FEDERAL COURT OF AUSTRALIA
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. By 1 February 2018, or such further time as allowed by the Court, the parties file and serve any application for the determination of any of the matters referred to in [628], [645], [656], [670] and [734] which are not agreed between the parties.
2. Subject to the resolution of the matters referred to in [1], on a date to be fixed, the parties file and serve proposed orders and a draft determination reflecting these reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
1 Before the Court are three applications for a determination of native title in the mid-Dampier Peninsula in Western Australia.
2 Application WAD 359 of 2013, Ernest Damien Manado and others on behalf of the Bindunbur Native Title Claim Group v State of Western Australia and others, the Bindunbur application, was filed on 20 September 2013. It was a combination of that application with two later applications, WAD 425 of 2013 and WAD 94 of 2014.
3 Application WAD 357 of 2013, Rita Augustine and others on behalf of the Jabirr Jabirr Native Title Claim Group v State of Western Australia and others, the Jabirr Jabirr application, was filed on 23 September 2013. It took the place of an earlier application, WAD 124 of 2010, which was filed on 20 May 2010 by the same people over the same land.
4 Application WAD 374 of 2013, JR (Deceased) and others on behalf of the Goolarabooloo Native Title Claim Group v State of Western Australia and others, the Goolarabooloo application, was filed on 4 October 2013.
5 The Bindunbur, Jabirr Jabirr and Goolarabooloo applications were heard together. The Bindunbur applicants were referred to as the first applicant, the Jabirr Jabirr applicants as the third applicant, and the Goolarabooloo applicants as the fourth applicant.
6 The respondents which took an active part in the combined proceeding were the State of Western Australia, the first respondent, the Commonwealth, the second respondent, and the Shire of Broome which was referred to as such.
2. THE PROPOSED NATIVE TITLE CLAIM HOLDING GROUPS
7 The members of the proposed Bindunbur Native Title Holding Group comprise the descendants, including by adoption, of 45 apical ancestors who were members of a society which comprised or included people who identified themselves respectively by one or more of the labels Jabirr Jabirr, Ngumbarl (Nyombal), Nyul Nyul or Nimanbur. The apical ancestors relied on are:
1. Murrjal
2. Dorothy Kelly
3. Liddy Kenagai
4. Liddy Skinner
5. Bornal
6. William Wallai & Mary Nelagumia
7. Senanus
8. Frank Walmandu & granddaughter Sophie McKenzie
9. Jimmy Bulongi (aka Frank Dinghi)
10. Nabi
11. Appolonia
12. Dorothy
13. Agnes Imbarr
14. Deborah & Jacky
15. Ethel Jacky
16. Alice Daradara
17. Matilda
18. Louisa
19. Milare & Kelergado
20. Flora
21. Madeline
22. Malambor (Tjanganbor)
23. Walmandjin & son Ringarr Augustine
24. Alice Kotonel Wright
25. Bismarck
26. Kokanbor and Felix Nortingbor and Victor
27. Abraham Kongudu
28. Narcis Yumit
29. Peter Biyarr
30. Anselem and Patrick (brothers)
31. Patrick Mouda
32. Kandy
33. Mary and Din Din
34. Jidnyambala and Bobby Ah Choo
35. Fred/Friday Walmadayin.
8 The members of the proposed Jabirr Jabirr Native Title Holding Group comprise the descendants of 24 apical ancestors who identified themselves as Jabirr Jabirr and/or Ngumbarl. The apical ancestors are:
1. Gardarlagan
2. Frank Dinghi, aka Jimmy Bulingi
3. Appolonia, mother of Gerard, Theresa, Josephine and Ester
4. Nabi
5. Dorothy, sister of Senanus
6. Marry Nelagumia
7. Appolonia, sister of Mary Nelagumia
8. Wallai William
9. Agnes Imbarr
10. Fred/ Friday Walmadang
11. Murjal, sister of Senanus
12. Sophie, mother of Kay McKenzie and others
13. Frank Walmandu, brother of Senanus
14. Flora, sister of Matilda
15. Louisa, aka Djauradjaura, sister of Matilda
16. Madeline, sister of Matilda
17. Matilda, mother of Josephine Torres and others
18. Bornal
19. Liddy
20. Dorothy Kelly
21. Walamandjjn
22. Alice Darada
23. Jacky and Deborah
9 The members of the proposed Goolarabooloo Native Title Holding Group are described in Schedule 2 to the determination proposed by the Goolarabooloo as follows:
[T]hose living Aboriginal persons who
1. (a) are the descendants, including by adoption, of Paddy Roe and Mary Pikalili; or
(b) are the descendants, including by adoption, of one or more of the apical ancestors of the other traditional rights holders referred to in paragraph 37 of the Fourth Applicant's SFIC [Statement of Facts, Issues and Contentions]; or
(c) are connected to the Determination Area through rai (rayi), or who are descended from a person connected to the Determination Area through rai (rayi)
AND who are recognised by other native title holders as having realised their rights through knowledge, association and familiarity with the Determination Area gained in accordance with the traditional laws and customs of the native title holders; or
2. hold mythical or ritual knowledge and experience of the Determination Area, and who are responsible for places, areas and things of mythological or ritual significance in the Determination Area and who are recognised by other native title holders under their relevant traditional laws and customs as having native title in the Determination Area.
10 Paragraph 37 of the Goolarabooloo’s Statement of Facts, Issues and Contentions (SFIC) referred to above provides:
The Fourth Applicant contends that some of the native title rights and interests referred to in paragraph 36 may be jointly held with other members of the regional society who are connected to the land and waters of the Goolarabooloo claim area by the traditional laws and customs of the region (“other traditional rights holders”). The other traditional rights holders are understood to
(a) predominantly identify themselves as Jabirr Jabirr or Ngumbarl persons.
(b) include members of the WAD 357 / 2013 claim group and the WAD 359 / 2013 claim group.
11 The area of each application is shown on the following map which was provided by the Kimberly Land Council (KLC), the representative of the Bindunbur applicants:
12 The following description used in conjunction with the above map is intended to assist the reader to gain a general, but not precise, understanding of the places in the application areas and make it easier to follow some of the later geographical references in these reasons for judgment.
13 The Bindunbur application covers the area starting at Cape Bertholet on the northern boundary of the Coulomb Point Nature Reserve, going north off shore to a point just north of the Lacepede Islands, then east past a portion of Pender Bay, across to the southern side of Goodenough Bay on the east cost of the mid-Dampier Peninsula, out into King Sound, then generally south in King Sound towards Derby, turning west then south at a point to meet up with the upper reaches of the Fraser River, then west again along the Fraser River, then south almost to the Great Northern Highway, then west to a point which extended northward runs parallel to the Broome-Cape Leveque Road, then west to meet up with Cape Bertholet.
14 The Jabirr Jabirr application covers the area from off-shore at Willie Creek tracking off-shore north along the western coast of the mid-Dampier Peninsula to Cape Bertholet, then east along the southern Bindunbur application area boundary, then south along the western Bindunbur application boundary, and generally west from the south western boundary of the Bindunbur application area back to Willie Creek.
15 The Goolarabooloo application covers an area entirely within the Jabirr Jabirr application area, but does not include all of the Jabirr Jabirr application area. The western boundary of the Goolarabooloo application area is the same as the western boundary of the Jabirr Jabirr application area. The southern boundary of the Goolarabooloo application area is the same as the southern boundary of the Jabirr Jabirr application area except that it turns north about halfway between the western and eastern boundaries of the Jabirr Jabirr application area. The eastern boundary of the Goolarabooloo area at the southern end generally follows the Broome-Cape Leveque Road until the boundary tracks directly north to meet the northern boundary about half way between the north east corner of Coulomb Point Nature Reserve and the western boundary of the Bindunbur application area. The northern boundary then turns west along the southern boundary of the Bindunbur application area boundary to Cape Bertholet.
16 The Aboriginal population of the mid-Dampier Peninsula, both historically and today, has been concentrated in the coastal areas. That is explained largely by the ready availability of food sources from the reefs which exist particularly on the western coastline of the application areas. The central area of the mid-Dampier Peninsula is savannah country. There are a number of lakes which fill seasonally. There are also springs which provide fresh water year round. However, on the whole, the conditions for living are more accommodating along the coastal areas.
4. ADJOINING NATIVE TITLE DETERMINATIONS
17 To the immediate south of the three application areas is the Yawuru native title determination area, which was recognised in Rubibi Community v Western Australia (No 6) [2006] FCA 82 (Rubibi). That determination was upheld by the Full Court in Western Australia v Sebastian [2008] FCAFC 65.
18 To the immediate south east of the Bindundur application area is the Nyikina Mangala native title determination area, which was the subject of a consent determination in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (Watson).
19 To the immediate north of the Bindunbur application area is the Bardi and Jawi native title determination area, which was recognised in Sampi v Western Australia (No 3) [2005] FCA 1716 (Sampi No 3). The trial judge’s reasons for the determination were published in Sampi v State of Western Australia [2005] FCA 777 (Sampi No 1). The trial judge found that native title did not exist in certain coastal areas within the claim area. An appeal against that finding was allowed in part by the Full Court in Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99 (Sampi FC).
20 The evidence and submissions in this proceeding were heard over a period of 21 months, comprising 44 hearing days. The following summary of the hearing dates is adapted from the Bindunbur applicants’ submissions on connection.
21 On 21 September 2015, opening statements were made in Broome.
22 Bindunbur and Jabirr Jabirr witnesses gave evidence on country between 22 September and 26 September 2015, then in Broome between 29 September and 2 October 2015, and then at at Lombadina, a community north of the application areas in the Bardi and Jawi native title determination area, on 5 October and 7 October 2015, and also at Beagle Bay on 6 October 2015.
23 On 8 October and 9 October 2015, Bindunbur, Jabirr Jabirr and Goolarabooloo witnesses gave evidence in Broome.
24 Goolarabooloo witnesses gave evidence on country between 29 March and 1 April 2016. Then, Goolarabooloo, Bindunbur and Jabirr Jabirr witnesses gave evidence in Broome between 4 April and 8 April, and between 11 April and 14 April 2016.
25 When necessary, restricted evidence was given on country and in Broome during closed sessions, at which women and non-initiated Aboriginal men were not present.
26 On 21 and 23 September 2016, opening statements on extinguishment were made in Perth. Oral evidence on extinguishment was also given on those dates. On 23 September 2016, expert evidence was given in Perth, then in Broome between 26 and 28 September 2016.
27 Between 28 November and 2 December 2016, expert anthropological evidence was given concurrently in Broome.
28 Between 10 April and 13 April 2017, closing submissions on connection were made in Perth.
29 Between 28 June and 29 June 2017, closing submissions on extinguishment were made in Perth.
30 The map below, prepared by the KLC and agreed to by the parties, shows the on country hearing locations:
6. THE STRUCTURE OF THESE REASONS FOR JUDGMENT
31 The broad division of subjects in these reasons for judgment is between issues concerned with the connection of the applicants to the application areas and issues concerned with the extinguishment of native title.
32 The parties filed comprehensive written submissions in respect of each of the questions of connection and of extinguishment. A large measure of agreement between the parties emerged in the process of the exchange of submissions and in the course of the hearing. The areas of agreement will be reflected in the terms of the determination ultimately made by the Court. It is not intended to canvas agreed matters in these reasons for judgment, but rather to confine the discussion to the resolution of matters still in contest.
33 The major connection issue addressed in these reasons for judgment is the application made by the Goolarabooloo applicants for native title in the Goolarabooloo application area. That claim is opposed by all the other parties.
34 The Goolarabooloo application rests on the story of the arrival in part of the Jabirr Jabirr application area of Mr P Roe and his wife MP in about 1930. Mr P Roe was an Nyikina man and his wife was a Karijarri woman. The family of Mr P Roe hold the belief that he was given the role of custodian of the Goolarabooloo application area shortly after his arrival by the old people then living in the area. Mr P Roe acquired ritual and mythological knowledge and became a ritual leader in the Northern Tradition and a senior Law man. Mr P Roe and his wife MP had two daughters, Teresa and Margaret. Ms Teresa Roe is now a senior Law woman. She acquired rayi from around Bindingankun, Yellow River.
35 The Goolarabooloo applicants claimed native title rights and interests in several ways. First, they claimed rights and interests by reason of descent from Mr P Roe. Then, they claimed rights and interests by succession following the custodianship granted by the old people of the area to Mr P Roe. Each of these pathways, so it was argued, entitled the Goolarabooloo applicants to native title rights and interests in the entire Goolarabooloo application area. Then, the Goolarabooloo applicants claimed native title rights and interests by reason of the acquisition of ritual and mythological knowledge, first by Mr P Roe and then, in the present day, by his grandsons, Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe. Finally, they claimed native title rights and interests from the rayi connection of Ms Teresa Roe. These latter two pathways do not create entitlements in all of the Goolarabooloo people or to the entirety of the Goolarabooloo application area.
36 The Bindunbur and Jabirr Jabirr applicants, with whom the State and the Commonwealth agreed, denied that the applicable traditional laws and customs entitled the Goolarabooloo applicants to native title rights and interests.
37 Thus, the terms of the applicable traditional laws and customs relating to the acquisition of rights in land was the central connection issue for consideration in the proceeding.
38 Two further issues relating to connection are raised by the applications. First, there is a dispute between the Bindunbur applicants and the State as to whether native title exists in relation to the Lacepede Islands and the surrounding seas which is dealt with in section 13 of these reasons for judgment. Second, there is a dispute between the Bindunbur and Jabirr Jabirr applicants on the one hand, and the State on the other, as to whether the determination should identify land holders by reference to language groups. That matter is dealt with in section 14 of these reasons for judgment.
39 Following consideration of the connection issues, the extinguishment issues are dealt with in sections 15 – 25 of these reasons for judgment. A summary of those issues is set out in section 15 of these reasons for judgment.
7. WHO GAVE EVIDENCE ON CONNECTION ISSUES?
40 The present case illustrates an important feature about native title litigation, particularly in respect of issues of connection. From about 20 years of experience of native title litigation it has been rightly recognised by the Court that the primary source of evidence of the connection of Aboriginal people to land is evidence from those people themselves. That is partly because the laws and customs which govern the acquisition of rights and interests in land has not generally been written down. The tradition is oral. The rules are handed down from generation to generation. Old people have the responsibility in Aboriginal culture of explaining the rules governing their people by educating younger people. Some of that education is imparted through ritual in ancient ceremonial practice. Some is imparted more informally by sitting and speaking and interacting with old people over many years. Knowledge acquired of the laws and customs is highly valued among Aboriginal people. Deep knowledge of the rules governing the society and particularly stories about the creation of the country is a mark of authority among the people.
41 Where the tradition has been recorded in the past by early anthropologists the record has been of variable quality. The improvement in more recent times is probably explained by the developing professionalism over years in the discipline of anthropology, and also by reference to the quality of some of the practitioners. Where the tradition has been recorded by others, such as police authorities or missionaries, the record is often less reliable in that the record was coloured by some of the attitudes of the times adverse to Aboriginal people.
42 Perhaps most significantly for non-Aboridinal judges, the oral evidence of Aboriginal people is usually more able to convey the nature of the spiritual beliefs from which the laws and customs derive and which bind the people to the land. The way in which such evidence is given often displays the extent to which the tradition is both deeply held and is a living tradition governing the everyday lives of the witnesses.
43 Anthropologists perform a very useful role in native title applications. They may set out the scholarship of past anthropologists in the area and provide a professional critique of that body of work to aid the Court’s assessment of it. Often the anthropologists have engaged in fieldwork, sometimes over decades, which allows them to gather the information from members of a claim group and place that information in the context of wider learning about Aboriginal social structures in Australia. Whilst the assistance of anthropologists has been of great assistance to the Court in the development of native title jurisprudence, it is important that the voice of Aboriginal people themselves is acknowledged as the primary source of information about them.
44 In the present case, a large number of the members of the Bindunbur, Jabirr Jabirr and Goolarabooloo claim groups gave evidence. They covered a great range of age, seniority, knowledge and experience. They conveyed to the Court a strong sense of the traditional laws and customs of the people and the fact that the laws and customs are a living and dynamic body of principles governing their society. Even though the formal positions of the Bindunbur and Jabirr Jabirr, on the one hand, and the Goolarabooloo, on the other, were opposed, there was a high level of, although not complete, consistency in the evidence of all the Aboriginal witnesses. All of the Aboriginal witnesses were credible and gave evidence honestly, to the best of their memory and knowledge. As a body of evidence it was impressive. The case is largely resolved on the basis of the evidence they gave. It is therefore appropriate to set out in these reasons something about each of those witnesses before addressing their evidence on each of the contested issues.
45 The Bindunbur applicants led evidence from 44 Aboriginal witnesses in relation to the Bindunbur and Jabirr Jabirr application areas. Of those witnesses, 25 gave oral and affidavit evidence. The remaining 19 witnesses gave oral evidence at sites on country. The Jabirr Jabirr applicants did not lead any separate evidence, but instead relied on the evidence led by the Bindunbur applicants, including from people who identified as Jabirr Jabirr, in relation to the Jabirr Jabirr application area. The Goolarabooloo applicants led evidence from 11 Aboriginal witnesses in relation to the Goolarabooloo application area. Nine of those witnesses gave oral and affidavit evidence, and two witnesses gave oral evidence at on country sites. The Goolarabooloo also led lay evidence from two non-Aboriginal witnesses, although only one of those non-Aboriginal witnesses gave oral evidence.
46 This section of these reasons for judgment provides a brief biographical snapshot of each lay witness who gave evidence in these proceedings. Witnesses’ connections to country outside of the application areas have not been included in these snapshots in the interests of brevity. Further, witnesses’ descriptions of the extent of their country has been simplified. The summaries of the Bindunbur and Jabirr Jabirr witnesses have been adapted from the summary provided in the Bindunbur applicants’ submissions on connection.
47 During the course of the hearing, counsel for the applicants addressed the Aboriginal lay witnesses by their first names. That practice was followed by other counsel and by the Court. In part that practice is explained by the relative informality of on country hearings. It has become usual for that practice to be reflected in the reasons for judgment in native title cases. The practice has not been applied to non Aboriginal witnesses. The Court noted this differential treatment and in the present case consulted the parties as to how the witnesses should be referred to in these reasons for judgment. The consensus among Aboriginal witnesses was that they be treated in the same way as non-Aboriginal witnesses. Consequently, that is the approach taken in these reasons for judgment.
48 The two maps below show some of the main places which are mentioned in the following descriptions of the Aboriginal witnesses and which are mentioned throughout the reasons for judgment:
Mr Stephen (Marbrulla) Victor
49 Mr Stephen Victor is a Nyul Nyul man through both his parents. He gave oral and affidavit evidence. Mr Stephen Victor was born in 1944. His father Stanley Victor was the son of Nyul Nyul apical Victor. Mr Stephen Victor gave evidence that his country through Victor is Ngarlanbur, the area where Beagle Bay community is now located. Mr Stephen Victor’s mother was Rosie Waini, whose father was Bonaventure. Bonaventure’s father was Nyul Nyul apical Kandy. Mr Stephen Victor gave evidence that his country through Kandy is the area from Perpendicular Head right down to Embalgun and Weedong and down to Yarp.
50 He lives in Beagle Bay and has a nearby outstation on Ngarlanbur at Billard. He has nine children and 22 grandchildren.
Ms Neenya Tesling
51 Ms Neenya Tesling is a Nyul Nyul and Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1950 in Broome. Ms Neenya Tesling was raised by Dominic Charles, whose mother was Alberta Augustine, daughter of Martha, whose mother was Jabirr Jabirr apical Flora, whose parents were Jabirr Jabirr apicals Milare and Kelergado. Alberta Augustine was the niece of Nyul Nyul apical Ringarr Augustine. Ms Neenya Tesling gave evidence that her main country is Banana Well (Burrguk), through Alberta Augustine. She acknowledges her connection to Jabirr Jabirr but does not identify as Jabirr Jabirr.
52 Ms Neenya Tesling spent her childhood between Sunday Island, Djarindjin and Beagle Bay. She now lives in Broome. She has raised four children.
Ms Margaret Mary Smith (nee Clement)
53 Ms Margaret Smith is a Nyul Nyul woman. She gave oral and affidavit evidence. Ms Margaret Smith was born in 1942 at Beagle Bay. Her father was Clement Mouda, whose father was Nyul Nyul apical Patrick Mouda. She gave evidence that her country is Malginbur, also called Malgin country or Midlagun.
54 Ms Margaret Smith grew up at Beagle Bay. She still travels to Malginbur three or four times a year with her family. She has 10 children, and many grandchildren and some great grandchildren.
Ms Cecilia (Cissy) Mary Churnside
55 Ms Cissy Churnside is a Nyul Nyul and Nimanbur woman. She gave oral and affidavit evidence. Ms Cissy Churnside was born in 1951 at Beagle Bay. Her mother was Magdalene Williams (nee Kelly), whose grandfathers were Nyul Nyul apicals Abraham Kongudu and Felix Nortingbor. Felix was married to Nyul Nyul apical Madeline. Ms Cissy Churnside gave evidence that her country through Felix is Ngarlanbur, and that her country through Abraham is Binduk and Walaman Creek and Loongabid area. She also gave evidence that she has connections to Winawal through Madeline and to Garamal through her father Lawrence Williams, who was a Nimanbur man.
56 Ms Cissy Churnside and her family have a block at Yallet on her country. She has five grandchildren.
Mr Anthony Lee Bevan
57 Mr Lee Bevan is a Nyul Nyul man. He gave oral and affidavit evidence. Mr Lee Bevan was born in 1975. His mother is Ms Esther Bevan, the daughter of Anthony Joseph Nicolas (Balangun or Budjun) who is the son of Nyul Nyul apical Kandy. He gave evidence that his country through his mother is called Embalgun (Balangun) which runs from Chimney Rocks to Pender Bay Creek.
Mr Otto Keith Dan
58 Mr Otto Dan is a Nyul Nyul man. He gave oral and affidavit evidence. He was born in 1956 at Beagle Bay. His mother is Mary Martina Louisa Dann, whose father was Ami Dann, the son of Aloyisius. He gave evidence that his country through his grandfather was Winawal.
59 Mr Otto Dan has lived in Arnhem Land since 1977.
Mr Alec Aloysius (Billawitj) Dann
60 Mr Alec Dann is a Nyul Nyul man. He gave oral and affidavit evidence. Mr Alec Dann was born in 1957. His father was Albert, the son of Ami, whose father was Aloysius, the son of Nyul Nyul apical Tjangadabul. Mr Alec Dann gave evidence that his country through Tjangadabul is the Winawal area.
61 Mr Alec Dann grew up at Beagle Bay until he was 10.
Mr Gerard Sebastian
62 Mr Gerard Sebastian is a Nyul Nyul man. He was born in 1959 in Broome. His mother was Molly Sebastian, whose father was Jibarji Sebastian, son of Nyul Nyul apical Patrick Mouda. Mr Gerard Sebastian gave evidence that his country through Patrick is Malgin (Midlagun).
63 Mr Gerard Sebastian has lived in the Kimberley all of his life. From 1986 to 2014, Mr Gerard Sebastian lived on country with his family. He has seven children and six grandchildren.
Mr Frederick (Freddie) Charles
64 Mr Freddie Charles is a Nyul Nyul man. His father is Dominic Charles, whose mother was Alberta Augustine, a daughter of Nyul Nyul apical Ringarr. He gave oral evidence at Banana Well that his country through Ringarr is the area around Banana Well. His older sister is Nyul Nyul witness Ms Neenya Tesling.
Ms Philomena (Mena) Lewis
65 Ms Mena Lewis is a Nyul Nyul woman. Her grandfathers were Nyul Nyul apicals Abraham Kongudu and Felix Nortingbor. She gave oral evidence at Beagle Bay landing and Lolly Well that her country through Abraham is the coast around Beagle Bay, and that her country through Felix is Ngarlanbur.
Mr Bruno Alphonse Dann
66 Mr Bruno Dann is a Nyul Nyul man. He is a member of the Dann family through his mother who is sister to Nyul Nyul witness Mr Otto Dan’s mother. He gave evidence that the Dann family’s country is Winawal. He gave oral evidence at Twin Lakes where he harvests gubinge, and where he has lived for the last 15 years.
Mr Benedict Victor
67 Mr Benedict Victor is a Nyul Nyul man. He is the son of Nyul Nyul witness Mr Stephen Victor. He gave oral evidence at Lolly Well that his country through his great grandfather, Nyul Nyul apical Victor, is Ngarlanbur.
Mr Cameron Victor
68 Mr Cameron Victor is a Nyul Nyul man. He is the grandson of Nyul Nyul witness Mr Stephen Victor. He gave oral evidence at Beagle Bay Oval that his country through Mr Stephen Victor’s ancestor Nyul Nyul apical Victor is the Lolly Well area.
Ms Ta’Marrah O’Reeri
69 Ms Ta’Marrah O’Reeri is a Nyul Nyul woman. She is the granddaughter of Nyul Nyul witness Mr Stephen Victor. She gave oral evidence at Lolly Well that she is connected to that area through her great grandfathers, Nyul Nyul apicals Felix Nortingbor and Victor.
Ms Fiona Mary Smith
70 Ms Fiona Smith is a Nyul Nyul woman. She is a daughter of Nyul Nyul witness Ms Margaret Smith and a descendant of Nyul Nyul apical Patrick Mouda. She gave oral evidence at Middle Lagoon.
Ms Deborah Sebastian
71 Ms Deborah Sebastian is a Nyul Nyul woman. She was born in 1963. She is part of the Sebastian and Clements family. She gave oral evidence at Middle Lagoon and Malgin Sand Hills that her country is Midlagun bur. She has eight grandchildren.
Mr Kimberley Francis Smith
72 Mr Kimberley Smith is a Nyul Nyul man. He is the son of Nyul Nyul witness Ms Margaret Smith, who is a descendant of Nyul Nyul apical Patrick Mouda. He gave oral evidence at Malgin Sand Hills. He lives in Kununurra and has six children and two grandchildren.
Mr Willy Smith
73 Mr Willy Smith is a Nyul Nyul man. He is the brother of Nyul Nyul witness Mr Stephen Victor, and was brought up and adopted by Mr Stephen Victor’s parents. He gave oral evidence at Embalgun that his country is the area around Embalgun where he has an outstation.
Ms Esther Bevan
74 Ms Esther Bevan is a Nyul Nyul woman. She was born in 1948. She is the daughter of Anthony Joseph Nicolas (Balangun or Budjun) who is the son of Nyul Nyul apical Kandy. She gave oral evidence at Embalgun that her country through Kandy is Embalgun and Balangun. She is the mother of Nyul Nyul witnesses Mr Lee Bevan and Mr Albert Wiggan.
Mr Albert Wiggan
75 Mr Albert Wiggan is a Nyul Nyul man. His mother is Nyul Nyul witness Ms Esther Bevan, and his brother is Nyul Nyul witness Mr Lee Bevan. He gave evidence that he has been through the Law. He gave oral evidence at Embalgun Beach and Weedong.
Mr Ernest Damien Manado
76 Mr Damien Manado is a Nimanbur and Nyul Nyul man. He gave oral and affidavit evidence. Mr Damien Manado was born in 1955. His father was Gerard Manado, son of Mr Jerome Manado whose mother was Nimanbur apical Mary. Mr Damien Manado is also a descendant of Regina Kelly who was Mr Jerome Manado’s wife. Regina Kelly was the daughter of Nyul Nyul apicals Dorothy Kelly and Abraham Kongodu. Mr Damien Manado gave evidence that his country through Mary is Madarr and Disaster Bay to Repulse Point area and down to Fraser River, and that his country through Dorothy Kelly and Abraham Kongodu is Norman Creek back towards Loongabid, up to Murphy Creek and inland past Henry Well, including Banana Well.
77 Mr Damien Manado spent time in Derby, Broome, Beagle Bay and Djarindjin as a child. His sister is Nimanbur witness Manjella Manado. He has five children and 15 grandchildren.
Mr Henry Ah Choo
78 Mr Henry Ah Choo is a Nimanbur man. He gave oral and affidavit evidence. His father was Nimanbur apical Bobby Ah Choo, whose father was Nimanbur apical Jidnyambala. He gave evidence that his father’s country is Djanbir Nyiwalgarra, the area between Fraser River and Valentine Island and the Malaburra Spring area.
79 Mr Henry Ah Choo was born in 1944. He worked as a crocodile shooter and pearler around the coast of Nimanbur country as a young man.
Mr Paul Cox
80 Mr Paul Cox is a Nimanbur man. He gave oral and affidavit evidence. Mr Paul Cox was born in 1930 at Beagle Bay. His mother was Lena Manado and his grandmother was Nimanbur apical Mary. Mr Paul Cox gave evidence that his country through his mother is Madarr, La Djadarr and Disaster Bay, right past Goodenough Bay to Garramal (Garamal) which is a shared area between Nimanbur and Bardi.
81 Mr Paul Cox has lived at Beagle Bay most of his life. He had four children and has many grandchildren and great grandchildren, including his great grandson, Nimanbur, Ngumbarl and Jabirr Jabirr witness Mr Ninjana Walsham.
Ms Ann Majella Manado
82 Ms Majella Manado is a Nimanbur woman. She gave oral and affidavit evidence. Ms Majella Manado was born in 1952. Her father was Gerard Manado, whose father was Mr Jerome Manado, son of Nimanbur apical Mary. Ms Majella Manado gave evidence that her country through Mary is from Garamal to Fraser River and inland to Balk. Ms Majella Manado is also a descendant of Nyul Nyul woman Regina Kelly whose grandfather was Nyul Nyul apical Abraham Kongodu. Ms Majella Manado has not chosen to go Nyul Nyul way.
83 Ms Majella Manado has lived at La Djadarr and then Madarr since around 1984. She has 17 grandchildren and one great grandchild.
Mr Lawrence (Laurie) John Cox
84 Mr Laurie Cox is a Nimanbur man. He gave oral and affidavit evidence. He was born in 1955. His father was Matthew Cox, whose mother was Lena Manado, daughter of Nimanbur apical Mary. He gave evidence that his country through Mary is from Garamal to Fraser River.
85 Mr Laurie Cox has spent his whole life at Beagle Bay and La Djadarr. He has seven children and 17 grandchildren.
Mr Jerome Manado
86 Mr Jerome Manado is a Nimanbur man. He is a descendant of Nimanbur apical Mary. He is a younger brother of Nimanbur witnesses Ms Majella Manado and Mr Damien Manado. He gave oral evidence at Madarr.
Mr Aaron Edward Cox
87 Mr Aaron Cox is a Nimanbur man. At the time he gave evidence he was nearly 26 years old. He gave oral evidence at La Djadarr that his connection to country was through his father’s father, Nimanbur man Theodore Cox.
Ms Carlene Trace Cox
88 Ms Carlene Cox is a Nimanbur woman. She is the daughter of Nimanbur witness Mr Laurie Cox. She gave oral evidence at La Djadarr where she lives with her three children.
Mr P Sampi
89 Mr P Sampi passed away during the hearing of these proceedings. He gave oral and affidavit evidence. He was born in 1932 near the Catholic Mission in Lombadina. He was the only Bindunbur and Jabirr Jabirr witness who was not a member of one or both of those application groups. He was a very senior Bardi man who was initiated in Bardi and Yawuru Law. Mr P Sampi gave evidence about the initiation ceremonies and stages of the Law in the application areas. He also gave evidence about madja, or Law bosses, and galud, or senior Law bosses. Mr P Sampi gave evidence that he was a galud in Bardi law.
Ms Rita Augustine (Gadalargun) (nee Kelly)
90 Ms Rita Augustine is the most senior Jabirr Jabirr and Ngumbarl woman. She gave oral and affidavit evidence. She was born near Denham Station in 1934. Her mother’s mother was Ngumbarl Jabirr Jabirr apical Murrjal, and Murrjal’s mother was Ngumbarl Jabirr Jabirr apical Gadalargun. Ms Rita Augustine’s maternal grandfather, and Murrjal’s partner, was Jabirr Jabirr apical Bobbi Blanki. Ms Rita Augustine gave evidence that her country through Murrjal and Gadalargun is Willie Creek, Barred Creek, Quondong, James Price Point and Minarin. Ms Rita Augustine gave evidence that her country through Bobbi Blanki is Narralargun (Ngadalargin), north of Carnot Bay through to Winawal.
91 As a child, Ms Rita Augustine lived with Murrjal and Gadalargun in Ngumbarl country. She spent three years in the Derby Leprosarium with other Ngumbarl and Jabirr Jabirr old people. After being discharged from the Leprosarium, Ms Rita Augustine was taken to Beagle Bay where she married a Nyul Nyul man, Mr Henry Augustine. She has twelve children and many grandchildren and great grandchildren.
Ms Cecilia (Cissy) Djiagween
92 Ms Cissy Djiagween is a very senior Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1936 at Beagle Bay. Her mother was Jabirr Jabirr apical Senanus. Senanus’ parents were Jabirr Jabirr apicals William Wallai and Mary Nelagumia. Her father’s mother’s mother was Jabirr Jabirr apical Bornal. Ms Cissy Djiagween gave evidence that her country through Mary Nelagumia is Carnot Bay. She also gave evidence that her country through William Wallai is Mundud, and that her country through Bornal is Minarin.
93 Ms Cissy Djiagween lived in Beagle Bay up to the age of about five or six, when she went to live in Broome. She has lived there ever since, apart for about four years in the late 1950s when she returned to Beagle Bay. She has nine children, most of whom have children and grandchildren of their own.
Mr Henry Augustine Jr
94 Mr Henry Augustine Jr is a Jabirr Jabirr, Ngumbarl and Nyul Nyul man. He gave oral and affidavit evidence. Mr Henry Augustine Jr was born in 1967. Mr Henry Augustine Jr’s mother is Jabirr Jabirr and Ngumbarl witness Ms Rita Augustine. Mr Henry Augustine Jr gave evidence that his country through his mother is Jabirr Jabirr country, particularly the Ngumbarl area from Murrjal down to Willie Creek. Mr Henry Augustine Jr’s father is Nyul Nyul man Mr Henry Augustine Sr, whose father was Nyul Nyul apical Ringarr Augustine, son of Nyul Nyul apical Walamandjin. Mr Henry Augustine Jr gave evidence that his country through his father is Ringarr burr, which encompasses Walaman (Norman Creek) back along the southern coastline of Beagle Bay to Beagle Bay community, and south to Gundaragun.
95 Mr Henry Augustine Jr was raised at Beagle Bay where he now lives. He has two children and three grandchildren.
Mr Rodney Augustine
96 Mr Rodney Augustine is a Jabirr Jabirr, Ngumbarl and Nyul Nyul man. He gave oral and affidavit evidence. Mr Rodney Augustine was born in 1973. His mother is Jabirr Jabirr and Ngumbarl witness Ms Rita Augustine. His father was Nyul Nyul man Mr Henry Augustine Sr.
97 Mr Rodney Augustine attended high school in Broome, and then lived in Tardun and Melbourne. He returned to Broome in early 2015.
Mr Walter Koster
98 Mr Walter Koster is a Jabirr Jabirr man. He gave oral and affidavit evidence. Mr Walter Koster was born in 1972. Mr Walter Koster’s mother is Kay Koster, the daughter of Antonia, whose mother was Jabirr Jabirr apical Senanus. Mr Walter Koster gave evidence that his country through his mother is Jabirr Jabirr country, particularly Carnot Bay which is known as Nudugun.
99 Mr Walter Koster has lived at Beagle Bay since the 1980s, and visits his country around Carnot Bay every weekend. He has six children and one granddaughter.
Ms Mary Tarran
100 Ms Mary Tarran is a Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1959. Ms Mary Tarran’s mother is Jabirr Jabirr witness Ms Cissy Djiagween. Ms Mary Tarran gave evidence that she is connected to three different areas of Jabirr Jabirr country, namely, Carnot Bay through Jabirr Jabirr apical Mary Nelagumia, Mundud through Jabirr Jabirr apical William Wallai, and Minarin through her grandfather Bunduk, his mother Lika and her mother Jabirr Jabirr apical Bornal.
101 Ms Mary Tarran’s family have had an outstation at Mundud since the 1990s.
Ms Patricia (Pat) Gwen Torres
102 Ms Pat Torres is a Jabirr Jabirr woman. She was born in 1956 in Broome. Ms Pat Torres’ mother was Mary Theresa Barker (nee Torres), daughter of Jabirr Jabirr apical Matilda, whose parents were Jabirr Jabirr apicals Milare and Kelergado. Ms Pat Torres gave evidence that her country through Milare is Minarin, and her country through Kelergado is Winawal.
103 Ms Pat Torres’ family have two blocks on Winawal. She has lived on one of those blocks, Milare Community, for nine years. She has five children and five grandchildren.
Mr Alphonse Balacky
104 Mr Alphonse Balacky is a Ngumbarl, Jabirr Jabirr and Nyul Nyul man. He gave oral and affidavit evidence. He was born in 1975. Mr Alphonse Balacky’s mother’s mother is Jabirr Jabirr witness Ms Rita Augustine. Mr Alphonse Balacky gave evidence that his country through Ms Rita Augustine’s ancestor, Jabirr Jabirr apicals Murrjal and Gadalargun, is southern Jabirr Jabirr around Gadalargun and Murrjal. Mr Alphonse Balacky’s mother’s father was Mr Henry Augustine Sr, son of Nyul Nyul apical Ringarr. Mr Alphonse Balacky gave evidence that his country through Ringarr is the south side of Beagle Bay from Norman Creek up to Beagle Bay community. Mr Alphonse Balacky’s father, Mr Damien Balacky Snr, was a Goolarabooloo witness.
105 Mr Alphonse Balacky gave evidence that he is an initiated Law man for Jabirr Jabirr. He has six children.
Mr Anthony Watson
106 Mr Anthony Watson is a Jabirr Jabirr man. He was born in 1971. He gave oral and affidavit evidence. He gave evidence that his mother was Agnes, daughter of Antonia, whose mother was Jabirr Jabirr apical Senanus. His country through Senanus is Jabirr Jabirr country, focusing on Carnot Bay up to Morard.
107 Mr Anthony Watson’s family have blocks at Morard and Monbon in the Carnot Bay area. Since 29 September 2014 he has been the chairperson of the KLC.
Ms Elizabeth (Betty) Dixon
108 Ms Betty Dixon is a Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1952. Her mother was Mary Josephine Torres, the daughter of Jabirr Jabirr apical Matilda and granddaughter of Jabirr Jabirr apicals Keleragado and Milare. Ms Betty Dixon gave evidence that her country through Matilda is Winawal.
109 Ms Betty Dixon had eight children with Jabirr Jabirr witness Mr Dixon. In 1985, she and Mr Dixon got a lease over a block at Carnot Bay. She has been living in Broome since 2006.
Mr Ninjana Walsham
110 Mr Ninjana Walsham is a Nimanbur, Ngumbarl and Jabirr Jabirr man. He gave oral and affidavit evidence. He was born in 1994. He is the great grandson of Nimanbur witness Mr Paul Cox. Mr Ninjana Walsham’s mother is Nimanbur, Ngumbarl and Jabirr Jabirr witness Ms Devina Cheryl Cox, the daughter of Lorna Kelly Cox who was the granddaughter of Ngumbarl Jabirr Jabirr apical Murrjal. Mr Ninjana Walsham gave evidence that his country through his great-grandfather, Mr Paul Cox, is the Nimanbur burr. He gave evidence that his country through his grandmother, Lorna Kelly Cox, is Ngumbarl and Jabirr Jabirr country.
111 Mr Ninjana Walsham was raised by his great grandfather Mr Paul Cox at Beagle Bay.
Mr James Kelly
112 Mr James Kelly is a Ngumbarl man. Mr James Kelly’s mother Ida is a sister of Jabirr Jabirr witness Ms Rita Augustine. He gave oral evidence at Gadalargun that he has a connection to that place through his great-grandmother Ngumbarl Jabirr Jabirr apical Murrjal and her mother, Ngumbarl Jabirr Jabirr apical Gadalargun.
113 Mr James Kelly gave evidence that he has been through Law. He was grown up by Mr P Roe, Paddy Sebastian, and PR’s daughter Selma (Thelma).
Mr G Dixon
114 Mr G Dixon passed away during the hearing of these proceedings. He was a Jabirr Jabirr man and was married to Jabirr Jabirr witness Ms Betty Dixon. His mother’s father was Jabirr Jabirr apical Frank Dinghi, also known as Frank Dixon. Mr Dixon gave oral evidence at Red Cliffs.
Ms Deanne Williams
115 Ms Deanne Williams is a Jabirr Jabirr woman. Her mother Elaine is a daughter of Jabirr Jabirr witness Ms Rita Augustine. She gave evidence that she has links to country through Ms Rita Augustine’s ancestors, Jabirr Jabirr apicals Murrjal and Gadalargun, and Bobby Blanki. She gave oral evidence at Red Cliffs.
Ms Devina Cheryl Cox
116 Ms Devina Cheryl Cox is a Nimanbur, Ngumbarl and Jabirr Jabirr woman. Her grandmother is Jabirr Jabirr witness Ms Rita Augustine. Her grandfather is Nimanbur witness Mr Paul Cox. She is the mother of Nimanbur, Ngumbarl and Jabirr Jabirr witness Mr Ninjana Walsham. She has an outstation near Red Cliffs called Bungard. She gave oral evidence at Red Cliffs.
Ms Teresa Roe
117 Ms Teresa Roe is a very senior Goolarabooloo woman. She gave oral and affidavit evidence. She was born around 1936 at Waterbank Station. She is the daughter of Goolarabooloo apicals Mr P Roe, a Nyikina man, and his wife MP, a Karajarri woman. Ms Teresa Roe gave evidence that her rayi, a spirit child, is from Bindingankun, which is therefore a special place for her, and that because her rayi is from Jabirr Jabirr country that she is a Jabirr Jabirr person. She also gave evidence that her country is from Bindingankun to Barred Creek.
118 Ms Teresa Roe had 10 children, two of whom, Mr Phillip Roe and Mr Ronald Roe, were Goolarabooloo witnesses. A third son, Mr J Roe, was a named applicant in the Goolarabooloo application but passed away before the hearing of these proceedings. She has many grandchildren, four of whom, Mr Jason Roe, Mr Errol Roe, Mr Daniel Roe and Mr Brian Councillor, were Goolarabooloo witnesses. Ms Teresa Roe’s sister Margaret had nine children, who Ms Teresa Roe grew up. One of Margaret’s children, Mr Richard Hunter, is a Goolarabooloo witness, as is one of Margaret’s grandchildren, Mr Terrence Hunter Jr.
Mr Phillip James Roe
119 Mr Phillip Roe is a senior Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1960 in the Old Native Hospital in Broome. His mother is Ms Teresa Roe. Mr Phillip Roe is married to Agnes, a Nimanbur woman, with whom he has six children and 15 grandchildren. He gave evidence that Mr P Roe was handed the right to look after the country from around OTC, through Willie Creek to round Yellow River and Spring Creek, and that that right was then passed on to Mr P Roe’s family, including Mr Phillip Roe.
120 Mr Phillip Roe gave evidence that he is a Law boss for the Northern Tradition. Mr Phillip Roe gave evidence that he and Mr Richard Hunter speak for ululong, a stage in the initiation ritual in the Northern Tradition, as far as the OTC law grounds. He has a camp at Walmadang (Walmadany).
Mr Richard Hunter
121 Mr Richard Hunter is a senior Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1957 at the Old Native Hospital in Broome. His mother was Margaret Hunter (nee Roe), a daughter of Goolarabooloo apicals Mr P Roe and his wife MP. Mr Richard Hunter gave evidence that along with his cousin Mr Phillip Roe, he is responsible for looking after Goolarabooloo country, which is the area between Garriyan and Ngellengellegun.
122 Mr Richard Hunter gave evidence that he is a Law boss for the Northern Tradition. He has a daughter, who lives in Port Hedland.
Mr Terrence Hunter Jr
123 Mr Terrence Hunter Jr is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1980 in Port Hedland. Mr Terrence Hunter Jr’s father is Terry Hunter Sr, son of Margaret Hunter (nee Roe). He gave evidence that Goolarabooloo country is as far as Mr P Roe walked, from Barred Creek to Carnot Bay.
124 Mr Terrence Hunter Jr gave evidence that he was initiated in the Northern Tradition, and works on the Lurujarri Heritage Trail. He gave evidence that he does most of the talking on the Lurujarri Heritage Trail from Walmadang to Bindingankun. He has four children.
Mr Brian John Councillor
125 Mr Brian Councillor is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1978 in Broome. His father was Willie Roe, son of Ms Teresa Roe. He was brought up by Mr P Roe. He gave evidence that his country through Mr P Roe is from Broome to Carnot Bay. Mr Brian Councillor’s partner is a Nyul Nyul woman whose country is Winawal.
126 Mr Brian Councillor gave evidence that he is initiated in the Northern Tradition, and works on the Lurujarri Heritage Trail. He has a daughter.
