabong explained the linking or unifying nature of the Tjukurrpa – between country, and between people, in this way:

People in Ranges [Warburton] and other parts of the desert, like north around Wiluna, know these stories as well. They know the story coming right from Alice Springs. The old people would know the stories, because they learn it through the law. It is the tjukurrpa that makes it the same law.

544    As Dr Sackett noted, the evidence of Aboriginal people outside the claim area also supported this understanding of the Tjukurrpa. The evidence of Mr Patterson was:

It’s the same tjukurrpa in that Tjiwarl claim area as my country. My country is up north – but it change the language and so we leave it to that lot. It’s the same tjukurrpa. But that’s for the mob who talk for the area to talk about. Different people have different responsibility for different parts of the tjukurrpa.

545    Mr Patterson is not a member of the claim group. He is a senior wati of the Gingirana native title claim group, as well as being a native title holder on the Birriliburu, Martu and Wiluna determinations. His evidence has particular weight because, as a Western Desert man, speaking about his own country, he is very clear that the same Tjukurrpa runs through the claim area. There is no sense from Mr Patterson’s evidence that this is a recent occurrence, after the arrival of settlers.

Two Carpet Snakes and the Dragonfly

546    The principal Tjukurrpa disclosed in the evidence (both claimant and expert) is called Tjila Kutjara: two carpet snakes being chased by a dragonfly (Tjinkuna). During the on country hearing, the Court viewed some of the principal sites related to this Tjukurrpa. Most claimant witnesses gave evidence about this Tjukurrpa, but the principal claimant witnesses who spoke about it in oral evidence were Ms Wonyabong and Mr Muir. Mr James and Mr Richard Narrier, among others, gave accounts in their written evidence. Ms Wonyabong took the lead in many of the sites visited by the Court during the on country evidence.

547    Both Ms Wonyabong and Mr Muir principally learned the story of Tjila Kutjara from Ms Walker, Mr Muir’s mother. Ms Wonyabong also gave evidence that she heard part of it from the station owner at Albion Downs, although she said she had previously heard it from Angeline Narrier and Doris Foley. Angeline Narrier was the aunt of Ms Narrier, Mr Richard Narrier and Mr Keith Narrier. She was married to Micky Wonyabong. Doris Foley was part of the Ashwin family. Her brother was Alfie Ashwin and she was the aunt of Mr Allan Ashwin. Doris Foley had a son called Lenny Ashwin. In his witness statement, Mr Muir described Doris Foley and Angeline Narrier as the main custodians for the country in that they were “responsible for looking after the tjukurrpa stories and places throughout the Tjiwarl country, because it was their country”.

548    It is an open Tjukurrpa (that is, not knowledge restricted by gender or some other attribute) although, at least based on Mr Liberman’s report, there may be aspects of it which are not open.

549    Before descending into any detail about the story, it is important to set out that this Tjukurrpa comes into the claim area from the east – from Weebo (which is not far outside the south-eastern corner of the claim boundary) and up through Lake Darlot and then across west into the claim area, although, as I set out below, it has long been said this Tjukurrpa starts in the Northern Territory. When it enters the claim area, the Tjukurrpa runs north up the Barr Smith range, ending (on one version at least) at “Pii”, a spring on Albion Downs station, and one of the locations visited during the on country hearings. Mr Liberman’s report also dealt with this Tjukurrpa in considerable detail, and I refer to aspects of his report below. Although something was made of changes or differences in this (and other) Tjukurrpa by the State, I am satisfied those changes or differences are not material to the issues I have to determine.

550    By way of introduction, Mr Liberman notes in his report that throughout the Western Desert region and the Pilbara, the carpet snake is associated with water. He reports that carpet snakes “have great difficulty making long journeys over hot dry grounds, so their presence at a water hole is a strong indication that the water is permanent”. He notes that when a waterhole becomes dry “it is often said that the snake has died”. He also notes this Tjukurrpa starts “from the region of Ayer’s Rock” and extends “across some 1600 kilometres of desert to pii (the Barr Smith Range) near Albion Downs on one version … and to Walga Rock on Austin Downs Station on another version”. Walga Rock is a very large rock formation located west of Cue, and north-west of Mount Magnet.

551    Uluru is also where Mr James places the start of this Tjukurrpa, although other claimant witnesses (Ms Harris, Mr Victor Ashwin, Mr Muir, Mr Allan Ashwin and Ms Wonyabong) simply describe it coming from further east of the claim area. Mr Allan Ashwin said it “came from over in Mungkali country”, which is country well to the east beyond Lake Carnegie.

552    Mr Liberman also noted that:

This yiwarra (“track”) of the tjila kutjarra (Two Carpet Snakes) is primarily associated with the creation of vital waters in this transection of the Western Desert, and there are many highly secret-sacred sites located on the track-sites which have been important centres of ceremonial activity.

(Footnotes omitted.)

553    In his witness statement, Mr James gave an account of this Tjukurrpa. His ngurra is around Albion Downs. He learnt this Tjukurrpa from his father, Dempsey James. This is how he tells the story:

We call the dreaming, the tjukurrpa. The main one that I’ve been told is the Carpet Snake Dreaming, the Tjila and the Dragonfly man, Tjiinkuna. The story is coming from Uluru coming through Weebo and focusing on this area, the journey through Lake Miranda [K8/L8], Lake Darlot [L8] and up to Tjiwarl and has them being chased across the country and shaping some of the landforms and lake systems and being caught on the other side of Albion Downs.

The Dragonfly shaped two rocks in Uluru and left them to dry. They turned into the Tjila, the Carpet Snakes and they traversed their way across the country as the Dragonfly was chasing them through to Weebo and then the story picks up around here.

The part that I know a bit more in depth is around Lake Miranda [K8/L8], Albion, Yakabindie and Barr Smith ranges. There’s a red sandhill in the middle of the lake that is where they the Carpet Snakes were speared. I have been told two different versions of that, one is that the blood red sandhill is where they were speared and the other one is where one of the snakes had eaten regurgitated bad emu fat which caused the sandhill.

Where Jones Creek is, there is a place called Mail Change Well, Tjulpu, that is linked to some of the Carpet Snake and Tjiinkuna stories; the part of the Barr Smith Ranges where there are lots of soaks. There is munta there, a crevice or opening to the hills with two springs with a camping ground. I was told not to go to that area at certain times of year because the mob would do law business there, coming down from Wiluna.

The two snakes being chased made their way to around Albion Downs where they were subsequently tracked down, around Tjiwarl. One was speared around there and the area to the west of the Barr Smith Ranges which you see it’s all flat. It’s flat because when the snake was writhing in agony and in dying it flattened out all the country through there. When one of the snakes was caught it was wounded and when it was thrashing around outside of Tjiwarl it created the land there to the west of Logan Springs.