Mr Jason David Roe
127 Mr Jason Roe is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1977 in Broome. His father was Patrick Roe, son of Ms Teresa Roe. Mr Jason Roe’s brothers, Mr Daniel Roe and Mr Errol Roe, are both Goolarabooloo witnesses. He gave evidence that his family speaks for the country from Bindingankun (Bidingangun) to Minyirr Park in Broome.
128 Mr Jason Roe gave evidence that he is initiated in the Northern Tradition. He works with the Yawuru as a cultural advisor and cultural monitor, working from Minyirr through OTC to Willie Creek. He has two sons.
Mr Ronald Leslie Roe
129 Mr Ronald Roe is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1958 at the Old Native Hospital in Broome. His mother is Ms Teresa Roe. His brother Mr Phillip Roe was also a Goolarabooloo witness. He gave evidence that Goolarabooloo country runs from Broome to Bindingankun.
130 Mr Ronald Roe gave evidence that he has not been through the Law. He works on the Lurujarri Heritage Trail, as the logistics officer and cook. He has two children.
Mr Daniel Roe
131 Mr Daniel Roe is a Goolarabooloo man. His father was Patrick Roe, son of Ms Teresa Roe. Mr Daniel Roe’s brothers, Mr Errol Roe and Mr Jason Roe, are both Goolarabooloo witnesses. He gave oral evidence at Dugal that one of his sons has a rayi from Dugal, and that as a result his son has responsibility for the area from Walmadang to Minari.
132 Mr Daniel Roe gave evidence that he is initiated in the Northern Tradition. He has four children.
Mr Errol Roe
133 Mr Errol Roe is a Goolarabooloo man. His father was Patrick Roe, son of Ms Teresa Roe. His brothers, Mr Daniel Roe and Mr Jason Roe, are both Goolarabooloo witnesses. Mr Errol Roe gave oral evidence at Minarriny, Dugal and Jajal that his great-grandfather was made a custodian for the country in the Goolarabooloo application area.
134 Mr Errol Roe gave evidence that he is initiated in the Northern Tradition.
Mr Damien Balacky Sr
135 Mr Damien Balacky Sr is a Bardi man. He gave oral and affidavit evidence. He is not a member of the Goolarabooloo application group. He was born around 1952 in Djarindijn near Lombadina. Mr Damien Balacky Sr’s son, Mr Alphonse Balacky, is a Jabirr Jabirr and Bindunbur witness.
136 Mr Damien Balacky Sr gave evidence that he is a galud, or Senior Law boss in the Northern Tradition.
Mr Vincent Angus
137 Mr Vincent Angus is a Jawi man. He gave oral and affidavit evidence. He is not a member of the Goolarabooloo application group. He was born in 1954. Mr Vincent Angus has a number of family ties to the Goolarabooloo application group. Topsy Roe, Mr P Roe’s sister, was married to Mr Vincent Angus’s grandfather, Lockie Bin Sali. Goolarabooloo witness Mr Richard Hunter’s father, Jimmy Hunter, was Mr Vincent Angus’s first cousin, and was brought up by Mr Vincent Angus’s mother from the age of three or four. Mr Vincent Angus was married to Bernadette Kelly, a Ngumbarl woman. The Kelly family, including the Augustine and Nicholas families from Beagle Bay, are his in-laws.
138 Mr Vincent Angus gave evidence that he is a madja, or Law boss, in the Northern Tradition.
Mr Folmer Frans Hoogland
139 Mr Frans Hoogland is a non-Aboriginal witness for the Goolarabooloo. He gave oral and affidavit evidence. He was born in the Netherlands in 1943 and migrated to Australia in 1968. Mr Frans Hoogland gave evidence that he arrived in Broome in the mid-1970s, and began working for Mr P Roe around 1980 to document the places and sites making up the song cycle in and around the Goolarabooloo application area.
140 Mr Frans Hoogland gave evidence that he is not initiated in the Northern Tradition. In 1988, he was involved with Mr P Roe in setting up the Lurujarri Heritage Trail.
Ms Ketrina Ray Keeley
141 Ms Ketrina Ray Keeley is a non-Aboriginal witness for the Goolarabooloo. She works for the Goolarabooloo Millibinyarri Indigenous Corporation in an administrative capacity. She affirmed an affidavit dated 8 July 2015 annexing a bundle of photographs which show Goolarabooloo witnesses involved in the practice of traditional ceremonies.
142 Nine witnesses were called by the parties to the proceeding to give expert evidence in relation to connection by the parties to the proceedings.
143 Five anthropologists gave evidence concurrently over five days in Broome. They also participated in an Experts’ Conference in August 2015. Each of the five primary anthropologists filed an expert report on connection issues in 2015, and a supplementary report in 2016 responding to issues raised at the Experts’ Conference, in particular, assessing what came to be known as the “PR story”.
144 The other four expert witnesses, namely, an anthropologist dealing with the genealogical data, a historian, an anthropologist and archaeologist dealing with heritage protection, and a professor of ethnography specialising in discourse analysis, gave oral evidence individually in addition to filing expert reports.
145 What follows is a brief summary of the qualification, experience and approach of each of the expert witnesses.
146 The Bindunbur applicants called four expert witnesses on connection issues. Those expert witnesses were called on behalf of both the cases for the Bindunbur applicants and the Jabirr Jabirr applicants.
Dr James Weiner
147 Dr Weiner is an anthropologist who received his PhD in 1984 from the Australian National University. He was Professor of Anthropology at the Universities of Adelaide (1994-1998) and St. Andrews (2008-2010).
148 Dr Weiner has conducted native title research as a consultant, primarily in Queensland and Western Australia, since 1998. That research has included the submission of full connection reports in seven native title claims across Australia. Dr Weiner has previously conducted research in the application areas on behalf of the KLC. That previous research included a desktop study in 2011, and a series of cultural mapping meetings in 2012.
149 Dr Weiner conducted four field trips to the Dampier Peninsula area in 2013 and 2014, comprising a total of 51 days of travel. The only Goolarabooloo application group member Dr Weiner interviewed was the late Mr J Roe. Dr Weiner submitted a primary report, dated 1 April 2015 and a supplementary report, dated 15 August 2016, a notice of change of opinion dated 24 September 2016 and a further supplementary expert report dated 25 November 2016. He also participated in the five day hearing of the concurrent evidence.
Mr Geoffrey Bagshaw
150 Mr Bagshaw is an anthropologist with an honours degree in anthropology and has practised as a consultant anthropologist for 29 years across Australia. He has been involved as a senior researcher, expert witness, advisor or peer reviewer in 20 separate native title claims and has been appointed as an expert anthropologist by the Court twice in 2002 and 2003.
151 Mr Bagshaw has previously undertaken extensive research in and around the Dampier Peninsula since 1994, including periods of fieldwork. He authored the main expert anthropologist’s report for the applicant in both the Bardi and Jawi native title claim and the Karajarri native title claim. As the Court appointed expert anthropologist, he also authored a fieldwork-based report in the Djabera-Djabera native title claim, which was coextensive with much of the same lands and waters under consideration in the present proceedings.
152 Mr Bagshaw conducted two field trips to the Dampier Peninsula area in 2013 and 2014, comprising a total of 36 travel days. He also conducted further telephone interviews with Aboriginal residents of the Dampier Peninsula. The only member of the Goolarabooloo application group to whom he spoke was the late Mr J Roe. He also spoke to Mr Vincent Angus, a Bardi man who gave evidence for the Goolarabooloo applicants. Mr Bagshaw submitted a primary report, dated April 2015, and a supplementary report, dated August 2016. He also participated in the five day hearing of the concurrent evidence.
Ms Catherine Wohlan
153 Ms Catherine Wohlan is an anthropologist. She is currently a PhD candidate at the Australian National University. She has previously been a senior anthropologist at the KLC and a lecturer in Aboriginal studies at the University of Notre Dame in Broome. She has been a consultant anthropologist since 1998.
154 In 2012, Ms Wohlan was engaged by the KLC to create a new digital genealogical database for the purposes of native title claims for the Nyul Nyul, Jabirr Jabirr, Nimanbur and the then-proposed Mid-Dampier Peninsula claim. In these proceedings, Ms Wohlan submitted an expert report, dated 2 April 2015, which detailed the methodology employed to identify, assemble and update the genealogical data presented in the genealogical database.
Dr Fiona Skyring
155 Dr Fiona Skyring is an historian. She received her PhD in 1998 from the University of Sydney. From 1999 to 2005 she was employed by the KLC as a historian. She has prepared historical reports for native title applicants and reviewed historical records in relation to Aboriginal land rights in Western Australia, Queensland and Victoria. Dr Skyring provided expert evidence regarding the history of the Bardi and Jawi application area in Sampi No 1. She also provided expert historical evidence in the Yawuru claim in Rubibi.
156 Dr Skyring submitted a report, dated April 2015, detailing the post-sovereignty history of the application areas.
Dr Janelle White
157 Dr Janelle White was the only expert witness called by the Jabirr Jabirr applicants. She is an anthropologist. She received her PhD in applied anthropology in 2012 from the University of South Australia and has been working in Aboriginal Australia for almost 15 years, primarily in the area of Aboriginal community consultation and development. She has previously spent nine months working on native title.
158 Dr White conducted research over a period of six months from the end of 2014 to the beginning of 2015. She conducted four trips to country. She was unable to speak to any members of the Goolarabooloo application group. Dr White submitted a primary report, dated April 2015, a supplementary report, dated August 2016, and a change of opinion report dated 24 November 2016. She also participated in the five day hearing of concurrent evidence.
159 The Goolarabooloo applicant called three expert witnesses in relation to connection issues.
Professor Scott Cane
160 Professor Scott Cane is an anthropologist who has been working in the field with Aboriginal people since 1980. He holds a PhD in the material culture, traditional settlement and subsistence patterns of Aboriginal people around Balgo Hills Mission in the Great Sandy Desert. He has prepared connection materials and opinions in relation to 16 separate native title claims. He has also conducted a considerable amount of archaeological research across Australia.
161 Professor Cane’s engagement with the Kimberley has been limited. He first visited the area in 1980, which included a visit to the Goolarabooloo application area. In 2012 he was asked by the State of Western Australia to provide advice regarding the interests of Law bosses in relation to proposed developments at James Price Point.
162 Professor Cane conducted three fieldwork visits to the application areas, comprising a total of 27 travel days. Apart from one informal interview with members of the Bin Sali, Pigram and Torres families who he identified as Jabirr Jabirr on the beach at Yellow River, he did not speak to any members of the Jabirr Jabirr or Bindunbur application groups. Professor Cane submitted a primary report, dated 29 June 2015, a supplementary report, dated 18 August 2016, and a change of opinion report dated 19 September 2016. He also participated in the five day hearing of concurrent evidence.
Professor Stephen Muecke
163 Professor Stephen Muecke is Professor of Ethnography at the University of New South Wales. He has worked as an academic ethnographer since 1975. He was awarded a PhD by the University of Western Australia in 1981. His PhD was entitled “Australian Aboriginal Narratives in English: A Study in Discourse Analysis”, and involved working with Mr P Roe and other senior Aboriginal men in the West Kimberley. Professor Muecke has published two books featuring stories by Mr P Roe, Gularabulu (Fremantle Press, 1983) and Reading the Country (Fremantle Press, 1984). He is currently working on a project funded by the Australian Research Council documenting the Lurujarri Trail country north of Broome, using his notes and recordings of Mr P Roe.
164 Professor Muecke submitted an expert report, dated 1 April 2015.
Mr Nicholas Green
165 Mr Nicholas Green is an anthropologist and archaeologist. He holds a Master of Arts and a Bachelor of Arts in Anthropology and Prehistory from the Australian National University. He has 35 years professional experience as an anthropologist and archaeologist for Government, non-Aboriginal organisations and Aboriginal organisations. He has undertaken extensive fieldwork with Aboriginal people, including in the Kimberley, mostly on heritage related work. Mr Green worked with Mr P Roe between 1980 and 1984 on the protection of Aboriginal sites, which included an ethnographic survey along the Kimberley coast north and south of Broome.
166 Mr Green submitted an expert report, dated 2 April 2015.
1.2.5 State of Western Australia witnesses
Professor Peter Sutton
167 Professor Peter Sutton is an anthropologist. He was the only expert witness called by the State of Western Australia on connection issues. Professor Sutton was awarded a PhD in anthropology in 1979 by the University of Queensland. He has carried out fieldwork in Aboriginal Australia since 1969, and has assisted in some sixty or more land claim cases, including native title claims. He is currently an Affiliate Professor, at the School of Biological Sciences, University of Adelaide.
168 Professor Sutton did not carry out any anthropological field work with any members of the application groups. He submitted a primary report, dated 15 July 2015, and submitted a supplementary report, dated 15 August 2016. He also participated in the five day hearing of concurrent evidence.
1.2.6 Some general considerations concerning some of the expert evidence
169 The expert anthropologists whose views were centrally relevant to the determination of the issues concerning the traditional laws and customs about the acquisition of rights and interests in land were Mr Bagshaw, Dr Weiner, Dr White, Professor Sutton, and Professor Cane.
170 All those experts have had considerable experience in the native title area. Dr White is somewhat more junior in the profession. Each of the others is recognised as preeminent in their profession. The experience of each of the five experts was reflected in the high quality of the reports written by them and in the evidence given by them.
171 One feature of the expert evidence should be explained. The written reports of Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton generally supported the conclusion that the Goolarabooloo applicants have not acquired rights and interests in land under traditional laws and customs.
172 That expert view also reflected the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses. Furthermore, as will be explained later in these reasons for judgment, properly understood, it also reflected the evidence of most of the Goolarabooloo Aboriginal witnesses.
173 The written reports of Professor Cane, however, reflected the conclusion that the Goolarabooloo applicants have acquired rights and interests in land under traditional laws and customs. The case of the Goolarabooloo applicants stated in their SFIC followed the approach articulated by Professor Cane in his written reports.
174 However, some of the foundations of Professor Cane’s approach have not been accepted by the Court.
175 In concurrent evidence Professor Cane made several concessions which went to the heart of his approach and undermined the conclusions he had expressed in his written reports.
176 On some other matters central to his reasoning, the factual basis upon which he relied could not be made out.
177 The Bindunbur applicants, in particular, attacked the evidence of Professor Cane, in essence, on the basis that he had acted as an advocate for the Goolarabooloo applicants and thereby compromised his professional judgment.
178 In the end, as explained later in these reasons for judgment, the evidence of Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton, where it conflicts with the evidence of Professor Cane, has been preferred.
179 That does not mean that Professor Cane’s professional role was compromised.
180 Professor Cane is a clever, enthusiastic and empathetic person, as well as a very accomplished professional. His reports and evidence reflected all these attributes.
181 Professor Cane certainly viewed the circumstances favourably to the Goolarabooloo applicants where possible. His enthusiasm for that view may have coloured his assessment of some of the necessary underlying factual judgements. He may also have been too ready to transpose his deep knowledge of the Western Desert social structures to the different circumstances of the mid-Dampier Peninsula. However, when faced with this criticism, he accepted his limitations where he thought the criticism was justified. It is apparent that Professor Cane had sympathy for the history of the Roe family. The thesis he proposed took into account the story that Mr P Roe had been given a role by the old people of the area and that he had undertaken that role. It also took into account that he was recognised as a man with ritual and mythological knowledge and was accepted as a senior Law man. It further took into account that Mr P Roe was a spokesperson for his people and a bridge between them and the European authorities. Mr P Roe initiated the Lurujarri Heritage Trail which has been in operation since and which has provided cultural education to both Aboriginal and non-Aboriginal people about the culture and stories relating to the coastline of the Goolarabooloo application area. Professor Cane took into account that the Roe family have been participants in the community for over 80 years. He also took into account the role in Law that is now performed by Mr P Roe’s grandsons, Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe. There is an element in Professor Cane’s analysis which suggests that fairness requires that traditional law and custom must have a way of including the Roe family as holders of rights to land in view of their historical role. Professor Cane’s view was sympathetic to the Goolarabooloo applicants. It was not necessarily unprofessional for that reason.
8. HISTORY OF THE APPLICATION AREA
182 The consequences of white settlement, of the pearling industry, of the coming of missions to the area, and of the removal of children had serious impacts on the Bindunbur, Jabirr Jabirr and Ngumbarl people of the area at the time. The movement of people away from their country figures in the arguments addressed later in these reasons for judgment about the claimed succession of the Goolarabooloo applicants to land in the Goolarabooloo application area. The development of Aboriginal land rights in the 1960s and 1970s and the passing of the NTA in 1992 also had effects on the Bindunbur, Jabirr Jabirr and Goolarabooloo people relevant to this proceeding. Indeed, the schism between the Bindunbur and Jabirr Jabirr people on the one hand, and the Goolarabooloo people on the other was explained by some witnesses as a result of the gas hub dispute in 2009. The account of these events is outlined in this section of these reasons for judgment and is largely adapted from the report of Dr Skyring.
183 The first recorded observations of Aboriginal people on the Dampier Peninsula occurred in the latter half of the seventeenth century. In 1644, Dutch explorer Abel Tasman landed just south of Carnot Bay and observed Aboriginal people there.
184 The next recorded observation of Aboriginal people in the region occurred in 1687-88 at Cygnet Bay, just north of the application areas and within the Bardi and Jawi native title determination area. French J, as he then was, recorded that interaction in Sampi No 1 as follows:
644. William Dampier, the English maritime explorer, sailed the vessels Cygnet and Roebuck from the Philippines to England in 1687 and in the course of that voyage landed on the north west shore of King Sound at Cygnet Bay. He recorded observations of the Aborigines of the area including his often quoted description of them as ‘the miserablest people in the world’. He recorded that as they ran away from his anchored ship they called out the word ‘gurri’. This was said by the applicants’ linguist expert, Dr Metcalfe, to be consistent with the Bardi word ‘ngaari’ which refers to a malevolent spirit. The people whom Dampier saw at Cygnet Bay lived in groups of 20 to 30. They had no houses and, according to Dampier, no boats and no canoes. Dr Skyring however noted that later European explorers recorded the Aborigines use of rafts made from tree trunks.
645. Dampier observed the use of stone fish traps and that, at low tide, the people would seek cockles, mussels and periwinkles. Whether the catch was small or large:
‘... everyone has his part, the young and tender as well as the old and feeble.’
He saw little in the way of weaponry but some of the people had wooden swords and others a kind of lance. He described the sword as ‘a piece of Wood shaped somewhat like a Cutlass’. The lance was ‘a long straight Pole, sharp at one end and hardened afterwards by heat’. Dampier and his crew remained ashore at Cygnet Bay for about two months. The first landing was accidental due to his taking a route home from the Philippines which was south of the regular route and being forced by winds even further south.
185 In 1801, Nicholas Baudin led a French scientific expedition that travelled north up the Western Australian coast from Cape Leewin. Roughly 50 kilometres north of Broome, around James Price Point, Baudin recorded:
The land running down to the shore was two distinct colours. In some places it was a rather bright red; in others there was very white sand, which seemed to indicate easy landing.
Throughout the afternoon we saw a great number of fires all along the coast. But some of them were so large, that it seemed to us that they could not be where the natives were. They were probably conflagrations in some parts of the forest, for there was so much smoke that it blotted out the sky.
186 Then, in 1821, Phillip P. King sailed along the western coast of the Dampier Peninsula in the Bathurst. He wrote of the country between Carnot Bay and Point Coulomb:
[T]he smokes of fires have been noticed at intervals every four or five miles along the shore, from which it may be inferred that this part of the coast is very populous.
187 Dr Skyring concluded from these sources that Aboriginal people occupied the application areas prior to sovereignty. However, she noted that none of these records identified Aboriginal people by language or tribe. This total lack of ethnographic detail was explained by the fact that the goals of the Europeans were strictly mercantile or cartographic.
188 Justice French recorded the formal history of the colonisation of Western Australia in Sampi No 1 as follows:
650. … In April 1829 Captain Fremantle raised a British flag at the Swan River and claimed for the British Crown the remainder of the continent not included in the Colony of New South Wales. On 18 June 1829, James Stirling, the first Governor of the new colony, read a proclamation declaring the western part of the continent to be British territory and its inhabitants and colonists subject to the laws of England.
189 At [653], French J noted that at the time of sovereignty in 1829, there were no European settlements in the Kimberley. The first visit to the region after sovereignty was in 1837, when Commander J. Lort Stokes travelled on the HMS Beagle to explore the north-west coast. French J noted Stokes’ observations as follows:
654. Stokes’ account of his explorations included observations of the coast north of Roebuck Bay along the Dampier Peninsula coastline in January 1838. The coast seemed particularly populated between Roebuck and Beagle Bays. The smoke from native fires was constantly to be seen. In all cases these signs of human existence were confined to the neighbourhood of the sea …
190 At [668], French J noted that pastoral companies began operating in the southern Kimberley near present-day Broome in the 1860s. By 1883, there was sufficient activity in the region for Broome and Derby to be proclaimed as towns. At [670], French J noted that in 1908, an Aborigines Inspector recorded that there were 5 pastoral stations between Broome and Cygnet Bay. Three of these collectively employed on a permanent basis 43 Aboriginal people, and supported a further 13 “indigents”. However, by about 1930 most of that land had become mission grants or reserve land for the use and benefit of Aboriginal people.
191 According to Dr Skyring’s report, the first European settlements in the application areas were pearling camps along the coast. Pearl shell was first found on the north west coast in 1861. The first documented account of encounters between colonists and Aboriginal people in the mid-Dampier Peninsula was Alexander Forrest’s 1879 land expedition from south of Roebuck Bay to Beagle Bay. By that time, Beagle Bay had become a ‘lay-up’ camp for the pearl luggers, and some Aboriginal men Forrest met on his expedition spoke some broken English, and indicated that they had been out to sea with the pearlers. Forrest also recorded that colonists were at that time exploiting the guano deposits on the Lacepede Islands.
192 Dr Skyring noted that the pearling industry was “corrupt and violent, and rife with allegations that Aboriginal divers laboured under the same conditions as slavery”. She then quoted from a 1915 history of the region written by Joseph Sykes Battye:
During the years 1875, 1876 and 1879, pearling yielded a rich result notwithstanding the many disastrous storms and the strict regulations made by the government concerning the employment of aborigines and Malays as divers. That these regulations were necessary is evident from the instances of cruelty and ill-treatment that were recorded in the newspapers. The trade seems to have had the effect of brutalising those connected with it, and though pearlers were compelled by Act and regulations to observe certain conditions in their treatment of divers, the conditions appear to have been honoured in the breach rather than in the observance. Supervision over a wide area at sea was necessarily difficult, and it was then easily possible for a disreputable trader to treat his divers as slaves, and to work them almost to the point of death during the twelve month’s engagement which the Act allowed.
Dr Skyring further noted that recruitment of Aboriginal labour included coerced labour and kidnap. Aboriginal women and girls were also kidnapped to work both as divers and as sex slaves for the pearlers.
193 By the 1890s, the role of Aboriginal men in the pearling industry had changed. Thursday Island pearlers had brought with them indentured crews from Southeast Asia and Japan who were competent at “dress diving”, thus displacing the Aboriginal “skin divers” who dived without protective gear. Aboriginal people continued to be employed in the shore-based aspects of pearling, such as shelling and packing. Despite attempts by white authorities to prevent interaction between the predominantly Asian pearl crews and Aboriginal people along the Dampier Peninsula coast, widespread trade developed between the two groups during this period. Dr Skyring described the trade as follows:
116. … The trade included Aboriginal people exchanging fish and seafood for goods from Asian pearling workers, as well as finding and carting wood and water for the pearling crews in exchange for food such as rice, and other goods like tobacco and liquor. Some of the trade with the Asian pearling workers involved Aboriginal women exchanging sex for clothing, jewellery and food … nearly all of the records from this period were created by white men in positions of authority, usually police or representatives of the Aborigines Department, and they always described interaction between Aboriginal women and Asian men as ‘immoral’. The white authors of the historical accounts labelled Asian men as a ‘contaminating’ influence. From this perspective they regarded any interaction as bad and something which should be prevented. Even though the historical record indicated there were permanent relationships between Aboriginal women and Asian men, with Asian men supporting their Aboriginal families, white commentators nearly always described such relationships as prostitution.
Dr Skyring noted that the white Australian authorities, without exception, condemned the trade between local Aboriginal people and the Asian crewmen. Police patrols were regularly dispatched up the coast of the Dampier Peninsula to disrupt the barter trade. Some of those patrols forcibly moved Aboriginal people away from coastal creeks, including by slaughtering Aboriginal dogs or threatening Aboriginal people with gaol. Despite this, the coastal trade continued into the twentieth century, with one constable noting in 1903 that Aboriginal people would leave the missions that had been established in Beagle Bay and Disaster Bay to camp near the luggers because they got better rations from the pearling crewmen than from the missionaries.
194 The arrival of Christian missionaries on the Dampier Peninsula would eventually have an enormous affect on the lives of the Aboriginal people in the region, including a direct affect on the families of the Aboriginal witnesses in these proceedings.
195 In 1884, Scottish priest Father Duncan McNab established the first Christian mission on the Dampier Peninsula at Goodenough Bay, on the north western boundary of the Bindunbur application area. Two years later, the mission was destroyed by fire. Dr Skyring noted that the mission at Goodenough Bay “appeared to have minimal impact on the Aboriginal inhabitants of the area. They came to McNab for food rather than religious instruction.”
196 In 1890, Bishop Gibney of Perth travelled to the Dampier Peninsula to establish a more permanent mission at “Ngarlen” (now spelled Ngarlan), some eleven kilometres from Beagle Bay. Reports by missionaries present in the early years of the Beagle Bay mission recorded that the mission could not have been established without the cooperation and assistance of the local Nyul Nyul people. By 1896, the Resident Medical Officer in Broome recorded that the average number of people at the mission was about 150, and a total population of 300 or 400.
197 In 1898, an outstation of Beagle Bay mission was established at Disaster Bay. At that time, it was reported by a missionary present that 12 children were “supported” at the outstation, with a further 100 Aboriginal people frequenting the mission. In the same year, the Resident Magistrate in Broome recorded that about 30 children under the age of 14 were “permanently cared for” at Beagle Bay mission, though he added that “all of these children have occasional spells in the bush.”
198 In 1900, the Trappist monks who had been running the Beagle Bay mission were ordered back to France by their superiors. Dr Skyring assessed the success of the Trappist monks in converting the local Nyul Nyul people to Christianity as low. Although a number of baptisms were conducted at the mission, that seemed to coexist with the continued practice of law and culture. For example, Nyul Nyul apical Felix Nortingbor was recorded as having become a cantor at the mission. Nevertheless, the memories of Leonie Widjie, daughter of Nyul Nyul apical Abraham Kongudu, showed that Felix continued to play an important role in Nyul Nyul ceremonial life.
199 After the departure of the Trappists, Bishop Gibney returned in 1900 to Beagle Bay to re-establish the mission there. He was accompanied on that journey by anthropologist Daisy Bates, who wrote the first anthropological studies of Aboriginal people in the application areas.
200 In 1901, Bishop Gibney successfully petitioned the colonial government for the grant of 10,000 acres in fee simple, to be divided between 8,000 acres at Beagle Bay and 2,000 acres at Disaster Bay, “not for myself personally nor for the Church but for the welfare of the Aboriginals”.
201 At that time, a Pallotine priest from Germany, Father Georg Walter, was in charge of Beagle Bay mission. In 1904, there were 31 Aboriginal children attending school at the mission, all from Broome, Beagle Bay or Disaster Bay. In an account of his time at Beagle Bay later published in 1928, Fr Walter described the Aboriginal peoples of the Dampier Peninsula as follows:
The black population of Dampierland consists of the remainder of five tribes. These are the Yaoro, near Broome, the Djaberadjabera in Carnot Bay, the Nyulnyul in Beagle Bay, the Badi in Lombadina, and the Djaui on Sunday Island. The culture and life style of these tribes is similar.
Also in 1904, Fr Walter told the Royal Commission into the condition and treatment of Aboriginal people in Western Australia, in response to a question about people “running away” from the mission:
Some have left. I do not call it running away. The blacks can come and go as often as they please. We do not want to interfere with their liberty.
202 The Aboriginal population at Beagle Bay mission was greatly increased by the passing of the Aborigines Act 1905 (WA), which gave the Chief Protector’s agents and department the power to take away people’s children, remove families and individuals to closed reserves and missions, prohibit Aboriginal people from being in certain areas, control where people lived and worked, and prohibit Aboriginal women from marrying partners of their choice if such men were not Aboriginal. Further, the Chief Protector was made legal guardian of every Aboriginal and “half-caste” child under sixteen. Dr Skyring cited historian Christine Choo, who described the outcome of the Aborigines Act 1905 as follows:
One immediate and direct result of the exercise of this authority was the removal and institutionalisation of Aboriginal children with non-Aboriginal parentage. The government’s decision to enforce the Aborigines Act 1905 more strictly resulted in a big influx of the first generation of ‘half-caste’ children who were brought to Beagle Bay Mission from the Kimberley area soon after the St John of God sisters arrived in 1906. Police and Protectors were instructed to collect all children of mixed ancestry for placement in missions and government institutions. Many of these children were accompanied by their mothers, who settled in the colony—that is, the Aboriginal community in the mission compound. The Pallotine brothers were in charge of the boys, while the St John of God sisters cared for the girls.
203 A Beagle Bay mission report from 1912 summarised the number of Aboriginal children at the mission as follows:
At the end of the year under review there were 131 native children in the Beagle Bay Native Institution. These 131 children—under 16 years of age— are trained and managed at the Mission, under supervision and with the assistance of the Government. Of this number, 57 are boys—29 full-blood and 28 half-caste—and 74 girls—25 full-blood and 49 halfcastes. Of these children, 87 attend school regularly.
204 The effect of the passing of the Aborigines Act 1905 was not limited to the increase in population at the mission. In a 1917 report, it was clear that the freedom of movement that existed under the directorship of Fr Walter had been replaced with a more restrictive regime. Many of Aboriginal people at Beagle Bay in 1917 were there against their will. The missionaries also forcibly married younger people.
205 The first appendix to the Skyring report, “List of children at Beagle Bay in 1917”, illustrates the impact of forced removals to the mission on Aboriginal people in the Dampier Peninsula. The list records 45 Aboriginal boys and 70 Aboriginal girls living at Beagle Bay, many of whom are noted as having been brought in by police. The locations they were taken from are scattered across the Kimberley, both within and outside the application areas, and include Lombadina, Pender Bay, Carnot Bay, East Kimberley, Derby, Broome, Halls Creek and Fitzroy.
206 Between 1916 and 1929, a police station operated at Beagle Bay. Police patrols remained concerned with disrupting the trade between Asian pearlers and the Aboriginal population. Then, from 1929 onwards, when the police station at Beagle Bay was closed, the police patrols departed from Broome. Dr Skyring noted that while there were cattle stations at Hill Station (also known as Denham Station, after the name of the leaseholder) and Carnot Bay during this period, most of the employers along the coastline held leases as foreshore pearling camps. Hill Station later became Waterbank Station, and was in operation until at least 1972, employing a number of Aboriginal people. Senior Goolarabooloo witness Ms Teresa Roe was born at Waterbank station. Another station, known as Quondong Station, was immediately north of Waterbank Station, streteching from Cape Boileau to Coulomb Point, though no records apart from cadastral maps about Quondong Station have survived.
207 In the late 1920s and early 1930s, a leprosy epidemic, which had been spreading throughout Aboriginal communities following European contact, made its way to the Kimberley. By that time, Beagle Bay was a substantial settlement of between 260 to 290 people. In 1932, a leper hospital was built about 180 metres from the “native camps”, and Aboriginal lepers were removed from the mission to the “leper colony”. The leper colony continued to operate at Beagle Bay until 1936, by which time it appears that any remaining lepers had been removed to the hospital at Port Darwin or to the Derby Leprosarium which had been established that year. Senior Jabirr Jabirr witness Ms Rita Augustine spent some time at the Derby Leprosarium as a child. Dr Weiner’s primary report notes that between 1936 and 1986, a number of Aboriginal people from all over the Kimberley were removed to the Derby Leprosarium, where the graveyard contains the remains of 357 patients who died there during that period.
208 In March 1942, Roebuck Bay was bombed by Japanese forces. Broome’s white residents were evacuated south, while Broome’s Japanese families had already been interned. Aboriginal people from Broome, on the other hand, were forcibly evacuated to Beagle Bay mission. The evacuation, according to Dr Skyring, was chaotic and poorly managed. While most evacuees eventually returned to Broome after the Second World War ended, some stayed on at Beagle Bay.
209 Dr Skyring’s report ends with a description of Beagle Bay mission in the 1950s and 1960s. Dr Skyring noted that registers of “inmates” at Beagle Bay mission from 1950 and 1951 show a number of apicals from the present proceedings were living at the mission. In 1966, a police patrol report described the mission as very well run and prospering, comprising four boys’ dormitories and three girls’ dormitories with 118 beds altogether. The “inmates” undertook a variety of work, described in the patrol report as follows:
Driving, garage work, gardening, stockwork, farmwork, metal work and woodwork, butchering, baking and cool drink factory. Wages are $4.00 per week with keep and a production bonus.
Cool drink factory is fully automatic and supplys [sic] Broome and Derby with good quality beverage. Production can be 2,000 bottles per hour when demand warrants it.
[Footnote omitted.]
210 Mr Bagshaw assessed the impact of the Beagle Bay mission, and of European contact more generally, on traditional ways of life in his primary report as follows:
32. For reasons which appear to be mainly bound up with the attitudes and policies of local staff, the Beagle Bay mission (initially run by Trappists and then by Pallotines) had a far more dramatic impact on traditional ways of life than the much smaller operation at Lombadina. This was especially true in regard to the practice of ‘Law’, by which I specifically mean male initiation rites. Factors such as Catholic proselytization, the active discouragement of traditional cultural practices, dormitory separation of young people from older members of their families, the relocation to Beagle Bay of part-Aboriginal children from other parts of Western Australia, centralised residence at the mission, and a growing local dependence on ‘rations’ and employment provided by the Church, all combined to militate against the practice of traditional initiation rites, such that in the early 1960’s (according to the anthropologist L.R. Hiatt, who visited in 1963) – and probably even by the early 1920’s – those rites were no longer being performed at, or in the immediate vicinity of, Beagle Bay itself, and had likely also been largely – though not entirely – discontinued in much of the wider region (i.e. in Nyul Nyul, Nimanbur, Jabirr Jabirr and Ngumbarl territories).
…
34. At the same time, demographic factors probably also played a part in the decline of ritual life in and around the mission. With the demise of older, knowledgeable men born in the pre-mission era, and as a further consequence of significant post-contact population falls overall, there was, in any case, likely to have been a dearth of male ritual exponents of sufficient seniority to sustain regular ritual practice in the central and southern areas of the peninsula. I base this estimation primarily upon Elkin’s remarks concerning the often dramatic post-contact decline of regional Aboriginal populations in this part of the Kimberley (and beyond):
The Yauor, Djukan, Ngormbal, Djabera-djaber, Nyul-nyul, Waruwa, [and various other “tribes” to the east and north-east] have certainly decreased by over fifty per cent [following “white settlement”]. In fact, the Djukan, Ngormbal, Djabera-djaber and Waruwa are now [in 1927-28] represented by only a few individuals, and the Nyul-nyul by about ten per cent of its original [pre-contact] number. (1932:297)
[Footnotes omitted.]
1.3.5 Land rights and the Seaman Inquiry
211 Another important historical factor relevant to the present proceeding was the development of the movement for Aboriginal land rights in the 1960s and 1970s.
212 On 23 August 1966, head stockman and Gurindji man Mr Vincent Lingiari led 200 Aboriginal workers off their jobs at the Wave Hill cattle station in the Northern Territory over the low wages and poor conditions for Aboriginal workers. The Gurindji Strike, as it came to be known, became a catalyst for the Aboriginal land rights movement, culminating in the passing of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which came into force on 26 January 1977.
213 In Western Australia, developments in Aboriginal land rights included the passing of the Aboriginal Heritage Act 1972 (WA), which made provision for the preservation of places and objects customarily used by or traditional to Aboriginal people. Then, in 1984, the Aboriginal Land Commissioner, Paul Seaman QC, delivered the report of the Aboriginal Land Inquiry (Seaman Inquiry). The Seaman Inquiry conducted a series of private and public meetings with pastoralists, mining companies and Aboriginal people across the State of Western Australia. Those meetings included a private hearing with the “Goolarabooloo Group (Inc)”, at which Goolarabooloo apical Mr P Roe gave evidence.
214 At a national level, the Native Title Act 1993 (Cth) (NTA) entered into force on 1 January 1994. On 27 June 1994, the first native title application over an area relevant to these proceedings was lodged by Goolarabooloo Inc.
1.3.6 The James Price Point Gas Hub dispute
215 A final matter of historical context relevant to the present proceeding is the dispute over a proposal by Woodside Energy to build a natural gas hub at James Price Point, within the Jabirr Jabirr and Goolarabooloo application areas. The following summary of the dispute is adapted from a timeline published by the Australian Broadcasting Corporation: “Gas hub: Controversy in the Kimberley”, 12 April 2013, 5:28pm, http://www.abc.net.au/news/2013-04-12/browse-lng-timeline/4625232.
216 In February 2008, the Commonwealth and the State of Western Australia signed a strategic assessment agreement to assess locations for a natural gas processing facility for the Browse Basin off the Kimberley coast. On 15 April 2009, it was reported that “traditional owners”, through the Kimberley Land Council, had agreed in principle to a deal with the State of Western Australia and Woodside Energy to allow the construction of a gas processing hub. Then, on 22 December 2009, it was reported that another group of “traditional owners” were opposed to the development. It was then reported that native title claimants willing to sign a deal for the construction of the gas hub were unable to do so because Mr J Roe, the grandson of Mr P Roe, who opposed the deal, was one of the named persons comprising the applicant in an extant native title application in the area, being the Goolarabooloo and Jabirr Jabirr claim (GJJ claim) WAD 6002 of 1998.
217 On 15 February 2011, Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy on behalf of the Goolarabooloo and Jabirr Jabirr People replaced Mr J Roe and Cyril Shaw as the persons comprising the applicant in the GJJ claim: Roe v State of Western Australia (No 2) [2011] FCA 102. The new persons comprising the applicant were reported to be in favour of the gas hub project.
218 On 6 December 2011, the Supreme Court of Western Australia upheld a claim brought by Neil Patrick McKenzie, a Jabirr Jabirr man, and Goolarabooloo witness Mr Phillip Roe that three notices of intention issued by the Minister for Lands for the compulsory acquisition of land for the gas hub project were invalid: McKenzie v Minister for Lands [2011] WASC 335.
219 On 12 April 2013, the applicant in the GJJ claim was given leave to discontinue their claim: Rita Augustine v State of Western Australia [2013] FCA 338. On the same day, Woodside Energy announced that it would abandon the gas hub project because it did not meet its commercial requirements.
9. WHAT ARE THE RELEVANT LEGAL PRINCIPLES?
220 It is common ground among all the parties that the Bindunbur and Jabirr Jabirr people have native title rights and interests, subject to questions of extinguishment, in the Bindunbur and Jabirr Jabirr application areas respectively.
221 The Goolarabooloo applicants rely on four pathways for their claim to native title rights and interests, namely, by descent, by succession through custodianship, through rayi connection and through the acquisition of ritual and mythological knowledge. In view of the way the NTA describes native title rights and interests, each of these pathways must be grounded in traditional laws and customs.
222 Section 223(1) of the NTA provides:
(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.
223 The matter of most significance in this case arising from the definition of native title is the concept in s 223(1)(a) of rights and interests possessed under traditional laws acknowledged and traditional customs observed by Aboriginal people.
224 As to what amounts to traditional, the plurality in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 (Yorta Yorta) (Gleeson CJ, Gummow and Hayne JJ) said:
46. … A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs.
47. … 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. …
225 Referring to the need for a normative system, the plurality said:
38. When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) 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.
226 And further:
49. … it is axiomatic that "all laws are laws of a society or group". … Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. …
50. To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. …
[Emphasis added.]
227 One point of contention between the parties was the distinction between rights on the one hand and interests on the other as the terms are used in s 223(1) of the NTA. In final submissions, counsel for the Bindunbur applicants did not shy away from the breadth of the notion of interests, and accepted that interests as defined in the NTA are very broad. However, the Bindunbur applicants emphasised that the requirements for rights to be native title rights, namely that they are acquired under traditional laws and customs, apply equally for interests to be native title interests. In that respect, the distinction between rights and interests is immaterial. It is not the argument of any party that any of the applicants do not have native title rights and interests simply because their association with the application areas falls short of a right. Rather, the necessary inquiry is whether the rights and interests claimed are native title rights and interests. That inquiry requires detailed consideration of the traditional laws and customs of the Aboriginal peoples of the application areas. As noted in Western Australia v Ward [2000] FCA 191:
783. The proper characterisation of native title thus depends on aboriginal law and custom. The matter must be viewed from the aboriginal perspective.
228 Further, because the NTA requires that the laws and customs in question be traditional, that is, that the laws and customs must pre-date sovereignty, the relevant traditional laws and customs in this proceeding are the traditional laws and customs observed and acknowledged by the Bindunbur and Jabirr Jabirr peoples at sovereignty. In other words, for the Goolarabooloo applicants to show that they have acquired native title rights and interests in the Goolarabooloo application area, they must show that they acquired rights and interests in land and waters under the traditional laws and customs of the Jabirr Jabirr people at sovereignty.
10. DID THE GOOLARABOOLOO ACQUIRE NATIVE TITLE RIGHTS OR INTERESTS BY DESCENT OR SUCCESSION?
1.4 The structure of this part of these reasons for judgment
229 This section of these reasons for judgment considers the question whether the Goolarabooloo acquired native title rights and interests in the Goolarabooloo application area by descent or succession. Both of these pathways, if established, would, on the arguments of the Goolarabooloo, result in them acquiring rights and interests in the whole of the Goolarabooloo application area.
230 Section 10.2 of these reasons for judgment examines at the evidence concerning the nature of land holding in the application areas. The evidence shows that the land is held under traditional laws and customs at the local level in patrifilial family estates known as bur, burr or buru.
231 Section 10.3 sets out the contending positions of the parties as to how rights and interests in land are acquired under the traditional laws and customs.
232 Then section 10.4 isolates five issues to be determined as a result of the contending positions of the parties. Sections 10.5 – 10.9 set out the evidence and arguments relating to those issues.
233 Those sections comprise a substantial part of these reasons for judgment. They are the foundation for the consideration of a major issue in contention. Some patience is needed from the reader because the conclusion to be drawn from this large body of evidence and argument are considered together only after that material has been set out. That course has been adopted because those matters encompassed by the five issues to be determined are interrelated and the discussion makes more sense when all are dealt with together.
234 Thus, section 10.10 gives consideration to the evidence and arguments outlined in the previous parts of section 10 and arrives at the following conclusions:
Under traditional laws and customs, land in the Goolarabooloo application area is held at the local level in patrifilial family estates.
Subject to the limited exceptions for child adoption and succession, rights in land are acquired under traditional laws and customs only by descent.
Descent is from ancestors going back in time beyond the remembered past and is not governed by shallow generational memory.
The limited exception concerning succession applies only where the land holding group has died out.
The evidence establishes that the Jabirr Jabirr had not died out at the time that Mr P Roe arrived in about 1930. He therefore did not acquire rights in land by succession at that time.
Further, a person does not acquire rights or interests in land under the traditional laws and customs by reason of appointment or exercise of the role of custodian.
In any event, the evidence does not establish on the balance of probabilities that Mr P Roe was appointed as a custodian on the basis that he or his descendants would acquire rights or interests in the Goolarabooloo application area.
235 Section 10.11 provides a summary of the conclusions reached in section 10.
1.5 The Nature of Land Holding in the Application Areas
236 There is a great deal of evidence from the Bindunbur and Jabirr Jabirr Aboriginal witnesses, combined with expert evidence, that rights and interests in land are held at the local level in family estates known as bur, burr or buru.
1.5.1.1 Bindunbur and Jabirr Jabirr evidence
237 The affidavits of the Bindunbur and Jabirr Jabirr Aboriginal witnesses generally include a section entitled “My family country” which identifies the bur of the deponent the family connection to the bur, the intense familiarity with the family estate, and the place of the bur in relation to the br of other families. The deponents are from almost every part of the application areas and represent many levels of seniority within the groups. The picture presented is therefore comprehensive. An example of such evidence can be seen in the following extract from the affidavit of Mr Stephen Victor sworn 27 September 2015:
80. I only follow two of my grandparents: my two grandfathers, Victor and Bonaventure. Their countries are the only two areas I speak for, Narlan from my grandfather Victor and Weedong from my grandfather Bonaventure. Those places are my country, my burr.
81. I don't interfere with my grandmothers' country. I don't go to meetings to speak about their country. I can go to my grandmothers' country and hunt and fish there but I don't speak for those areas. That connection is still there, I could follow my grandmothers' countries as well but I choose not to. If they needed help I could go and support them.
82. Narlan is my main country. Narlanbur includes places like Billard, and Nirrumbuk. Narlan includes the whole of area of the Beagle Bay Community. It's part of all Nyul Nyul country. Our dreaming, the rainbow snake passes right through Narlanbur as it travels through the spring country from Wanmungur out into the ocean near Winawal. Narlan is only part of the spring country. To the east of Narlanbur is Yamaranbur. Our dreaming starts in Yamaranbur. There is no landmark that tells you exactly where any boundary is between Narlanbur and Yamaranbur.
83. To the west of Narlanbur, there is a creek going up to Bobieding and from there on the country is in the Rounds Well area. Going south, Narlan area goes to around Gundaragan gully. To the north, Narlan country runs as far as Billard.
84. Billard burr means 'spring country'. It is the borderland between the sea and the bush. You've got the tide and the sea coming right in to our country as well.
85. When you are coming home to Beagle Bay from Broome, you cross Gundaragun, the gully before Beagle Bay. When you cross that gully you can feel the air change - you smell the springs. You can say "Smell 'em billard burr, spring country" and you know that you are close up to Narlan country.
86. Nirrumbuk is our spring, the Victors' spring. The Dominic family's spring is right next door, Warrumbuk. That's uncle Richard Nicolas' family. Richard Nicolas is first cousin to my father. We're all part of Narlanbur, in the same burr.
87. Weedongbur is the area around Bells Point. There is a big lake there, called Weedong Lagoon.
238 The affidavits were brought to life at the on-country hearings. The Court visited and heard evidence at Yellow River (Wangamarr or Bindingankun), Gadalargun, Murrjal, Willie Creek, Butterfly Spring, Red Cliffs, Banana Well, Beagle Bay Landing, Twin Lakes, Beagle Bay Oval, Lolly Well, Middle Lagoon, Mulgin Sand Hills, Middle Lagoon, Embalgun, Weedong, Madarr, and La Djadarr. At each of those places there was oral evidence from the local Bindunbur or Jabirr Jabirr people who claimed a local estate at that location. One of the numerous examples of such evidence is the testimony given by Mr Henry Augustine Jr at Beagle Bay Landing on 24 September 2015. The extract is long but is included to demonstrate the detailed identification by a local estate holder and his extensive knowledge of the places of other local families and their long standing connection to the local estates:
MR BLOWES: If the Court pleases. We're at a new location now, probably minutes drive from the last location, and we're at the edge of not a bad looking location. It appears to have a large body of water which your Honour will hear about. And the precise location we're at is south 16 degrees 57 minutes 38.5 seconds, and east 122 degrees 34 minutes and 50.4 seconds.
…
HIS HONOUR: And the place known as Beagle Bay Landing?
MR BLOWES: Henry, what - - -
HENRY AUGUSTINE JNR: Yes, yes, Beagle Bay Landing.
HIS HONOUR: Henry Augustine.
MR BLOWES: Henry Augustine, I'm sorry. I'm calling Henry Augustine Jnr again.
HIS HONOUR: Yes. Morning to you, Henry - to see you back again.
HENRY AUGUSTINE JNR: Thank you. Good to see you.
MR BLOWES: So English name is Beagle Bay Landing; is that - - -
HENRY AUGUSTINE JNR: That's - that's right.
MR BLOWES: Yes.
HENRY AUGUSTINE JNR: Yes.
MR BLOWES: Nyul-Nyul name for any area or place around here?
HENRY AUGUSTINE JNR: Well, I've known it to be Djilang the way through - just, yeah, that's all.
MR BLOWES: Alright. Any other English names that people refer to this place by?
HENRY AUGUSTINE JNR: I suppose Beagle Bay or Beagle Bay Landing, yeah.
MR BLOWES: When people are talking about going fishing, do they sometimes refer to this place as the fishing grounds?
HENRY AUGUSTINE JNR: That's right, yes. One of the good spots to fish. There's heaps others, yeah.
MR BLOWES: And is this the closest bit of the open water of Beagle Bay to the Beagle Bay community?
HENRY AUGUSTINE JNR: Yeah, pretty close, within walking distance and - - -
MR BLOWES: Except at really high tide.
HENRY AUGUSTINE JNR: Except the big tides, yeah.
MR BLOWES: Yes. And at - - -
HENRY AUGUSTINE JNR: You can't - can't cross there.
MR BLOWES: And at the big high tides, how far does the water go towards or around Beagle Bay?
HENRY AUGUSTINE JNR: Oh this would go right up to, closer to Beagle Bay community in the south of the crossing there, yeah.
MR BLOWES: That marsh area we came across, does the water go across - does salt water go across that at the big tide?
HENRY AUGUSTINE JNR: You can't drive especially with the wet as well, so yeah.
MR BLOWES: And in that big marsh area we noticed there were patches of trees. Can you say anything about whether there's any - say anything about those?
HENRY AUGUSTINE JNR: There's heaps of fresh water just popping up everywhere, really, from time to time and yeah, that's also got a big water - water - well just up - just up here.
MR BLOWES: At the end of the beach.
HENRY AUGUSTINE JNR: Yeah.
MR BLOWES: So there's a water well. What does it look like and how did it come to be there, do you know?
HENRY AUGUSTINE JNR: Well, I think when the first missionaries arrived, they dug a big hole, that box square hole and put 44 drums in there, and used to be a big water place there they - they'd get, and people used it since.
MR BLOWES: So you understand that to have been dug by the missionaries rather than old people?
HENRY AUGUSTINE JNR: Oh the people helped out as well, and I think they did most of the work as well, so yeah.
MR BLOWES: So it's about level with the top of this sand dune behind us, isn't it, about on the same - - -
HENRY AUGUSTINE JNR: Just - just under flat part over the dunes, yes, yeah.
MR BLOWES: Yes. And so the digging, and what happens when you dig down far enough?
HENRY AUGUSTINE JNR: Oh you might - you'll just find water just come up.
MR BLOWES: Fresh water.
HENRY AUGUSTINE JNR: Fresh, yeah. Bit of salt but, then, usually fresh comes later, yeah.
MR BLOWES: Now, this body of water we were looking at out here - well, the Judge and the other lawyers are looking at but it's behind us.
HENRY AUGUSTINE JNR: Yeah.
MR BLOWES: Low tide what do you see?
HENRY AUGUSTINE JNR: Well, it goes out, then there's a fresh water come up and bubble up and you see birds come for drink and all that, so bit of fresh water, and of course you're going to see straight across to Winawal and south west to Binduk and across the Bay there, Murphys Creek or Mungada Mungada.
MR BLOWES: Murphys Creek or Mungada Mungada - - -
HENRY AUGUSTINE JNR: Yes, right.
MR BLOWES: - - - across the Bay.
HENRY AUGUSTINE JNR: That's right.
MR BLOWES: So when this is a really low tide, would you see any water from here or would the water be a long way out or - - -
HENRY AUGUSTINE JNR: It would be dry up this way but you'd see the ocean just good way out in the distance, but yeah.
MR BLOWES: So all this part of the Bay in behind us would be mainly dry at really low tide?
HENRY AUGUSTINE JNR: It'd be, yeah, up the banks - sand banks come up and just a creek flowing in and out, water.
MR BLOWES: And is this an area that you're familiar with and you've used over time?
HENRY AUGUSTINE JNR: I - I come here since I was - since I can remember, camping, with my mum and couple of - grandmother as well and - -
MR BLOWES: What other grandmother? What grandmother is that?
HENRY AUGUSTINE JNR: My father's mother.
MR BLOWES: What name?
HENRY AUGUSTINE JNR: Agatha. We used to camp up here with Manny Maditj and old Paddy Indu and mum's sisters, Aunty Teresa and Bibai and others, lots of families - many old people families come here and use it as well, so pretty - - -
MR BLOWES: And what sort of resources are available around here for - well, at least for food and - - -
HENRY AUGUSTINE JNR: Well, just heaps of crabs, stingray, salmon, breams, barramundi, yeah heaps of that, yeah.
MR BLOWES: Now, do you have any links or connection to this area where we are now through any ancestors?
HENRY AUGUSTINE JNR: Well, this is my grandfather's country from this way right up to - up end of the beach.
MR BLOWES: So we were just talking about your links to this area. You mentioned grandmother.
HENRY AUGUSTINE JNR: My - my grandfathers and grandmother used to walk from Beagle Bay to here and with my older sisters and camped just up the beach there, yeah.
MR BLOWES: And what was the name - sorry?
HENRY AUGUSTINE JNR: Used to be a big tree there that everyone used to swing around and play horsie with - on that little branch sticking out and - - -
MR BLOWES: Oh yes, yes.
HENRY AUGUSTINE JNR: - - - yeah, we used to camp and - all along this beach land right up to the end.
MR BLOWES: What's the name of the grandfather?
HENRY AUGUSTINE JNR: Ringarr.
MR BLOWES: Ringarr. Okay. And following Ringarr, what's the extent of your country as you've - - -
HENRY AUGUSTINE JNR: Well - - -
MR BLOWES: - - - the way you've learnt it?
HENRY AUGUSTINE JNR: Well, I - I been told just - well, he goes right back to Winawal but I - I - I know this part as being closer to us but so is a lot of other families as well, but mainly this area right up to Henry Well and part of Bulbuk, immediate family with Freddie and his family, up the Bulbuk Creek there's a fishing spot and - and possibly to Beagle Bay with extended families, yeah.
MR BLOWES: So you're talking about countries where you've got a different range of connections through different family, extended family and immediate family?
HENRY AUGUSTINE JNR: That's right, yes.
1.5.1.2 Bindunbur and Jabirr Jabirr expert evidence
239 In his primary report Dr Weiner gave comprehensive evidence about the nature of land holding on the mid-Dampier Peninsula.
240 He first described the norm at sovereignty, then the contemporary position, and finally addressed the question of continuity between those two times.
241 For the situation at sovereignty Dr Weiner particularly relied on the record provided by the work of A P Elkin. Elkin was the first fully trained anthropologist to conduct field work in the Dampier Peninsula. Over a 12 month period in 1927 he spent time in Beagle Bay and at every other settled place in the Kimberley. Elkin described how horde groups occupied narrow strips of country mostly along the coast with a sea frontage. The local group areas were called bur. Elkin wrote “visitors must get permission from the headman of the horde [i.e. buru] before hunting or fishing in a country to which he is paying a visit”. The locations of bur were mainly governed by the availability of fresh water. Elkin produced a map showing the areas of the local groups in the Nyul Nyul part of the application area. No burs were recorded in the Jabirr Jabirr application area but Dr Weiner concluded from other evidence that the same land holding system prevailed.
242 Whilst Elkin represented most of the local estates on the west and east coasts of the Nyul Nyul area, he recorded a small number of local estates in the centre of Dampier Peninsula. Dr Weiner concluded that the central area, the Pindan, was a common area primarily exploited by those whose bur were close to it, although it was traversed and utilised by all Dampier Peninsula bur members.
243 Dr Weiner then said that the bur as described by Elkin remains in modern times still the primary unit of the assertion of rights to country. Bur areas today are associated with particular families or groups of families. Indeed, 14 of Elkin’s bur place names are recognised today by Nyul Nyul people. Dr Weiner referred to the following local estate sites Murrjal (Quondong Point), Gardalagun-Yalyaring-Walmadany, Minariny (Coulomb Point), Nudugun (Carnot Bay), Winawal (Sandy Point), Ngarlan (Beagle Bay), Malgin-Embulgun (north Beagle Bay to south Pender Bay), Yamarung (Lake Louisa Area), Mulgurung (Mt Morgan), Garamal (Cunningham Point), Madarr (Murdeh Point), Ladjadarr (Repulse Point) and Janbirr (Valentine Island – Mt Jowlaenga – Fraser River), and to the families presently associated with those sites and their ancestors who have been connected to the areas over the period since sovereignty. Dr Weiner relied on documentary sources for these conclusions but also on speaking to Bindunbur people and particularly in cultural mapping meetings called for the purpose in the course of the preparation of this proceeding. He found that in modern times the bur boundaries on the west coast, particularly around Beagle Bay, were more precisely known and were more stable units of attachment being coastal reef areas than the local areas on the east coast which comprises mud flats and mangroves and which is not as hospitable or habitable as the west coast. Dr Weiner concluded that in modern times, and continuously since sovereignty, the Pindan has been considered country belonging to and exploited by all adjacent bur holders.
244 Mr Bagshaw also referred to the landholding in the mid-Dampier Peninsula at sovereignty in his primary report as “fairly small, localised, and predominantly (though not in all cases) coastal, territorial estates generally known as bur”. He described the contemporary position in his primary report as follows:
171. Concerning territorial organisation within the study area today, it is my opinion that local ‘countries’ are generally construed in terms of tracts or areas which broadly correspond to traditional bur territories, albeit often less specifically demarcated. Each such area appears to incorporate a focal locality or area – selected examples recently mentioned to me included Ngardalagin, Lajarramurruk, Winawal, Ngarlan, Widong, Yarp, Banggadak, and Wadaningbal.
[Footnotes omitted.]
1.5.1.3 Goolarabooloo expert evidence
245 Professor Cane referred to the descriptions of land holding by early twentieth century anthropologists Daisy Bates in 1900 and Bischofs in 1908 prior to Elkin. Professor Cane said that the earlier accounts suggested a broad and loose association of people indicative of a flexible territorial association of family in and around a few named places or a named area. He said that the areas were large and the association general so as to beg territorial refinement. Professor Cane accepted that Elkin’s descriptions presented a smaller and more regulated version of territorial organisation.
246 Professor Cane did not accept that the horde estate model properly described the landholding system in the application areas. In substance that was because the model involved the acquisition of rights in land by descent alone, and the system which he considered applied involved the acquisition of rights by descent but also by other means. A consideration of that view is dealt with later in these reasons for judgment when the question of how rights to country are acquired is considered.
1.5.2 At the sub regional level
247 At the sub-regional level the Bindunbur and Jabirr Jabirr applicants have rights and interests in land as members of language groups. In respect of the Jabirr Jabirr application area the language groups are Jabirr Jabirr and/or Ngumbarl. North of that area in the Bindunbur application area are people in the Nyul Nyul and Nimanbur language groups. The way in which people acquire membership of the language groups is considered later in these reasons for judgment. The Goolarabooloo challenge the notion that there is an association between acquiring rights and interests in land and being part of a language group. Again, those matters are dealt with later in these reasons for judgment. At present the question under consideration is limited to what the evidence of the Bindunbur and Jabirr Jabirr applicants shows about the role of language groups in land holding.
1.5.2.1 Bindunbur and Jabirr Jabirr evidence
248 In most of the Bindunbur and Jabirr Jabirr applicants’ affidavits there is a section entitled “Language country” which explains that the deponent is part of a language group which has links to a particular area. Thus in his affidavit affirmed 5 October 2015, Mr Paul Cox, a Nimanbur man stated:
82. Lake Louise, Yarp, Lake Flora and Mille Mille areas are shared with Nyul Nyul Yamaran mob, inland Nyul Nyul or bush Nyul Nyul. People like Rosie Patrick family, Patrick Ishiguchi and Pancho Pann. Stephen Victor and all that lot are saltwater Nyul Nyul. People from both sides can go there without asking the other.
83. Apart from this shared area, Nimanbur country as I have described it is all one, right through.
84. Nimanbur is one clan group. There are a few families who are Nimanbur, and we are all part of one community.
85. There is a connection between Bardi and Nimanbur. We’re all mixed through marriages. I call myself Nimanbur though, not Bardi, and so do the other descendants of my mother and uncle Jerome.
249 In his affidavit sworn 27 September 2015, Mr Stephen Victor, a Nyul Nyul man stated:
89. East of Walaman Creek and Alligator Creek and Joseph Well is Nyul Nyul. West is Jabirr Jabirr. Even though families are connected on both sides, it's all Nyul Nyul country on one side and Jabirr Jabirr country on the other side. That boundary just marks the language boundary.
90. Going north and east, Nyul Nyul country includes all the rest of Beagle Bay on both sides of the bay and north to Pender Bay. North of Pender Bay is Bardi. Nyul Nyul is all the south side of Pender Bay. There are two stones in the bay that mark where the border is. Nyul Nyul goes to Low Balk near the marsh there and from there across Yarp and Lake Louisa area. It comes down to Pentecost Well and Paradi area near Bungarigun, Fraser River. From there it goes back past a rock called Mulgurung near that marks the edge of Nyul Nyul country near Mt Jowlaenga pastoral lease and then comes back west along paperbark gulley, Wanganut, to Joseph Well, up to Alligator Creek and then out at Norman Creek. These boundaries were told to me by Joe Bernard and old Reimi and my godfather Paddy, and my uncle Ning, and my mum and dad and aunty Fidelis and aunty Ludivina.
250 In her affidavit sworn 9 April 2016, Ms Mary Tarran, a Jabirr Jabirr woman, explained about language country as follows:
99. In the Dampier Peninsula to the north of Yawuru country are areas connected to a number of different languages. To the north of Yawuru on the west side of the Peninsula is Jabirr Jabirr country. To the north of Jabirr Jabirr country is Nyul Nyul country and then there is Bardi country in the most northern part of the Peninsula. On the east side of the Peninsula and going south from Bardi country is Nimanbur country and then Nyikina country.
100. In the south, Jabirr Jabirr country goes as far as Wirrjinmirr, Willie Creek, and Nimalarragun; it's like a shared ground with Yawuru. Gadia call this place Nimalaica Claypan, and it's a little bit inland from Wirrjinmirr. A lot of wattle bushes grow in that area, and the Jabirr Jabirr name for wattle bush is nimalarr. That name comes from the word nimal which means hand as the wattle bush leaves are long like your fingers.
101. In the north, Jabirr Jabirr country goes up the coast and meets with Nyul Nyul country. From what I've been told, Winawal is Jabirr Jabirr and Nyul Nyul country starts after that. I've told you before I knew an old Jabirr Jabirr man called Iremi who gadia called Reimi. Iremi was roughly the same age as my grandfather, Bunduk, and he lived in the Pensioners' Camp with his brother Gabriel. When I was a little girl I heard from Iremi that Winawal was his place and that's why I believe Winawal is Jabirr Jabirr.
102. Jabirr Jabirr people are made up of north Jabirr Jabirr people, like my family, and south Jabirr Jabirr people, Nyombal people, like Rita Augustine's family. We're all one mob with one language, but some people still use the name Nyombal to refer to the southern part of Jabirr Jabirr country.
103. Parts of Country Downs Station are Jabirr Jabirr country.
104. Driving up the Cape Leveque road you leave Jabirr Jabirr country and enter Nyul Nyul country. That happens not very far from Beagle Bay on the Broome side of the Beagle Bay turn-off. I believe that the hills known as Two Hills are the second set of hills you come to and are still inside Jabirr Jabirr country, and that the boundary is not too far to the north of there. The language names for the Two Hills are called Djibbinj and Warnjinimirr, and there is another hill in that area known as Wanijagin, also called King Peak. This is the first hill you come to as you come off the main road.
105. I don't know the eastern side of the Dampier Peninsula on the ground. Based on what has been handed down to me, I do know some things about that area, but I don't know nearly as much about it, as I do about Jabirr Jabirr and, to a lesser extent, Nyul Nyul country. I do know that Nimanbur goes south from Gurramal and that the Disaster Bay area is definitely Nimanbur. The Cox and Manado families come from there. Going a bit further to the south, Valentine Island and the mainland near there belongs to my aunty Patsy Ah Choo's family. My aunty is the daughter of old Billy Ah Choo. It's my understanding that that area is Nyikina country. I heard a long time ago from old girl Lucy Marshall who I believe had Nyul Nyul connections and Loonganin who has Nyikina connections, that, by the time you get to Mt Jowlaenga, Nyikina people have connection there.
106. I have been told by my old people that Jabirr Jabirr people mainly used to live at lots of different camping places between Yawuru country and Winawal, and that they didn't always stay in the one place. They moved around. I've seen myself that there are lots of different midden areas along the coast between Yawuru country and Winawal. Some of them are around Nudugun and Narralagun.
1.6 What are the contending views concerning the traditional laws and customs relating to the acquisition of rights and interests in land
251 There is a fundamental disagreement between the Goolarabooloo and all of the other parties over the laws and customs concerning the acquisition of rights and interests in land.
252 The Bindunbur and Jabirr Jabirr applicants said that under their traditional laws and customs rights and interests in land are acquired, subject to rules about adoption and succession, only by descent from a parent who possesses such rights in an unbroken bloodline back to and beyond the remembered past. That system allowed for the transmission of rights and interests to adopted children, but not to people adopted as adults. Further, the system provided for acquisition of rights in land by succession in extreme circumstances where a local landholding group became extinct because there were no remaining descendants. However, succession to rights and interests only occurred in favour of a group that was socially and geographically close to the extinct group. The Bindunbur and Jabirr Jabirr applicants submitted that they qualify as members of the landholding group as descendants from the listed apical ancestors under that normative system. They further said that the Goolarabooloo do not qualify because they are descended from Mr P Roe, a Nyikina man, and his wife MP, a Karijarri woman, who came to the area in about 1930. The Bindunbur and Jabirr Jabirr applicants said that the Jabirr Jabirr local land holding group was not extinct at that time and, in any event, the succession rule would not operate in favour of Mr P Roe because he was not geographically or socially close to them.
253 The Goolarabooloo applicants claimed rights and interests in the Goolarabooloo application area in four different ways. First, they accepted that the primary method of acquiring rights and interests in land under traditional laws and customs is by descent. However, they contended that the rule whereby rights and interests in land can be acquired through descent does not require that descent from pre-sovereignty ancestors be shown, but rather that as a result of shallow generational memory descent is traced back to remembered ancestors, namely grandparents or great-grandparents. On this basis the Goolarabooloo applicants claim as descendants of Mr P Roe and and his wife MP. Second, they claimed by a process of succession. Under the traditional laws and customs proposed by the Goolarabooloo applicants succession commenced in 1930 when Mr P Roe came to the area and was given a custodianship role by the local people. Third, the Goolarabooloo applicants claimed rights and interests in land from some Goolarabooloo having rayi in the area. Finally, they claimed rights and interests from some Goolarabooloo holding mythical or ritual knowledge and experience of the area and being responsible for places, areas and things of mythological or ritual significance in the area. It was not contended by the Goolarabooloo applicants that the latter two pathways, rayi and mythical and ritual knowledge, gave the Goolarabooloo applicants native title rights and interests as a group. Accordingly, those two pathways will be considered separately from the acquisition of rights and interests by descent and succession.
1.7 What issues are raised by the contending positions of the parties?
254 The opposing positions of the Jabirr Jabirr and Bindunbur applicants, on the one hand, and the Goolarabooloo applicants, on the other hand, raise the following questions for determination:
(1) Is descent the only way of acquiring rights and interests in land under traditional laws and customs?
(2) Do the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors?
(3) What are the traditional laws and customs concerning succession to land in the application areas?
(4) Do traditional laws and customs allow for rights and interests in land to be acquired through custodianship?
(5) Was Mr P Roe appointed as custodian of the Goolarabooloo application area?
255 In the following sections bearing each of the above headings the evidence and arguments of the parties is set out. Consideration is given to all of those questions together under the heading “Consideration” commencing at [371].
1.8 Is descent the only way of acquiring rights and interests in land under traditional laws and customs?
1.8.1 The Bindunbur and Jabirr Jabirr pleaded case
256 The Bindunbur and Jabirr Jabirr applicants both filed contentions in identical terms regarding the rights and interests in land acquired by descent as follows:
Rights and interests in relation to land and waters are possessed only by a person (rights holder) by descent (including by child adoption); namely, descent from a person who in turn possessed such rights and interests by descent (including by child adoption) from an ancestor acknowledged to have been from, and to have possessed rights and interests in relation to, that land and waters.
1.8.2 Bindunbur and Jabirr Jabirr evidence
257 There is a substantial volume of evidence from the Bindunbur and Jabirr Jabirr applicants about the traditional laws and customs concerning the acquisition of rights and interests in land. All of the witnesses, male and female, senior and junior, Jabirr Jabirr, Nyul Nyul, and Nimanbur said that under traditional laws and customs, rights and interests in land can only be acquired by descent including by adoption. The question of succession is dealt with separately in the next section of these reasons for judgment.
258 No analysis by expert anthropologists or summaries by judges speak on such subjects with the authenticity of the Aboriginal voice. In order to convey the view of the Bindunbur and Jabirr Jabirr applicants and how widely the view is held, these reasons include an unusually large number of extracts from the evidence on this fundamental issue. The collection of references relies substantially on the selection made in the Bindunbur submissions.
259 Ms Rita Augustine, a senior cultural Ngumbarl and Jabirr Jabirr woman and Law boss explained in her affidavit sworn 30 September 2015, how she acquired rights and interests in land by descent from her grandparents:
85. … Granny Murrjal was Nyombal and she married a north Jabirr Jabirr man, Bobbie Blanki. They weren't boss for each other's countries; they would have decided things in their own countries themselves. Because of this marriage, Mum had strong connections to Nyombal country and to north Jabirr Jabirr country. As a child of these two, she spoke for both sides, and it's the same for me. That's the right way.
260 Ms Rita Augustine was born in 1934 and spent time as a child with her grandmother, Murrjal, and with Murrjal’s mother, Gadalargun. Each of them is very likely to have been born prior to the turn of the twentieth century and thereby their knowledge reflected the pre-sovereignty state of law and custom.
261 Ms Rita Augustine has first-hand experience of the custom of acquiring country by descent also being the same for Nyul Nyul people. In her said affidavit she explained:
25. I married Henry Augustine. Henry was Nyul Nyul through his dad, Ringarr Augustine. Henry was grown up by Ringarr and my husband used to refer to him as his father. Ringarr’s dad’s country was around Banana Well. My husband claimed that country when he was alive and our children do too; that's the right way … .
262 Ms Rita Augustine also gave evidence that laws and customs allowed for the acquisition of rights and interests in land by children who were adopted. In her said affidavit she related:
20. Our family history is that Mum was grown up from the time that she was a baby by Bobbie Blanki. She called him Dad and he claimed her as his own daughter. In our culture, Mum followed Bobbie Blanki for country because he was her father. This kind of thing is part of our laws and customs.
263 In examination-in-chief, at Yellow River in the north of the Jabirr Jabirr claim area, the first stop during the site visit, Ms Rita Augustine gave the following evidence relating to the acquisition of rights in country by descent:
MR KEELY: Are there other ways that you can get country that you can get to be someone who can say, "This is my country"?
You understand what I'm asking?
RITA AUGUSTINE: Yes. I can't see any other way because I've never heard of any other ways.
[Emphasis added.]
264 Ms Cissy Djiagween’s evidence was to the same effect as Ms Rita Augustine’s. Ms Cissy Djiagween was born in 1936. Her mother was a strong cultural woman and an important teacher. Ms Cissy Djiagween also knew a number her mother’s siblings who were important in her life, took her on trips to country and taught her about country, as well as various other old people. Ms Cissy Djiagween was one of eight children and was the baby of the family. It is very likely that her mother and her siblings were born around the turn of the twentieth century and hence their knowledge reflected pre-sovereignty laws and customs. She is a descendant of both Jabirr Jabirr and Ngumbarl ancestors. In examination-in-chief she gave the following evidence:
MR KEELY: In your culture, how do you - how do you get country?
CISSY DJIAGWEEN: Get from your parents.
MR KEELY: And where do they get it from?
CISSY DJIAGWEEN: They get it from their parents.
MR KEELY: And - - -
CISSY DJIAGWEEN: And so on and so on.
MR KEELY: And so on and so on. And what about after you?
CISSY DJIAGWEEN: After me? Well, I got lot of children. So they can carry on that – I got eight, you know – I got nine – have eight.
MR KEELY: Children.
CISSY DJIAGWEEN: Yes.
MR KEELY: And lots of grandchildren and so on.
CISSY DJIAGWEEN: Yes.
[Emphasis added.]
265 In her affidavit sworn 29 September 2015, Ms Cissy Djiagween referred to child adoption as a mode of descent as follows:
226. I’ve already mentioned how my dad, Bernard Bunduk, was grown up from the time that he was very small by Nyilandin, a Yawuru man. I’ve mentioned how my uncle Moses was grown up from the time that he was very small by Wallai and Nelagumia, who were Jabirr Jabirr people. These children followed the parents who grew them up for country, for everything. That’s the right way in Yawuru culture and in Jabirr Jabirr culture. From what I’ve seen in my life, I believe that the same thing happens for Bardi people, for Nyul Nyul people, for Nimanbur people and in other groups too. If you grow someone up from the time that they are a small child, that child belongs to you in every way.
266 In examination-in-chief Ms Cissy Djiagween gave the following evidence:
MR KEELY: In your culture, is there any way that people from outside an area can become part of the bosses for that area?
CISSY DJIAGWEEN: No.
[Emphasis added.]
267 Ms Cissy Djiagween said that the Goolarabooloo families had their descent interests in Bardi and Yawuru country. She gave evidence-in-chief as follows:
MR KEELY: Do those men and their families, do they speak for Jabirr Jabirr country?
CISSY DJIAGWEEN: No.
MR KEELY: Why not?
CISSY DJIAGWEEN: Because one family come from Hunter. That's Bardi mob. And another family come from Roe, and that's Johnny Roe mob, Yawuru.
MR KEELY: So one of them has got a bloodline to Bardi; one of them has got a bloodline to Yawuru …
268 Mr James Kelly, the son of Ms Rita Augustine’s sister Ida and a Ngumbarl man who is connected to the Jabirr Jabirr claim area through “Granny Murrjal and … Great Granny Gadalargon” in cross-examination gave the following evidence:
MR QUINLAN: Can you tell the court, what do you mean by "own" or "owner"? What's the difference between what an owner can do and what somebody else can do.
JAMES KELLY: When you own something and you've got a – a generation – comes down a generation that you have – I don't know what you call it. And it comes down.
MR QUINLAN: Comes down through the family.
JAMES KELLY: Yes, comes down to the family, generation after – they hand the baton over, "Okay, it's your turn to take", you know?
269 Ms Betty Dixon, from the north of Jabirr Jabirr country, gave the following evidence in cross-examination:
MR COLLETT: Sorry. You grew up in Bard country - - -
BETTY DIXON: Yes. I breathed and learnt law from my people.
MR COLLETT: And when they taught you law, did they use the words “bloodline”?
BETTY DIXON: No, they didn't have bloodlines. They only say from your people that comes from there, your ancestors. They – but they didn't use it as how we use it now.
MR COLLETT: And did they - - -
BETTY DIXON: All they – all they used to tell me is, “Your people come from there and that's where you come from”.
…
BETTY DIXON: They didn't use “traditional owners” in those days because they didn't know the word “traditional owners”. All they – all they tell us, we from that country, as we stayed – in that country. That's where we come from, from that area to this area, that area.
270 Mr Stephen Victor, a senior Nyul Nyul man from the Nyul Nyul area Ngarlanbur, explained, in examination-in-chief, the traditional rule for Nyul Nyul, as follows:
MR BLOWES: Well, is there any other – is there any other way that you can say, “That’s my country because” – you know, you say – you’re saying, “That’s my country because it’s my nyami’s [grandmother] country”. Is there any other way that you know of in Nyul Nyul country and Nyul Nyul culture for getting – for claiming buru?
STEPHEN VICTOR: No, not that I know of, no.
MR BLOWES: Okay. And is that just a recent thing as far as you know, or is that the way it’s been from before?
STEPHEN VICTOR: Well, see from before it was handed down from generation to generation, so I was told by my parents and my grandparents. I didn’t see my – on my father’s side, but I see on my mother’s side.
MR BLOWES: So that’s - - -
STEPHEN VICTOR: That’s – yes.
MR BLOWES: That’s what you were told by the grandparents that you knew?
STEPHEN VICTOR: Yes, and my aunties and uncles.
MR BLOWES: So, but that rule about getting country from grandparents is an old rule, it’s not a new rule?
STEPHEN VICTOR: No, it’s – that’s a tradition that’s been handed down from generation to generation to generation - - -
MR BLOWES: Yes.
STEPHEN VICTOR: - - - from the apical ancestors.
[Emphasis added.]
271 Ms Margaret Smith, also a senior Nyul Nyul person, from Malgin area around Middle Lagoon, gave evidence-in-chief that having ancestors who belonged to the country was the only way to get country:
MR KEELY: Can you get to be a traditional owner if your ancestors don't come from an area?
MARGARET SMITH: If your ancestors?
MR KEELY: If they don't come from a particular area, can you be someone who has - who's a traditional owner or someone who has the kind of rights that you talk about in that country?
MARGARET SMITH: If they belong to that country, well - - -
MR KEELY: Well, if they don't have ancestors from that country - - -
MARGARET SMITH: No, you - no, if they haven't got any, like, ancestors to come from that country, you cannot claim that country. It'd have to be your ancestors that gives you the rights.
[Emphasis added.]
272 Mr Paul Cox, a senior Nimanbur man, gave the following evidence-in-chief:
… Did you learn from the old people in your family about – about how you get country? How do Nimanbur People get their country?
PAUL COX: Yes, from my grandmother and my mother and my – my uncles, and (millin).
MR BLOWES: Yes? Okay. And have you ever heard whether there's any other way of getting – of getting to be – getting Nimanbur country, apart from through mother and father and grandparents, like that?
PAUL COX: No, I wouldn't think any other way.
MR BLOWES: Okay.
PAUL COX: Just – just goes through that old people.
MR BLOWES: Through the – through those old people - - -
PAUL COX: Yes, yes.
MR BLOWES: Okay. And how does it come – how does it come down to you, the present generation?
PAUL COX: Well, I suppose they hand – you know, like, hand down to us now the young – younger people, until go – keep going straight up to the – new generation, young – younger people.
MR BLOWES: Okay. And I think – I think there are, what, four generations now below – people below you, in your family?
PAUL COX: Yes.
MR BLOWES: And do you know whether that way you're talking about getting country, coming down from generation to generation through the families – do you know whether that's just for Nimanbur People or do you know whether Jabirr Jabirr People and Nyul Nyul People have that same way of getting country?
PAUL COX: I think that goes through all the time, I think. Don't make no difference.
MR BLOWES: Okay. And do you know whether that way of – that idea about getting country like that, through – coming down generation to generation – is that just something that started happening in your generation, or do you – did you hear that it was coming from your old people, that same idea?
PAUL COX: Yes, it first started from the old people, yes.
[Emphasis added.]
273 Mr Henry Ah Choo, from the south-east of the Bindunbur claim area, from the south of Nimanbur country, said in evidence-in-chief:
MR BLOWES: … Why can you say you're Nimanbur?
HENRY AH CHOO: Because he's my family, Nimanbur.
MR BLOWES: Yes. Which people do you - I think you mentioned in your statement you go - - -
HENRY AH CHOO: I think grandmother, couple of his old people.
MR BLOWES: Yes. So you go through your father and your father's mother and her - - -
HENRY AH CHOO: And - - -
MR BLOWES: - - - father?
HENRY AH CHOO: Yeah.
MR BLOWES: And is that how you claim to be Nimanbur through those people?
HENRY AH CHOO: Yeah.
MR BLOWES: Is there any other reason why you claim to be Nimanbur?
HENRY AH CHOO: No.
MR BLOWES: Can you get to be Nimanbur any other way or have you got to have something like ancestors like you've got?
HENRY AH CHOO: You got to have the connection with the family and the land.
[Emphasis added.]
274 The evidence of the regionally senior Bardi man, the late Mr P Sampi, was to the same effect as the Bindunbur and Jabirr Jabirr witnesses. For instance, he said in his affidavit sworn 4 October 2015:
88. I have already said how I have got Ngamagun country; it came to me through my father and my grandfather. My children, my grandchildren and my great grandchildren have the same country through me. It works like this for all of Bardi country and I believe for the rest of the Dampier Peninsula too. People get their country from their ancestors. You go by your grandfathers, your father's father, galud, or your mother's father, nyami. You also get your ningarlm country through the mother's side. We recognise that connection as well.
275 Mr P Sampi also explained in the said affidavit that child adoption was accepted as a form of descent under the laws and customs of the Dampier Peninsula:
89. Normally, there's a blood relationship with the ancestors, but sometimes children are grown up from the time that they are small by another mother and father. This can happen for different reasons, like if the real mother or father dies or if they are sick or if they are living somewhere else. When this happens, the children can take country from the mother and father who grew them up. This kind of thing has been happening through my lifetime and it happens in all the Aboriginal communities that I know about […] .
276 Mr P Sampi explained in the said affidavit the similarity of the traditional laws and customs for acquiring interests in land on the Dampier Peninsula thus:
183. During my life, I can't think of much difference between the laws and customs of the Bardi (including Nimanbur), Nyul Nyul and Jabirr Jabirr peoples. For example: we all get country from our old people […] .
277 Mr Damien Balacky Sr, a senior Bardi man and a senior regional Law man, was called by the Goolarabooloo applicants but gave evidence inconsistent with the Goolarabooloo case. In the following exchange in cross-examination he said that descent was the only way of acquiring rights in land:
MR KEELY: Is the – your country is Swan Point to Cape Leveque. How do you get that country?
DAMIEN BALACKY: My grandfather.
MR KEELY: Right. And is that the right way to take country through you?
DAMIEN BALACKY: Yes, that’s my grandfather.
MR KEELY: Through your grandfather?
DAMIEN BALACKY: Yes.
MR KEELY: It gets handed down?
DAMIEN BALACKY: Yes.
MR KEELY: And from after you to Alphonse and so on?
DAMIEN BALACKY: Yes. Well, my sons they’ve got – they carry that same name for their grandfather, and they’re boss of – they own that country.
MR KEELY: Yes. And your grandfather was from that country?
DAMIEN BALACKY: Yes. He’s buried on top of the hill there.
MR KEELY: Is there any other way that you know of to become a traditional owner or a Gumalid?
DAMIEN BALACKY: Your country is there, and that’s it, your country is your country.
MR KEELY: You’re saying though that you get to be – have that country through your grandfather - - -
DAMIEN BALACKY: Yes.
MR KEELY: - - - and to your father and down to you?
DAMIEN BALACKY: Yes.
MR KEELY: Is there any other way of getting country or is it just - - -
DAMIEN BALACKY: No, just where I – where I belong.
MR KEELY: Where you belong?
DAMIEN BALACKY: Yes, and my family, and that’s it.
MR KEELY: You can’t think of any other way to become a traditional owner for country?
DAMIEN BALACKY: No. No.
[Emphasis added]
278 Witnesses from the Goolarabooloo application group each acknowledged that descent was a way of acquiring rights to land. Mr Phillip Roe agreed that the normal way rights were acquired was by descent back to the people who were here before white people.
279 Mr Jason Roe gave the following evidence in cross-examination:
MR BLOWES: Do you understand the – well, how do you – what about in your case, why are you a Yawuru person?
JASON ROE: Through blood.
MR BLOWES: Through blood. And why is a Jabirr Jabirr a Jabirr Jabirr person?
JASON ROE: Through blood.
280 Mr Richard Hunter gave the following evidence in cross-examination:
MR KEELY: - - - people get rights through father, grandfather, sometimes mother or grandmother.
RICHARD HUNTER: Yes.
MR KEELY: That's the standard way that people get their ownership of country, isn't it?
RICHARD HUNTER: Yes.
MR KEELY: And do you accept that the Jabirr Jabirr people and the Ngumbarl people have that link to the country through old people? You can say you don't know if you don't know, but if you do - - -
RICHARD HUNTER: Well, the true thing is yes, they all, everybody, yeah, they would have.
281 The evidence of other members of the Goolarabooloo application group, being Mr Ronald Roe and Mr Terrence Hunter, was to the same effect as was the evidence of Mr Vincent Angus, a Jawi man called by the Goolarabooloo applicants.
282 As described earlier in these reasons for judgment, the most comprehensive description of the way land is and was held by the Jabirr Jabirr and Bindunbur applicants was provided by Dr Weiner. He explained that land along the coastal areas was held by groups in local defined estate areas called bur. In the central area of the mid-Dampier Peninsula, the Pindan, adjoining local estate holders held the right to country in common.
283 In relation to the way in which people acquired rights in such local estates, Dr Weiner concluded from the writings of the early anthropologists, A P Elkin and Phyllis Kaberry in particular, that at sovereignty and subsequently the estates were patrifilially composed, that is to say, people belonged to the estate of their father. Dr Weiner explained and analysed the adaptation of the original rule of patrilineal affiliation in his primary report as follows:
501. With respect to the contemporary form of the bur, I have also referred to it as a “family estate group”. This description could also apply to the earlier form of the bur described by Elkin. Today’s “family estate groups” are not strictly recruited through the male (agnatic) line. However, I adduced evidence that many DP people consider that recruitment to the estate of one’s father is still the normative rule today, even if the actual composition of family estate groups today include people who trace connections through both male and female ties to estate group forebears. As I mentioned earlier …, the social force of a “rule” is not affected by the degree to which the rule is adhered to in practice. I consider that there is significant structural continuity between the bur as Elkin encountered it in the DP in 1927, and the contemporary bur or family estate: they are both based on kin connection to an ancestor associated as a traditional owner of the estate in question ….
284 In his supplementary report, Dr Weiner summarised his conclusion about the way people acquire rights and interests in land in the mid-Dampier Peninsular as follows:
126. … In the Middle Dampier Peninsula, however, as I described in my expert report, there are bounded and stable bur territories to which people acquire rights through their parents (at the time of First Contact, this was normally the father, and in contemporary times, it is the father and/or the mother). The evidence I obtained during my research indicated that in the Middle Dampier Peninsula, one cannot acquire rights to and authority over country by birth, acquisition of spiritual instantiation, long-term residence, or other non-patrifilial or non-cognatic means of attachment.
[Emphasis added.]
285 Mr Bagshaw dealt with the question of descent more briefly because his remit was focused on the laws and customs relating to ritual practice and mythological knowledge. He first dealt with the population distributed among fairly small, localised and predominantly coastal territorial estates known as bur principally determined by the availability of fresh water. He concluded from the ethnographic literature that the ownership of those estates was by exogamous patrifilial aggregates. He also concluded that the rules relating to land holding rights was such a “core socio-cultural featur[e]” that they were likely to have significantly preceded sovereignty. Mr Bagshaw then referred to the literature which he regarded as establishing that the drier hinterland was exploited collectively. Drawing on his own recent work in Bardi country of the same type, Mr Bagshaw concluded that the Pindan was shared country collectively held by all directly abutting estate groups. Then, Mr Bagshaw explained, on the basis of his 2003 research concerning the Beagle Bay area, the adaptation from patrifilial to cognatic rules of descent to country in his primary report as follows:
175. […] Although many (but certainly not all) people in the Beagle Bay region subscribe to an ideology of ‘patrilineal’ descent as the principal determinant of traditional sociocultural identity and associated rights in country, in practice significant numbers of individuals cite diverse matrilateral (traced through mother) and/or patrilateral (traced through father) descent connections as the basis for their own self-identification with a particular language group or ‘people’ (e.g. Jabirr-Jabirr, Nyul-nyul, Nimanbur, etc.) and its traditional territory or parts thereof. Moreover, it is not uncommon for persons to identify themselves, or their close relatives, as members of more than one such group (e.g. as ‘Bardi/Jabirr-Jabirr’, Nyul-nyul/Bardi’, etc.). In some, but certainly not all, cases of this latter kind some individuals also appear to accord socio-political primacy to one particular group or another on what appears to be a predominantly volitional, and at times heuristically determined, basis.
Typically, multiple socio-cultural identifications reflect the various sources (usually paternal and/or maternal, but also frequently grandparental) of an individual’s Aboriginal ancestry.
The nature, origins and seemingly contradictory co-existence of these diverse forms of descent-based identification are, I believe, most appropriately understood in terms of a fundamental, but not yet fully completed, transition from a ‘unilineal’ (which, in this context, specifically means ‘based primarily upon relations of patrifiliation’) mode of reckoning primary socio-cultural identity and associated rights and interests in land to a much broader cognatic mode (see below). As both a consequence and an entailment of this transition, a substantially wider range of descent relations (including, most obviously, matrilateral relations) are now accorded - or at least have the potential to be accorded - socio-political currency than is likely to have been the case in pre-contact times. …
I think it is almost certainly correct to conclude that the groups known for present purposes as the Jabirr-jabirr, Nyul-nyul and Nimanbur ‘peoples’ (i.e. language groups) are presently constituted in practice (if not necessarily in the minds of all of their members) as non-unilineal, cognatically structured (i.e. based on the tracing of relatedness to either paternal or maternal kin) social formations predicated upon demonstrable relations of consanguinity.
Further to this last point, I found in the course of my fieldwork that, irrespective of the types of descent relationships invoked or, indeed, the number of groups with which an individual may actually identify, the overwhelming majority of my informants consistently emphasised consanguineal ties (i.e. biological connections) as the pre-eminent criterion for legitimate - that is to say, publicly accepted - personal identification with any traditional language group and its associated territory. As [the late] Donald McKenzie pithily put it, a person’s “bloodline must run through [the] country”. (A small number of my informants also acknowledged paternal adoption – itself an imputed form of consanguinity - as a legitimate mode of acquiring and transmitting socio-cultural identity). … Additional factors such as marriage, co-residence and place of birth and/or spiritual conception were not in and of themselves generally regarded as sufficient conditions for personal identification of this kind, even though each one of these factors is often (but not invariably) indicative of close consanguineal relationships obtaining between particular individuals.
In short, therefore, it is widely held in this region that, for a person to validly identify with a particular language group and its traditional territorial domain (whether in part or whole), he/ she must be a recognised descendant of at least one individual who is (or was) so identified.
[Footnotes omitted. Emphasis added.]
286 As to the significance of the change to cognatic descent Mr Bagshaw expressed the view in his primary report:
200. […] that the historically conditioned changes evident in local kin-based identifications with country are fundamentally grounded in pre-sovereignty laws and customs. It is in this sense that such identifications may be reasonably construed as continuous with (likely) pre-sovereignty articulations of territorial relatedness.
287 In his supplementary report Mr Bagshaw said of the proposed alternative methods of acquiring rights in land:
18. […] as much of the Bindunbur claimants’ evidence indicates, and my own research largely confirms, factors like extended residence, knowledge of Law and country, birth and rayi association are not recognised in the northern and central Dampier Peninsula as being sufficient in and of themselves to establish or create ownership rights – by which I mean unmediated, unconditional and heritable possessory rights – in country.
[Footnotes omitted. Emphasis added.]
288 Dr White also drew on Elkin’s work to demonstrate that the rule at sovereignty was that local estates were held by horde groups which were exogamous and patrilineal. Dr White found from discussions with Jabirr Jabirr people that bur estates were still recognised, many corresponding to historical estates. Dr White then explained the contemporary principle of descent in her primary report as follows:
143. Contemporary membership of Jabirr Jabirr society is understood to be determined by cognatic descent. People base their Jabirr Jabirr identity on the identity of their forebears, often stating their lineage to clarify/ emphasize their connection, and locate themselves and their family to a specific area of Jabirr Jabirr country. For example:
My mum's mum is Ngumbal, and her mum is Ngumbal. Annie Murjal (Rita's MM) was from Warrarr (Barred Creek) - Ngumbal Country. …My grandfather come from north Jabirr Jabirr, and married into Ngumbal, my grandmother. … I'm Ngumbal Jabirr Jabirr. (RitaAugustine, pers. comm., Nov 2014)
144. The practice is for people to identify according to their 'bloodline'. People generally speak of 'following' their father and/or grandfather, mother and/or grandmother, and consider it a personal choice to be made. All bloodlines traced back to the grandparental generation are today considered potential identity choices, with people explaining that although they may choose one main identity, they still have rights in country associated with all their grandparents:
(a) I don't say to them you've got to follow this and that. … The choice is yours who you want to support or follow … I give them the choice of their own that they need to do. (Kathleen explains that her children's choice is Nyigina, Gija, Nimanburu, and Jabirr Jabirr)
Dr White then gave further examples.
289 Then, in concluding that there has been continuity in the existence of the rules concerning descent, Dr White explained in her primary report:
200. While this structure has been influenced by in-migration over time, continuity of laws and customs can be said to have occurred within the context of change. For example, there is evidence of the descent of rights to country changing over time from patrilineal to cognatic descent. This accords with a descent-based system employing innate flexibility to deal with the changing socio-cultural conditions enforced during the disruptive colonization process.
[References omitted.]
290 In her supplementary report Dr White said:
21. […] descent (reckoned biologically and by child adoption) was most likely the only necessary and sufficient condition for acquisition of rights in the claim area. Accordingly, spiritual connection (reckoned through rayi or place of birth) was most probably never a sufficient condition for the possession of rights in country (as opposed to its resulting in a connection to a specific location) within the claim area.
[Emphasis added.]
291 Professor Sutton also considered in his primary report that “people’s strongest and least challengeable rights and interests would have been those held over their clan estates, to which they were assigned through patrifiliation at birth if not before”. Professor Sutton regarded the Pindan estates as very large and at sovereignty subject to sustained but seasonal inhabitation. As to the continuity of the laws and customs relating to the acquisition of rights and interests Professor Sutton said in his primary report:
63. […] descent, from pre-sovereignty to now, has remained the cornerstone of recruitment to the groups holding rights and interests in country in the Hearing Area other than in the case of the Goolarabooloo applicants. The basis for this is that there has been a shift from a patrifilial system of descent for country-related purposes to a cognatic one, but the descent principle continues to reign and is referred to, as in so much of Australia, as the ‘bloodline’. To this shift must be added a new factor of optation. That is, it is clear from more than one of the expert reports that applicants may choose between emphasising one predecessor more than another, or several at once, in the derivation of their country group identities.
[Emphasis added. References omitted.]
1.9 Do the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors?
292 The Bindunbur and Jabirr Jabirr applicants claimed that the traditional laws and customs prescribed that rights and interests in land could only be acquired by descent where the descent was back to time immemorial. On that basis the Goolarabooloo applicants did not acquire rights in the land of the Goolarabooloo application area because they could not trace their ancestry back to people from the area beyond Mr P Roe.
293 The Goolarabooloo applicants contended that shallow genealogical descent was sufficient. Thus, descent from grandparents such as Mr P Roe entitled the Goolarabooloo applicants to rights in land. The question therefore arises whether traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors.
294 The Goolarabooloo applicants relied upon the opinion of Professor Cane to support their argument. Professor Cane accepted that under the traditional laws and customs of the society to which the Goolarabooloo and the Bindunbur and Jabirr Jabirr applicants belong descent is central to the entitlement to rights in land. He said in his primary report:
308. The role of descent is well recognised in the acquisition and recognition of rights and interests in land. The ideology and customary bias of the foundational elements of the tenurial system are typically patrilineal – as Bates described for Billingee’s country in relation to the ‘Koolarrabulloo’ (and recorded across both the Peninsula and the continent). Elkin provides examples of what he thought was the classical system on the Dampier Peninsula and Sansom describes an historic drift to cognation in more recent times.
[Footnotes omitted.]
295 Professor Cane referred to expert opinion and to the views of Goolarabooloo applicants, in particular, Mr Richard Hunter and Mr Phillip Roe, to the effect that descent was recognised as a method of acquiring rights and interests in land. Professor Cane then argued that the requirement for descent is based on a shallow generational memory. People remember back to their grandparents and perhaps their great-grandparents. It is that memory that defines the line of descent. It also defines the limit of the necessary descent.
296 Professor Cane expressed the view that this aspect of the normative system was a response to the climatic conditions of the area which in turn governed the availability of and access to food and resources. Professor Cane outlined the climatic conditions and their impact on land holding patterns in his primary report as follows:
298. The Dampier Peninsula is notably more fertile than the desert (suggesting greater territorial demarcation) but less fertile and watered than Arnhem Land (suggesting less demarcation). One might therefore expect a territorial system more like that of the Yolgnu and less like that of the desert – except for a number of important bio-geographic considerations.
• The Dampier Peninsula sits against one of the highest cyclone risk areas in Australia. The north west of Australia area averages five cyclones per year and suggests that over the last 3500 years (that being the period across which social traditions similar to those at sovereignty might have existed) the larger area may have been exposed to over 17,000 cyclones. At Broome there have been 22 cyclones with gale force winds over the last 100 years. One hundred and forty people were killed in a cyclone in 1887. A cyclone in 1910 caused severe damage and killed 40 people with winds over 175km/hr. Another 141 lives were lost in a cyclone north of Broome in 1935. Both cyclones passed through the claim area. A cyclone with winds up to 250 km/hr devastated Thangoo Station in 2000. Cyclones have travelled through or adjacent to the claim area in 1910, 1926, 1935, 1940 and 1957.
• The Dampier Peninsula is, like other savannah, hot and thickly vegetated and thus a high fire risk area. This risk may have been better managed in the past through mosaic burning, but it nonetheless existed after every wet season when the Pindan, coastal scrub and vine thickets regrow vigorously, the biomass increases and fuel load is substantial. Seasonal (dry season) burning contains and reduces the risk of dangerous wildfires, but early season wildfires from lightning strike must have presented an annual risk. The loss of productive habitat through hot wildfires is substantial, dangerous and destructive – as I observed during fieldwork on the coast for this project. On this occasion the fire spread with great speed and velocity and devastated Pindan and monsoonal vine thickets over an area of 1300 km2 (cover photo, figure 10) – quite a few horde-countries in the past. While these will regrow, there is little food to eat in the meantime. In the past, foraging would have been lean until the environment recovered.
• The very seasonality of the living environment presents a hurdle to consolidated settlement. Here the pattern of wet season rains and dry season drought is likely to have necessitated a settlement pattern of expansion and contraction – expansion with fresh rain and associated flooding, and contraction to reliable soaks along the coast as floods retreated and inland swamps dried. The predictable pattern of wet and dry seasons must have necessitated a human response of pulsating nomadism. That rhythm must have in turn driven a degree of territorial flexibility and social accommodation – in the form of numiitaman (end of section 3) for example – as well as more formal sociogeographic arrangements.
• Within that predictable cycle is the unpredictable occurrence of extreme flooding and extreme drought, again reinforcing the need for a flexible system of territorial organisation and concomitant rights and interests across broader lands to ensure social survival.
299. The extreme environmental circumstances across the Dampier Peninsula is thus likely to have engendered a proportional human response and the system adapted to accommodate:
• the normal environmental pattern of flood and drought
• periods of extreme drought and flood
• the probable risk of unpredictable significant habitat destruction through cyclone and fire.
[Footnotes omitted.]
297 Professor Cane explained why shallow generational memory of ancestors was a sufficient basis for acquiring rights and interests in land in his primary report as follows:
316. The territorial utility of descent thus has a limitation configured by the shallow generational memory that underpins it. Sansom notes this as a feature of Aboriginal tradition across much of Australia – the ancestral record only extends back to ‘two or three generations of named forebears.’ Sullivan asserts the tradition forcefully in relation to the Dampier Peninsula saying the line of descent was ‘shallow indeed’. Sullivan sees this tradition as a negation of the likely existence of clans – as it reveals, contra Sansom, that there is no ancestral memory to sustain them. Shallow generational reckoning is, in my experience, a notable factor of Western Desert territorial organisation and seems to be an overriding feature of Peninsula tradition as well.
317. My own thinking about shallow generational memory comes from a desert perspective, but has bearing on the Dampier society and the Goolarabooloo claim. My understanding of the customary principles is that they evolved in and had to be responsive to an environment subject to significant climatic variation. Social and territorial organisation in the Western Desert had to both accommodate and anticipate change in diverse and unpredictable temporal and geographic contexts. A more formal regime of patrilineal descent based on deep ancestral memory was too rigid to achieve the flexibility necessary for long-term survival in that marginal, changeable environment and was effectively sidelined by other, multiple, forms of individual connection giving rise to rights and interests in land.
318. As mentioned above (section 6.2) patrilineal descent works in fertile places, where a tract of land can be delineated with some security over time and passed from generation to generation. But the system is something of a poisoned chalice in places where large areas of land might remain virtually uninhabitable for extended periods if rains failed or (in the case of the claim area) a cyclone brought devastation and death. The viability of life under a system of patrilineal descent decreases as the marginality and unpredictability of the living environment increases. The Dampier Peninsula is a far more amenable environment than the Western Desert (as already stated) – but shares many cultural traits with it, lies adjacent to it and is exposed to comparable, although different, significant and unpredictable environmental extremes.
319. In the Western Desert the territorial aim is resource security rather than territorial security even though the achievement of the latter goes a long way to securing the former. The qualifying difference is that territorial security is achieved not through the fortification of descent but through its elaboration – descent in the context of multiple pathways of connection. The evidence suggests the tradition is similar on the Dampier Peninsula and certainly appears to be so in the claim area. There is an alienable tendency in the inheritance of rights born from descent as a consequence of shallow generational memory and other complicating and competing territorial traditions (birth, conception, knowledge of country, religion and religious geography [sections 6.4 to 6.7]). In my view, descent is thus unlikely to be as pre-eminent, durable or uncontroversial in the tradition as early anthropological inquiry and contemporary claim-making might imply: hordes and horde countries do not exist as such, there is an altogether more complicated arrangement accompanying descent in the assertion, definition and recognition of rights in land.
320. In awareness of this ancestral possibility it is probably true that no native titleholders on the Dampier Peninsula have demonstrable generational connection to determinate ‘ancestral’ tracts of land beyond the proximal beginning of last century. Generational memory does not go back so far and territorial connection was, in any case, disrupted and dislocated by foreign settlement. In a sense, oral and written history is incomplete and fractured in a manner that means named ancestral associations, contemporary identities and contemporary territorial links with the pre-sovereign ‘ancestral’ country are hard to verify.
[Emphasis added.]
298 Professor Cane later said in his primary report:
325. What is the reason for an ancestral territorial tradition of imputation? Why was the relationship between assumed ancestries and associated country never questioned? Perhaps there was no need: population densities were such that competition for land and resources was negligible and managed successfully through the system of biological and classificatory kinship. Perhaps the ancestral relationships were configured in a manner that allowed their management in broader socio-centric terms and thus there was no real need for substantiation. Or perhaps there was constant conflict, disputation and negotiation between groups over kin-related claims on country all the time – a feature and flaw of the system. Perhaps the shallowness was intentional – to allow, in conjunction with other pathways of connection, for multiple interests to be expressed and recognised in multiple countries as a mechanism to ensure the unity and survival of society. Maximised opportunity for resource use and social contact is surely the best way to ensure social survival in a small and unpredictable environment like the Dampier Peninsula.
326. It is my belief that the importance of social relationships came before territorial ones: social relatedness effectively confirmed access to the resources of the known social area, well beyond ‘own country’. It has always struck me in this regard that Aboriginal people in the Western Desert have an extraordinarily good grasp of social relationships and an extraordinarily poor grasp of ancestral ones. Knowledgeable people in the desert can name and associate every individual in their social environment over a vast area and so place up to 1500 people in a clear, ordered and concise lateral temporal sociogeographic relationship over some 100,000 km2 – yet those same people often cannot remember the names of their great grandparents. The reasons are cultural and the purpose implicitly obvious. Social security lay in the lattice of contemporary social relationships (ramified through classificatory kinship) and not in the amount of time any given family had been attached to any given place. The European tradition of fortified proprietorial rights of great ancestral pedigree had little use in the desert of Australia where fortified property was ultimately a death sentence because that system ran the risk of locking people in country that could remain uninhabitable for extended periods of time. Instead kinship and religious authority created a passport and visa to other country and resource opportunity. Ancestral memory was, in effect, replaced by social memory and the value of ancestral connection to country (singular) was traded for social connection to countries (plural) – the ultimate value of ancestral memory being in proportion to the limited intellectual investment in its retention.
327. That said, I believe there is a notable implication to the traditional insubstantiality of traditional temporal generational memory. The implication is that the tradition contemplates evolutionary human geographic change through the implicit expectation that no family will be known to hold country for more than three or four generations – that timeframe being the approximate life of an older man or woman (if new generations appeared every 15 years) or old man or woman (if new generations appeared every 25 years). This is not to say that there was social and territorial change over such periods, but rather to recognise that the system has an inbuilt capacity to facilitate the possibility. Traditional laws and customs accommodated and legitimised proprietorial changeover in the lifetime of the oldest living family member while shallow generation memory implicitly prefigured and facilitated a tradition of succession.
[Emphasis added.]
299 Professor Cane explained in the course of concurrent evidence the way in which the rules about descent operated in favour of the Goolarabooloo applicants. In this explanation he emphasised the effect of social rupture as a reason that shallow generational memory governed the rules about descent and only required a link back to remembered ancestors. He said:
PROF CANE: Population dislocation and death and the removal of children, I mean a scale of emotional and social trauma I can't comprehend. Now, it's in that context that this story starts. Now, the community as I understand it at the time took steps that they did. The old man came into the story and from that moment on, the triggers that affected the current Goolarabooloo claimants were consistent with traditional law and custom as articulated through the region, and they included rai and birth and country, their occupation, their acquisition of religious knowledge, their ability - and I think it's a mark of ownership to control and make decisions about country, and that's configured into an argument of descent because we are now looking at and heard evidence from people like Terrance [sic] Hunter Jnr. They're the fourth generation descendants from Paddy Roe so I don't think it's - it's difficult for me to understand how we can have a sort of a general ideology of descent and you used the term "patrifilial descent" which is actually descent from just a parent even though we've got four generations of descendants who have been using and occupying that country, making decisions about it, not to the exclusion of anybody else with similar rights but in the context of traditional laws and customs that give rise to rights in country as defined in - in Rubibi and - and numerous expert opinions.
I know that I get criticised for drawing the Western Desert into this. I don't think that's a reasonable accusation. It certainly influences my opinions because the Desert sits right next door. The southern tradition is a Desert tradition. The section system which is used here is also in the Desert system. So much of the religious and social basis of relationships are common to the Desert experience, and I can draw on that.
So I make that comment but in terms of the laws and customs which – which are being activated by the Goolarabooloo claimants, I think are consistent with the laws and customs demonstrated and - and activated by all the other claimants as well. The key component is the rupture, the factor of rupture, and this wouldn't be happening if whatever happened in history had not happened. It did happen.
Paddy Roe did come here and - and - and his descendants continue to occupy and use that coast and look after it. Those are the models and needs to be qualified accordingly.
[Emphasis added.]
300 Mr Bagshaw, also in concurrent evidence, identified the way in which the Goolarabooloo applicants appeared to rely on the rules relating to descent. He gave evidence as follows:
MR BLOWES: Yes. Whether the Goolarabooloo claim as you understand it, namely with the emphasis on rai, law people, historical connection, historical activities on country and so on, and including the known relationship with the man who came here in the 1930s, whether you regard what the laws and customs that they're claiming under are fundamental - represent a fundamentally non-descent based system?
MR BAGSHAW: I do, although I note that there's some discussion in Dr Cane's report of the conversion of these, for want of a better word, adventitious contingent sort of rights into a descent framework in subsequent generations, so it seems to me that from the initial point there were these assertions of rai connection, the law, that sort of thing, but with - Mrs Roe has attributed a rai connection. That seems to have been converted into a descent framework.
So it seems to me that what's occurring today is not exclusively in terms of those non-descent factors. In fact, there's been a conversion from those into descent based considerations.
[Emphasis added.]
301 Professor Sutton also located the difference between the Bindunbur and Jabirr Jabirr applicants, on the one hand, and the Goolarabooloo applicants, on the other hand, in respect of the laws and customs relating to descent when he gave the following answer in concurrent evidence:
MR BLOWES: Now, is it your view that the stated basis for claim by the Goolarabooloo people today, which includes connection through rai, connection through law business, connection through long association and active participation on the country and so on, is it your understanding that all those bases of claim are fundamentally not descent based?
PROF SUTTON: Descent certainly plays a part in the people's identity.
MR BLOWES: Descend [sic] from the old man?
PROF SUTTON: Yes. But it's - it's a remembered historical ancestral connection but it's not in ideological terms or in philosophy a perpetual descent from the beginning of time, and that's the - that's a - that is a serious structural difference between this set of - that set of claimants and the other set of claimants.
[Emphasis added.]
302 The next area of disagreement between the Bindunbur and Jabirr Jabirr applicants on the one hand, and the Goolarabooloo applicants on the other, concerns the scope of the traditional laws and customs concerning succession as a basis for acquiring rights and interests in land. That issue is dealt with in the following section of these reasons for judgment.
1.10 What are the traditional laws and customs concerning succession to land in the application areas?
303 The focus in this section of these reasons for judgment is on the scope of the traditional laws and customs relating to succession. In the next section the traditional laws and customs relating to custodianship will be considered. This division is made for convenience albeit that on the Goolarabooloo case, custodianship is a step on the path to succession.
1.10.2 The Bindunbur and Jabirr Jabirr pleaded case
304 The Bindunbur and Jabirr Jabirr applicants filed contentions in identical terms that under their laws or customs rights and interests in relation to land and waters are possessed:
…at the local level – in the local area of a formerly neighbouring or closely related nearby local group – through succession, when a local group becomes extinct[.]
305 The Bindunbur and Jabirr Jabirr applicants contended that the Goolarabooloo applicants did not acquire rights and interests in land by succession because they were not a neighbouring or closely related local group, and the Jabirr Jabirr were not extinct when Mr P Roe came to the Goolarabooloo application area in about 1930.
306 The pleaded case of the Goolarabooloo applicants is that Mr P Roe “acquired native title rights and interests in the Goolarabooloo application area from Jabirr Jabirr and Ngumbarl people through a process of succession commencing in the 1930s when those persons became so reduced in numbers that they were no longer able to independently hold the mythical or ritual knowledge of the area or maintain responsibility for the places, areas and things of mythological or ritual significance in the area”.
307 Some further elaboration of the Goolarabooloo applicants’ case on succession is found in [8C] of their reply to the Bindunbur applicants’ Statement of Issues, Facts and Contentions which stated that succession:
(i) is more likely to occur in anticipation of the extinction of a local group(s), which extinction may not in fact eventuate, where the viability of the local group(s) is threatened due to factors such as low residential population, lack of appropriately qualified male heirs, or decimation of the local group(s) by disease, famine, conflict or extreme environmental events;
(ii) is driven by a concern on the part of the local group(s) for the maintenance of the integrity of the law and those places, areas and things of mythological or ritual significance in the area of land and waters which is succeeded to; and
(iii) may commence with, or be preceded by, a period of stewardship or custodianship of the area of land and waters by an individual or individuals during which time the person exercises rights and responsibilities in relation to the law and those places, areas and things of mythological or ritual significance in the area of land and waters which is succeeded to.
308 In their written submissions, the Goolarabooloo applicants explained the concept of succession on which they rely by reference to certain extracts from Professor Cane’s reports, such as the following from his supplementary report:
92. Succession has a number of common characteristics. It is normally driven by a concern for ceremonial law and regional mythology with an initial recognition of custodians for that purpose. The purpose of the succession is to maintain the religious integrity of the 'law' that determines the law and custom of the society living on the land. Succession is thus about 'looking after' the law in country rather than country as such.
309 As to this aspect, counsel for the Goolarabooloo applicants, in final submissions, said:
And we say that’s the essential element, and that thus the – that the succession that the fourth applicant has described via PR and through his story and in fact is a process for ensuring that the law in the country is maintained by then being brought into the country legitimately and performing that role. They’ve now done it across three to four generations, and therefore what follows from that is we say that succession has happened.
310 Professor Cane further explained in his supplementary report:
93. … The process commences with stewardship, this custodial role often having a greater prominence and resulting in forceful rights in country or, depending on the context and chronology of the process, something less than rights of 'ownership'. It is also clear that the process of succession is a long one, involving ongoing dispute until completed.
311 In their written submissions, the Goolarabooloo applicants list the ways in which Mr P Roe looked after the country and the law as follows:
13.1 …
(a) The physical protection of the country from Broome to Bindingankun and beyond, by:
(i) being present often on country and using the country;
(ii) reburying skeletal remains;
(iii) protecting law grounds and objects and natural features related to the Law;
(iv) preventing people damaging the country;
(v) others (eg cleaning waterholes);
(b) Being the senior law man responsible for the Song Cycle for the region which includes the claim area;
(c) Teaching his children, grandchildren and great grandchildren about the country, the natural resources, the law and custom of the region and about his (and their) role in protecting it;
(d) Teaching them how to protect the country;
(e) Teaching non-Aboriginal people and community leaders about the significance of the Law and the Aboriginal culture of the country;
(f) Establishing and obtaining support for the Lurujarri Heritage Trail;
(g) Negotiating with government and persons with an interest in the land to preserve sites, areas, features and objects of religious significance;
(h) Teaching his family members and other local Aboriginal people about the Law and assisting them to become part of the Law and to shoulder the traditional responsibilities for the country;
(i) Encouraging young local Aboriginal people to take an interest in protecting the country;
(j) Opposing developments which affected the country and the culture;
(k) Forming strong and supportive relationships with other senior local Aboriginal people; and
(l) Arranging for family members who were steeped in the Law to assume his responsibilities.
312 An important observation in Professor Cane’s primary report further explains the way in which the Goolarabooloo applicants put their case as follows:
345. As I read the evidence, the descendants of Paddy Roe are thus the beneficiaries of an original succession born out of the exigencies of historic settlement. While Paddy was the initial successor and became the recognised custodian, his descendants are now ‘owners’ in the full sense of the word: or more accurately, traditional right holders who are recognised in the absence of original occupants and against as well as in conjunction with others who have both different and differently ranked rights in the country under claim. The basis for this assertion rests on the traditional instigation of historic succession and is set by a matrix of other traditional mechanisms for asserting rights in country described below.
The reference to other traditional mechanisms appears intended to include birth on country, rayi and ritual knowledge.
1.10.4 Bindunbur and Jabirr Jabirr evidence
313 The Bindunbur and Jabirr Jabirr Aboriginal witnesses saw succession by one group to the country of another as giving away country. They said that land cannot be given away. The Bindunbur and Jabirr Jabirr witnesses had never heard of instances of their land being given away. They had not heard of local groups dying out in the area, but said that if that had happened other related local people would step in.
314 Ms Rita Augustine gave the following evidence-in-chief:
MR KEELY: In your lifetime have you ever heard of all the people for an area dying out through sickness or something like that, all finished?
RITA AUGUSTINE: I never heard of any – no-one left. There’s always someone there.
MR KEELY: Always someone there?
RITA AUGUSTINE: Yes.
MR KEELY: If it did happen in your culture, how would that be dealt with? If there were nobody left for an area, would it just be empty forever or would something happen?
RITA AUGUSTINE: Well, if there were no Nyombal people left, then the next would be the Jabirr Jabirr to look after that country.
MR KEELY: And why would the Jabirr Jabirr people be next in line?
RITA AUGUSTINE: Because they’re related.
[Emphasis added.]
315 And she also explained, again in examination-in-chief:
MR KEELY: In your culture can country be given away?
RITA AUGUSTINE: Why? Why would we give away country? I wouldn’t give away my country.
MR KEELY: Have you ever heard of anyone giving country away?
RITA AUGUSTINE: I’ve never heard.
[Emphasis added.]
316 Ms Cissy Djiagween in her affidavit affirmed 29 September 2015, said:
19. There have always been families for the area between Willie Creek and Minarin. My family has connection to the country around Minarin through our ancestors Bornal and Lija. We have never given any of our country away to someone else and we would never do this. I have never heard of any other Jabirr Jabirr people giving away their traditional country. That would not be right; you can't do that.
20. If you are living on someone else's country or even just using it, the right thing to do is to make sure with the people whose country it is that it's ok. They might well say: "Yes, that's fine".
[Emphasis added.]
317 Asked whether, if a local group died out, neighbours would take over, Mr Henry Augustine Jnr said in cross-examination:
HENRY AUGUSTINE JNR: That neighbour would be family. I’d take that as family north or south or east, but they don’t own the country.
MR COLLETT: So, are you saying that if a group died out, someone would take over the land, but you say it would be family?
HENRY AUGUSTINE JNR: I find it hard that a group would die out because nobody died out. Descendants still walk this country.
318 Speaking of the Jabirr Jabirr, Mr Henry Augustine Jnr said in cross-examination:
HENRY AUGUSTINE: They didn't die out. No, they – they never died out. No – no – no one – no one died out from that country. They – they might've – the older people, of course, being old and nearing old age, I think – and there is families that were removed from there, living all over, who are – and at that time, as well. You had Uncle Gajai, Uncle Billy, Mimi Cissy, Uncle Joe Bernard. All those people was walking, talking, living, breathing at that time as well, and didn't die out.
[Emphasis added.]
319 Ms Mary Tarran said in examination-in-chief:
MR KEELY: Do you say under law and custom it’s possible or not possible for old people to give away country?
MARY TARRAN: It’s not possible, definitely not possible for people – old people to give away country.
MR KEELY: Have you heard of that happening anywhere?
MARY TARRAN: No, not till now.
320 The written submissions of the Bindunbur applicants contain further references to evidence of other Jabirr Jabirr witnesses, Mr Anthony Watson, Ms Betty Dixon, Mr Walter Koster, Mr Alphonse Balacky and Ms Pat Torres, to the same effect.
321 The Nyul Nyul witnesses also gave evidence to the same effect. For instance, Ms Margaret Smith said in examination in chief:
MR KEELY: What do you say about this idea. Have you ever come across it in your lifetime of people, Aboriginal people who are working within their culture giving away country? Is that something that you can do?
MARGARET SMITH: I've never heard of it. You don't give your country away to anybody.
MR KEELY: Why not?
MARGARET SMITH: Well, thats belongs to you - your grandfather. It is handed down to you, and we don't give it away to anyone.
322 In his supplementary affidavit affirmed 11 April 2016, Mr Gerard Sebastian said:
5. The way my mother and elders taught me, in our culture we carry country from the past to our children. We carry it on to the next generation. It’s not possible to give country away because it belongs to our children and grandchildren; it just can’t be done.
323 Again, the Bindunbur applicants’ written submissions contain many further references to evidence of Nyul Nyul witnesses, namely, Mr Alex Dann, Mr Otto Dann, Mr Lee Bevan, Mr Stephen Victor and Ms Cissy Churnside, to the same effect.
324 Nimanbur witnesses expressed the same views. For instance, in his affidavit affirmed 9 April 2016, Mr Damien Manado said:
78. I have never heard of a situation where a whole group of people from an area died out so there was no one left with connection to the country. There will always be someone who has a connection to an area through an ancestor. If all the people who had connection to the area through the father line dies out, as long as there was a person who had connection through the mother's side, it would still be their country and they could still make decisions about it and look after it. It wouldn't mean that someone without a connection to the country could take over or become traditional owners. That would be stealing.
325 Nyul Nyul and Nimanbur woman Ms Cissy Churnside gave evidence in cross-examination as follows:
MR COLLETT: Just thinking about that. In that situation where everyone had passed away, and the other relatives were, for example, still living in the mission, how could that place be looked after?
CISSY CHURNSIDE: Well, I think it would be that - the closer the person is to all those people that have passed on, I think they would have - they would be - they would have the right to look after that until someone else from other places coming to look after it because they are kin to that - those people who passed on.
MR COLLETT: And when you're talking about the "closer the person" are to those who passed on, you're talking about people who are kin or people who are neighbours?
CISSY CHURNSIDE: People who are kin.
326 Ms Majella Manado said in cross-examination:
MR COLLETT: Can I suggest that, if there was no one to look after country, to do the right thing by the law, it would be important to get someone in as a caretaker - - -
MAJELLA MANADO: No.
MR COLLETT: - - - to – to look after that country.
MAJELLA MANADO: No.
MR COLLETT: And does that mean – so what would happen in those circumstances?
MAJELLA MANADO: In them circumstances, would – what would happen was we'd probably wait for family member who decide to – if they are bush people and like to live in – how I live out there now, in – in present day, same with the old days, we'd wait for our family member to – within the Nimanbur clan to go back.
MR COLLETT: If – if, in that situation, all of your people had left the country, there was no family you could get, if someone from your group decided that they wanted to look after the – want to have the country looked after by getting someone they trusted in to look after it - - -
MAJELLA MANADO: It would be in the family structure between Manado and Cox’s.
MR COLLETT: So it would be okay to do that.
MAJELLA MANADO: Yes.
327 The Bindunbur applicants’ written submissions contain further references to evidence of Nimanbur witnesses, namely, Mr Damien Manado, Mr Henry Ah Choo, Mr Paul Cox, Mr Ninjana Walsham and Mr Laurie Cox, to the same effect.
328 Mr P Sampi, a Bardi man and regional Law boss, said in his affidavit sworn 4 October 2015:
90. In my culture, I can't just make another person a gamelid or traditional owner of Ngamagun. I can't just say to someone: "I'm getting old now. I'll make you a traditional owner of my country." You've got to go according to traditional law. You've got to go according to the ancestors. I've never heard of anyone trying to make another person a traditional owner like this and I don't believe that it would be right.
329 The Goolarabooloo Aboriginal witnesses also gave evidence about the inalienability of land.
330 In cross-examination Mr Jason Roe gave the following evidence:
MR BLOWES: Okay. Alright. Just starting with your ideas as a Goolarabooloo person, and what you’ve learnt from your Goolarabooloo families as you were growing up, would Goolarabooloo people be able to give away any of their country, in your understanding of the Goolarabooloo - - -
JASON ROE: No.
331 In cross-examination Mr Phillip Roe gave the following evidence:
MR KEELY: Perhaps I can ask you this. You're a senior Goolarabooloo man. Is it open to you to give part of your country away?
PHILLIP ROE: No.
MR KEELY: And is that no full stop? In other words, it couldn't happen in any circumstances?
PHILLIP ROE: It's not to give away; it's there to protect and to look after. You – have your law and culture and things to protect. You don't just go in and say, "Hang on. Hey, give us a couple of thousand and we'll – you can build". It doesn't work that way.
332 Ms Teresa Roe agreed in cross-examination that the Goolarabooloo cannot give away their country.
333 In the conference of experts all of the experts agreed that land was inalienable and could not be treated as a chattel to be given away.
334 Professor Sutton said in concurrent evidence:
PROF SUTTON: … one part of a group can’t take it on their own to alienate the group’s collective interest - - -
MR BLOWES: Sure.
PROF SUTTON: - - - on behalf of their own decisions.
PROF SUTTON: And, in fact, there’s this deep organic relationship between the fact that you can’t have private ownership and the fact that it’s inalienable, and the fact that it’s inherited through a recognised principle of descent as the first point of entry in those systems that I would call typical coastal land ownership systems.
335 Professor Cane agreed in concurrent evidence with the view of Mr Phillip Roe that country could not be given away.
336 Mr Bagshaw explained in his primary report:
192. Disputes over land also serve to highlight a further – and, to my mind, perhaps the most fundamentally normative – aspect of local laws and customs pertaining to lands and waters – namely, that none of those laws and customs contemplate the commodification or alienability of country. At that level (i.e. the level of local laws and customs), land remains something that cannot be bought, sold or traded away. As both the locus of bugarrgarr / ngarrangani activity and a key element in the construction and articulation of personal, familial and socio-cultural identities, country is, as I understand it, emically construed as an enduring, immutable, and non-transferable entity.
[Footnotes omitted.]
337 As to succession, Professor Sutton said in his primary report:
22. People would also have had inchoate successional rights to estates that were not their own by patrifiliation in the event that the relevant totemic patrifilial group were to die out. I am not sure that evidence on this for the Dampier Peninsula has specifically been put forward but given its close resemblance to other regions in terms of the basic classical land tenure structure (patrifiliation to estate holding totemic descent groups being the typical entry-point) it is not merely speculative to consider it most probable that arrangements were long in place for succession to unpeopled estates to occur in a more or less norm-governed way. I cannot say, however, that I have seen an account of the norms of succession laid out for this region.
338 In her primary report Dr White expressed the view that the Jabirr Jabirr lands would only have been transferred if the Jabirr Jabirr had become extinct. She said that in fact they have continued to exist and the Jabirr Jabirr have had a continuing association with their land.
1.11 Do traditional laws and customs allow for rights and interests in land to be acquired through custodianship?
1.11.1 Bindunbur and Jabirr Jabirr evidence
339 The Bindunbur and Jabirr Jabirr Aboriginal witnesses gave evidence about custodianship. The recurring theme was that custodianship did not confer rights or interests in land.
340 Jabirr Jabirr man Mr James Kelly gave evidence in cross-examination as follows:
JAMES KELLY: He [Mr P Roe] was – he was really strong in law. He was – and really strong in minding sacred sites.
MR COLLETT: Okay.
JAMES KELLY: That was his job, just to mind all the places where people can't go. That was – that's his – that was his role.
…
What he said was he was meant to look after the land, or place, the sacred sites for the people of the land. But he never said he owned it.
…
… because he was – at the time, he was the only one, you know, here at the time, you know? But little did he know – because they were – my mum also, at the Waterbank Station, my mothers. And the thing that he said on that record is – maybe he forgot there was Nyumbarl people at Waterbank Station at the time, you know, but, you know, yes, just – he was just looking after the country I think, that place.
…
what he said, I remember, when I was 15 years of age. He said he only was looking after country; he said he didn't own the country. He was looking after certain places not to get damaged, you know? But he didn't say himself that he owned that country. He was respectable man and he knew the truth, you know, that bloodline only on the country…
…
When you own something and you've got a – a generation – comes down a generation that you have – I don't know what you call it. And it comes down… comes down to the family, generation after – they hand the baton over, "Okay, it's your turn to take", you know? … what I meant by that – because another tribe can't jump in. Because you know why? They – they breaking Aboriginal law. A blood can never mix another blood. You breaking Aboriginal law there. It's – wouldn't – because the songline was always, you know, one way, one way, you know?
[Emphasis added.]
341 As to the Goolarabooloo applicants’ claim, Mr James Kelly gave evidence-in-chief that:
… they – they want to – they been – doing a good job looking after places, you know, that are sacred places and, you know? … But when it comes to blood line, to country, you know, you got to – you should know, yourself, probably, and you got to trace back where you come from. You got to follow your jinurr - jinum and your foot where – wherever it walk, you know, wherever it come from.
342 Nimanbur, Ngumbarl and Jabirr Jabirr man Mr Ninjana Walshman gave evidence in cross-examination as follows:
MS TAGGART: So in that example you were just talking about, when you said if there were no more Nimanbur people, were you meaning there are no more Nimanbur elders?
NINJANA WALSHAM: Elders, yeah.
MS TAGGART: And so - - -
NINJANA WALSHAM: Like normal elders with the - with the rights to talk for that country.
MS TAGGART: And so the proper thing if that happens, so if those elders finished up - - -
NINJANA WALSHAM: Yeah.
MS TAGGART: - - - passed away or if they weren't there - - -
NINJANA WALSHAM: You go to the next elder in the next door neighbour.
MS TAGGART: And then once the Nimanbur young people that you were talking about, once they come up to a certain - - -
NINJANA WALSHAM: Yeah, when they get older, get - get that knowledge, you know, passed down to them - - -
MS TAGGART: Yes.
NINJANA WALSHAM: - - - they learn that responsibility - - -
MS TAGGART: Yes.
NINJANA WALSHAM: - - - the customs, you know, tradition, the culture, then they can probably try handling that responsibility.
MS TAGGART: They can take it back over?
NINJANA WALSHAM: Yeah.
MS TAGGART: So the job of the Bardi person there - - -
NINJANA WALSHAM: Like that - that person, that Bardi person would still be there to guide them because, you know, we - they're teaching them.
MS TAGGART: But the right thing for the Bardi person there is - the right thing for them to do is to teach and to carry that on so that the Nimanbur people can come up and - - -
NINJANA WALSHAM: And carry their culture back again
343 Jabirr Jabirr woman Ms Mary Tarran gave evidence in re-examination as follows:
MR KEELY: Right. So, suppose, there’s a caretaker arrangement where Lulu is looking after country, what would you expect under law and custom would happen in relation to his knowledge? Would he keep it to himself or would he pass it back to the people from the country?
MARY TARRAN: Yes, he would have to. That’s under the law and customs.
MR KEELY: Have to pass it back?
MARY TARRAN: Yes. Well, he’s the custodian, somebody to look after things. Of course you’ve got to give it back to the original holder.
MR KEELY: And to your knowledge, has that happened at all?
MARY TARRAN: Not at this time, no.
344 Ngumbarl, Jabirr Jabirr and Nyul Nyul man Mr Alphonse Balacky gave evidence in re-examination as follows:
MR KEELY: In – in your idea of laws and customs, your experience in that regard - - -
ALPHONSE BALACKY: Yes.
MR KEELY: - - - if someone is looking after country, are they looking after it just for their own descendants or are they supposed to be looking after it for somebody else?
ALPHONSE BALACKY: Well, if you are caretaking a country that belongs to someone, obviously you’re caretaking it for the rightful owners to come back and occupy it again.
345 Jabirr Jabirr, Ngumbarl and Nyul Nyul man Mr Henry Augustine Jnr gave evidence in cross-examination as follows:
HENRY AUGUSTINE: I'd just like to say that it's just one man's story and it's not accompanied or supported by other people that's - that's - that should be included in that but in that circumstances, you can only speak for country through blood connections. Caretaker's fine but at the end of the day, that don't make you a traditional owner.
MR COLLETT: You said "caretaker's fine". You're saying that in particular circumstances, fine or appropriate to have someone caretake the country?
HENRY AUGUSTINE: Just like a house, you look after a house till the owner come back, give him back to the owner.
…
HENRY AUGUSTINE: A caretaker, look after things, and then give it back to the owners.
[Emphasis added.]
346 Senior Jabirr Jabirr woman Ms Rita Augustine gave evidence in response to questions from the Court as follows:
HIS HONOUR: In your lifetime, have you ever heard about a caretaker for your country or part of your country like that?
RITA AUGUSTINE: No.
HIS HONOUR: That's the only example?
RITA AUGUSTINE: I've never heard.
HIS HONOUR: Never heard.
RITA AUGUSTINE: No.
HIS HONOUR: What about from your old people, have you ever heard this type of caretaker type arrangement in the past for your country?
RITA AUGUSTINE: No.
HIS HONOUR: So this is the first time?
RITA AUGUSTINE: Yes.
HIS HONOUR: Other thing about that. As you understand the story about caretaking, if the old man is a caretaker, then his children come along and their children come along, maybe by the time it gets to the grandchildren, can they become traditional owners because the old man was a caretaker?
RITA AUGUSTINE: No.
HIS HONOUR: It can't happen?
RITA AUGUSTINE: They can't become traditional owners of the country.
HIS HONOUR: Not that way?
RITA AUGUSTINE: No way.
[Emphasis added.]
347 The Goolarabooloo witnesses gave the following evidence about the role of a custodian.
348 Mr Richard Hunter gave evidence in cross-examination as follows:
MR KEELY: But can we agree that if you're a caretaker - this is in your culture, in your system, do you follow?
RICHARD HUNTER: Yeah.
MR KEELY: If you're a caretaker and you've got knowledge that doesn't – not for your own country but for somebody else's country, what should happen is that knowledge is passed back when people - when there's people who are able to receive that knowledge?
RICHARD HUNTER: Yeah, well, who's going to teach them, teach them that knowledge?
MR KEELY: Well, wasn't that part of Lulu's job as a - - -
RICHARD HUNTER: Yeah, and that's why he taught us to look after the country.
MR KEELY: But normally I'm - the point I'm trying to put to you is that normally a caretaker, rather than teaching their own children, grandchildren and so on, normally they teach the people from that country. Isn't that the way it works?
RICHARD HUNTER: Yeah, but if you had no-one here to teach - they had no-one here to teach.
…
MR KEELY: I put this idea to you, that if there the old people were looking for someone to hold knowledge, do you think that the first people they would go to would be the neighbours of that group rather than someone from a different place?
RICHARD HUNTER: Well, they were old people. They never move from their country; they stayed there. So how can they find another person? They were old people, how they going to walk around with all - all the young people gone or taken. The old people that are left, they can't move anywhere so it's lucky someone to walk in.
MR KEELY: You don't think the old people moved around?
RICHARD HUNTER: Well, if they home, they home. They move around, around their area. It's also where water is in those days, you know, looking back then and how hard it was. Waterholes. You - you don't have taps in those days; you had waterholes and if you haven't got young people so it's better to, as old people, you stick in a group, you know.
[Emphasis added.]
349 Mr Richard Hunter gave further evidence in cross-examination as follows:
MR QUINLAN: You've given evidence that a lot of the people who were the owners were taken away to the missions, or went away to the missions.
RICHARD HUNTER: Oh, the children, yes.
MR QUINLAN: Yes, the children. That's why they weren't here.
RICHARD HUNTER: Yes. Stolen Generation.
MR QUINLAN: When they're taken away, even though they're not here to be able to look after it - - -
RICHARD HUNTER: Yes.
MR QUINLAN: - - - are they still the owner, because they come from that land and their parents come from that land, while they're away?
RICHARD HUNTER: Yes, they still the owner.
MR QUINLAN: Yes. And then, after the missions finished - - -
RICHARD HUNTER: Yes.
MR QUINLAN: - - - and those children have grown up a bit more - - -
RICHARD HUNTER: Yes.
MR QUINLAN: - - - can they come back and say, "I'm the owner" and, to the caretaker, "I'm now going to look after it myself"?
RICHARD HUNTER: Well, they – they can come back but, if you're an Aborigine, if you got any respect, you know – if you got any respect, you'd consider us as being people from here too.
MR QUINLAN: Okay. So they're able to come back and be owners again, or be able to look after again as the owner - - -
RICHARD HUNTER: Together – it's – if we can work it together, because, just say if we – weren't here, and just say we were – there were no Native Title in this country.
MR QUINLAN: Yes.
RICHARD HUNTER: I think the gas line wouldn't be out. You know, if we – if we weren't, as Goolarabooloo, looking after this country, you know, this country would be wide open for the taking.
MR QUINLAN: Yes. And I understand what you've said about when there are people here and somebody is looking after it. But do you think, under the law, under the Aboriginal law, when the owner comes back, the caretaker lets the owner be the boss again. Is that the right way under Aboriginal law?
RICHARD HUNTER: The owner come back? Well, if you know the country.
MR QUINLAN: Yes.
RICHARD HUNTER: If you know the country. But, if you been so long, when you was a little child, you have no knowledge of the country.
[Emphasis added]
350 Mr Ronald Roe gave evidence in cross-examination as follows:
MS TAGGART: Okay. And I think it may have been Mr Blowes or Mr O'Gorman that you were talking to – I think Mr Blowes asked you, if the Goolarabooloo were to go away today – so if all of them were to finish up, what would happen to the country? And I think your answer was it would go back to the original inhabitants.
RONALD ROE: That's correct.
MS TAGGART: Okay. So those original inhabitants being Jabirr Jabirr people?
RONALD ROE: Ngumbarl.
MS TAGGART: Ngumbarl.
RONALD ROE: Well, Jabirr Jabirr, Ngumbarl, people on that coastline.
MS TAGGART: Okay. So are there – so there are people today that you accept are Jabirr Jabirr people or Ngumbarl people or Jabirr Jabirr Ngumbarl?
RONALD ROE: That's right.
MS TAGGART: Yes. But that could – the country could only go back, under your laws, if – is it if every Goolarabooloo person was finished and – and deceased, or just the bosses that are alive today?
RONALD ROE: If everybody deceased, then it'll have to go back to its original inhabitants.
[Emphasis added.]
351 Ms Teresa Roe gave evidence in cross-examination as follows:
MR BLOWES: … And when they do that, if they go from their own country to another country - - -
TERESA ROE: To another country, yes.
MR BLOWES: - - - and are working there helping looking after it - - -
TERESA ROE: Yes. Yes, maybe.
MR BLOWES: - - - does that become their country too in your way of thinking of it?
TERESA ROE: I don’t know. I don’t know what in their law, I don’t know.
MR BLOWES: So, it depends on the law of the - - -
TERESA ROE: Yes, of their law.
MR BLOWES: Of the country where they’re helping?
TERESA ROE: Yes. Yes.
[Emphasis added.]
352 Mr Brian Councillor gave evidence in response to questions from the Court as follows:
HIS HONOUR: Thank you. Just before you ask any further questions, can I ask you this: today, are there any Goolarabooloo people who would have a power to make someone else a caretaker for the country? Could they – could anyone today that you can tell me the name of do what Walmadang did?
BRIAN COUNCILLOR: No.
HIS HONOUR: So that's not a power that exists any more, the power to say to someone, "You look after my country".
BRIAN COUNCILLOR: Yes.
HIS HONOUR: No one – none of the old people in authority in the Goolarabooloo community could do that today?
BRIAN COUNCILLOR: Not that I know of.
[Emphasis added.]
353 Mr Daniel Roe gave evidence in cross-examination as follows:
MR QUINLAN: It’s not something you were taught about how a caretaker might have to deal with an owner or anything like that?
DANIEL ROE: No. Well, that’s the word that old great grandfather has always said but it’s just people have to come to terms in - - -
MR QUINLAN: Yes.
DANIEL ROE: - - - what had been said and what has been passed on. It’s just something that we have to come to accept and it’s – it’s a fact. We’re not making this up, otherwise we’d be – yes, we’d be back in Broome and we’d be back in Nyikina or Karajarri country. It’s our choice, but our choice was here. Old man – we’re spirit children here from two rai from my grandmother. We’re spiritual children for this country. That’s why we’re here today. We can’t help that. That’s just the – you know, the course of the way that life goes on for us and for our – unfortunately our people.
[Emphasis added.]
354 Senior Goolarabooloo man Mr Phillip Roe also gave evidence about the role of a custodian. It was in his interest to claim rights of ownership through his grandfather, Mr P Roe. Nevertheless, he gave the following evidence in cross-examination:
PHILLIP ROE: Well, we here still today protecting country and things. I'm going to get off that custodian thing because that's just thing. He was handed the - I'm going back. He has handed the country by this old - old people.
MR KEELY: But the question is what you mean by that. Do you mean that he was given it outright like for keeps, for good, or do you mean that he was given it to look after?
PHILLIP ROE: Well, he was looking after the country. He was a caretaker. That's what it - he's - he's - he always interprets, he's the caretaker when old - they gave him because at that time there was no young fellas around. They all died and they handed him that right.
HIS HONOUR: Can I ask it to you this way: just let's imagine ourselves in Broome, okay.
PHILLIP ROE: Mmm-hmm.
HIS HONOUR: And we've got two houses next to each other, your house and my house; right? Ordinary house blocks in Broome. And I say to you, "Look, I'm going away. I don't know when I'm going to come back. I'm going away. This place needs to be looked after, got to mow the lawn, water the flowers. Will you do that for me?" And you say, "Yeah, I'll do that for you. I'll look after that place for you, do the lawn, water the flowers." That's one – imagine that situation.
PHILLIP ROE: Yeah.
HIS HONOUR: And then imagine another situation where I say to you, "I've been living in Broome for 20 years, don't like the place any more, don't want to keep this place, I want to give it to you. You wanted a big block, you want to grow some fruit trees on this side. Here it is. White man's title. That's yours." So one case it's caretaking, another case it's actually transferring, giving away the country. And what we're trying to work out in this case is what happened with Lulu in relation to the country. Was it that one or was it that one or was it something different altogether.
PHILLIP ROE: It was the first one. He was the caretaker.
[Emphasis added.]
355 Professor Cane’s view that rights and interests in land can be acquired under traditional laws and customs through a process commencing with custodianship was explained in his primary report as follows:
335. These general principles are consistent with the Goolarabooloo experience. Succession is characterised by intra-society adaption facilitated by common geocultural traditions, the elasticity of which is proportional to the precedence of and need for ameliorative change. For the people of the western Kimberley coast the effects of settlement, disease, depopulation, removal of children and intraregional migration created these precedents. Traditional society was in a state of extreme agitation and distress – on the verge of extinction according to scholars like Elkin and Tindale (section 3.1). A slim chance of cultural survival presented itself to Walmadan (and the people still living in country) with the unlikely appearance of Paddy Roe. Walmadan knew Paddy’s family (section 3.2) and Paddy became the vehicle of Walmadan’s cultural and geographic survival – Paddy’s burden of custodianship. Akerman notes ‘Paddy Rowe [Roe] was a regent for Yawuru country until recently’ and used the word ‘regent’ intentionally to indicate ‘holding of control, knowledge and responsibility for another country’. In relation to the claim area Akerman notes in 1994:
I am unaware of any ‘Djaberadjabera’ or Ngumbarl speaking people extant today. This country, from a ceremonial point of view, was looked after by Nyikena men (Buther [sic] Joe, Paddy Rowe and a Yawuru man Paddy Djagween until the 1970s when he died).’
336. The success of that transition is easily measured by the subsequent role Paddy played in the maintenance and protection of that country and his engagement with and transfer of Aboriginal tradition, ceremony and law across subsequent decades. He became a senior law man: his status in this regard is already noted (section 3.2) and confirmed by the record in Rubibi No. 6 [90-108]:
Pat Dodson regarded Lulu as having become part of the Yawuru community and as having the same rights as person born of Yawuru parents [102].
Frank Sebastian [said] Lulu was like ‘and elder to us’ and that he [Paddy] and his descendants ‘have the right skin for this country’ [102].
Lulu was ‘venerated for having assumed the role of a senior lawman in order to protect the southern and northern traditions in the Broome area. He also played a major role in protecting sites in Yawuru country. Lulu [conception site] was also in Yawuru country’ [103].
…
339. Regardless, I cannot help reflecting here on whether Paddy Roe was fully aware of the meaning of ‘custodianship’ verses ‘ownership’ when he used the term and whether it was a word he knowingly used to describe himself or it was a word used by others to describe to him. My suspicion is that he was aware of the qualitative meaning of the term and used it intentionally as intended – as a person who was entrusted with the custody (meaning control, responsibility and confinement) of country, its resources, religious geography and ritual. That suspicion is confirmed in large part by the manner in which Paddy (in companionship with others) used the term in relation to himself (and others) in letters, media, and minutes. …
340. The significance of the use of the word custodian and the contextualisation of that word as ‘law keepers’ and ‘guardian’ is, in my opinion, not a contravention or inadequate measure of the traditional law and custom relating to succession, but a feature of it. Succession is not an overnight event. It takes time within which the transitional period expresses itself as one of custodianship, before becoming ownership without denying or diluting the expression of traditional rights and interest in land in the process. The identification of custodianship by Paddy Roe is, in my view, the correct enunciation of the evolutionary character of the tradition in which he was evidently part and in which rights and interests in land are purposely embedded.
…
344. Taking the Yirrkala and Bardi evidence and the recognition of traditional authority and custodianship of Paddy Roe to the Goolarabooloo situation, it is evident, in my opinion, that Paddy Roe was the first step in the process of an established succession after those who handed him that responsibility (and attendant rights) passed away. The evidence suggests succession takes a long time and is a process that is unlikely to be realised in the lifetime of the original successor – as the ‘regent’ will always be remembered as from somewhere else. His children and their children will not be so labelled. They will, in the new and established circumstance (created by the initial succession) be ‘from country’ as a consequence of inheritance and other traditional mechanisms of association. By the third descending generation the successors will not be remembered in any other way – which I believe to be both an intended and accepted outcome of the tradition of shallow generational memory.
345. As I read the evidence, the descendants of Paddy Roe are thus the beneficiaries of an original succession born out of the exigencies of historic settlement. While Paddy was the initial successor and became the recognised custodian, his descendants are now ‘owners’ in the full sense of the word: or more accurately, traditional right holders who are recognised in the absence of original occupants and against as well as in conjunction with others who have both different and differently ranked rights in the country under claim. The basis for this assertion rests on the traditional instigation of historic succession and is set by a matrix of other traditional mechanisms for asserting rights in country described below.
[Footnotes omitted.]
356 In his supplementary report, Professor Sutton expressed the view that the process described by the Goolarabooloo applicants was:
10. … not one involving what I would call the usual processes of either succession to a vacant estate, or incorporation into a living country group, in any coastal or pericoastal system with which I am familiar. This asserted passing of more than just custodianship and knowledge to Paddy Roe is an act not contemplated within the customary law of senior spokespeople for the non-Goolarabooloo claimants.
11. Nor is the Goolarabooloo retention of linguistic identities from places outside the Peninsula, and their general avoidance of identifying with the languages of the Peninsula, contemplated within the customary law of senior spokespeople for the non-Goolarabooloo claimants. The law of the latter does not allow the violation of the people/country/language nexus, even though they hold some variable views as to the extents of some linguistic territories.
357 Professor Sutton added further to his explanation of the usual process of succession during concurrent evidence as follows:
PROF SUTTON: One of the difficulties of this case in comparing it with the rest of the country is that some of the things that happened there by way of what you might call normal succession or normal incorporation of a group into another group didn’t happen in this case. One is typically when an individual and his offspring get incorporated into a group, they also maintain an interest over the same land units as the group.
In other words, they don’t introduce a differently shaped landscape; they adopt the estates and other language territories, for example, of where they’ve come to, and there is literature on this. And the other thing that usually happens is, at least over time, they become rebadged as locals and adopt the titles of the local language group of some other sort of entity and – and quite often the totems as well.
And those things, because this case is complicated and that simple picture doesn’t work here, it raises much more serious problems of interpretation.
…
MR BLOWES: Why doesn’t that simple picture work here?
PROF SUTTON: Well, because the Goolarabooloo claim area is not, for example, the Ngumbarl area plus the Jabirr Jabirr area; it’s part of the Jabirr Jabirr area and it’s part of the Ngumbarl area and it – it doesn’t subdivide itself into what we can reconstruct of the old estates of the Jabirr Jabirr and Ngumbarl.
…
So we’re not looking at that incorporation but rather a kind of co-existence and to some extent, superimposition, and it can’t be unpicked now of course. It’s sewn up, as it were, in history. So in terms of trying to find an equitable outcome, that’s not a matter for anthropology in my view. It’s – I’m afraid we have to leave that to the law.
[Emphasis added.]
1.12 Was Mr P Roe appointed custodian?
358 Mr P Roe was born in 1912 at Sheep Camp on Roebuck Plains, which is 50 kilometres south of the Goolarabooloo application area. He was a Nyikina man. He fled from Sheep Camp around 1930 because he stole another man’s wife and they were “not right way for each other”. She was MP, a Karajarri woman. She had a daughter, Selma (also referred to as Thelma), from another man. The three of them came to Waterbank Station and over the next few years Mr P Roe and his wife MP had two daughters, Margaret and Theresa, in around 1934 and 1936 respectively.
359 The Goolarabooloo applicants say that around that time Mr P Roe was given the country of the Goolarabooloo application area to look after. They particularly rely on five accounts of the events provided by Mr P Roe.
1.12.2 The five accounts of the PR Story relied on by the Goolarabooloo
360 The first account was evidence given by Mr P Roe in 1983 to the Seaman Inquiry. The following exchanges occurred:
Voice 1: And what happened, how you were given things.
PR: Yeah, yeah. Yes, from Minari, Jabirr Jabirr, last people from Jabirr Jabirr and Ngumbarl and Djugun, right through here, they left the country with me. And this was the last… This old… Paddy Sebastian was er.. he’s the proof. They told me front of him too.
Seaman: The last people, Jabill Jabill [sic], who else left the country with you?
PR: Hmm?
Seaman: The Jabill Jabill [sic] people left the country with you, and who else?
PR: Just one, finished. All died.
…
Voice 1: Okay. Now, what, what, er, what job do you have to do for that country? What sort of things?
PR: To look after the places, we have a lot of statues there too on the seaside, stones from dreamtime, and hill, hills, that’s why those old people told me to look after those things, last people belongs to him, Jabirr Jabirr people, must be. They said to me we all going to die because we got no children.
361 The second account was a recording of a conversation between Mr P Roe and Professor Muecke on 22 June 1985, for the purpose of including the story in a book to be published by both of them. It seems that Paddy Sebastian, by that time a senior Jabirr Jabirr man, was also present. The transcript includes the following:
When I first come to that country, Hill Station –
that’s the name of the station –
Hill Station, old Denham, Hill Station and Denham Station they used to call it, them people you know ---
Oh, there was about 60 or 70 old people, in the station –
…
So we used to go for holidays –
Christmas time –
…
So we used to come up –
We used to come along the coast –
…
we used to come right up to Minariny, here –
…
now they used to tell me we camped there on night –
they tell me now, ‘this place here, these stones you see’ –
they tell me you know –
‘this is yours you gonna look after this one’ –
…
‘oh yes’, I used to say to them –
I never asked question –
…
So we push on again –
we come up to –
around about eeer –
Walmadany –
…
we camped there –
they tell me same thing again –
‘you must look after this one too’ –
this is yours, [soft] you know –
‘oh yes’, I say –
…
Then we start off again next day, …
…
from Price Point, oh –
right up to Minariny here –
now they used to tell me ‘this one here is yours, you must look after this one’ –
‘oh’, I say –
‘oh yes’
‘this yours, you must look after this country’ –
‘oh’, ‘good’
…
Well everybody was mixed that time, Djaberdjaber, Nyulnyul, Ngumbal oh –
Those people used to work in the station too but Djaberdjaber more from that Walmadany coming this way –
…
So when we got up to this one –
I must ask I said to meself one day –
so I said ‘now what made you people think that, “this country gonna be yours”’
they used to tell me, you know –
and I asked these fellas ‘what made you people think that I –
I gonna look after these, places and this is mine?’ you know I said –
and they said to me, ‘WHAT? Can’t you SEE? –
they tell me, all get up old womans old mans all get up, stand up [laugh]
‘YOU CAN’T SEE?’ –
‘No, I can’t see’ –
‘Ah, alright, well we’ll tell you –
You got three daughters’ [laugh]
they said to me, ‘you got three daughters you gonna have plenty children –
you got three daughters –
you gonna have plenty of children –
so this country gonta be yours –
and your children’s –
[S: me]
belongs to the children –
see we only old people old woman old man no got baby [laugh]
we got no baby’ –
…
that's why I say this place –
this really belongs to the family anyway they should look after it –
you know –
…
This country wasn’t for Goolarabooloo –
this country is for family group –
(S: uh huh)
…
what can we call that, might be ‘family group’ –
‘family trustees’?
(S: yeah) –
to look after the country –
family trustee –
you know to look after the country –
others all die, old people –
young fellas carry on ----
…
we not gonna put a station or run [laugh] cattle or anything like that but we just like to look after the, country, we should have some sorta right –
to look after the country –
because –
my family never split up ----
[Footnotes omitted.]
362 The third account is an article entitled ‘The Children’s Country: Ethical Statements / Useful Instructions’ published in the academic journal Oceania, which included the text taken from a tape recording of Mr P Roe talking to Professor Mueke in July 1985. Mr P Roe recounted the story of being asked to look after the land in the same terms as the June 1985 conversation. However, the story is introduced by an exhortation to the younger generation to live together in peace on the land. For instance, he said:
These young generation they try to keep somebody away –
from their boundaries –
or well, old people’s boundaries –
something like that –
that’s not the way we gotta live, this time, we all gotta live together –
we must live together –
if we don’t live together, well we’ll be bad friend, all the way –
just like some other places, war, just like we having a war –
you know –
daman we call-im –
daman, war –
because that’s not the way –
we want to try and lead this young generation, but this young generation they should stand up and listen –
where they come from, where their parents have come from and where they should be –
we are old people we still looking after these things –
…
See, today these young fellas –
today, these young fellas, now –
young fellas –
young fellas are really –
try to be somebody, push other language man outa the place –
nother fella come along again he want to push this fella from the other language man again –
they going by language –
but language got nothing to do –
no, language got NOTHING to do –
with the country –
ANY language can live –
today –
English, Japanese, Chinese, we all friend –
we all living together now –
we can’t say where they come from –
and now people just the same, Garadjeri, Nyangumarda, Mangala, Bardi, ALL these people, Nyigina, ALL these people –
no matter where they come from all these language -
but we should be all one –
like in early days people used to live –
old people used to bring them in –
because they know –
they not going to claim the country –
these old people –
they only come to visit –
because they meeting –
sometimes they had meetings –
corroborees, meeting –
initiation meeting or something like that –
marlulu, they used to go with, marlulu-
[Footnotes omitted.]
363 In his analysis of this text, Professor Muecke observed that Mr P Roe’s comments were part of the local debate on land rights which was occurring at the time.
364 The fourth account records a conversation between Mr P Roe and Mr Green (NG), who was preparing a report for the Mining Warden concerning Aboriginal places of significance in an area along the coast north and south of Broome where Terrex had applied for an exploration licence. Sandy Paddy (SP), a senior Bardi man, and Paddy Angus (PA), a senior Jawi man, were present during the interview. Mr P Roe told the story of being given the job of looking after country as follows:
NG So tell me, tell me about how they passed on that country to you, what happened, did they have a ceremony or did they have a big meeting, or …?
PR No, no, we walk. We walk from station.
NG From where? Denham?
PR From Denham station, we walk. Two week before Christmas, right up to Minarriny. We gotta walk because holidays two week before Christmas. So no good me fella lay around in the station so we had to go bush….
SP / PA? Yeah
PR … you know? So them people bring me, from station. We camped, this one belongs to you they tell me. Oh yeah, what is it I tell them. Well, that’s where you get your fish from, he a fish trap, [gulujur].
SP / PA? Yeah, yeah
PR Tide go out he’ll get you fish and you’ll have a feed here, they tell me. All the way they tell me, right up till we get to Minarriny, one week. And we come back one week again. Coming back now, we get right time little Christmas time in station. But we camped this time between, before they tell me all these things and we camped between now, coming back time. You must look after this one. Yeah. Well, same thing they tell me, same thing. Fish, this one you must look after too, statue this one, from dreamtime.
…
PR … So I tell this old woman, my old lady, I tell her, these people must be mad, I tell him. Yeah? They might kill you and me. They tell us same story again, we coming back. Now I’m going to ask these fellas, I tell her, yeah, because they telling us, telling you me same story. So I ask. Well, I’m going to ask you people, I tell em, me talking now. Yes no worries, no worries, all old fellas tell me. Yeah, I’m going to ask. You fella been telling me same story from right up to here, and now first night we camp in another place now, I tell ‘em, might be, you know, between. Yes they tell me, yeah. Well, we give you the country, that’s yours, you must look after him, statues and everything, they tell [?], they tell me. Oh, yeah but what make you fellas think that uh the country going to be mine, I tell them. What make you people think, I tell em. Silly things I’m asking, you know. [laughs] Well, oh, two old woman get up straight away, they’re my grannies.
SP / PA Yeah
PR Narbi and …
SP / PA? [Transcript not agreed ]
PR: … yeah, old woman, mother’s [transcript not agreed ]
SP / PA? Yeah
PR Two old woman. They stand up right here, right in front of me.
SP / PA? [laughs]
PR What, they tell me, can’t you see? No, I tell them, I can’t see. Oh I’m shaking too. The two womans. All right, we tell you, we been tell you this country is yours. See that? Yeah I tell em. Is yours. Now, you see me, you see this old woman, you see the other old womans over there, they tell me, they tell me, and the old old mans there, we can’t have babies no more. We only old people, finished, we just gonna die like this. So you, they tell me, you got young woman, you gonta have plenty of babies. So we had one already, girl, young one, first one.
SP / PA? Yeah, first one. First one, yeah.
PR So, you got one, but you going to have plenty of babies. I believe, well enough, you know. Well, they got me thinking any way, they got me thinking, they got me thinking. All right [transcript not agreed ] all right, all right I say, oh. You got young woman, you going to have plenty of babies. We got no childrens, we just going to die like this, no babies. That’s true. All right. They tell me everything, I believe, I believe, because all their childrens been taken away by police, girls and boys they been grow in another country, never go back to their people. Never go back to their people. They been just die in front of my eye, in places any way, some died little bit long way, but I buried most of them any way, along the coast, old people.
Then, Mr P Roe spoke of the death of about 10 old people in the area and where and how they died.
365 The fifth account is a typed statement dated 9 February 1994 signed by Mr P Roe. After recalling the events which brought him to the Broome area, Mr P Roe said that he was “the Traditional Custodian and Law Keeper”. He stated:
From the time I came to this country I lived with the old people from this country. At that time this country had Jabberjabber people in the north, Ngumbal people to the south of Jabberjabber land and Minyirr Jukun people in the south (including what is now Broome). The old people from each of these areas have one Law.
There were only old people here then, men and women. All the young people had been taken away by the government. I believe they were taken to Moore River.
I lived with these old people and learned the Law. After some time, in about 19…, they told me I should be the one to take care of the land and the Law when they were gone.
366 Mr P Roe then told of his two week journey at Christmas when he was handed the country and explained:
I remember one night in the camp when I knew the old men were talking about me. I didn’t know what they were saying and I even thought they might be planning to kill me.
Then one old man [hand written on the side was the notation “old man Walmadan”] came over to me and stood over me. He said in a stern voice something like this: “We are old and we have no young people and no children. You have children and will have more children. You must take over looking after this land for us when we are gone.”
1.12.3 Community knowledge and acceptance of the PR Story
367 The Goolarabooloo applicants said that on a number of the occasions relied upon there were senior Jawi and Bardi men such as Mr Paddy Angus and Mr Sandy Paddy present who did not contradict Mr P Roe’s story. That, so it was said, demonstrated that the handover of rights was acknowledged by the local community. Three considerations, however, were put against that argument. First, Professor Sutton cautioned against interpreting silence as assent in Aboriginal cultural practice. It may well have been culturally unacceptable for those senior men to contradict Mr P Roe publicly even if they disagreed. Second, the senior men were associated with and supporters of Mr P Roe. And, third, many Bindunbur and Jabirr Jabirr witnesses gave evidence that they had never heard of the M P Roe story and that they would have heard it if it had happened. For instance, Ms Cissy Djiagween gave the following evidence-in-chief:
MR KEELY: Cissy, I'll ask the question again. You've already said that Nabi Gardalagan and Walmadang, you never heard them say anything about Paddy Roe in Jabirr Jabirr country - - -
CISSY DJIAGWEEN: No.
MR KEELY: - - - having some authority in relation to Jabirr Jabirr country?
CISSY DJIAGWEEN: No.
MR KEELY: My question is just this: if that had happened, if Paddy Roe had been given some authority, some special authority in relation to Jabirr Jabirr country, would you expect to know about that or not?
CISSY DJIAGWEEN: Yeah, because there was still some Jabirr Jabirr still around.
368 She said that she first heard the suggestion that Mr P Roe had been given rights in land in the course of this proceeding.
369 And Ms Pat Torres said in response to questions from the Court and in cross-examination:
PAT TORRES: I'm 60 now and so when we used to visit old man PR, we were doing that - we were seeing him often in the town throughout that time, and when I was visiting him with my mother to confirm the stories that we already knew and he was one of many that we spoke to - he wasn't the only one - I would have been around about 15, 16 going on to 17. We didn't just go once; we went a few times.
HIS HONOUR: To confirm the story?
PAT TORRES: The stories that my mother and I knew.
HIS HONOUR: Which was what?
PAT TORRES: Lots of stories, like our families connected from Karrijarri going all the way up to Jabirr Jabirr Nyul Nyul, and possibly Bard on our side of the family. And so we knew lots of stories, and in those days I was beginning to write up the stories because I was creating stories for children.
HIS HONOUR: So you were going to PR to - - -
PAT TORRES: To find out his knowledge.
HIS HONOUR: His knowledge?
PAT TORRES: Just to confirm what we knew.
HIS HONOUR: And he was regarded as a man with knowledge, was he?
PAT TORRES: Yes. I seen him in action being a spokesperson, so people would go to him because he - he was a character. You know, he had a great personality. People could relate to him. And he spoke a good command of Aboriginal English better than some of the older people who were speaking more like a pigeon - pigeon English. So sometimes they - they went to him to clarify or to ask questions or - and I was physically sitting with him when people came to do that. That's how I know.
HIS HONOUR: So did you hear the story from him about this getting country or being a caretaker?
PAT TORRES: No, that was never ever a story that was shared with us. We've never heard that. The only time - the first time I actually heard it was during, I guess, the establishment of the Lurujarri Trail and more intensively during the oil and gas. We just thought they were going fishing and camping.
HIS HONOUR: Yes, thank you.
MR COLLETT: So when you say that you went to speak to him with your mother to confirm stories when you - - -
PAT TORRES: Yes, Djugan and Yawuru stories basically that stretch also into Nyikina.
MR COLLETT: But not Paddy's story?
PAT TORRES: No, not his story.
MR COLLETT: You didn't ask him about that?
PAT TORRES: I wasn't after his story.
MR COLLETT: And I take it you went to get him to confirm those stories because you regarded - you and your mother regarded him as knowledgeable?
PAT TORRES: Yeah, well, he was one of the many people who knew stories, so I also access, you know, Joe Bernard and Simon Bernard, my own grandfather.
MR COLLETT: But Paddy was also regarded at least by you and your mother as being reliable in what he said?
PAT TORRES: Well, he was our family. He's part of our family. I called him "mim" which is like a grandfather.
370 Evidence to similar effect was given by Mr P Sampi, Ms Rita Augustine, Ms Betty Dixon, Ms Mary Tarran, Mr Henry Augustine Jnr, Mr Walter Koster, Mr Anthony Watson, Mr Laurie Cox, Mr Alphonse Balacky, and Ms Neenya Tesling.
371 The five questions referred to in section 10.4 are now considered.
1.13.2 Is descent the only way of acquiring rights and interests in land under traditional laws and customs?
372 The evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses that, subject to the limited exceptions concerning child adoption and succession, rights and interests in land can only be acquired by descent, was very compelling. It was consistent from witnesses from all parts of the application areas. It was consistent from old to young people, and from people junior to people senior in the Law. There was even the evidence of Mr Damien Balacky Snr called by the Goolarabooloo applicants which supported the position. The evidence was given, not only through affidavits crafted before the hearings, but in cross-examination where the strength and depth of the witness’ beliefs was clearly observable. Further, the views of all of the experts, apart from Professor Cane, were as one on the issue. There is a firm basis for the finding, which I make, that the traditional laws and customs of the Bindunbur and Jabirr Jabirr peoples prescribe that the only way of acquiring rights and interests in land, subject to the child adoption and succession exceptions, was and continues to be by descent. All the experts agreed that the continuity from pre-sovereignty times to today of the laws and customs relating to descent was not displaced by the change in the basis of the descent requirement from patrilineal descent to cognatic descent.
1.13.3 Do the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors?
373 The Goolarabooloo applicants would qualify as rights holders if descent can be measured starting with Mr P Roe. Whether that is an acceptable starting point under traditional laws and customs depends on Professor Cane’s view that shallow generational memory governs the scope of the descent rule.
374 That view has no support in the evidence of the Aboriginal witnesses. Most witnesses spoke in terms of rights and interests being handed from generation to generation with no limitation to remembered ancestors.
375 A foundation for Professor Cane’s view seems to be that the Aboriginal people of the area do not remember back to ancestors beyond grandparents, or perhaps great grandparents. Hence, so it seems to have been suggested, the rights and interests held by grandparents or great grandparents are what are handed on by descent. That analysis does not take into account the evidence of most of the Aboriginal witnesses that rights and interests are handed down from generation to generation. Described in that way the witnesses indicated that each generation takes the rights of the previous generation which itself takes the rights of its prior generation and so on back to time immemorial beyond remembered ancestors.
376 Professor Cane’s view that descent from remembered ancestors was a sufficient basis for the acquisition of rights in land was part of a general thesis that there was a greater degree of flexibility in the way people could acquire rights in land than proposed by the Bindunbur and Jabirr Jabirr applicants. For instance, he did not accept that land holding is limited to defined estates held in perpetuity by small patrifilial groups. Rather, he regarded the land holding pattern as more flexible so that holdings may be changed within relatively short periods. One of the reasons Professor Cane gave for this opinion is the challenge of the climate in the area. He referred to the risks of cyclones, bushfire and flooding in the application areas. Professor Cane drew on his considerable experience of Western Desert societies. The land holding pattern there must allow for the movement of people subject to severe weather patterns which threaten survival particularly through lack of water. Professor Cane’s view is captured in part of [317] of his primary report which is repeated for convenience as follows:
317. … Social and territorial organisation in the Western Desert had to both accommodate and anticipate change in diverse and unpredictable temporal and geographic contexts. A more formal regime of patrilineal descent based on deep ancestral memory was too rigid to achieve the flexibility necessary for long-term survival in that marginal, changeable environment and was effectively sidelined by other, multiple, forms of individual connection giving rise to rights and interests in land.
377 Professor Cane expressly relied on his Western Desert perspective. In cross-examination that perspective was challenged, as was Professor Cane’s description of the environmental circumstances of the Dampier Peninsula as extreme.
378 In the course of cross-examination Professor Cane accepted that there were major points of distinction between the Western Desert and the application areas. He agreed that the Western Desert had been described as the harshest physical environment inhabited by man before the industrial revolution with a population density as low as one person to 200 square kilometres. He also accepted that the annual rainfall in the Western Desert averaged around 250 millimetres per year whereas, for instance, the annual average rainfall in Beagle Bay is around 650 millimetres per year. Professor Cane accepted that the major difference between the Western Desert and the application areas was the sea and the coastal area in the application areas. He agreed that in the application areas people would not run out of food. At this point Professor Cane was reluctant to concede too much and was defensive of his use of the Western Desert comparison. He said that lack of food was not the problem in the desert but rather lack of water. He sought to downplay the ready availability of food in the application areas by pointing to the absence of steel hooks for fishing. He said it was easier to catch a lizard than a fish. Professor Sutton responded by drawing attention to the evidence that spears were used in the application areas to get fish which were trapped in pools as the tide went out. Mr Bagshaw added that there were fish traps in the application areas so it was not even necessary to rely on natural pools. Further, he said that shellfish were an important part of the diet in the area and they are readily harvestable on the exposed reefs.
379 Professor Cane was then asked whether he regarded the survival threats from drought, flood and fire in the Western Desert as similar in the application areas. He responded:
PROF CANE: Yes. I mean there are similarities. I don’t want to overstress the – but I agree with what you’ve said there, but the – yes, there are environmental risks, and I don’t know how similar that is to the Western Desert situation, but I – it has its own risks.
380 Then the following exchange occurred:
MR KEELY: And you’re saying, as I understand your argument, that cyclones and bush fires, and you also mentioned droughts and floods make the Dampier Peninsula in a somewhat similar situation of needing that kind of flexibility?
PROF CANE: Yes, but not in the same order. I mean there is certainly some flexibility I think in the system, and I think there are circumstances which give rise to it from an environmental perspective. And there’s other reasons as well no doubt. I mean I don’t want to overstate that.
MR KEELY: You - - -
PROF CANE: I’m just trying to give a reasonable account of the environmental context in which - - -
MR KEELY: Well, you say you don’t overstate it, but you keep using the word “extreme” in connection with the environment don’t you?
PROF CANE: Do I?
MR KEELY: You do.
PROF CANE: In relation to the Western Desert or in relation to - - -
MR KEELY: No, in relation to this country here.
PROF CANE: Well, I would have thought this is a fertile environment and I don’t – and like it has a more formal tenure system as I understand it. …
381 Professor Cane was then taken to the Bureau of Meteorology records of cyclone activity in the region and agreed, by reference to those records, that the most cyclone prone area is between Broome and Exmouth and not in the application areas, and between 1970 and 2007 there have only been three severe cyclones which occurred south of Broome and near to Darwin. Professor Cane then agreed that the risk of cyclones existed across northern Australia including in places like Arnhem Land where a tightly held partifilial estate system exists. Professor Cane also accepted that the risk of fire is a risk common to all of northern Australia, although he said that the savannah is more combustible than the wetter Arnhem Land country. Professor Cane then said that he did not mean to suggest in his report that the risk from flooding was greater than in many places in northern Australia. Professor Cane also accepted that the patrifilial system to which the Bindunbur and Jabirr Jabirr adhered had a certain flexibility by reason of the use rights which rights holders in particular estates held in other estates such as the estate of a mother’s mother or spouses’ estates. At the end of that section of cross-examination Professor Cane said:
… I accept the estate based system and I just think it has some flexibility in the system. I’m not trying to say any more or less than that. I mean I know you keep saying to me that I’m trying to introduce the Western Desert system but I’m actually not. And I say clearly there’s form and flexibility in this system, and we said yesterday that the flexibility probably decreases as you go north to the Bardi territory. I mean I’m not in opposition to you here.
382 And the Professor Cane said:
PROF CANE: Yes. Now, my environmental characterisation mightn’t be sufficient to drive that, but the model – that is the model, and hence, by having a broader view of the notion of buru, and buru being applied to many different things in a different context. But these things are known and these things are applied as part of the cultural processes of the people.
383 There is, thus, a marked difference in emphasis, if not inconsistency, between Professor Cane’s report on the one hand, and his oral evidence on the other concerning the effect of climatic conditions in shaping the laws and customs relating to descent. In view of Professor Cane’s own doubts whether his “environmental characterisation mightn’t be sufficient to drive” the model he espoused, and the nature of the evidence about environmental conditions, it should not be accepted that climatic conditions in the application areas provided a reason or cause for a limited generational reach of the descent rules.
384 A further reason suggested by Professor Cane for descent to be reckoned on a shallow generational memory basis was that the society was subjected to exceptional disruption by white settlement. The result was that linkages to ancient ancestors was ruptured and rights were acquired by reference only to remembered ancestors. Professor Cane’s assessment of the degree of the disruption was shown on the evidence to have been overstated. The matter is dealt with at [405] – [413] of these reasons for judgment, where Professor Cane in effect accepted that he had overstated the position.
385 Thus, the Binbunbur and Jabirr Jabirr applicants have established that the laws and customs of the society of the application areas provide for the acquisition of rights and interests in land only by descent and from ancestors back to time immemorial. Except in the case of child adoption or succession in the way to be addressed later in these reasons for judgment, descent back to time immemorial is the only way of acquiring rights and interests in land in the application areas.
386 It follows from this conclusion that the Goolarabooloo applicants have not acquired rights or interests in the Goolarabooloo application area on the basis of the traditional laws or customs concerning descent. That is because they trace their descent back to about 1930 to Mr P Roe and he was a Nyikina man. The Goolarabooloo applicants do not trace their ancestry through a Jabirr Jabirr or Ngumbarl bloodline back to time immemorial. Of course, many Goolarabooloo people have interests by descent in the application areas by virtue of other bloodlines upon which they are entitled to rely for the acquisition of rights and interests in that area.
1.13.4 What are the traditional laws and customs concerning succession to land in the application areas?
387 It is next necessary to deal with succession as an alternative basis on which rights and interests in land might have been acquired by the Goolarabooloo. The evidence discloses that the Bindunbur and Jabirr Jabirr applicants on the one hand, and the Goolarabooloo applicants on the other, contend for different traditional laws and customs on this subject. The Bindunbur and Jabirr Jabirr applicants said that under traditional laws and customs one group may succeed to the rights and interests in land of another if the former have become extinct and if the latter are people living close by and are related. The Goolarabooloo applicants said that under traditional laws and customs if a person is appointed as custodian of land then perhaps the person but at least their descendants acquire rights and interests in the land.
388 There was overwhelming evidence from all Aboriginal witnesses and the experts that under traditional laws and customs land cannot be given away. Country is inalienable. The evidence on this subject was strong and spontaneous and left no room for doubt.
389 The evidence showed that whilst there are rules about succession, it is an event which had not been experienced by the Bindunbur and Jabirr Jabirr Aboriginal witnesses. Professor Sutton also adverted to the fact that succession was not a known lived phenomenon of the Bindunbur and Jabirr Jabirr people, but agreed that the traditional laws and customs would have provided for such an eventuality.
390 The evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses was consistent and clear that under their traditional laws and customs if the people of an estate died out the laws and customs allowed for neighbours of both geography and kin to succeed to the rights and interests of the extinct group. That evidence should be accepted.
391 Although it was not the Goolarabooloo applicants’ case that the laws and customs as to succession were so confined, it seems that Professor Cane sought to make the case that under such traditional laws and customs the Goolarabooloo applicants would qualify as rights holders. They were sufficiently close in geography and in personal linkages, for instance through marriage, that the Nyikina were part of the same society as the Bindunbur and Jabirr Jabirr for the purpose of succession. Further, the Jabirr Jabirr and Ngumbarl people were about to die out when Mr P Roe arrived in the area. That was a position put primarily by Professor Cane alone. No other expert agreed that the Jabirr Jabirr had died out when Mr P Roe arrived. No Bindunbur or Jabirr Jabirr Aboriginal witness accepted that view. Among the Goolarabooloo witnesses, only Mr Richard Hunter suggested that the Jabirr Jabirr had died out at the time that Mr P Roe arrived. In the face of this evidence, Professor Cane suggested that it was sufficient for succession to occur where there be a threat of extinction. He said that when Mr P Roe arrived that was the situation. However, the evidence did not support that view as explained in the discussion concerning custodianship at [407] – [408] of these reasons for judgment.
392 Further, considerable time was taken by the parties on the question whether there were sufficient linkages by laws and customs held in common and by intermarriage to establish that the Goolarabooloo, descended from Nyikina people, were part of a larger society comprising at least the Jabirr Jabirr, Ngumbarl, Nyul Nyul, Nimanbur and Nyikina. The argument of the Goolarabooloo seemed to be that, if that were so, then the Goolarabooloo were sufficiently close geographically and by kin to succeed to the Jabirr Jabirr country. Counsel for the Goolarabooloo applicants put the argument during closing submissions as follows:
MR COLLETT: … And we say this all confirms the conclusion that we ask you to come to that the Dampier Peninsula is all one society for the purpose of this claim.
HIS HONOUR: If that’s right, then how does that assist your case?
MR COLLETT: It’s a fair question. It assists our case because…the Bindunbur say that PR was a stranger to this area.
HIS HONOUR: So, this is the point of this exercise to show that the Nykina are not strangers, they’re part of the same society?
MR COLLETT: Yes, and – and so are their law and custom. So, that it’s not just that they – the people are not strangers in the sense of not knowing each other, it’s also that they share law and custom and law and ceremonial practice, and so - - -
HIS HONOUR: And where does that then get you?
MR COLLETT: Well, that succession is more likely to take place and be accepted by groups that are not strangers. That’s the shorthand answer.
During concurrent evidence, counsel for the Goolarabooloo applicants put a series of propositions to each expert witness which was to the effect that there is a significant amount of interaction, intermarriage and shared ritual and ceremonial life between the Jabirr Jabirr, Ngumbarl, Nyul Nyul, Nimanbur and Goolarabooloo to constitute a regional society made up of all of those people. Professor Sutton’s response to those propositions during concurrent evidence revealed the flaw in that approach:
PROF SUTTON: What my statement said there was that it was not possible…in my opinion, to make a clear-cut case that Goolarabooloo belongs to the same society. I didn’t deny that there were facts that would suggest that, that they belong to the same society; what I said, it was not possible, in my opinion, to make out a clear-cut case. And I think I’ll stand by that, but, here again, we’re – we’re in trouble with terminology.
All of the claimants belong to the same society at some level, and I belong to the same society as them at a higher level – that is, the national society – but I don’t – it’s so difficult to be forced by the expectations of the Native Title system to, in a sense, apply a cookie cutter level that suits some purpose.
As alluded to by Professor Sutton, while there may be many characteristics that go to defining a society from an anthropological perspective, the definition of a society for the purposes of native title is specific, namely, that a particular group of people must be united by a single set of laws and customs in relation to land and waters including laws and customs about how rights and interests in land and waters are acquired. Counsel for the State rightly observed that during concurrent evidence reference to shared normative rules for the acquisition of rights and interests in land and waters were conspicuous by their absence from the series of propositions put by the counsel for the Goolarabooloo applicants in support of the regional society contention. Yet it is that shared traditional rule which is determinative of this proceeding.
393 In any case, it is not necessary to pursue that issue further because, under the traditional laws and customs of the Bindunbur and Jabirr Jabirr concerning succession established on the evidence, the Goolarabooloo applicants could not have acquired rights in the Goolarabooloo application area by succession. At this point only one reason need be referred to. A precondition to such succession is that the Jabirr Jabirr were extinct or threatened with extinction when Mr P Roe arrived in about 1930. The precondition has not been established on the evidence in this proceeding. The relevant evidence is discussed in the next section of these reasons for judgment.
1.13.5 Do traditional laws and customs allow for rights and interests in land to be acquired through a process commencing with custodianship?
394 As explained in the previous section of these reasons for judgment, the Goolarabooloo applicants sought to establish, largely based on the evidence of Professor Cane, that the Goolarabooloo applicants acquired rights and interests in the Goolarabooloo application areas even under the traditional laws and customs concerning succession proposed by the Bindunbur and Jabirr Jabirr applicants. However, the substance of the Goolarabooloo applicants’ claim was that they acquired rights and interests through a process of succession commencing with the custodianship of Mr P Roe.
395 Again, the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses was that the notion of custodianship was a novel idea to them. The evidence was, however, consistent and clear that if country were given to a person to look after, that person would not, under traditional laws and customs, acquire rights and interests in land. Subject to the exceptions not presently material, descent was the only way rights and interests to land could be acquired.
396 The evidence of the Goolarabooloo Aboriginal witnesses, Mr Richard Hunter, Mr Ronald Roe, Ms Teresa Roe, Mr Daniel Roe and Mr Phillip Roe do not provide a consistent or clear explanation of the traditional laws and customs relating to custodianship on which the Goolarabooloo relied. Rather, their evidence was an account of the history of the activities of their family and the expression of a sentiment that they deserve rights and interests as a result of the commitment to and care for the country which the family members have undertaken for over 80 years. The Goolarabooloo’s case based on custodianship was built on Professor Cane’s views essentially unsupported by the evidence of any Aboriginal witness.
397 In his primary report Professor Cane said that the process of succession started when, as a result of settlement, disease, depopulation, removal of children and migration the society was on the verge of extinction. Mr P Roe then took up the role of maintaining and protecting the country and was involved in the transfer of Aboriginal tradition, ceremony and law across subsequent decades. He became a senior Law man. There was a transitional period of custodianship. Mr P Roe was the original successor. His descendants became full owners of the country. Professor Cane did not identify the point in time in which full ownership was conferred on the successors.
398 In cross-examination Professor Cane explained what was handed over to Mr P Roe which commenced the process of succession:
PROF CANE: …. my sense of that objective truth, well, that he was handing over responsibility for the spirituality of country. It was a looking after exercise. Now - - -
MR KEELY: Of the law side of things?
PROF CANE: Of the law side of it. […]
[…] at that point I think it was a matter of look after the law, and look after the spirituality imbedded in country. So, when we say country, given the country, I think he means given the responsibility to look after the law in country.
399 In his primary report Professor Cane stated that the basis for the assertion that rights were acquired by the descendants of Mr P Roe “rests on the traditional instigation of historic succession and is set by a matrix of other traditional mechanisms for asserting rights in country described below”. He described those traditional means as follows:
385. […] First through social acceptance and religious acquaintance (as exemplified by the experience of Paddy Roe) then through generational branding with Rai and birth in a cycle of succession starting with custodianship (first generation), leading to personal attachment (Rai and birth, second generation), effecting descent (third generation) and finally legitimate claims of territorial ‘ownership’.
400 There is a degree of conceptual imprecision in the view expressed by Professor Cane. The Goolarabooloo applicants do not rely on custodianship alone as the source of their rights to land. Rather, they rely on custodianship as the start of a process which included the acquisition by some family members of ritual and mythological knowledge and the acquisition of rayi connections in the Goolarabooloo application area, then, at some undefined point, the process evolved into full ownership. On that basis the holding by some Goolarabooloo people of that ritual and mythological knowledge, or aquiring a rayi connection, was a part of the evolution of the acquisition of rights in land. Whether having ritual and mythological knowledge, or acquiring a rayi connection, are ways under traditional laws and customs of acquiring rights in land is considered later in these reasons for judgment. There it is concluded that neither having ritual and mythical knowledge nor having a rayi connection confers rights to land under traditional laws and customs.
401 Professor Sutton observed that the Goolarabooloo did not identify with the Jabirr Jabirr language group of the area. Rather they identified as members of the Roe family. Ordinarily, succession involves the incorporation of the newcomers into the local language group. The absence of such incorporation speaks against the succession of the Goolarabooloo to the land in the Goolarabooloo application area.
402 A further obstacle to acceptance of the process articulated by Professor Cane concerns the area over which the Goolarabooloo applicants are said to have succeeded. The Jabirr Jabirr country was held by local estate holders, yet the authority given to Mr P Roe is said to have been over the whole of the Goolarabooloo application area comprised of a member of family estates. Professor Sutton observed that the Goolarabooloo applicants have not adopted the estates of the Jabirr Jabirr or Ngumbarl people, as would have been expected in a normal case of succession.
403 One answer to this question proposed by Professor Cane was that the Goolarabooloo application area did in fact correspond to a pre-existing land unit, but that that land unit was not the bur estate but rather nguril groupings, which were “clan areas” or “regional aggregates”. Nguril groupings, so it was contended, were identified on a mythological or cosmological basis, in contrast to bur estates which were not constituted mythologically. Thus, nguril groupings were said to be the fundamental societal units.
404 The Goolarabooloo applicants relied upon certain findings of French J, as he then was, in Sampi No 1, as well as evidence given by Mr Vincent Angus and Mr Bagshaw in that proceeding, to the effect that within Bardi country there were seven clans which are reflected in the seating arrangements at initiation ceremonies. The Goolarabooloo applicants then relied upon evidence of Mr Bagshaw, Mr Vincent Angus and Mr Damien Balacky Snr to the effect that the same kind of nguril groupings exist in the Goolarabooloo application area. In his primary report, Mr Bagshaw summarised Mr Vincent Angus’ description of the nguril rite as follows:
149 Vincent Angus also told me that the nguril rite – which marks the end of the irrganj phase of ritual seclusion for Northern Tradition initiates, and requires the initiates to publicly sit with their respective ritual guardians in a particular social arrangement symbolising the territorial affiliations of the latter – currently includes specific Kularrabalu (i.e. ‘Goolarabooloo’; south-west Dampier Peninsula coast)…As I understand it, the nguril rite expressly signifies the intra-regional origins of, and relationships between, the particular individuals involved…
[Footnotes omitted.]
405 Insofar as the nguril groupings were said to explain why the Goolarabooloo application area does not reflect bur estates, the explanation was established. The nguril groupings, and a person’s seating within the nguril rite, as Mr Bagshaw explained in concurrent evidence, are “an indication of the ritual status of those individuals”. As explained earlier in these reasons for judgment, the bur estates are the primary unit of landholding in the application areas. The nguril groupings, relate, not to landholding, but to ritual status and responsibility. Later in these reasons for judgment it is explained that the holding of mythical and ritual knowledge is not a basis for acquiring rights or interests in land.
406 Professor Cane advanced a further answer to the question of the area to which the Goolarabooloo are said to have succeeded. He saw no difficulty in the fact that Mr P Roe was given rights to the entire territory of the Goolarabooloo application area rather than to particular local estates. That was because Professor Cane regarded the land holding system as less bounded than the other experts regarding the land holding system. He traced changes in the bur estates from those recorded by Elkin to those presently identifiable. The changes in land holding involved some local estates disappearing and some amalgamating. Those changes reflected the results of depopulation in the area.
407 No expert doubted that white settlement, pearling, the removal of children and disease wrought significant changes and challenges to the people of the Goolarabooloo application area. But the basis of the land holding system, although changed, remained in place. Professor Sutton explained the position in concurrent evidence as follows:
I just want to take issue with the idea that the - that the estate or buru, if you like, system of the Middle Dampier Peninsula was more or less defunct in the 1930s. The opposite is the understanding I've gained from reading the field notes of Phyllis Kaberry and A P Elkin whose informants who are named - Kaberry names each ego on each sheet. They're alive and well but also the system is alive and well, at least in the minds of people at that time. It had not become totally fragmentary. Pretty much every estate - well, not every estate, but a large number of estates of which we know and which were recorded by the missionaries as well are there and memberships are assigned to them in the 1928 and '34.
408 That conclusion accords with the views expressed by Mr Bagshaw and Dr Weiner. The ultimate problem with Professor Cane’s view is that the conferring of authority on Mr P Roe over the whole area did not take account of the way landholding was organised even in the modified form suggested by Professor Cane.
409 In response to the opinion expressed, particularly by Professor Sutton, that there was no evidence of extinction of the Jabirr Jabirr when Mr P Roe was said to have been given the role of custodian and thus no trigger for any succession arrangement, whether as the commencement of a process as Professor Cane argued, or under the traditional laws and customs argued by the Bindunbur and Jabirr Jabirr applicants, Professor Cane retreated to the position that the threat of extinction was sufficient to engage the concern of local people and motivate them to take steps to protect the future of the society. However, the evidence did not support that view. Whilst there was evidence of disruption and movement of people in the Goolarabooloo application area in the 1930s, there was also evidence of concentrations of those people in Beagle Bay and Broome. For instance, Ms Mary Tarran said that most of the people were living in those places. Ms Rita Augustine, who was born in 1934, described Jabirr Jabirr people living along the coast and “quite a lot of Ngumbal and Jabirr Jabirr people” living around Waterbank Station. She was taken to the orphanage in Broome and then evacuated to Beagle Bay during the war. She said that there was “a big mob of us there”. From the evidence as a whole the picture emerged of members of the Jabirr Jabirr and Bindunbur people, old and young, in the application areas in the 1930s. The Bindunbur and Jabirr Jabirr applicants provided an analysis of the descendants of the apical ancestors who would probably have been alive in the 1930s. The analysis was made from genealogies in evidence and, consequently, the analysis did not establish that the people lived in the application areas. However, the probabilities are that most of those people did live in or near the areas. The analysis disclosed that about 120 people were alive at that time. Thirty-four of those were children born between 1925 and 1939.
410 The Goolarabooloo Aboriginal witnesses accepted that there were Jabirr Jabirr people in Beagle Bay and in Broome at the time. They did not explain the references to the Jabirr Jabirr people dying out in some of the versions of the story about Mr P Roe relied upon. For instance, in the first account Mr P Roe spoke of the local community as all finished. That was clearly not the case. Indeed, in some of the accounts Mr P Roe himself acknowledged the local population. In the second account he spoke of 60 – 70 people at Waterbank Station, and in the fourth account he spoke of burying 10 local people.
411 In any event, Professor Cane modified his view in the concurrent evidence. In his reports he described the societal changes as “unimaginable from my perspective” and as an “unimaginable demographic and cultural crisis”. He described the changes as “extreme”.
412 In concurrent evidence Dr Weiner said that “impact is a relative assessment” and continued:
…. I started off work as a consultant Native Title anthropologist in Queensland which was far more dislocation, outright killing and removal of people from land, and not only that but they were sent thousands of mile [sic] away to various settlements and missions from - from which they essentially never returned.
In this - in the Dampier Peninsula, people were sent as close as Beagle Bay which is a matter of a few kilometres. They could hardly have said to have lost effective contact with their - with their home territories; and secondly, their removal was not forced or was not permanent and they, in fact, were able to visit their - their home - home areas even while they were living at Beagle Bay.
413 Professor Cane then modified his position as follows:
…. I agree the nature of disruption here was less than elsewhere in Australia, that's for sure. My point was really that there was sufficient disruption for - for Paddy Roe to arrive on the scene and be asked to look after the country because at that point it was vacant.
414 The Goolarabooloo applicants have not established, either that, under traditional laws and customs rights to land could be acquired by the process commencing with custodianship, or that, if such a process was available, the circumstances in which it would apply existed at the time.
1.13.6 Was Mr P Roe appointed as custodian of the Goolarabooloo application area?
415 The Goolarabooloo applicants placed central reliance on the story of Mr P Roe. Importantly, Professor Cane accepted the story as a starting assumption for his views.
416 The Bindunbur and Jabirr Jabirr applicants did not accept that the evidence established Mr P Roe was given the role of custodian. As Professor Sutton put it in his supplementary report “the [Mr P Roe] story has become both legend and, in a sense, dogma, for many of his descendants and at least one or two of their non-Aboriginal supporters. The sincerity and strength of these views are not to be doubted”.
417 In view of the conclusion that the traditional laws and customs do not allow for the acquisition of rights and interests in land by succession in the way asserted by the Goolarabooloo applicants, it is not strictly necessary to determine whether the story of Mr P Roe has been substantiated or not. Even if it were accepted, the circumstances would not, under traditional laws and customs, have led to the Goolarabooloo acquiring rights and interests in land. However, as the issue was strenuously argued, much time devoted to it, and the Bindunbur and Jabirr Jabirr applicants’ case cast imputations on the character of Mr P Roe, it is appropriate to deal with the matter briefly.
418 There is some difficulty in identifying the way in which the Goolarabooloo applicants seek to utilise the story of Mr P Roe. It seems that they do not say that Mr P Roe himself acquired rights to country from actions of the old people at the time of those events. Rather, by reason of Mr P Roe taking on the role to look after country and undertaking activities of that nature, his descendants have acquired rights in the country over time. The handing over of the task of looking after country was part of a process of succession which culminated at some undefined time in the descendants of Mr P Roe acquiring rights to the land. It seems to be part of that case that Mr P Roe entered into the process on an expectation that his family would in due course obtain rights in the country. In other words, it was also part of the arrangement that the descendants of Mr P Roe would acquire rights in the land. The Goolarabooloo applicants’ case, as I follow it, interprets the five accounts given by Mr P Roe in that way.
419 The evidentiary basis of the Mr P Roe story is not free from difficulty.
420 An obvious difficulty is that Mr P Roe is dead and hence unable to explain the circumstances about which he spoke.
421 That is especially problematic because the form of expression used in the texts is open to a number of interpretations. Mr P Roe described his role as one to look after the land. That may simply involve caring for country on behalf of the owners of the country without himself or anyone through him acquiring rights in the country.
422 On the other hand, when Mr P Roe stated that the old people gave him the land it might be suggested that ownership or rights were thereby conveyed. A further complication is that neither of these interpretations reflects the case put by the Goolarabooloo applicants. The first interpretation involves Mr P Roe accepting a role without the acquisition of rights at all. The second interpretation involves the immediate transmission of rights.
423 Based on the texts and their context, the former interpretation is more likely because the references to giving Mr P Roe the land are mostly expressly linked with a purpose of him looking after the land. That is to say, his accounts generally suggest that he was given a function of caring for the land but that the old people did not contemplate that he would acquire any rights or interests in the land.
424 Importantly, this interpretation is supported by evidence from two living people who gave evidence and hence, were able to be challenged on the question.
425 The first witness was Mr James Kelly who related in cross-examination that:
… what he [Mr P Roe] said, I remember, when I was 15 years of age. He said he only was looking after country; he said he didn't own the country. He was looking after certain places not to get damaged, you know? But he didn't say himself that he owned that country. He was respectable man and he knew the truth, you know, that bloodline only on the country …
426 This evidence is significant because Mr James Kelly was brought up by Mr P Roe and was close to him. Mr James Kelly also spoke of a time nearer to the events than the accounts given by Mr P Roe in the 1980s and 90s and in contexts different than the context in which the discussion between Mr James Kelly and Mr P Roe occurred.
427 The second source of evidence is Mr Phillip Roe. In the exchange extracted above at [354] of these reasons for judgment, Mr Phillip Roe was clear in his evidence that his grandfather was a caretaker and not an owner of the country in the Goolarabooloo application area.
428 Another difficulty is that the accounts relied on were provided by Mr P Roe around 50 years after the events occurred, when Mr P Roe was in his early 70s. Further, the accounts were given in various contexts which may have impacted on the way in which he explained the situation. Thus, the account given to the Seaman Inquiry, or explaining why Terrex should not be granted an exploration licence, did not squarely raise questions of the relationship between the Jabirr Jabirr and the Goolarabooloo in claims for rights to land. Those contexts concerned the relationship between the Aboriginal world and the non-Aboriginal world.
429 Mr Bagshaw wrote a supplementary report in which he analysed the versions of the story of Mr P Roe. He applied his anthropological expertise and concluded that the circumstances did not involve the acquisition of rights to land. Some of his anthropological judgments raise questions about the validity of the story as conveyed in the versions relied upon by the Goolarabooloo applicants. For instance, even if one accepted, contrary to other evidence, that rights could be acquired as a result of exercising the role of custodian, Mr Bagshaw explained that it is highly improbable that Aboriginal cultural norms would countenance rights being conferred on a young man in his 20s after a two week encounter particularly where the young man was a stranger. Both his youth and the fact that he was not Jabirr Jabirr make it highly unlikely that he would have been given rights and interests in the land.
430 A further question about the story as relied upon by the Goolarabooloo applicants is that the identity of the people who conferred the role on Mr P Roe is, in some instances, not revealed and, in several other instances where the identity is disclosed, the people nominated are different in each version. Thus, in the first, second and third accounts the people involved in handing Mr P Roe the role are not identified. In the fourth account it was two old ladies who gave him the role. In the fifth account it was an old man identified by the hand written note as Walmadang. Then, in an interview with Marcus Holmes on 16 August 1994, Mr P Roe spoke of being given the land by Minyirr Djugan. Marcus Holmes was a legal aid lawyer who interviewed Mr P Roe together with Mr J Roe, possibly in relation to the lodging of a native title claim. The impression from this interview is that Mr P Roe, who was then 82, needed prompting from his grandson in order to relate the story. Not only is the identity of the person or people who conferred the role on Mr P Roe unclear, but there is no indication of the authority of the people who are said to have given Mr P Roe that role. It is unclear whether they spoke for themselves alone or for a wider community.
431 Professor Cane accepted that Walmadang (Walmadan) gave Mr P Roe the responsibility for looking after the country. But Professor Cane did not consider the accounts given by Mr P Roe in which he said that two old woman were responsible for the event, and he did not consider the other accounts where multiple people were involved, but not named. The identification of Walmadang as the conveyor of responsibility was important in Professor Cane’s thesis because Walmandang was related to Mr P Roe and spoke Nyikina. Both these commonalities provided, in Professor Cane’s view, a proper foundation in traditional law and custom for the transmission of rights and interests in land.
432 A further difficulty with Professor Cane’s acceptance of the story of Mr P Roe relating to custodianship is the evidence of Jabirr Jabirr and Bindunbur witnesses who said that they had not heard of Mr P Roe being given that role and that they would have heard if that role was granted to Mr P Roe. That consistent evidence came from such a large number of witnesses that it suggested that the story of the custodianship role given to Mr P Roe was accepted within his family, but was not known in the wider society. Professor Cane relied on a discussion in June 2014 which he had with Kim Ackerman whom he described as “a highly respected, initiated anthropologist who not only knew Paddy and other Law bosses but participated in many rituals with them”. Kim Ackerman told Professor Cane that “Paddy was recognised as a (possibly the) regional Law boss in succession from Paddy Djagween and Butcher Joe Ngangan”. The Goolarabooloo applicants also relied on the fact that the descendants of Mr P Roe occupied the space representing the south-west Dampier Peninsula in the nguril rite as evidence that Mr P Roe was given custodianship over the area between Minari and Willie Creek. However, as discussed earlier in these reasons for judgment, under traditional laws and customs, holding a place as a ritual leader does not involve the acquisition of rights and interests in land.
433 There was evidence that Mr P Roe was involved in consultation with officials about land use in the Goolarabooloo application area. He objected to the proposed course of part of the Broome-Minari Road which would have interfered with a significant site. Also, he, with Sandy Paddy, a senior Bardi Law boss, and Paddy Angus, a senior Jawi Law boss, were interviewed by Mr Green in 1991 for the purpose of Mr Green preparing a report about the Terrex application for an exploration licence. The three men identified significant Aboriginal sites on the song cycle path along the west coast of the application area. In 1988, Mr P Roe initiated the Lurujarri Heritage Trail along the song cycle path in order to introduce non-Aboriginal people to the culture of the Aboriginal people. Walks along the trail have been conducted by the Goolarabooloo over the years since. This and other evidence demonstrated that Mr P Roe was a spokesperson on Aboriginal cultural matters at least from the late 1980s. The activities are consistent with, but do not establish, that Mr P Roe was given the role of custodian with rights to country. Furthermore, the evidence largely went to activities undertaken over 50 years after the handing over of the role. That raises the question whether those activities were related to the events of more than 50 years before.
434 Analysis of the story of Mr P Roe could continue for much longer. A great deal of detail was produced and lengthy submissions made about the matter. As indicated earlier in these reasons for judgment, that is the reason that the issue has been addressed, even though the discussion has no effect on the outcome of the proceeding because the Goolarabooloo applicants have not established that traditional laws and customs of the Bindunbur and Jabirr Jabirr allowed for the acquisition of rights or interests in land by a custodian.
435 Even if there were such traditional laws and customs the evidence does not satisfy me on the balance of probabilities that the role of custodian with rights to land was conferred on Mr P Roe. There are too many uncertainties in the evidence to tip the balance in favour of such a finding.
436 It follows from these reasons for judgment that under the traditional laws and customs of the Bindunbur and Jabirr Jabirr people, descent including by adoption is the only way of acquiring rights and interests in land and waters. That descent must go back to time immemorial. A limited exception to the descent rule is succession, whereby a neighbouring or closely related group may succeed to the local estate of a group that has become extinct. The Goolarabooloo have not acquired rights and interests in land and waters by descent, because their connection to the Goolarabooloo application area goes only as far as the arrival of Mr P Roe and his wife MP in the area in the 1930s. The Goolarabooloo applicants have not succeeded to land and waters in the Goolarabooloo application area because the original inhabitants did not become extinct.
437 Further, under the traditional laws and customs of the Bindunbur and Jabirr Jabirr people rights and interests to land are not acquired by a person who is appointed custodian of land.
438 Even if the traditional laws and customs allowed for the acquisition of rights and interests in land by a custodian, the evidence does not establish on the balance of probabilities that Mr P Roe was appointed as custodian on that basis.
439 In the following two sections, 11 and 12, of these reasons for judgment the remaining two suggested pathways to the acquisition of native title rights and interests, namely through rayi connection and through mythological and ritual knowledge, are considered.
11. ARE RIGHTS AND INTERESTS IN LAND ACQUIRED UNDER TRADITIONAL LAWS AND CUSTOMS THROUGH HAVING A RAYI CONNECTION?
440 Beyond issues of descent and succession, an alternative basis for acquiring native title rights and interests was said by the Goolarabooloo applicants to be through having a rayi connection in the application areas. Broadly stated, rayi can be understood as a spiritual phenomenon that can lead to an attachment to a particular place or animal. More specifically, belief in rayi is described in the Professor Bagshaw’s primary report as “spiritual instantiation by means of localised (i.e. territorially-based) anthropomorphic or theriomorphic agents (spirits) called rayi”. An Aboriginal person may be recognised by Aboriginal society as “having” a rayi, or spirit, from a particular place. This may be referred to as that person having a rayi connection to that place.
441 It was common ground that belief in rayi is a feature of the traditional laws and customs of the application areas. The evidence of Aboriginal witnesses from all parties was to the effect that belief in rayi continues in the application areas, and that various individuals, including witnesses in the present proceedings, are recognised as having a rayi connection to particular places in the application areas.
442 The dispute between the parties was whether a rayi connection, absent of any other connection, is sufficient to give rise to native title rights and interests, and if so, the scope of those rights and interests.
1.16 What is the basis for Ms Teresa Roe’s rayi connection?
443 The only Goolarabooloo witness who claimed to have a rayi connection within the Goolarabooloo application area was Ms Teresa Roe. It was not disputed that Ms Teresa Roe had an emotional and spiritual attachment to the area associated with her rayi connection at Bindingankun, Yellow River. Mr Daniel Roe and Mr Brian Councillor each gave evidence that one of their children, a son and a daughter respectively, had a rayi connection within the Goolarabooloo application area. However, those rayi connections were not given the same emphasis as Ms Teresa Roe’s rayi connection. Further, there was no evidence that these more recent rayi connections were socially accepted by other members of the society, and as such, the dispute between the parties about the existence and scope of native title rights and interests derived from a rayi connection outside one’s descent-based country is limited to Ms Teresa Roe’s rayi connection. It is appropriate therefore to set out in some detail the story of Ms Teresa Roe’s rayi connection.
444 The story of Ms Teresa Roe’s rayi connection was first told by her father, Mr P Roe. In his primary report, Professor Cane set out at Mr P Roe’s original account of the rayi event as follows:
114. … [Mr P Roe] described working with Mr and Mrs Douglas who had the small pig farm at Yellow River and fishing at Minarriny one morning. He describes an unusual encounter with a stingray,
[C]oming, coming he come straight for me I thought he gonna turn somewhere … but he come straight for me, straight, right up to my leg.
115. Paddy speared the stringray in the wing and then subsequently ate it, curried, with the Douglas’ [sic]. Paddy then felt the urge to leave, to head south. He and Mary camped on their walk south and heard the sound of crying babies on two occasions:
I listen again SAME thing again SAME thing again somebody coming crying just like you know ooh like a whistling but throat very you know like whistling like a baby crying.
116. They were disconcerted by the sound so they moved on. They collected bush honey, which flowed ubiquitously. The great amounts of honey also worried them, after which Paddy felt something ‘was given to us by somebody, – you know that – so we gone – we just pick up our honey and everything ooh’ and then left the area. They walk down the coast to a windmill and tank near Quondong Point and encountered two women: ‘two old women come out’. The women asked Paddy where he came from and he answered ‘I come from Minarriny… but proper I come from Roebuck Plain’. The women observe he was a long way from home. The women said they were ‘Djaberajaber people’. Next morning, near Quondong, Paddy’s wife felt sick and Paddy attributed the nausea to the honey they had collected earlier. One of the women thought differently:
That old women I said to you he’s a doctor too – Marban [traditional doctor and spiritualist]. Woman. [S]he told my old women, [s]he say “you got two rai’”. From where he tell ‘em from Minarriny. You been pick up two girl, he tell ‘em two girl… ‘you got my two rai’… that’s the country woman that old fella old woman now, he from Minarriny that’s his country’.
117. When the first spirit child was born it was a girl, Theresa. So too the second child, Margaret. Theresa, was born with a mark on her arm in the same place Paddy had speared the stingray:
So when she was born my old women took notice you know. [S]He must think about that, you know the stingray I killed… and the girl got mark… got a hole in there. One side arm, right place too.
[Footnotes omitted.]
1.17 What is the Goolarabooloo applicants’ pleaded case?
445 The Goolarabooloo applicants pleaded that the traditional laws and customs acknowledged and observed by the members of the regional society include a rule that rights and interests may be possessed by a member of the regional society in relation to a particular area of land or waters where that person is connected to the area by rayi.
446 In a document handed up to the Court during final submissions, the Goolarabooloo applicants articulated their case regarding rayi as follows:
In the event that a person who is member of the regional society has a rai connection to the Goolarabooloo claim area, the Fourth applicant says that:
(a) that the person holds native title rights and interests;
(b) those native title rights and interests are held in relation to the part of the Goolarabooloo claim area that is associated with the rai event (“rai area”);
(c) those native rights and interests within the Goolarabooloo claim area are:
(i) to participate in decision-making processes with other native title holders relating to the rai area;
(ii) to maintain and protect the places, areas and things associated with the rai area;
(iii) to hunt, fish and gather on the rai area;
(iv) to take and use natural resources from the rai area;
(v) to live on the rai area, and to camp, erect shelters and other structures on the rai area;
(vi) to take, use and enjoy water from the rai area;
(vii) to maintain springs, wells and other places in the rai area where underground water rises naturally, for the purpose of ensuring the free flow of water; and [sic]
(viii) to light fires on the rai area for cultural and domestic purposes; [and]
(ix) to be accompanied onto the rai area by spouses, children, and kin.
447 During final submissions, counsel for the Goolarabooloo applicants further clarified the position regarding the rights and interests said to derive from a rayi connection as individual and limited in geographic area. Counsel for the Goolarabooloo applicants also accepted that the general effect of the evidence of the Bindunbur and Jabirr Jabirr witnesses was that rights and interests derived from rayi are subject to the views of those who have rights by descent. That evidence was consistent with the evidence of Professor Cane
448 Regarding the geographic area of rights and interests derived from rayi, counsel for the Goolarabooloo applicants adopted Professor Sutton’s description that a rayi connection gives rights to the area associated with the rayi event “and its penumbra”. In the case of Ms Teresa Roe, that area, so it was argued, is a large one, encompassing the entire country from Bindingankun, where the stingray was speared, to “a long way down the beach” where Mr P Roe and his wife MP met two old Jabirr Jabirr women who told them that they were going to have two children.
449 Regarding the heritability of rights and interests derived from rayi, the Goolarabooloo position was somewhat unclear. On the one hand, counsel for the Goolarabooloo applicants accepted that “on balance, rayi stays with the person and goes back into the country after they die.” On the other hand, counsel stated that “[t]he Goolarabooloo case…is that the rights are transmissible. Mr Richard Hunter referred to his mother’s rayi country at Bindingankum [sic], as did Terence Hunter.” Counsel also referred to Professor Cane’s opinion that rights derived from rayi are heritable “to an extent”.
450 It is significant that in the Goolarabooloo applicants’ primary submissions on connection, the section on rayi deals exclusively, save for a single paragraph relating to Mr Daniel Roe, with the evidence of Bindunbur and Jabirr Jabirr Aboriginal witnesses. In its Reply to the Bindunbur’s Response to the Goolarabooloo Submissions on Connection, the Goolarabooloo applicants explained that approach as follows:
The emphasis in this section of the GSC on the evidence of the Bindunbur and Jabirr Jabirr witnesses (rather that the entire case) is because the nature of the Bindunbur and Jabirr Jabirr case (that there is only one source of rights and interests in relation to land and waters under traditional law and custom) invites attention to what its own witnesses (lay and expert) say. The same argument is also made at BSCR 1306. There, it is said that the evidence about rai from Bindunbur and Jabirr Jabirr witnesses as set out by the Fourth Applicant "will be a pale shadow of the true picture". That the Bindunbur and Jabirr Jabirr case relies so heavily on reading down or translating references to rights (so that they become "rights") highlights why this approach has been taken.
451 That explanation is not convincing. A more straightforward explanation is that the evidence of the Bindunbur and Jabirr Jabirr witnesses was more supportive of the Goolarabooloo applicants’ pleaded case, as outlined above, than the evidence of the Goolarabooloo witnesses themselves. The following exchanges with counsel for the Goolarabooloo applicants during final submissions are indicative of an asymmetry between the Goolarabooloo case and the evidence of its witnesses:
HIS HONOUR: … You say, don’t you, that Teresa’s rayi gave her a right of ownership in the entirety of the Goolarabooloo country which she passed on?
MR COLLETT: We say it gave a right. We wouldn’t use the word “ownership”, but we’d say it gave her rights to occupy and protect that country over at least the area of her rayi, which was a large area given the journey that the PR went at the time that her rayi - - -
HIS HONOUR: But do you say the – well, I have no doubt you’ll get to it, but I understood you to be saying that the result of Teresa’s rayi gave her descendants the rights to the entirety of the area now claimed.
MR COLLETT: It’s not our case as pleaded. There is evidence from Teresa perhaps, and others to that effect.
…
HIS HONOUR: Well, then if that be the case, then, for instance, the descendants of Teresa Roe get no rights from her rayi, is that what you were saying?
MR COLLETT: Well - - -
HIS HONOUR: - - - because I rather understood that what your case was that from her rayi her descendants get the full gamut of native title ownership rights, and that is the right to exclusively possess and speak for the country.
MR COLLETT: That is probably the evidence of Teresa and some of her descendants, but it’s not the evidence of the Bindunbur and Jabirr Jabirr witnesses.
452 Thus, it is apparent that where the evidence of the Goolarabooloo witnesses was in conflict with the evidence of the Bindunbur and Jabirr Jabirr witnesses, the Goolarabooloo evidence was not relied upon by the Goolarabooloo applicants. It is therefore appropriate to consider the evidence of the Bindunbur and Jabirr Jabirr witnesses to ascertain what rights, if any, are derived from a rayi connection in the absence of a descent-based connection under the traditional laws and customs of the application areas.
453 As is apparent from the conclusion reached below in relation to rayi, issues of heritability and the precise area associated with rayi rights are not determinative in this matter. As a result, the evidence which is extracted below focuses on the issue that is determinative, namely, the relationship between a rayi connection holder and descent-based rights holders.
1.18 What is the Bindunbur and Jabirr Jabirr applicants’ position?
454 The Bindunbur applicants’ primary argument regarding rayi derived rights and interests, which was also adopted by the Jabirr Jabirr applicants, was that rayi and rayi events and connections are ultimately part of the property of the group who are possessors by descent of the unit of country in which the rayi is found and are subject to recognition by the descent-based group. A person with a rayi connection can expect that their connection will be respected by the rights holders by descent, including permission to access and use the area. They can also expect that their connection will be taken into account by the rights holders by descent when making decisions. However, that person’s access to and use of the rayi area is ultimately subject to the control of the rights holders by descent, which may include excluding the person from country in the unlikely event of culturally sanctionable behaviour by the person with the rayi connection. Thus, a rayi event does not give rise to rights in relation to land or waters, but rather rights that are personal and permission-dependent and so, it was argued, held mediately in the sense discussed by the Full Court of this Court in Commonwealth v Akiba [2012] FCAFC 25; 204 FCR 260 (Akiba FC).
455 The Bindunbur applicants’ secondary argument was that if a rayi connection does give rise to a native title right or interest, then any such right or interest is personal, usufructuary, non-heritable and confined to the place recognised as directly associated with the rayi event. It does not include a right to speak for or make decisions about the place where the rayi event occurred. Rather, a person with a rayi connection may speak about the place or the rayi event.
1.19 The Bindunbur and Jabirr Jabirr evidence
456 The general effect of the evidence given by Jabirr Jabirr witnesses was that a rayi connection holder did not have equivalent rights to a person with descent-based rights. Rather, any rayi derived rights are held only after permission has been granted by those with descent-based rights. For example, Ms Rita Augustine gave the following evidence-in-chief:
MR KEELY: Suppose that instead of your rayi coming from Carnot Bay, your rayi came from One Arm Point, would that make you someone who could speak for that area or be a traditional owner of that area?
RITA AUGUSTINE: No. I wouldn’t make myself and I wouldn’t even speak about it.
MR KEELY: Sorry, you’d never speak?
RITA AUGUSTINE: I wouldn’t speak for that country anyway.
MR KEELY: Right. Suppose you did have a rayi from One Arm Point, or that area, how would – how significant would that area be to you?
RITA AUGUSTINE: It wouldn’t mean much to me about.
MR KEELY: Sorry, I didn’t hear that.
RITA AUGUSTINE: It wouldn’t much to me.
MR KEELY: It wouldn’t mean much?
RITA AUGUSTINE: Yes, because I wouldn’t feel it’s my place.
MR KEELY: You wouldn’t feel it’s your place?
RITA AUGUSTINE: Yes.
MR KEELY: Suppose you wanted to – you heard the story from your old people about your right place up near One Arm Point, and you wanted to go there and have a look and maybe hunt there or fish there or camp there or something like that, would you just go straight in or would you do something first?
RITA AUGUSTINE: I’d ask if I wanted to go out and – yes.
MR KEELY: And do you think those Bardi people would say “no” to you if you wanted to go and see your rayi place?
RITA AUGUSTINE: I don’t think they’d say “no”.
457 Then, asked about Ms Teresa Roe’s rayi connection, Ms Rita Augustine gave the following evidence-in-chief:
MR KEELY: Is she someone who, because of that, has a right to make decisions about that country?
RITA AUGUSTINE: Well, if she wanted to go out to that little area, whatever, maybe it's special to her.
MR KEELY: So - - -
RITA AUGUSTINE: It's something special – you know, we have special things – we have different – we have special - - -
MR KEELY: And maybe this is one of them that's special for Teresa.
RITA AUGUSTINE: Yes.
MR KEELY: And if she came to you and said, "Rita, I'd like to go up there camping or hunting or just to have a look or just to – just to be there for a while" - - -
RITA AUGUSTINE: Yes. It's okay.
MR KEELY: - - - would there be any problem with that?
RITA AUGUSTINE: No problem.
MR KEELY: You wouldn't say no to her.
RITA AUGUSTINE: No.
MR KEELY: But you – you used the words "that little area". What do you mean by that?
RITA AUGUSTINE: Well, the place.
MR KEELY: Just that one place.
RITA AUGUSTINE: Yes.
458 Ms Cissy Djiagween gave the following evidence-in-chief about whether it was possible to get rayi from a place other than your mother’s or father’s place:
CISSY DJIAGWEEN: Yes, you can do that. It could happen. But you can't claim that land as your own. You can't be boss over that country.
MR KEELY: Right.
CISSY DJIAGWEEN: You know?
MR KEELY: So - - -
CISSY DJIAGWEEN: See, that's your rayi.
MR KEELY: So - - -
CISSY DJIAGWEEN: Because you aren't looking for another mother; got to come through your blood.
MR KEELY: So to get to be boss, it's got to come through your blood.
CISSY DJIAGWEEN: Yes.
459 Ms Cissy Djiagween then gave the following evidence-in-chief about Ms Teresa Roe’s rayi connection:
MR KEELY: - - - can she go into that area any time she likes or does she need to do anything?
CISSY DJIAGWEEN: She can walk any time around there but she can’t talk for it.
MR KEELY: She can walk around there but she - - -
CISSY DJIAGWEEN: But she’d have to ask the people, the Jabirr Jabirr people, you know, the people’s country.
MR KEELY: This probably wouldn’t happen, but suppose Teresa went there and she did something wrong, can Jabirr Jabirr people for that area do anything about it?
CISSY DJIAGWEEN: Well, for sure they’d say, “Well, you can’t – you can’t make your own rules here. You’ve got to see the right people first.”
460 Ms Cissy Djiagween also gave evidence in re-examination about her sister, Antonia, who is not a Nyul Nyul person, and her barramundi rayi from Beagle Bay in Nyul Nyul country:
MR KEELY: Now, does having a rayi place at Beagle Bay make Antonia Nyul-Nyul?
CISSY DJIAGWEEN: No.
MR KEELY: Does it make her a traditional owner of that area or a boss for that area?
CISSY DJIAGWEEN: No. It's probably where her father and mother come from. You have to go back where your parents come from - - -
MR KEELY: Yes.
CISSY DJIAGWEEN: - - - or your grandparents, you know, grandmother, grandfather.
MR KEELY: So that's why you say that you can't claim the country from that - for that reason?
CISSY DJIAGWEEN: Yeah. That's all - that's in the Aboriginal ways, cultural ways would be looking after country that way and people as well.
MR KEELY: Can you think of anyone who, from having a rayi place somewhere outside their parents' and grandparents' country has been accepted as traditional owner? Can you think of anyone who - - -
CISSY DJIAGWEEN: No.
MR KEELY: - - - in that situation?
CISSY DJIAGWEEN: No.
MR KEELY: When you said that the place was likely to be significant, what do you mean by that?
CISSY DJIAGWEEN: It's a place that people when they make trouble there, they always got to face their trouble.
461 Under cross-examination, it was suggested to Ms Cissy Djiagween that “[y]ou do have a right to speak for that country if you’ve got rayi, even if you’re an outsider?” She gave the following evidence in response:
CISSY DJIAGWEEN: You can say it – say things, but you can’t claim it. That’s what I’m meaning. You can have a say for that country but you can’t claim and say that’s your country.
462 Ms Pat Torres also drew a distinction between a rayi connection holder being able to speak about the area where the rayi event occurred, and descent-based traditional owner’s right to speak for country. In her affidavit affirmed 10 April 2016, she said:
57. Under our laws and customs, people have rayi from Jabirr Jabirr country but no Jabirr Jabirr blood have no rights to make decisions for that country. People can recognise that they have a rayi there, and they might talk about that story, but they can’t make decisions on behalf of Jabirr Jabirr country or that place. Their interests are secondary to the rights of those who have the blood connection.
463 Under cross-examination, Ms Pat Torres gave the following explanation of what she meant by interests that are secondary to blood rights:
PAT TORRES: For me what I meant by that is that if something is happening to a country and a person has emotional connections through their rai, they have the right to be able to say, "Hey, everybody listen, this is a special place for me because I've got a rai from there", so that's what I mean by that.
MR COLLETT: Would you agree with me it's more than an emotional connection, because of the rai it's a spiritual connection as well?
PAT TORRES: It's emotional and spiritual, yes.
…
MR COLLETT: People who have a rai place not on their blood country have a right to be at that place?
PAT TORRES: They're definitely allowed to visit that place, yes.
MR COLLETT: And they've got a right to - they can camp there?
PAT TORRES: They can camp but they cannot live permanently there.
MR COLLETT: They can take food from there?
PAT TORRES: Yes, they can take food. All of these rights are traditional owner bestowed rights, so if a TO says it's okay for them to camp there, they can take fish and food from there.
MR COLLETT: Well, when you say "traditional owner bestowed rights", you're saying that there has to be a vote or it is something that's done with the implied permission of the traditional owners?
PAT TORRES: The traditional owners have rights going back thousands and thousands and thousands of years because of their bloodline and their connection to the Bugarrigarr, so in the case where you have a rai, other people are - should be made aware of it so when they're making decisions that they're also thinking about well, how is that going to affect that person.
MR COLLETT: And people who have rai in that way entitled told [sic] have their views taken into account, for example in relation to protecting that rai place?
PAT TORRES: They can definitely say something about it, but as it's Jabirr Jabirr country the final say comes from Jabirr Jabirr people.
MR COLLETT: So to that extent, at least, they can speak up for that place?
PAT TORRES: They can definitely speak up but traditional owners are the ones who make the final decision.
464 Mr Walter Koster gave the following evidence under cross-examination about a rayi connection giving a “little say” for the rayi place:
MR COLLETT: Should you look after that place where rai comes from?
WALTER KOSTER: Yeah, you get – have a feeling for it, that place where that rai come from. If something happened to it, of course you’re going to get upset. You can say, oh, I don’t want nothing happening to this place.
MR COLLETT: You should protect your rai?
WALTER KOSTER: Yeah, you can protect it, but if you’ve got to get – if the, well, traditional owners want something to do with that place, then if they say, ah no, we’re going to put something here, well, it has to be done really.
MR COLLETT: But under your law you’d expect to stand up for - - -
WALTER KOSTER: But they respect it and the people from the country, they’ll say, all right, we’ll work around this thing. We want humbug, that one little spot where your rai come from.
MR COLLETT: So are you saying that you’d expect traditional owners to respect that rai place?
WALTER KOSTER: Yeah. Well, anyway, if you do get a rai from another country that place will be special for the traditional owners anyway, because rai don’t just come out from anywhere. He can come out in a water place, you know.
…
MR COLLETT: Well, one of the things that you said was that the traditional owners should – you’ll have a little say there and because it’s your rai place ---
WALTER KOSTER: Yeah.
MR COLLETT: - - - do you remember saying that?
WALTER KOSTER: Yeah.
MR COLLETT: And under your law traditional owners should respect that you’ve got a little say for that place.
WALTER KOSTER: Yeah, well, they will. They’ll say, oh yeah, but if your rai come from there, that’s all right, that’s good your rai come from there. They don’t think - rubbish you.
465 The evidence of the other Jabirr Jabirr witnesses, Mr Anthony Watson, Ms Betty Dixon, Mr Henry Augustine Jr, Ms Mary Tarran and Mr Alphonse Balacky was to the same effect as that set out above.
466 The evidence of witnesses from the Nimanbur and Nyul Nyul parts of the application areas were to the same general effect as the evidence given by the Jabirr Jabirr witnesses. For example, Nimanbur witness Ms Majella Manado gave the following evidence under cross-examination:
MAJELLA MANADO: If you have rai outside of your blood country, that person still can go back to that country.
MR COLLETT: And that person can still camp at that place.
MAJELLA MANADO: That person can camp at that place but has no rights in talking for country.
MR COLLETT: That person can still take food for that place.
MAJELLA MANADO: Yes.
MR COLLETT: And that person should still protect that place if – if they thought there may be damage to that place.
MAJELLA MANADO: Yes. But still have no say for the next person's country. It's got to be your blood.
MR COLLETT: But you'd agree that, if they can protect the case – the place - - -
MAJELLA MANADO: Through their rai?
MR COLLETT: - - - through their rai, they can also talk in ways that protect the place, speak up for that place.
MAJELLA MANADO: No.
MR COLLETT: And, often, people talk about their rai place, don't they?
MAJELLA MANADO: Yes.
MR COLLETT: And - - -
MAJELLA MANADO: It all depends on if you want to share it. If you don't want to share it, you keep it to yourself.
MR COLLETT: But when people talk about their rai place, they're saying they've got some rights in that place.
MAJELLA MANADO: No, they don't – not unless you're blood.
467 Nyul Nyul witness Mr Gerard Sebastian said:
3. My mother and elders taught me that you have to have the bloodline to make decisions for country. They taught me that people who have the bloodline for the country have the right to kick anyone out who disrespects the country. That would include people who have rayi from that country if they’re not the right people, the people with the bloodline.
468 Senior Bardi man, Mr P Sampi, gave evidence-in-chief that it is possible to get a rayi connection outside of one’s country by descent, and that a person with such a rayi connection “would have a right to go back there”, and that that person’s connection would be to “just the one area there”. When asked in relation to such a person:
MR KEELY: … If that person - this probably wouldn't happen but if it did happen that that person went out there to look at their rayi place, camp there or fish there or something, and that person run amuck, you know left a big mess behind or something like that, what, if any, power do you have as gamelid [traditional owner by descent] over that person?
Mr P Sampi then answered:
PAUL SAMPI: I have a right to kick him out of there.
469 Under cross-examination, Mr P Sampi then confirmed the evidence he gave in Rubibi regarding rayi:
MR COLLETT: And do you remember being asked what rights that child would get? I’ll suggest to you what your answer was, and I’ll just ask you whether you agree with this or not. Can you remember saying:
Well, as an elder and a full blooded Aboriginal, where a rayi comes from or a person was born, he’s affiliated with that country.
PAUL SAMPI: Yes. Only that person alone, that one person.
MR COLLETT: And could I – you were then asked about – sorry, before I go on, and that is your view is it, that what you said there is right?
PAUL SAMPI: Yes.
MR COLLETT: And do you remember being asked by – asked a question:
What do you mean by “affiliated” because you used that word, “he’s affiliated with that country”?
And do you remember saying:
Well, he has the right to speak for it. He has the right to come to that country and fish or hunt or whatever.
PAUL SAMPI: The rayi person?
MR COLLETT: The rayi person.
PAUL SAMPI: The person with the rayi, yes.
…
MR COLLETT: And thinking about that, when you were asked if a person who has rayi was affiliated with a country, thinking about that spirit being, was that what you were thinking about when you said:
Well, that person who has a spirit being has the right to speak for the country?
PAUL SAMPI: Just that little area where they come from, you know, and not the whole area.
MR COLLETT: And did you – did you – and you also said:
He has the right to come to that country and fish or hunt or whatever?
PAUL SAMPI: Yes, yes.
MR COLLETT: And that – is that still your view?
PAUL SAMPI: Yes, that’s - - -
MR COLLETT: And you were asked about the right to speak, and you were asked whether that right to speak for someone with rayi is the same as, for example, an elder, and I’ll put your answer – I’ll read out your answer to you, and again I’ll just ask you if that is your view. Your answer was to the question as to whether has the same rayi the right to speak as an elder, and your answer was:
No, he doesn’t. He don’t have to say that he’s an elder of the clan, but he has the right to speak for that country.
PAUL SAMPI: Yes.
MR COLLETT: And my question was: is that still your view?
PAUL SAMPI: Yes.
470 In re-examination, Mr P Sampi was again asked what would happen to a person with a rayi connection outside of their country by descent, if that person “started destroying things and chopping down trees and leaving big rubbish behind”. He answered:
PAUL SAMPI: Well, we’d show them the way back, and have nothing to do with the country again.
471 In the conference of experts, all the experts apart from Professor Cane agreed with the proposition that a rayi connection not in a person’s own local area or language territory is limited to a personal connection to the place that gives rise to an expectation that members of the local or language owning group on whose country the place is located will not refuse the person access to visit and otherwise maintain the personal connection to the particular place. They also, apart from Professor Cane, all agreed with the proposition that the rayi connection is a personal non-transmissible right in relation to the particular place, which is dependent upon and exercisable subject to the rights of the local or language owning group, and otherwise exercisable subject to and in accordance with the applicable laws and customs.
472 Mr Bagshaw noted in his primary report:
181. Belief in rayi continues to have significant currency throughout the Dampier Peninsula … local belief in spiritual instantiation through the supernatural agency of rayi eloquently attests to both the spiritual linkage held to obtain between persons and country (i.e. persons emerge from, and first manifest themselves in, country), and to the emic view of country as the source and locus of supernatural agency.
Mr Bagshaw then concluded that:
194. … rayi instantiation is primarily (but not exclusively) a paternally-mediated cultural phenomenon and, further, that when such instantiation occurs outside of one’s own familial estate (bur) it establishes a spiritual link to that location, but does not typically or automatically confer rights of territorial ownership (i.e. on the part of the child) in respect of that place. On the basis of my previous work among the Bardi and Jawi, I infer that any potential territorial rights and interests arising from such an association (or, indeed, from place of birth) are necessarily subject to the acknowledgement and validation of estate-affiliates.
[Footnotes omitted.]
473 Mr Bagshaw explained in his supplementary report the difference between descent-based rights and rayi derived rights as follows:
103. Within the essentially estate-based context of the Dampier Peninsula, a central part of that relationship is the particular set of parentally-transmitted territorial affiliations, socioterritorial categories (father’s country, mother’s country, mother’s mother’s country, father’s mother’s country, etc.) and associated identities with which the child is invested at birth. As I understand it, these are all ‘fixed’, descent-based, and inherently transmissible endowments which serve, both in social and territorial terms, to situate and identify the child in a manner which is neither directly dependent upon, nor inevitably conditioned by, the child’s place of conception.
104. Among other things, such endowments, directly link an individual to past, present and (potentially) future generations in a way that, ontologically speaking, conception alone cannot. Furthermore, to the extent that parentally-transmitted territorial affiliations implicate ‘countries’ (estates) composed of multiple sites and intervening tracts, they provide a much wider geographical area of personal identification than the single focal locality traditionally associated with rayi instantiation. As I understand it, therefore, identification with a conception site neither supplants, cancels, nor overrides estate-based identification – the two forms of identification are not of an equivalent order, and cannot be construed as interchangeable alternatives.
105. At the risk of grossly oversimplifying an altogether more complex cultural reality, descent relationships ultimately have groups (families) and areas (estates) as their primary referents, whereas conception-based relationships are principally focused upon individuals and specific places… In addition, the former possess an overtly diachronic aspect (inter-generational continuity), while the latter are fundamentally synchronic in nature (fortuitous circumstance)…
[Footnotes omitted.]
Mr Bagshaw then concluded that:
112. … among the Jabirr Jabirr and Ngumbarl peoples, rayi instantiation in and of itself does not traditionally confer any rights of control, representation (‘speaking for country’) or ownership in respect of the associated conception site or to any wider stretch of country incorporating that site. … What it does confer, in my view, is the right to identify the relevant site (and its immediate environs) as one’s spiritual locus, the right to have one’s sentimental attachments thereto taken into consideration by the traditional owners in the course of making any decisions affecting the physical integrity of that site (but not to over-rule decisions made by the traditional owners), and the right – subject to the consent and acknowledgement of the relevant traditional owners – to access and enjoy the site and its natural resources (e.g. fruit, fish, game, etc.). In my opinion, consent and acknowledgement in this context necessarily presume some awareness on the part of traditional owners of the individual and the circumstances concerned, as well as an acceptance of the cultural validity of that individual’s claim to site-based rayi instantiation at a location within their wider bur or buru. I assume, but cannot say with complete certainty, that, once granted, the right of access remains in place throughout the life of the relevant individual.
474 Dr Weiner’s opinion was that pre-sovereignty, rayi was most frequently encountered in one’s father’s or mother’s bur, and that today, the dominant opinion across the Dampier Peninsula is that rayi should be and most commonly is acquired in country to which one has ancestral ties. For example, in his supplementary report, Dr Weiner concluded as follows:
95. I conclude from the writings of Elkin, Kaberry and Petri that the rayi was a function of a man’s patrilineal (or patrifilial) ties to his own buru and did not normatively operate as an independent avenue for the acquisition of spiritual links to country at large, at least not in the Middle Dampier Peninsula. In this respect, it is my opinion that the Middle Dampier Peninsula rayi is structurally unlike the more independently assessed phenomenon of being “found” in a place, through either birth or conception on country or both, that is more characteristic of inland, desert region Aboriginal populations of Western Australia.
[Footnotes omitted. Emphasis in original.]
475 Dr Weiner then turned to the Goolarabooloo characterisation of rayi connection, noting that Ms Teresa Roe was the only living member of the Goolarabooloo application group with a rayi connection within the application area. He then considered the anthropological reports prepared by Dr Kingsley Palmer in the Nyikina-Mangala and Rubibi claims, on the basis that Mr P Roe identified as Nyikina, and was born in and lived for a significant amount of time in Yawuru country. He concluded:
98. … the Yawuru and Nyikina (and Mangala) notions of rayi and the kinds of connection acquired through rayi are more similar to each other than each is to that of the groups of the Bindunbur claim area. Palmer himself concludes the same thing when he says in his 2012 Nyikina-Mangala report, of his Nyikina-Mangala informants’ statements on rayi that: “These data are consistent with my research findings for Yawuru”. I thus conclude from examining both that the Nyikina and Mangala society he describes in his 2012 report differed from the Karajarri-Yawuru society Elkin described in his 1933 article on Totemism in North-West Australia, and that both the Nyikina and Mangala and the Yawuru notions of rayi differed significantly from Bindunbur notions of rayi. I say “significantly” because the differences had effects on how connection to country and consequent rights and interests in country are construed in the three areas.
[References omitted.]
Significantly, Dr Weiner notes that rayi connection for Nyikina people is described by Palmer as:
102. … a separate mode of acquiring connection to country, whether one’s father’s country or elsewhere-- Palmer provides no information on the frequency with which rayi are encountered by Nyikina people in their father’s country or elsewhere, but the sense of his discussion … is that they can be encountered anywhere. If this is Nyikina (and Mangala) belief, then it is consonant with the interpretation that Paddy Roe, in the various versions of his acquisition of custodianship for the Ngumbarl coast, made of the story he claims to have heard about his wife’s future children and the story of his daughter’s subsequent acquisition of rayi from the Minariny area.
476 Dr White discussed rayi connection in terms of core and contingent rights. In her primary report, she concluded as follows:
272. In regards to rayi place and/or birthplace rights, within Jabirr Jabirr law and custom these would appear to once again be contingent upon the respect of Jabirr Jabirr TOs. Regarded as providing non-exclusive, non-primary connection to specific areas on country, these places allow for negotiation of rights with core rights holders, but no transmission rights as such … Rather, the right to inherit and bestow native title rights and interests is a core right reserved for Jabirr Jabirr Traditional Owners. …
477 In her supplementary report, Dr White maintained that position, concluding as follows:
21. … descent (reckoned biologically and by child adoption) was most likely the only necessary and sufficient condition for acquisition of rights in the claim area. Accordingly, spiritual connection (reckoned through rayi or place of birth) was most probably never a sufficient condition for the possession of rights in country (as opposed to its resulting in a connection to a specific location) within the claim area.
478 Professor Sutton, in his primary report, concluded on the basis of the expert reports available to him that:
20. … people in this region had strong interests in the immediate areas surrounding their personal conception sites (where their rayi lay), but that these interests were not ipso facto extended to the whole of the estate in which the site occurred, nor were such interests transferrable to or heritable by others but were instead a personal matter[.]
479 Professor Cane began his consideration of rayi connection in his primary report by noting that there are striking similarities between the account of rayi events given by Elkin, and the original account of the rayi story given by Mr P Roe. Professor Cane noted the following features recorded by Elkin:
365. …
• ‘a father “finds” in a dream a spirit child’.
• the spirit appears in the ‘form of some article of food, fish, animal and so on’.
• the spirit is frequently the ‘djalnga, totem, of the father’s local horde-country, bor’.
• if a spirit child is dreamt in another country, then ‘the child … is thus associated with the Djalnga of that “country”’.
• spirit children are small ‘about ten inches high, on the ground, in a tree or on a stone’.
• The imbuement often takes place when ‘a husband and wife are seeking food, the former may throw a spear at a turtle, fish, kangaroo or some other game but when he pulls the spear out of what he believes to be a turtle or some other creature, he sees the spirit child, who then passes between his legs and enters his wife’.
[References omitted.]
Then, Professor Cane assessed the authenticity of Mr P Roe’s various accounts of the rayi event:
366. Elkin’s examples accords [sic] with the account given by Paddy Roe of his own experience and almost reads as a template for Paddy’s story. Assuming Paddy was not reading Elkin at the time, his narrative accords with the traditional structure and so validates Paddy’s original account and the spontaneous spiritual geographic connection of Margaret and Theresa Roe …
367. In my opinion Paddy’s account approximates the particulars of a likely (and implicitly acceptable) experience of traditional imbuement: it contains the convincing detail of authenticity. This is less the case with subsequent accounts as these lose detail and emphasis in the retelling. Later accounts become confused in reproduction or appear distilled to the point of inconsistency and begin to read more like folklore than fact. For example, the account given by Green in 1991 differs from Paddy’s account in 1984 and a subsequent account by Paddy in 1994. In many respects the story gets worse, sounds less convincing and removes itself from the fundamental character of the tradition. Whereas the original is difficult to follow it rings true to earlier descriptions of the original tradition and has the convincing detail of surreal bewilderment. The later accounts are clearer, shorter and more convenient, but sound increasingly contrived. The particular and significant detail dissolves or is re-associated so as to lose the contextual and validating elements of the original. Gone is the balance of cumulative events: the fishing; the approach of the stingray; the sense (rather than a dream) by the father of Rai; the spiritual mark on the first child; experience consolidated and confirmed through the witness of the two older women.
480 Professor Cane then referred to anthropological reports prepared by Kinglsey Palmer and Patrick Sullivan for Rubibi. Professor Cane quoted the following passage from Palmer:
373. … The ‘Rayi’ principal establishes an indissoluble spiritual and emotional link between an individual, a natural species and a place. An individual is considered to be a physical manifestation of a spirituality which is attached to place … declaration of an individual’s Rayi place before others is a potent means for asserting rights to the country, even when that country is not the country of that individual’s mother or father.
Then, Professor Cane addressed the report of Sullivan as follows:
374. Sullivan similarly observes the universality of the belief but sees it in a more soluble socio-political context. He notes that ‘the Rai belongs to a site which its human manifestation will also have rights to and responsibilities for’ and provides a number of examples in support of this. He concludes that the ‘particular significance’ of the:
[C]omplexities of Rai … is to situate the economic activity of hunting and gathering in a wider framework of religious belief, as an important means, perhaps the most important currently, by which people regulate and negotiate their particular and unique rights over areas of land within the common land heritage of the whole society.
375. I am inclined to agree with him, at least in so far as my experience with the tradition in the northern parts of the Western Desert allows me an opinion. My experience of Rai (called Tjarrin there) is that it is a tradition of notable and negotiable value. In the northern Western Desert Tjarrin also refers an individual to spirituality and links that person and their spirituality to a place in country to which that spirituality relates. However, the evidence I gathered suggested that that the social and geographic value of spiritual imbuement is contextual and, as Sullivan notes, is a means by which people ‘regulate and negotiate’ their rights in land in various social and political circumstances. Part of the reason for the negotiable element in the tradition is that the spiritual imbuement is the product of a largely subjective experience, dependent on public consensus and acceptance. It is a less observable fact than birth or the existence of a father and grandfather. The authenticity of the event may or may not be witnessed and in either case must be accepted by a reputable part of the social group. Otherwise, who is really to know? The elements of subjectivity and verification can lead to an element of disputation and assertion in relation to a person’s claims on country.
[Footnotes omitted. Emphasis added.]
481 Professor Cane then asked at [384], why is it that “the tradition has such socio-political prominence yet such limited geographic effect?” Professor Cane’s conclusion was that it was likely that rayi was a “contingency provision” that came about as a response to the “devastating social and territorial consequences of history”. He described those historical consequences as follows:
385. … As a contingency provision, the tradition is likely to have had particular resonance during the period of territorial and social disruption through the historic era. In such circumstances it might be expected that succession would be forced upon people as large areas of country were vacated, death rates soared from introduced diseases, children were taken away and people were moved and re-settled in response to labour markets and resource supplies. In such dislocating circumstances, occupation of new areas is likely to have required early validation through traditional means. First through social acceptance and religious acquaintance (as exemplified by the experience of Paddy Roe) then through generational branding with Rai and birth in a cycle of succession starting with custodianship (first generation), leading to personal attachment (Rai and birth, second generation), effecting descent (third generation) and finally legitimate claims of territorial ‘ownership’.
482 Professor Cane then concluded at [390] that whilst in pre-sovereign times, rayi may have worked primarily to consolidate personal rights within family estates, the tradition had “a secondary benefit: it allowed, as Elkin and Palmer noted, for that connection and enrichment to take place outside a father’s country and for the individual to acquire tandem rights in that other country,” (footnotes omitted). Professor Cane continued:
391. The immutability of the tradition meant it had broad geographic application that facilitated and enhanced territoriality and consolidated the process of succession. The tradition might be seen as a handy addition in extreme and unpredictable environments where a drought or a cyclone could wipe out a family or devastate a family buru. Rai was, in this sense, the perfect contingency and evolved to allow society to cope with large-scale disruption. The historic era presented such extreme change and Rai was tailor made to cope with it. In my view Rai was an important tradition because it both contemplated and catered for territorial change within the territory of the society that held the tradition. It is because of this that Rai has forcefully remained in operation in the historic era.
483 Mr Bagshaw addressed the expectations that a rayi connection holder would have to use and access the site of the rayi event during concurrent evidence as follows:
I think once recognised that somebody has a rai place, there is a general view that the person has the fullest expectation to be able to visit that location, and to – to hunt and gather around and to camp. Whether that’s legally a right I’m honestly not sure, but it’s certainly once - you know, people say, “Yes, you know, we accept that that’s your rai place.”
Nobody is going to dispute somebody visiting their rai location and hanging around and, you know, usufructuary stuff also identifying with that place, as I know Mrs Roe does, and in the case of Bidangankuny nobody is going to dispute that. And I’m not sure, it may be that in this case there has been evidence that well, we haven’t heard that, but equally I think there has been evidence that yes, you know, we’ve heard that and nobody has a problem, as far as I can tell, with Mrs Roe identifying that as her rai place, and I certainly don’t think in terms of the literature I’ve read.
484 Professor Cane, during concurrent evidence, summarised the rights bestowed by a rayi connection as rights to “occupy, use and protect”. Then, in response to a question from the Court as to whether the rights of a rayi connection holder differed from the rights of a traditional owner by descent, Professor Cane answered as follows:
PROF CANE: A little bit different in the sense that the person with the rai would have a particular obligation, I believe, to protect the spiritual integrity of the totem in a sense, the spiritual manifestation for which they are imbued within that location. So it comes to my mind as an example one of, I think, Stephen Victor's daughters has the rai of a barramundi so I'm trying to apply that in real time in my mind, and I would imagine that if in that place where the barramundi manifested itself totemically, if there was to be a gold mine on the land next to the river with a great cyanide pond next to the river which had the chance of washing into the river and killing the barramundi, that person would have a right, I imagine, to object to that and speak to the protection of that totem species. So - - -
HIS HONOUR: But in the same way as another person who claims by descent or in relation to that specific right to object?
PROF CANE: I think - I think the right would have the same force but the articulation might be different. The - the person from descent might say, "This is my country through descent and I have the ability to make decisions about it and control it," and the person with the rai might simply say, "This is my spiritual manifestation and I'm speaking spiritually, and if you kill that barramundi, you kill me." And that is how I would say it.
[Emphasis added.]
As to whether descent based rights or rayi based rights would be definitive, Professor Cane said:
[I]f I had to make a call, which I will, I would say the person from descent has - would have the final say and the other person would suffer and maybe die in a traditional context as a consequence of that.
[Emphasis added.]
Professor Cane then emphasised that a rayi connection must be socially recognised:
I've written in my primary report that the rai, to the extent I understand it from the Desert perspective or as it expresses tjarrin, is - is - it has to be socially recognised because it's - it's just like an epiphany. It's an event you can't actually pin down and that's correct, and it does become a political vehicle because people can argue about it forever …
485 In direct response to Professor Cane’s answers extracted in the preceding paragraph, Professor Sutton made the point that whether the area associated with a rayi connection was big or small doesn’t make a difference, because there had been no evidence that the person who has the rayi connection is ascribed “the estate of the clan that owns the country”. He then made the following general point about how traditional systems of land-holding work:
It would not be in the wisdom of the old people to design a system whereby a more or less accidental finding of a spirit child outside one's country could lead to the sudden imposition of a perpetual descent group within someone else's area. That would lead to chaos, and I don't think the old people had chaos in - in mind as an objective; they would - they would have so ranked the differences between rai connection and descent group connection as to never - never make it easy for people to fall out over those things.
The Court then posed the same question that had been asked of Professor Cane regarding who would have final say in the event of a conflict. Professor Sutton responded as follows:
PROF SUTTON: I would have thought that the - the descent group would under ordinary circumstances have the final say but there is always the possibility that a person with a rai connection, with a strong political ability, strong eloquence, strong backup, plenty of young fellas, could make their presence felt much more strongly than someone else who didn't have that and who was more isolated socially and was less articulate verbally, and didn't go to meetings and so on.
So I do think that makes it relative and that can, of course, affect also the ability of the descent group to have itself heard.
HIS HONOUR: So it might depend on the strengths and weaknesses politically, physically, of each side to that debate?
PROF SUTTON: Yes, but I do think the old peoples' design of these systems was such as to avoid the law of the jungle.
HIS HONOUR: Yes.
PROF SUTTON: And to make their - to ensure enough certainty and predictability so that the strong simply don't overcome the weak. You can see this in cases where an elderly woman is the last member of a group is being duchessed or fated [sic] by those with succession interests, but they won't say, "Well, she's only one, we're 25, she can go." No-one ever - I've never come across people saying that. It would be brutality.
1.21 Are rights derived from rayi native title rights and interests?
486 The Goolarabooloo applicants responded to the Bindunbur and Jabirr Jabirr applicants’ primary argument by comparing the situation of a rayi connection holder to a complete stranger to the country in question. Whereas the latter needs express permission or a licence from the descent-based owners to access country, the evidence was that a rayi connection holder was not subject to control or licence. Rather, as argued by counsel for the Goolarabooloo applicants in final submissions, the essence of the evidence was that:
[I]t’s their rayi country and they can come there. It would be nice if they asked and we’d always give them permission … And what we say is that permission used in that sense is not inconsistent with a right. It might, at best, regulate the use of a right, or modify the use of a right but it doesn’t take the right of a rayi person to come back to their country and enjoy the resources there. It doesn’t take away from the fact that they have a right or an interest compared with at the other end a stranger coming and requiring express permission and a licence.
Later during final submissions, counsel for the Goolarabooloo applicants reiterated the point as follows:
A permission can simply qualify a right, and we say it does in the area of rayi.
487 In response to the contention that any rayi derived rights are held mediately, counsel for the Goolarabooloo applicants said:
[A] direct connection to land which outlasts any period of induction is not mediated. It’s not a who do you know?... we say that a rayi holder or a custodian does not have a mediated right or a status based right. They have an extremely direct connection to land. Rayi is obvious. You don’t get rayi unless there’s been a spiritual instantiation relating to a particular part of land and waters which creates a very well-known story about that. And if you don’t have the story, you don’t have the rayi, and so you don’t have the connection to that – the land which relates to that story.
488 Section 223(1) of the NTA requires that native title rights and interests be rights and interests “in relation to land or waters”. The meaning of “in relation to land or waters” was explored in in this Court, and in the High Court, in relation to an application for a determination of native title over a large part of the sea areas of the Torres Strait on behalf of native title holders over the islands of the Torres Strait. At trial, one issue concerned whether reciprocal rights and obligations arising out of status-based relationships were native title rights and interests: Akiba v Queensland [2010] FCA 643; 204 FCR 1 (Akiba SJ).
489 The primary judge referred to the following expert evidence about “tebud” relationships, a form of customary trading relations amongst Torres Strait Islanders as follows:
43. … As Professor Beckett observed:
These relations implied not merely an obligation to provide certain trade items, in exchange for certain other items, but also a guarantee of personal security; to go to a place where one was not known was to risk death.
[References omitted.]
490 These “tebud” relationships gave rise, according to the applicant, to “reciprocity based rights and interests”. At [493], the primary judge extracted the defining characteristics of reciprocity rights from the applicant’s Tenure Model, namely, that the rights:
(a) are held by each person who has or each group of persons who have a relevant reciprocal relationship (whether based in kinship or of another kind, such as tebud/thubud) with an ancestral occupation based rights holder or group of such rights holders; and
(b) can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal obligation;
(c) are “group” or “individual” rights;
(d) cover the area covered by the rights held by the person or group upon whom the right depends (but ultimately subject to regulation by that person or group or by the descent group of ancestral occupation based rights holders for that area);
(e) the content of the rights is reciprocal shared access and use which permits the same activities as may be done by the person or group upon whom the right depends but does not include territorial control or livelihood and the exercise of the right is subject ultimately to control by ancestral occupation based rights holders.
[Emphasis in original.]
491 The primary judge then referred at [498] to the consideration of the term “in relation to” in Western Australia v Ward [2002] HCA 28; 213 CLR 1, in particular Kirby J’s conclusion at [577] that what is required is “a real relationship, or connection, between the interest claimed and the relevant land or waters”.
492 The primary judge then found that reciprocal rights were rights in that they gave access to the lands and waters of another, and that reciprocal relationships are status based – “to deny the rights and obligations arising out of those relationships is to deny the relationship” ([504]). Reciprocal rights expressed “notions of respect, generosity and sharing, social and economic obligations and the personal nature of relationships” ([505]), and the “reciprocal obligations assumed are situational in the sense of requiring the appropriate response to the friend’s requirements of the moment – ‘If a person asks his thubud for help, then that person must help’” ([506]). Further, a partner in reciprocity “‘can be denied’ for reasons which are ‘valid and legitimate’…‘Thubud are like family; you can’t say no to them, unless you have a very good reason’” ([507]).
493 On the basis of the above findings, the primary judge concluded that reciprocal rights:
508. … are not rights in relation to land or waters. They are rights in relation to persons. The corresponding obligations are likewise social and personal and can be quite intense in character. This emerges clearly in the Islander evidence, the predominant emphases being on helping, sharing, being hospitable. To suggest that because, in a tebud relationship, the rights provide a “passport” to the host, partner’s island and, with permission, will allow fishing in the community waters of the host, simply diverts attention from the personal nature and the relationship-sustaining purpose of the rights themselves. I would add that merely because rights are to be satisfied in the host’s island’s areas does not mean that the rights themselves are ones in relation to those areas. I do not accept “a relation to” land or waters conceptualisation of reciprocity based rights as such.
[Emphasis added.]
494 On appeal to the Full Court of this Court, the primary judge’s findings on reciprocal rights were upheld: Akiba FC. Keane CJ and Dowsett J, with whom Mansfield J agreed on this point, said:
129. When s 223(1) of the NT Act speaks of “rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters”, the relationship referred to is the relationship described in s 223(1)(a) and (b). The relationship so described is one subsisting directly between the peoples who possess those rights and the land and waters to which they are connected by the laws and customs under which their rights are possessed. As Gummow J said in Yanner at [72]:
It is the relationship between a community of indigenous people and the land, defined by that community’s traditional laws and customs, which is the bridgehead to the common law.
130. Section 223(1) does not contemplate rights and interests which are, in some general or indirect way, related to land and waters, but dependent on the permission of other native title holders for their enjoyment. Such rights cannot be said to be possessed by the claimants themselves, so far as they relate to land and waters: such rights are not held by reason of the putative holders’ own connection under their laws and customs with the land and waters in question but are held mediately through a personal relationship with a native title holder who does have the requisite connection; as Gleeson CJ, Gaudron, Gummow and Hayne JJ emphasised in Commonwealth v Yarmirr (2001) 208 CLR 1 at [9] “those peoples, by those laws and customs must have a ‘connection’ with the land or waters” (emphasis in original).
131. The primary judge’s use of the term “status based” relationships was derived from evidence of Professor Scott, who was called to give evidence as an expert on behalf of the Seas Claim Group. Professor Scott drew a distinction between “secondary” and “tertiary” rights which were essentially “status related” (the reciprocal rights), and “primary” rights which derived from “descent” relationships (Reasons at [190]). Status based reciprocal rights are rights in relation to the land and waters of another person. This is to be contrasted with occupation based rights to access and use land and water by reason of laws and customs, such as those concerning descent from an original occupier of the area. As the primary judge observed, descent is an “indispensable element of a person’s identity” (at [183]). Native title rights in conformity with s 223(1)(a) and (b) of the NT Act exist by virtue of the identity of the native title holder: they arise by reason of “who you are”. The reciprocal rights propounded by the Seas Claim Group arise by reason of “who you know”.
132. Reciprocal rights persist only as long as a personal relationship with a native title holder continues. An occupation based holder accesses and uses land, and water and resources, as of right (subject to any overarching law or custom), whereas a reciprocal rights holder has no right to engage in any activity without “permission” or some form of a “license” from a particular person with whom he or she has a personal relationship. On the argument of the Seas Claim Group, native title rights would depend on the vagaries of that relationship.
[Emphasis added.]
495 The judgment of the Full Court was upheld on this point by the High Court in Akiba v Commonwealth of Australia [2013] HCA 33; 250 CLR 209 (Akiba HC).
496 In AB (deceased) on behalf of the Ngarla People v Western Australia [2012] FCA 1268; 300 ALR 193, a judgment handed down before the resolution of Akiba HC, Bennett J considered the principle articulated in Akiba FC in the context of whether a right to participate in traditional ceremonies is a right in relation to land or waters. Her Honour concluded:
547. … A right to say what can occur on land is a right in relation to land. The right to participate in ceremonies is a personal right, a status-based right in the Akiba (No 3) sense, and is not a right in relation to land. Permission to attend law ceremonies, generally given to all who wish to attend, does not amount to a grant of rights over the land. In the same way, the permission-based rights claimed by the Warrarn, such as the right to conduct rituals, to hunt and fish and to take materials from the land for the purposes of law ceremonies, are dependent upon the core rights of the Ngarla as traditional owners of that land. They are personal or status-based rights. The giving of permission to be “free” in the country is a personal right that does not convey any interest in Ngarla land.
548. In the same way, non-Ngarla spouses of Ngarla people do not have native title in the overlap area. Non-Ngarla spouses are not members of the Ngarla claim group, which is defined as cognatic descendants of persons recognised to be Ngarla under Ngarla traditional laws and customs. Although a non-Ngarla spouse may reside on Ngarla land and conduct activities on Ngarla land, this is a personal right, not a right in relation to land. Although the Ngarla claim that Ngarla persons have the right to be accompanied on the overlap area by their spouses, this is a Ngarla right; it is not a right belonging to non-Ngarla spouses to enter the overlap area. Any “right” held by non-Ngarla spouses is a personal right that is dependent upon that Ngarla right.
[Emphasis added.]
497 The positions regarding the nature and content of rights derived from rayi of the Goolarabooloo applicants on the one hand, and the Bindunbur and Jabirr Jabirr applicants on the other, were ultimately not very far apart. The Goolarabooloo applicants accepted that the rayi derived rights are subject to the views of those with descent-based rights. The evidence of the Bindunbur and Jabirr Jabirr witnesses relied on by the Goolarabooloo applicants emphasised that a rayi connection holder could not “speak for” the country, but rather, had to seek permission from the descent-based owners to access and use the area associated with the rayi event. The evidence was that in the ordinary course of things, that permission would not be denied. However, in the unlikely event of serious wrongdoing by a rayi connection holder, that permission could be rescinded. When pressed on the matter, the Goolarabooloo applicants’ expert witness, Professor Cane, conceded that the descent-based owners would have the final say if there were a dispute with a rayi connection holder.
498 The difference between the parties was confined to whether those facts gave rise to native title rights or interests. In that respect, the difficulty faced by the Goolarabooloo applicants is that even though permission is not ordinarily denied, the very fact that permission must be sought is indicative of the rayi connection holder entering into a relationship with the rights holders by descent. That relationship is characterised by mutual respect. The rights holders by descent “wouldn’t say no” to the rayi connection holder, but in the event of wrongful behaviour, the rayi connection holder may be excluded. Professor Cane’s characterisation of how rayi rights might be articulated, namely, “if you kill that barramundi, you kill me,” further indicates that the rayi connection holder has a personal relationship with the rights holders by descent, who become responsible for the spiritual well-being of the former. The rayi connection holder therefore cannot engage in activity in the rayi event area without entering into this relationship of mutual respect with the rights holders by descent, and in that sense, any rayi derived rights are contingent upon the “core” rights of the rights holders by descent. Thus, rayi derived rights are rights in relation to persons, not land or waters.
499 That is not to say that a rayi connection has no utility or purpose under the traditional laws and customs of the society in the application areas. As Professor Cane acknowledged, a rayi connection in someone else’s country can become a political vehicle. But as Professor Sutton observed, it would not have been in the wisdom of the old people to have allowed for chaos. Rather, because a rayi connection is subject to social recognition, it may be regarded as a tool for the social inclusion of strangers on country. A socially recognised rayi connection allows a stranger to country to enter into a relationship of mutual respect with the rights holders by descent. In fact, that point was made by counsel for the Goolarabooloo applicants, who said during final submissions that “rayi can provide a basis for a significant level of social inclusion, which we describe in another way as respect in a local group”. The Goolarabooloo applicants further contended that there was strong evidence of social acceptance of Ms Teresa Roe and her sister, now deceased, by reason of their rayi. So much was not disputed by the other parties.
500 Regardless of the social utility or otherwise of the traditional belief in rayi, it is sufficient for present purposes to observe that it follows from the above reasoning that any rights derived from rayi are not native title rights and interests.
12. DO PEOPLE WHO HOLD MYTHICAL AND RITUAL KNOWLEDGE AND EXPERIENCE OF AN AREA POSSESS RIGHTS OR INTERESTS IN THE AREA?
1.22 What is the Goolarabooloo applicants’ pleaded case?
501 The Goolarabooloo applicants’ case is that a person who holds mythical or ritual knowledge and experience of an area and is responsible for places, areas and things of a mythological or ritual significance in the area, particularly those places, areas and things relating to the ritual practice and associated laws and customs, referred to as the Northern Tradition, holds rights and interests in that area. The Goolarabooloo Statement of Facts, Issues and Contentions specifies the song cycle path along the coast of the Goolarabooloo application area from near Bindingankun to Willie Creek as an area for which men initiated in the Northern Tradition have a responsibility to look after, care for, protect and maintain. That responsibility is shared according to the man’s ritual or mythical knowledge and experience, his personal knowledge of the area, and as between law grounds on the one hand, and other places, areas and things of mythological or ritual significance in the area, on the other. Under traditional laws and customs acknowledged by the people of the region, the Law bosses, Mr Richard Hunter, Mr Phillip Roe and Mr Daniel Roe, primarily speak for, make decisions about matters affecting, and are primarily responsible for looking after, caring for, protecting and maintaining the song cycle path.
502 The draft determination proposed by the Goolarabooloo applicants adds a further qualification, namely, recognition by others of that knowledge and experience. In relation to the issue now under consideration the native title holders are defined in that draft determination to include living Aboriginals who:
[H]old mythical or ritual knowledge and experience of the Determination Area, and who are responsible for places, areas and things of mythological or ritual significance in the Determination Area and who are recognised by other native title holders under their relevant traditional laws and customs as having native title in the Determination Area.
1.23 What is the Bindunbur and Jabirr Jabirr applicants’ position?
503 The Bindunbur and Jabirr Jabirr applicants said that under their traditional laws and customs ritual leaders and people with mythical knowledge or responsibilities do not acquire rights or interests in land as a result of that status. Rights and interests in land are acquired, subject to the exceptions previously discussed, by descent alone.
504 The rules of the Bindunbur and Jabirr Jabirr society require native title holders to protect law grounds and spiritually charged places. The ritual leaders have responsibility for such places. The rules of the society require rights holders to respect the ritual leaders and to comply with their advice given collectively concerning the ritual significance and protection of ceremonial and sacred places. Law men and women would not ordinarily be refused access to such places but would be expected to obtain permission. Ritual leaders have collective responsibility for such places even if outside their own estates. The responsibility of ritual leaders is acquired by personal achievement and is not transmissible.
1.24 What is the nature of the ritual practice relied on by the Goolarabooloo applicants as the source of rights and interests in land?
505 The Northern Tradition is the ritual practice of the Goolarabooloo application area. Rituals are performed in ceremonies involving narrative, song and dance. In current times, the most important ceremony is the male initiation ritual. The initiates are required to meet certain physical demands, to receive instruction in sacred Law and to pass through a series of status grades linked to sequentially staged rites. The rituals enact the journeys of three or four supernatural beings in the Bugarrigarr time and the activities of other creatures such as the two snakes and emu. Performance of the rituals teaches the origin of the natural world and of the social world, the demarcation of territorial space and the rules of social conduct such as the generational moiety system, marriage restrictions, food prohibitions, avoidance relationships and gender restrictions in relation to knowledge and practices.
506 The role of senior law men, madja, is to lead the ceremony. The role of junior Law men is to assist the madja. Senior Law women perform an organisational role in the management of the ceremony, including controlling the seating arrangements of male participants during the nguril rites, albeit that much of the ritual is restricted to men.
507 The role of men and women Law bosses thus involves knowledge of ritual practice and of all the stories, music, and dance used in the ceremony to explain the cosmology and social mores of the people. The acquisition of such knowledge is incremental and occurs over long periods which, in part, explains why Law bosses are older people. Territories are of concern to Law bosses both because the ceremonies are conducted on Law grounds which are significant places requiring protection, and also because the mythology enacted in the ceremony is related to places in the country. Significant places of mythological importance are under the protection of the Law bosses. However, territorial concerns are but a part, and perhaps a smaller part, of the matters of concern to Law bosses. Nonetheless, it is only that part of the concern of the Law bosses to which the debate about rights in land in this proceeding related. The extent of the part that the protection of territory plays in the wider ranging interests of Law bosses may throw some light on the question whether ritual knowledge of Law bosses is the basis of the acquisition of rights and interests in land.
1.25 Bindunbur and Jabirr Jabirr evidence
508 The most senior Northern Tradition Law man at the time of the hearing, who has since died, was Mr P Sampi. He was a Bardi man. He gave the most extensive evidence about the role of Law men and women, and was the most qualified to do so.
509 He said that if something had to be decided which related to land, the rights holders by descent would decide. He explained the supportive role of the Law men in re-examination as follows:
MR KEELY: What role can the law bosses, even the senior law bosses, the Madja Madjid, what role can they play?
PAUL SAMPI: Well, they would ask for some help and we’d sort of - - -
MR KEELY: They’d ask for some help?
PAUL SAMPI: Yes, we’d support them, then naturally we’d give him – give them support because that’s something to do with the song line, you know.
MR KEELY: You’d give them help?
PAUL SAMPI: Yes.
MR KEELY: And when you give them help in relation to the song line travelling through those areas, does that make any of you lawmen like traditional owners or gumalid for that country?
PAUL SAMPI: No, not us. We’d be only – we’d be just to support them.
MR KEELY: Of all the men whose names we’ve talked about as being at those meetings and being the senior – the Madja Madjid, including the people here today, have you ever heard any of them say, “That’s my country there” at James Price Point?
PAUL SAMPI: No, I haven’t heard any.
[Emphasis added.]
510 Again in re-examination, Mr P Sampi explained how the law men operate as follows:
MR KEELY: So, I’m just asking is it necessary for the group to think about that or can one person do it by himself?
PAUL SAMPI: No, it’s got to be a group that does that. It can’t be one – one person.
MR KEELY: It can or can’t?
PAUL SAMPI: Cannot.
MR KEELY: Can’t be?
PAUL SAMPI: Cannot be one person. It has to be a group.
511 The way in which responsibility is placed on madja and then how that responsibility is to be exercised was described by Mr P Sampi in his affidavit sworn 4 October 2015, as follows:
68. When a man is given that thing [sacred object signifying authority] in the ceremony, it means that he has a responsibility to look after the Law ground where the ceremony happened. For J Roe this meant that he had a responsibility to look after the Law ground at OTC, just like his grandfather Mr Roe had. It also means that the person has a general responsibility as a junior madja.
69. When a man is given that thing in the ceremony, he has authority, but he's only one of the people who have that authority. Other people have had that authority for longer than the new man. He must respect them. He can't act on his own; he has to work with the other elders who have that authority. When a man gets that thing in the ceremony, he can't start to tell other elders what to do; he must still be accountable to all the madja, especially the senior madja.
[Emphasis added.]
512 The advisory function of law men in respect of places outside their own estate was outlined by Mr P Sampi in his said affidavit thus:
123. If we found out that something was going to happen to any of these places, we would do whatever we could to help to stop it. If the place was in Ngamagun country, I would probably have to do something myself or get one of my sons to do something. If the place was somewhere else in Bardi country or in Nyul Nyul, Jabirr Jabirr or Nimanbur countries, I might do something myself or I might work in with the men from the area in question who have been through the Law. Sometimes the local people, not just Bardi people, ring me up to get advice about things that are happening in their country that might affect special places there. I always do what I can to help. It would be wrong in our Law for any of these places to be disturbed or damaged by anyone, especially uninitiated people.
513 As to whether the law role is transmissible, Mr P Sampi said in his said affidavit:
62. When someone is given that thing [sacred objects signifying authority] in the ceremonies, he can't pass it on to anyone else; that wouldn't be right. It's got to be given by the senior madja. They decide who should get that thing.
514 Mr P Sampi was clear that the role of Law men does not give rights in country. He said in his said affidavit:
129. Having a responsibility for these places doesn't make you an owner of that area. For example, I'm responsible for the old Law ground on Sunday Island, but that's not in my country; it's in Jawi country. The owners of an area sometimes talk to the senior madja to make sure that they are not going to do the wrong thing, for example, to interfere with any special places like Law grounds. When this happens we help them.
[Emphasis added.]
515 Ms Rita Augustine, who is a senior Law boss, explained the respective positions of a Law boss and a rights holder in her affidavit sworn 30 September 2015, thus:
Even law men respect the right people for country. If my father-in-law wanted to go to a Law place on my country he'd come and talk to me or my son Henry Jnr first. We'd tell him: "You're alright". He's a Law boss; I'd always let him go there and look after to do with the Law. But it's right for him to talk to us first, because he is not an owner of that country; we are.
[Emphasis added.]
516 Mr Walter Koster, a Jabirr Jabirr Law man, described the role of Law men in relation to Law grounds on country in which he is not a rights holder in re-examination as follows:
MR BLOWES: You were asked questions about the law bosses and can you explain this in your words, the situation if you got law bosses dealing with somebody else’s country? In other words, can you explain what law bosses have to do with country, which is not their country?
WALTER KOSTER: Like if that people from that country, something to do with the law ground, maybe it’s been graded or whatever, knocked over, well, they can get these other law bosses to come in and give them a hand and talk over all that thing.
MR BLOWES: So it’s like on a request/advisory basis, is that what you’re saying? Or are you saying that they are entitled to come and roam and check and act on their own?
WALTER KOSTER: Yes, it depends on – when you say law grounds, you get a lot of different - different law grounds for different people?? Like just old yuna grounds in Carnot Bay, if something had happened to that I go and ask them, old yuna mob we come from that law and they want to humbug this place, yeah. They’ve got to do, call up and say something, if they don’t listen to the TOs of that place.
MR BLOWES: So they backup the - - -
WALTER KOSTER: Yeah, because – their law being playing in there, see. It’s like I’m disgraced through wrong law.
517 Jabirr Jabirr man, Mr Anthony Watson, agreed in re-examination that most of the work of Law men was concerned with ceremony, but if something major was proposed for land the Law men could be called on for support and advice. Particularly significant was Mr Anthony Watson’s response in cross-examination that Law men do not acquire rights in country by virtue of that status. His answer was spontaneous and reflected a deep cultural reaction. The exchange was as follows:
MR COLLETT: … You’re saying there that in Jabirr Jabirr country, you can’t get country through adoption as an adult, and that’s the same in Ny[i]kina country and Karajarri country?
ANTHONY WATSON: People came into Yawuru country, and they were from other tribes, and they were bosses in a lawground, but they respected this place as being Yawuru country, and they never claimed it. Similar in Ny[i]kina country, we had Walmajarri people come in, that they was law bosses but never was a traditional owner of that country. And they respected the traditional owners as its [sic] their country.
518 In a passage from his affidavit sworn 10 April 2016, Mr Anthony Watson demonstrated his own experience with the Law and provided some insight into the way Law men work. He stated:
167. I've only been to certain ceremonies on this side but have participated in many Law ceremonies across the region of the areas where I have connections to country - from One Arm Point, to Bidyadanga and in Nyikina country. I've participated in Law at Fitzroy, Wangkatjungka, Looma, Noonkanbah, Billiluna, Yandeyarra, Cotton Creek, Roebourne, Mowanjum, Jigalong, Jarlmadangah, and other places.
168. Law business happens on a yearly basis at One Arm Point. That's where Jabirr Jabirr people usually go.
169. I go regularly to Law to learn from the old people and to learn about different practices. There are many people who self-profess as Law bosses, but I don't want to do that. I think it's about waiting and showing respect for the old people today.
…
172. Law bosses generally act as a collective. If a question comes up that needs advice from Law bosses, it's generally not just one person that is called for or gives the advice; the Law bosses talk among themselves before they make a decision. But it depends what the nature of the issue is. They don't call them in every time. The senior elders from country can discuss most of the things that have to be decided about country. For example, if the local group for the buru knows that a place is a Law ground and that it has to be avoided and protected, they don't need to call the Law bosses for that because they know what they have to do. There are workers within the local groups who can tell people where they can and can't go when it comes to Law grounds, if they know about it.
173. For example, when the gas project was being discussed, we invited the Law bosses from this area to come and to see and witness what was going on.
174. The Law bosses are senior and knowledgeable. They are the ones who can sing the songs and have many years of experience leading the ceremonies right through and teaching the young members the protocols of law and culture. They are respected by other people for being Law and cultural people. It's a status that they earn; they don't inherit that status.
175. Part of earning that status is that you have to go right through law and culture, through all stages and know all the stuff. It's not self-proclaimed and it's not inherited. For example, Mr Wiggan, he's a leader, but his sons are not. There is an expectation that sons will follow in the footsteps of their father as a Law boss but it is not handed down. You earn it yourself. It's not like the way you get rights in country. He has to be accepted as being able to do. all the stuff and as showing leadership. He has to know all the songs and also be able to teach. You won't be a Law boss if you can't teach. You can have all the knowledge but still not be accepted as a Law boss, but if you can teach you can fill that title. It's like you as a student learn all the stuff then to become a professor you start to teach back into the community. So, your ability as a teacher and leader is also part of whether you are recognised as a senior law boss.
176. I will give an example here that would be the same if it happened among Jabirr Jabirr people. In Looma in Nyikina country, a highly respected Walmajarri man who was the Law boss recently passed away. He was a Law boss for the ceremonies there but he wasn't from there and never claimed to be a traditional owner. Under Nyikina laws and customs it would not have been right for him to claim to be a traditional owner however well respected he was as a senior Law boss. It's the same under Jabirr Jabirr laws and customs. The senior Law bosses from One Arm Point run the ceremonies that Jabirr Jabirr people participate in up there, but those bosses do not and would not claim to be Jabirr Jabirr or traditional owners of Jabirr Jabirr country or any part of it.
[Emphasis added.]
519 Jabirr Jabirr man Mr Henry Augustine Jnr gave evidence to the same effect as Mr Walter Koster and Mr Anthony Watson. On the central issue of the relationship between rights holding and Law status he said in cross examination:
HENRY AUGUSTINE JNR: … And as for the boss and all the law bosses, they’re just there to advise and help, and not to – not to jump on and take sides. They’re just to help and to guide, I suppose.
MR COLLETT: If the dispute - - -
HENRY AUGUSTINE JNR: And I believe that we, blood connections, should be talking for country. Yes, I believe that.
[Emphasis added.]
520 Evidence of other witnesses associated with the Jabirr Jabirr application area, Ms Cissy Djiagween, Ms Betty Dixon, Mr Alphonse Balacky and Ms Mary Tarran was to the same effect.
521 Witnesses associated with Nyul Nyul country also gave evidence of the same type. For instance, Ms Cissy Churnside said in cross-examination:
MR COLLETT: And you said that your parents told you that:
If you needed help with law things, you could go to your next door neighbours the Bardi.
CISSY CHURNSIDE: Yeah.
MR COLLETT: And that was because you didn't have law men for each burr at that time?
CISSY CHURNSIDE: Not any more, not in Nyul-Nyul.
MR COLLETT: And I think you were told that those Bardi law men could come in and give you advice?
CISSY CHURNSIDE: Yes, they could, if we asked.
MR COLLETT: And is that because those law men would do - would know what the right thing to do was?
CISSY CHURNSIDE: Yes.
MR COLLETT: And they'd know what things in what areas need to be protected.
CISSY CHURNSIDE: Yes.
MR COLLETT: And is the way that your culture worked, that if those law men told Nyul-Nyul people what to do, that would be done?
CISSY CHURNSIDE: It all depends. Mainly we - we - we all sort of – we listen to our boss men, you know, because they - they the - they the boss men and if you don't listen, you just afraid you might be doing the wrong thing. You know, something might happen to you down the road. I don't know.
MR COLLETT: And when you're talking about boss men, are you referring to senior law men?
CISSY CHURNSIDE: Senior law men, they the main ones.
MR COLLETT: And if those senior law men came in to give advice - - -
CISSY CHURNSIDE: Yeah.
MR COLLETT: - - - you would follow that advice?
CISSY CHURNSIDE: We would follow that advice, yes, because we asked them in the first place for assistant [sic].
[Emphasis added.]
522 And again, the Nyul Nyul witnesses including Ms Margaret Smith, Mr Otto Dann, Mr Alex Dann, Mr Lee Bevan, Mr Stephen Victor, Ms Neenya Tessling, and Ms Pat Torres gave consistent evidence on the question.
523 Finally, witnesses associated with Nimanbur country also said that Law status was not a basis for acquiring rights in land. Further explaining the advisory role of Law bosses, Mr Laurie Cox stated in his affidavit sworn 10 April 2016:
78. Under our laws and customs, Law bosses have responsibility for Law sites. Law bosses can't make decisions for Law sites unless they have the blood from there. I learned this from watching old people like lulu Jerome, granny Lena and Law men like Vincent Angus and [Mr R] Wiggan.
If there are no Law men for that area we might ask some of the Bardi Law men like [Mr R] Wiggan and Vincent Angus to come down and give us advice because we're related to them. It wouldn't be any boys who had been through Law, we'd only get advice from the Law bosses. In our culture you can't make decisions on country that is not yours so the Law bosses couldn't tell us what to do. At the same time, if Law bosses gave us advice we wouldn't ignore their advice because that could be dangerous.
[Emphasis added.]
524 And Mr Damien Manado explained in his affidavit affirmed 9 April 2016, that Law bosses required permission to come onto land owned by others. He said:
173. … The old Law grounds in Nimanbur country belong to Nimanbur people. Nimanbur people will respect those places and not interfere with them. They don't need advice from senior Law men to do that…
174. The job of the law bosses is to keep the song line alive; they are the guardians of the song line. They sing the lines of places in ceremony. They don't physically walk those lines in order to do their job. They don't have rights to come in and use Nimanbur country just because they are law bosses; they've got to get the request or invitation or permission to come in.
[Emphasis added.]
525 Ms Majella Manado, Mr Henry Ah Choo, and Mr Paul Cox from Nimanbur country gave evidence to the same effect.
526 The evidence relied on by the Goolarabooloo applicants in written and oral submissions to establish rights in country through knowledge of the law is set out in this section of these reasons for judgment. That course has been followed in order to ensure a fair representation of the case put by the Goolarabooloo applicants. Having said that it will be observed that much of the evidence relied on does not address the claim made but rather describes a function of caring for country for the rights holders by descent. The Goolarabooloo applicants’ case focused on the activities undertaken by the Goolarabooloo in relation to the land. In particular, there was evidence that the Goolarabooloo started and ran the Lurujarri Heritage Trail. Also, Mr P Roe spoke with Mr Green about the songline and pointed out the sacred sites for the purpose of preparation of the Terrex report. Mr P Roe spoke out to oppose the grant of the exploration licence over that area.
527 The Goolarabooloo applicants’ case also relied on the participation of senior Law men in ceremony in recent times. As will be discussed later in these reasons for judgment, the claim that ritual knowledge gives rise to rights in country is based on Professor Cane’s view rather than on the evidence of the Goolarabooloo witnesses in most cases. Arguably, one exception at least in respect of Law grounds is the evidence of Mr Phillip Roe. In a passage not relied on in the Goolarabooloo submissions, but nonetheless on point, Mr Phillip Roe responded in cross-examination as follows:
MR KEELY: … The next one is traditional religious knowledge of the area. Do you say that gives you rights in country or not, just to know the religious side of the area? Does that give you rights or not?
PHILLIP ROE: Well, if you got your law and culture, and you know the country, you're familiar with the country, you've got your law and culture, and you keep your country strong, because you have rights in the country.
MR KEELY: Wouldn't there be – and I don't want to get into dangerous territory with the men down the back, but wouldn't there be – if that was right, wouldn't people like Sandy Paddy have rights in the country when he was still alive, Peter Angus, Freddie Bin Sali, perhaps [Mr R] Wiggan?
PHILLIP ROE: Well, they'd have rights because they speak for the law that run through there.
MR KEELY: So do you say that all of those men, in their day, and men like them, all have rights in the country?
PHILLIP ROE: Like I said, those guys kept the law run through where there's law grounds and things in that place. They have the right and they have their say.
MR KEELY: So their say is limited to law grounds; can we agree about that?
PHILLIP ROE: Yes.
…
MR KEELY: So that, again, knowledge of the ceremonies doesn't get you rights unless you're in the – you're – you're the right – one of the right people - - -
PHILLIP ROE: It get – it gets you rights and things in country.
MR KEELY: Is that limited to, I think, what you said before, which was the law grounds and so on?
PHILLIP ROE: Well, if there's grounds there and things, like, I go back, what I said earlier. I'm not going into that situation and things because you've got females - - -
MR KEELY: Yes.
PHILLIP ROE: - - - and you got other bosses here.
[Emphasis added.]
528 The Goolarabooloo applicants’ written submissions relied on the following passages from Mr Phillip Roe’s affidavits affirmed 9 October 2015 and 19 February 2016 respectively:
103. My grandfather was handed the right to look after the country from around OTC, through Willie Creek to round Yellow River and Spring Creek. What my grandfather got from those Jabirr Jabirr and Ngumbarl people, he passed to us. I do not like the word “ownership” for country. We look after it, and protect it. We can take mayi, and the fish, and the wood and the ochre, the spear grass, the honey, all of these things. We camp and live on that country. We can take the water. I look after that country like my grandfather showed me, together with my family, and I am trying to hand it over to the next generation alive. …
…
28. … The job that my brother had, and that my grandfather had, involved looking after all of the law that comes through OTC, not just the law ground. Ululong and angui. You have to look after the country that the law goes through, where that Number 2 went. We look after the law grounds at Wirrkinmirri (Willie Creek), Rubibi (Dora Street in Broome), Millibinyarri (Coconut Well), lnballal, and Wirrar (Barred Creek). We look after the country where the law has been practiced [sic], where timbers were made and where they were left, and where the trees we use for law are.
529 The submissions referred to the following extract from the affidavit of Mr Richard Hunter affirmed 3 July 2015:
3. I am a Goolarabooloo man and a Law Boss for the Northern Tradition. Together with my brother Phillip Roe, I am responsible for looking after Goolarabooloo country. Our job is to hand that country over to the next generation as it was handed over to us – intact and alive.
…
109. My grandfather gave everything to me, Phillip Roe and Joseph Roe to look after. Me and Phillip carry that on now. We have the same responsibilities. We hold that Law for everybody. If there is Law to be held we get things moving. We do what bosses have to do. We are responsible for that Northern Law, around the Broome area and through Goolarabooloo country, so that if something threatens the law or the country then we have to stand in front. We take this responsibility very seriously. We hold that law with other bosses from the Northern Tradition.
…
133. With my brother, Phillip, I am responsible for the Law grounds in Goolarabooloo country, for keeping them clean. ….
530 The submissions also referred to the evidence of Mr Damien Balacky Snr and Mr Vincent Angus that Mr Phillip Roe and Mr Richard Hunter are Law bosses and Ms Rita Augustine is a Law boss in the Beagle Bay area.
531 The submissions then referred to the affidavit of Mr Jason Roe affirmed 3 July 2015, where he said:
29. Lulu was taught by Walmadang over many years. It happened in lots of ways. Walking country. Sitting down listening to the songs for country, the men’s songs. Taking part in corroborree. Telling him the boundaries, where old man Walmadang stopped and where he couldn’t go over, his section. How far law runs, from here to there. These are the sections in Ululong I’m talking about. Today, those sections are looked after by the bosses in our family, Uncle Phillip Roe and Uncle Richard Hunter. Before them it was Uncle Joe.
…
46. You need your law and your culture to look after the land. Law side is that you go through bush, to be a man and to learn about the ceremonial things and the land itself. Where the songs come from, and how to maintain that law. Culture side is knowing where you can go, and what you can do, and what you can’t, the things that are for everybody. Culture and law are side by side, but when you reach a certain age law takes over and goes deeper than culture. You get the bigger picture through law.
532 And the submissions also referred to his affidavit affirmed 19 February 2016, where he said:
42. My great grandfather talked for the country between Willie Creek and Minarriny. This is a fact. I can’t see how you can look after country, and maintain the law, but not talk for it, or make decisions.
533 The submissions also referred to the supplementary affidavit of Mr Brian Councillor affirmed 18 February 2016, where he said:
10. … one of the reasons we protect country is to keep ourselves safe. For Goolarabooloo, that means law grounds above all. There are also burial grounds right through the sand dunes. And where that man for ululong went through. It would affect us greatly if places like this were damaged and dug up. We would be sad, you’d have no more respect for country. Country would die if it is hurt too badly, and the people who belong to the country might move away. Goolarabooloo’s job is to keep country alive. The people who hurt country would get sick, I believe. Country would make them suffer, and if it wanted to kill them it would kill them. I worry about what will happen if we can’t stop some of these things. That connection between us and country is not something you muck around with.
534 As to the significance of local knowledge of areas, places and things of mythological significance, the Goolarabooloo witnesses to whom reference was made in submissions gave the following evidence.
535 Mr Phillip Roe said in his affidavit affirmed 19 February 2016:
46. … If you do not know the country, you should not be making decisions about it. It is dangerous for you, and dangerous for everyone else who has a connection to that country.
…
64. … Being a descendant does not mean you have the knowledge to make decisions for an area. Knowledge about law and country is what matters most when you are making decisions.
536 Mr Jason Roe stated in his affidavit affirmed 19 February 2016:
27. … When decisions are made about country, you need to look at top and bottom. I’m not talking here about decisions like where someone goes hunting or fishing, but those bigger decisions that could damage country and us. This is also why you need to know the country, the law and what’s there, to make proper decisions. Top and bottom. The public things on the surface and the men’s things, down below. We carry that knowledge today.
537 Mr Ronald Roe said in his affidavit affirmed 4 July 2015:
64. My children and their children get their rights in Goolarabooloo country through me. They have been out on country with me. To be able to look after the country you have to know it, be shown it. Hunting on country, and camping on it, is another part of looking after country. This is something that my grandfather handed down to me, which was handed down to him.
538 Mr Brian Councillor expressed the following view in his affidavit affirmed 18 February 2016:
21. Knowledge does not come through blood. There is law, and there is being put out on the country with people who know it and can pass that knowledge on to you.
539 The Goolarabooloo applicants also relied on some of the evidence given by the Bindunbur and Jabirr Jabirr witnesses which were said to support the Goolarabooloo applicants’ case. Thus, Mr Damien Manado agreed that Law men are obliged to protect Law grounds and also things associated with the Law. In re-examination he gave the following example of the role of Law bosses:
DAMIEN MANADO: Well, I suppose a good example I can think of is this last episode we had with the gas. What [Mr J Roe] did for the area out there is what I believe was strongly right - - -
- - for the cultural value, and that’s why I supported him. But, in terms of the law bosses, there should have been a few more involvement from the senior guys. …
If I believe there’s an area that is of concern for me and my family, and yes, I would involve them [the law bosses], mainly on advice of how we can protect it a lot better. And it would probably be the same process that the Roe family were doing out at Price’s Point. So, I’d be fighting hard, that’s for sure.
[Emphasis added.]
540 Ms Mary Tarran agreed in cross-examination to the proposition that “it’s important to protect country and the law grounds and the important parts of the law that go with it, and I describe them as the – the statues, the important trees, and the stones. That’s something law bosses have to do, is it not, as part of celebrating the law and protecting the law?”
541 The Goolarabooloo applicants relied on a passage from Mr Alphonse Balacky’s cross-examination which in the end, seemed rather to support the opposing case. The exchange was as follows:
MR COLLETT: Can I just ask you about this: I think you agree with me that the responsibility for protecting country is the sort of the other side of the coin of the rights to the country.
ALPHONSE BALACKY: Yeah, yeah.
MR COLLETT: And is an important obligation?
ALPHONSE BALACKY: Yep.
MR COLLETT: And part of that is not only protecting it but also keeping the country alive.
ALPHONSE BALACKY: Yeah.
MR COLLETT: And protecting country can take a variety of different forms.
ALPHONSE BALACKY: Yeah.
…
MR COLLETT: And sometimes that will require speaking up for the country?
ALPHONSE BALACKY: Yeah. Because don't get me wrong, they've - they've done a very, you know, good job on - on what they were doing, speaking up for the country, but when it comes to the point, the point is we are the TOs for that country. We are the TOs for that country.
[Emphasis added.]
1.27 Should the DVD involving Mr J Roe be admitted into evidence
542 In the course of the dispute about the LNG project proposed for James Price Point, Mr J Roe, the grandson of Mr P Roe, and the brother of Mr Phillip Roe, made a DVD.
543 Mr P Sampi gave evidence about the making of the DVD in his affidavit sworn 4 October 2015, as follows:
Around the time that there were all the arguments about the gas development at Price’s Point, I became aware that a DVD had been made which revealed sacred information about Bardi law ceremonies. I and other Bardi Law madja were called to a meeting Broome. Frank and Joe Davey, Kevin George and my son Trever Sampi were at the meeting.
I only saw the DVD a bit later on, at the Bard Jawi Rangers’ office in One Arm Point. I believe that the same people who were present at the Broome meeting were there, as well as Vincent Angus and Brendan Chaquebor. It was a shock for us to see the DVD. It showed J Roe talking about things that happen in ululung ceremonies. He sang some song from the ceremony. We felt that making the DVD was wrong. We were upset by what had happened. If it’s on DVD, it can be exposed to anyone. DVDs are very easy to copy and can fall in to the wrong hands. It’s a big risk. Bardi Law madja don’t want this kind of information to be given to kids, woman or to the government. Ululung ceremonies can be dangerous, if they are not done the right way. The DVD and any copies of it that are still around should be destroyed straight away.
544 Mr Mr Phillip Roe explained in his affidavit affirmed 9 October 2015:
That boss for ululong put all the things into country that we use for law. My brother spoke about a number of these things – the plants and trees – in a video recording he made in 2011. Normally we do not talk about this, but he was trying to protect our country and our law from the gas hub, to stop it being lost.
545 The Goolarabooloo applicants sought to tender the DVD as evidence in support of their application. The Bindunbur applicants opposed the tender. The Bindunbur applicants argued that the evidence should be excluded under s 138 and/or s 135 of the Evidence Act 1995 (Cth) (Evidence Act).
546 The Bindunbur applicants argued that Mr P Sampi’s evidence showed that it was wrong to make the DVD because it contains restricted information and the disclosure in the DVD was upsetting to senior Bardi Law men. Mr Phillip Roe accepted that the senior Law men were right to be cross about the DVD.
547 The legal representatives of the Bindunbur applicants were instructed by their clients not to view the DVD. That meant that their submissions on admissibility were limited by that restriction. The parties accepted that I should view the DVD in order to rule on its admission into evidence. I have done so.
548 Viewing the DVD confirms the evidence of Mr P Sampi that the DVD discloses things that happen in the ululong ceremony and explains about the use of plants and trees in that ceremony. In the DVD Mr J Roe is seen as a compelling instructor, knowledgeable in the matters on which he speaks.
549 The purpose of the Goolarabooloo applicants in seeking to tender the DVD was to demonstrate the nature of ritual practices, the use and knowledge of the lands and its resources in ritual matters by the Goolarabooloo, the role of Law men and, in particular, the knowledge of ritual, country and resources of Mr J Roe.
550 These matters were most relevant to the claim by the Goolarabooloo applicants to rights in land said to be gained from mythological and ritual knowledge.
551 As the proceeding developed there was no real contest about the nature and content of ritual knowledge, and that members of the Roe family including Mr J Roe had such knowledge. Each of the applicants led evidence about ritual practice which has been accepted. It should also be accepted that Mr J Roe was a ritual leader in the Northern Tradition.
552 The contentious matter was whether, accepting these facts, traditional law and customs allowed for the acquisition of rights and interests in land amounting to native title rights and interests as a result. The DVD did not bear on that issue. It is, therefore, unnecessary for the Goolarabooloo applicants’ case in the circumstances as they have developed. Admission of the DVD would not advance the case of the Goolarabooloo applicants. There is therefore no utility in the admission of the DVD into evidence.
553 On the other hand, admission of the DVD into evidence would cause the Bindunbur senior Law men further significant cultural concern. That cultural concern is understandable because of the contents of the DVD.
554 Although the Bindunbur applicants relied on s 135 and s 138 of the Evidence Act as the basis for excluding the evidence contained in the DVD, those sections do not comfortably apply to the circumstances. However, those sections do not limit the general discretion of the Court to exclude evidence in appropriate circumstances. In the circumstances outlined above the DVD should not be admitted into evidence.
555 For the Bindunbur and Jabirr Jabirr applicants, Mr Bagshaw’s primary report was the main source of written evidence about the Northern Tradition. Dr Weiner and Dr White expressed their agreement with his views on the acquisition of rights through ritual status. Professor Sutton also agreed and added some additional insights in his written report. For the Goolarabooloo applicants, Professor Cane’s written reports were the main sources of evidence on the issue of ritual knowledge and its significance for the holding of rights and interests. After reviewing these reports, references will be made to the concurrent evidence on the question.
556 Mr Bagshaw explained in his primary report the collective, supervisory and instructional nature of religious authority thus:
89. As I understand it on the basis of my own long-term research in the region (commencing among the Bardi and Jawi in 1994), the Northern Tradition as a whole – that is to say, as an entire religious complex including any of its sub-regional mythological and ritual variants – was (and is) not traditionally owned by any particular individual or group per se; rather it was (and is) the collective property of all of those persons who subscribe to it (and its various localised articulations) as a matter of religious belief and action. In short, it is the cultural ‘property’ of its adherents, both male and female. Accordingly, senior Law-men and Law-women (Law-bosses or madja;…) traditionally act in a supervisory and instructional, rather than proprietary, capacity in respect of associated ritual performances.
[Emphasis added. Footnotes omitted.]
557 Then, Mr Bagshaw referred to the relationship between the Law bosses and the estate rights holders as follows:
90. In the same general connection I note that certain sites of ritual and mythological significance are also sometimes said to belong to “everybody”, meaning – as I understand it – all initiated male exponents of the Northern Tradition. I further understand this characterisation to connote a traditional, collective form of responsibility, particularly on the part of knowledgeable senior Law-men (madja), for the physical and metaphysical integrity of locations concerned. It also refers to the fact that initiates learn from senior Law-men about the esoteric meaning of the sites concerned, and thus, as I infer, have an epistemological ‘stake’ therein. It should also be noted, however, that specific sites and areas of significance within the Northern Tradition are also held to form part of the particular local estate or estates (bur or buru) in which they are located, while at the same time being regarded as subject to the general oversight of Law-men, and of madja in particular … .
[Footnotes omitted.]
558 Mr Bagshaw saw the role of the senior Goolarabooloo Law people as an expression of their personal religious knowledge, not the result of them acquiring descent based rights. He stated:
154. Just as importantly, though, such protective undertakings (i.e. in respect of Northern Tradition sites and/or localities) are also the duty and responsibility of all Northern Tradition Law-men, including those of Paddy Roe’s male descendants (e.g. Joseph Roe) who have attained that position. In that regard, I do not see the Roe (male) descendants’ continuing caretaking role in relation to Northern Tradition locations within the south western and central-western coastal areas of the present study area as based upon some form of hereditary custodianship, or upon any other overtly familial connections to country (e.g. the spiritual associations of kin to the area in question, physical familiarity with local lands and waters, sentimental attachment) derived from long-term residence and/or aspects of life-history. Instead, I see that role as directly consequent upon their status as locally knowledgeable Northern Tradition Law-men.
[Emphasis added. Footnotes omitted.]
559 Such a role is, in Mr Bagshaw’s view, limited in geographical scope and performed under the authority of the rights holders by descent. He explained:
155. As a non-descent based role, I further consider it to apply only to specific Northern Tradition sites and/or localities, rather than to the wider estates (bur) of which those sites and/or localities also form part. In that sense, it is a role enacted not only for the sake of the Law itself, but also on behalf of local, genealogically-defined estate-affiliates. (I note in this last connection that Rita Augustine [Broome, 17/3/14] spoke to me of the capacity of Law-men to protect Law places which [uninitiated] estate-affiliates could not themselves visit, presumably due to status and gender restrictions.) In the event of there being any suitably qualified (i.e. initiated and knowledgeable) male estate-affiliates, I assume on the basis of more general information obtained from others within the wider region about the duties and responsibilities of Law-men and/or estate-affiliates, that this role would be most appropriately performed in conjunction with, and under the primary authority of, such persons (i.e. qualified male estate-affiliates).
[Emphasis added. Footnotes omitted.]
560 Mr Bagshaw outlined that authority is gained as a result of possessing knowledge of the esoteric significance of the locations concerned. He explained the way in which the authority is exercised as follows:
162. … the opinions of Law-men on site related matters are generally sought and given in the form of advice, rather than directives. Nevertheless, all persons are expected to acknowledge and respect the Law, particularly as site-desecration is often believed to result in supernaturally induced sickness and/or death for the perpetrator. Typically (and ideally), those charged with the protection of any Northern Tradition sites and areas come from the near vicinity, and are thus presumed to have the greatest familiarity with local features of significance. Law-men from other localities are expected to support them as and when necessary.
[Emphasis added. Footnotes omitted.]
561 Then, Mr Bagshaw said that his information was:
163. … that any authority over sites exercised solely by virtue of an individual’s status as a Law-man is entirely confined to the specific sites or areas concerned, and did not extend to the surrounding or intervening country, which belongs to persons with recognised familial relationships to it. As Joe Davey, a Bardi Northern Tradition madja (senior Law-man) expressly indicated to me, even the most senior Law-men cannot speak on behalf of another person’s country.
[Emphasis added. Footnotes omitted.]
562 Mr Bagshaw concluded from all his field research that:
165. … the Law-based right to speak for such sites and locations does not amount to a proprietary right per se (that is to say, of the sort[s] held by held by genealogically defined estate-affiliates). Rather, it is a complementary right and duty exercised on behalf of estate-affiliates and, indeed, on behalf of all Northern Tradition adherents.
[Emphasis added.]
563 Addressing the question whether the Law role is transmissible, Mr Bagshaw said:
167. Since status as a Northern Tradition Law-man can only be gained on the direct experiential basis of initiation and ritual participation, it cannot be said to be dependent upon, or conditioned by, descent relationships (even though particular kin may play key roles in the organisation and performance of the rituals themselves). In other words, Law status is not, in and of itself, transmissible by means of descent. It follows, therefore, that any individual’s Law-based authority over Northern Tradition sites and areas is personal to the holder and is not directly transmissible by means of descent. Moreover, as far as I am aware, status as a Law-man is not transmissible by any other cultural means.
[Emphasis added. Footnotes omitted.]
564 At the same time Mr Bagshaw explained the interaction between Law status and descent based rights to land in a particular area as follows:
168. At the same time, however, the authority of an individual Law-man to speak for a given Northern Tradition site or area is, as indicated above, typically (but not invariably) predicated upon that person’s familial relationship to the territory of which the site or area concerned is a part. Consequently, it is probably most accurate to say that Law-based authority in relation to any Northern Tradition site or area is often informed by descent considerations, but is not, in the first instance, determined by them.
565 Mr Bagshaw summarised his conclusions on this issue in his supplementary report as follows:
19. First, in territorial terms, the jural role of Law-men is concerned entirely with the maintenance of the physical and metaphysical integrity of places of ritual and/or mythological significance, and is directed only towards those typically narrowly defined locations – it does not extend to surrounding territory; second, it is a complementary role exercised in relation to, and/or on behalf of, traditional owners; and third, it does not in itself give rise to any proprietary right in country.
[Emphasis added.]
566 Professor Cane devoted a considerable part of his primary report to a description of the traditional law of the Dampier Peninsula generally. He directed attention to the commonality between the Northern and Southern Tradition and also to what he saw as the commitment of the Goolarabooloo applicants to following the Law. The Southern Tradition is the ritual practice south of the Goolarabooloo application area, and is associated with desert practices. Professor Cane’s description of the traditional Law is useful in giving an understanding of the context in which the question now under consideration arises. It is included for that purpose, accepting that it is background to the issue rather than a direct reference to the matter in issue. Professor Cane explained:
164. The starting point for a discussion of traditional Aboriginal law in the region of the Goolarabooloo claim area is the Bugari or Bugarigarra. This term is found throughout the literature relating to the Dampier Peninsula and can be summarised as follows.
• Bugarigarra is often glossed in English as ‘Dreaming’.
• It is a belief in ancient spirituality when landscape and cultures were established.
• The Bugarigarra defines the totality of a person's existence, culture, belief, and relationship to land.
• The religious belief is practiced [sic] through staged rituals, that are essential performance-renewed manifestations of the Bugarigarra.
• It is through these rituals that youths become party to society’s beliefs and become recognised as a ‘Man’ and Matja (boss) in that society.
• The ritual process is often referred to as ‘business’; the resultant transfer of knowledge being the accoutrements of the law.
• Law is a term used in reference to rules, sanctions, mores, cultural precepts and understanding of the correct manner to manage relations with others and the natural world.
• The law has a fundamental unity.
• Knowledge that constitutes the law is sometimes secret and sometimes restricted.
• Knowledge of the law is gained over a whole lifetime.
• Those senior in the law (typically over 50 years of age) have the responsibility to look after it on behalf of the whole community.
[Footnotes omitted.]
567 In respect of the Goolarabooloo applicants’ role in traditional Law, Professor Cane said:
249. The contemporary Goolarabooloo regional mythology, expressed as Bugarigarra, appears both comprehensive and relevant to the conduct of social activity and relations to land within the local Aboriginal population. The extant beliefs configure the essential laws and customs of the society of the claimants that I believe encompasses, with general demographic and geographic definition, the people of the Dampier Peninsula and the adjacent desert.
250. The core component of that law is the narrative of the Two Men, described in general terms in section 4.2.1. That narrative encompasses other narratives (notably the Two Snakes (section 4.2.2)) and is, in effect, one of the two pillars of the so-called northern tradition that defines the second stage of ritual initiation across the Dampier Peninsula (discussed in section 4.1). The Goolarabooloo typically refer to the religious narrative as ‘The Song Cycle’ but as Hoogland notes, who first defined its geographic expression (Restricted Figure 4), this was not a term used by Paddy Roe and others at the time it was first mapped. The term now has currency amongst the claim group as, in a sense, a euphemistic term with more particular meaning. As indicated in section 4.1.1 and 4.1.2 and documented by me in 2012, the commitment to the tradition is strong amongst the Goolarabooloo. Research conducted for this investigation confirms the view I formed in 2012 following conversations with Joe Roe that:
• There is detailed knowledge of the core religious narrative and the relationship between that narrative and the landscape in which it is embedded.
• Commitment to that ‘law’ is consistent with both knowledge of the tradition and ancestral responsibility to it.
• The tradition is a religious tradition that accounts for a number of salient characteristics of Aboriginal social and territorial relations to land north of Broome (and areas to the east).
• Tradition is, in effect, a core religious narrative that establishes traditional laws and customs in regard to linguistic identity, territoriality, classificatory kinship and the social and political dynamic that affects authority and decision-making in relation to land.
I also observed in 2012 that:
Any other configuration of the religious geo-political equation would be inconsistent with my understanding of Aboriginal religious tradition and would imply a proportional loss in the critical tradition that gives rise to law and custom as a basis from which local Aboriginal people claim native title rights in the area.
[Footnotes omitted.]
568 Professor Cane’s primary report demonstrated that he was apprehensive about the process of translating Aboriginal laws and customs into the defined categories of native title rights and interests. Thus, his report first described the traditional laws and customs at length and the role of the Goolarabooloo applicants in relation to them and only at the end of the report did he attempt the process of translation. The difficulty Professor Cane identified in that process comes from the way he sees that the traditional laws and customs create an enmeshment of rights, interests, duties and responsibilities which are interconnected and perhaps difficult to unbundle. This is made clear at the end of the report when Professor Cane directly confronted the questions briefed for him to answer and he commented:
462. In my opinion the question regarding the traditional expression of rights and interests by Aboriginal people in the claim group does not have an either/or answer, but a contextual and interactive one. It is my view that rights are fundamentally acquired and activated by individuals in qualified social relationship. Rights and interests in land (and the waters adjacent to that land, see section 2.1 and 6.1) are a complete package, with individual quality and opportunity, familial responsibility and communal recognition and facilitation acting upon them.
[Emphasis added.]
569 Thus, as the report moved towards answering the questions posed in the brief provided to Professor Cane by the solicitors for the Goolarabooloo applicants, Professor Cane described the workings of the traditional laws and customs in a section entitled “Contextualising rights”. The relevant passage is lengthy but, as it encapsulates the approach taken by Professor Cane, it is reproduced extensively in order to give proper attention to the Goolarabooloo applicants’ arguments. The report relevantly stated:
435. In my opinion there is a dynamic between what I perceive as rights of a utilitarian kind (conditioned by the traditions of birth and descent) and rights of an authoritative kind (conditioned by traditions of Rai and religion). These rights are determined in accordance with, and directed by, the traditional law acknowledged and the customs observed by the society to which the claimants belong. These customs and traditions allow the acquisition, recognition and activation of rights in land, its natural resources and its religious expression and, consequentially, confer status and authority in society as well as in that society’s relationships to the land.
436. Central to the recognition of social status and the assertion of authority in relation to land is an association with and understanding of Bugarigarra – the law or the religious property of the claim group. The rights flowing from a person’s association with the law are acquired through the claimant’s knowledge of the metaphysical character of their country and are empowered through their acquired knowledge of the traditional religious law of their society (section 4.1). The accumulation of religious knowledge is the primary mechanism through which social and territorial rights are given force, albeit in conjunction with other traditional laws that give rise to territorial belonging via criteria such as descent, succession, Rai, and birth.
437. My understanding is that the system of law and customs allows individuals a broad expression of rights within society and country, but also articulates these rights in a variable manner – most people have slightly different rights of varying value in relation to land, society and religion. The claim group is thus better thought of as a group of traditional rights holders than one of ‘traditional owners’, as not all claimants can activate rights of equivalent value across the claim area and within the society to which they belong. Thus the claim group might be characterised as a family who hold an amalgam of variable traditional rights in their land and the religious law of that land. As the ‘Goolarabooloo claim group’ they appear to hold all the rights, and as individuals they hold some of the rights independently within it.
438. The amalgam and variety of traditional rights and interests expressed by the claimants effects a social interplay of territorial rights and interests. As I understand the situation, the claimants see themselves as members of a society who are linked through the tradition of succession and ancestry (section 6.3) and biological kinship (section 5). The custom of descent has patrilineal orientation (Paddy Roe) and cognatic application (Margaret and Theresa Roe) so that it gives identifiable families (section 3.3) the right to possess, use and occupy country (sections 6.3), exploit its resources (section 7) and to speak with authority in relation to its religious content (section 4).
439. The territorial inheritance of the claimants is accompanied by a ritual inheritance (the Bugarigarra of the territory realised through Rai, initiation and related learning, sections 4.1.2, 6.3.3) according to which tradition accords different social, territorial and religious rights in country for claimants of different age, gender and status. Sansom recognised religious territorial property (defined by him as rights in country, sites, sacred icons, ritual-geographic designs, songs, stories, and dreamings) as a patrimony.
440. As mentioned (in section 4) rights derived from knowledge of the law (generically as Wallingari encompassing both northern and southern traditions and as Ululong in particular reference to the tradition in and around the claim area) and knowledge of its religious narratives (as Bugarigarra) are not rights of territorial possession per se. They are rights of a sociopolitical kind – derived from religious tradition and transformed from territoriality through the impregnation of the land with religious features (section 4.1). Seniority in that ‘tradition’ establishes the right to command authority in relation to the land and thus in society as it relates to that land. ‘Law bosses’ are thus the primary decision makers in the society of the claimants (sections 3.2, 4.1, 4.2, 7.4). Their socio-political capacity is strongest in their own country (derived through mechanisms articulated in section 4 and 6) and is expanded regionally through the companionship of other law bosses (male and female in context) who share knowledge of the Bugarigarra and country over in which that Bugarigarra is expressed. The strength of associated right decreases in inverse proportion to the rights of others as one moves further away from one’s own country (derived through birth, descent and Rai) and the country of one’s family (derived through descent; initiated by succession in the case of the Goolarabooloo, section 6.3.1- 6.3.3).
441. In relation to the claim area, rights in land are both driven by and satisfied through consensual social and biological relationships and political authority engendered by the Bugarigarra and knowledge and association of the country in question (sections 3, 4 and 7 respectively). This interplay of interest is affected and accommodated in the regional social context through traditions that allow claimants, somewhat paradoxically, to assert regional autonomy (through succession and descent); anticipate regional dependence (through marriage, kinship and shared responsibility for the Bugarigarra); argue a degree of autonomy (through birth and Rai); and express mutual and consensual authority in land (through the shared religious property of the Bugarigarra). The ebb and flow of the socio-territorial balance is provided for as a consequence of one’s biological, social and ritual relationships enriched by the traditions of birth and one’s place of spiritual origination (Rai). These traditions provide a social counterbalance in which individual interests in country are mediated and negotiated in the face of broader social allegiances. The focus of competition and compliance in relation to land, its resources and religious property varies from circumstance to circumstance but can be activated from an individual perspective as a consequence of spiritual connection to country (through Rai, section 6.3.3), religious knowledge of country (through initiation, section 4.1) and physical connection to country through descent and birth (sections 6.3.1, 6.3.2).
442. Both law and land are essentially indivisible within the claim area and amongst the claim group as a consequence of the inter-relationship between the traditional laws and customs that give both individuals and groups of individuals’ [sic] mutual and differential rights in the same and different parts of the land. It is not easy to be selective in the definition of these rights; the delineation of the customary mechanisms that give precedence to one right over another; or the rights of one person (or group of people) over another in relation to land. The system is essentially one of firm territoriality and formal flexibility in the rights constituting ‘land ownership’ (section 6.2) so that each member of society has equal social opportunity and an equal chance of economic survival.
443. The nature of land rights is best understood as a consequence of a complicated interaction of the traditional laws and customs of the society to which the claimant’s [sic] belong. In an attempt to explain that interaction in real terms I have generalised the rights sought for recognition by the Goolarabooloo and summarised what I believe to be the traditions that give rise to them:
1. The right of possession is derived through the succession of Paddy Roe and subsequent descent from Paddy Roe (Section 3.2, 6.3.1), matrilineal descent from birth and spiritual imbuement (Rai) of Margaret and Theresa Roe (section 3.2, 6.3.2, 6.3.3) activated and asserted through contemporary knowledge of the Bugarigarra (sections 4.1.2, 4.2) and knowledge and association with the claim area (section 7).
2. The right of use and occupation is derived through succession, descent, birth, Rai, biological kinship and is activated through knowledge of and association with country (sections 6.3.1 – 6.3.3, 5, 7 respectively).
3. The right to make decisions is derived from ritual status, knowledge of and association with the Bugarigarra of the country of possession (as provided for in right 1 above) and Rai, and is incrementally activated and given force by increased knowledge of the Bugarigarra.
4. The right to access and control access is derived from the traditions identified as part of territorial possession (as per right 1 above) and knowledge of the Bugarigarra (as per 3 above).
5. The right to protect areas of cultural significance in country is derived from traditions that give rise to possession of country (as per right 1), Rai, and association with and knowledge of the Bugarigarra (as per right 3) in the context of the country of the claim (section 4.2).
6. The right to participate in ceremonial activity is derived from and conditioned by biological descent (section 6.3.1), Rai (6.3.3), sociocentric kinship (section 5.1.2, 5.4), initiation, knowledge of and seniority, in the rituals of ‘northern and southern traditions’ typically identified as Wallingari generically and by its Ululong rituals locally (section 4.1.1, 4.2) and encapsulated by the Bugarigarra (section 4.1)
[Emphasis added. Footnotes omitted.]
570 In his primary report, Professor Sutton agreed at [42] with Mr Bagshaw and Dr Weiner that the right to speak for and protect sacred sites through participation and knowledge of the Law is limited to those sites and are not rights in the areas surrounding or between the sites. Professor Cane rejected that position in his supplementary report thus:
57. Sutton's second concern that rights to speak for sacred sites are limited to those sites alone, strikes me as both narrow and inaccurate. It is my experience that the delineation of a sacred site has never been an easy matter. The 'sphere' of sacred influence is typically indeterminate and dependent on the activity proposed in relation to it and the generational and political perspectives of the religious leaders at any given time. More significantly, it is well known that sacred sites do not sit in isolation, but are connected by religious pathways woven into sacred landscapes. This is not to deny the existence of many non-sacred areas, but to recognise that the compartmentalisation of sacred authority in relation to defined sacred land is neither an easy matter, nor a matter for others outside the traditional system to adjudicate on. The restricted Figure 4 in (Cane 2015) clearly illustrates that the Goolarabooloo claim area has many locations, sites and features of religious sensitivity. Containing or seeking to deny religious authority and associated rights in relation to any particular part of it would be a difficult and self-defeating exercise. Such a task would be a misrepresentation of both traditional religious geographic politics and religious geography itself.
571 Professor Cane agreed with Mr Bagshaw, Dr Weiner and Professor Sutton that status in law is not transmissible by descent. Professor Cane continued in his supplementary report as follows:
58. … Sutton's further concern (mirroring Bagshaw and Weiner) is that status in law (and presumably rights in land that relate to that status and law) are not transmissible by descent is, as far as I understand traditional religious law, true. It is my understanding that status and influence in traditional religion is attained through initiation, instruction and knowledge of country (conditioned by factors such as gender and age) - and that this is also the perspective of the Goolarabooloo. …
572 Professor Cane concluded his supplementary report as follows:
204. It is my firm opinion that the status and roles of these men in relation to the Bugarigara generally and the Northern and Southern Traditions specifically gives them unambiguous rights in relation to the country over which their family has maintained connection and responsibility for the last 80 years. This period of custodianship clearly exists within the sovereign era, but the traditions it is driven by are undoubtedly much older. The rights are articulated locally in country and regionally in ceremony. I agree with Paul Sampi (above) who states that the religious law is everything and carries rights of paramount importance - over and above, in my opinion, quotidian rights acquired through descent (in the absence of accompanying ritual authority). The need to protect and maintain the geographic fabric of the ritual tradition is, in my experience, fundamental to the maintenance of the religious tradition and demands the right to do so (as Nipper Roe and Paul Sampi explained above).
[Emphasis added.]
573 In the concurrent evidence there was an exchange between the Court and Mr Bagshaw about the difference between a traditional owner and a Law man in respect of rights and interests in land. It went as follows:
MR BAGSHAW: Yes, I think I understand what your dilemma is, your Honour. I’m not sure whether this particularly assists, but in my view the rights - and it goes to what Professor Sutton was talking about yesterday. These are roles of authority as opposed to, for want of a better term, identification. Traditional owners, and I’ve said in one of these reports, I think, the anthropologist, Fred Myers who worked in the Western Desert area famously defined traditional ownership as the right to be asked. And that applies, in my view, to all traditional owners irrespective of whether they’re lawmen or not.
And the presumption – the logical presumption is that in order to access a lawground you would have to come into somebody’s country. Now, the lawmen – and this is entirely hypothetical, but I believe it’s grounded in the logic of what people have been telling me over the years, I’m the traditional owner and you’re the lawman. It’s up to me to be asked for access to my country which includes the lawground. As to the lawground itself, it may be if I’m also a traditional owner and a lawman well, it would be entirely up to me, but conceivably it could be up to you just in relation to the lawground.
So, I guess the point I’m trying to make is that permission and access is not one or the other. For traditional owners in my opinion, they have the complete suite of access to the estate initially. The component lawgrounds – and I think we really have to be – I don’t want to take up too much time.
HIS HONOUR: No, I want this question answered and, in fact, I’ll go down because this is my dilemma.
MR BAGSHAW: Okay.
HIS HONOUR: If we get to the point of this particular pathway into native title - - -
MR BAGSHAW: I think it goes - - -
HIS HONOUR: Sorry, if I can just explain this aspect: that you have here the potential that you’ve got PR who had the ritual authority but not – but was not a traditional owner. That’s one option, and it’s not the only option that’s put, but this is where you’ve got the bifurcation between traditional ownership on the one hand, and ritual ownership – ritual authority only, and not traditional ownership, and that’s the question I’m seeking to explore with you all.
MR BAGSHAW: Yes. I – I think the latter is the case, the ritual authority only.
[Emphasis added.]
574 In concurrent evidence, Professor Sutton pointed out what he saw as a stumbling block for the Goolarabooloo applicants. He said:
… it’s clear that the Bardi senior lawmen have not put in an application for native title over this area, and yet they have the same relationship to the sites and the Dreaming Tracks as – as other senior lawmen do of whatever background. And I think there is evidence from Bardi witnesses to the effect that they would not do so.
575 In concurrent evidence, in a passage extracted above in these reasons for judgment at [299], Professor Cane gave further insight into the basis of his views. In summary, Professor Cane referred to the “population dislocation”, “removal of children”, and the “emotional and social trauma” which he characterised as a “rupture” which provided the context for the arrival of Mr P Roe, and the subsequent presence of his descendants in the Goolarabooloo application area.
1.29 Consideration concerning the significance of mythological and ritual knowledge and experience
576 The evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses could not have been clearer. As one they said that under traditional laws and customs Law status does not give rights in land. Law men and women are highly regarded for the knowledge of the Law. That knowledge is mainly reflected in their role in the conduct of ceremony and, particularly in the male initiation ceremony. Their activities in relation to land mainly concern the responsibility to care for Law grounds where ceremony is conducted, and for other sites of sacred significance. Those sites are within the estates held by the Bindunbur and Jabirr Jabirr people solely on the basis of descent, subject only to the limited exceptions in the case of child adoption and succession. If an issue arises on such sites the estate holders may seek advice from Law men. Law men act collectively in giving such advice. They are consulted by the Bindunbur and Jabirr Jabirr people for their knowledge of the Northern Tradition. The authority of the Law men is respected. That authority is limited to the Law grounds and other sacred places. It does not extend to the whole of the application areas. In practice the advice of the Law men will be followed by the estate holders. But the estate holders have the final say. They cannot be told what to do by the Law men. The status of Law men and women is acquired by personal achievement. It is not handed down from other Law men and women.
577 It is significant that Mr P Sampi described the role of Law men in the same terms. He was the most senior Law man when he gave that evidence. He was clear that having responsibility for significant places “doesn’t make you an owner of that area”. It is also significant that he, as the most senior Law man in the Northern Tradition, made no claim in this proceeding for rights in the land in the application area. Similarly, no other Law man or woman, apart from the Goolarabooloo applicants, made any such claim. If ritual status or mythical knowledge allowed them to do so, one would have expected that they would have done so.
578 The evidence of the Goolarabooloo Aboriginal witnesses did not support the pleaded case. It may be that the evidence of Mr Phillip Roe extracted at [527] of these reasons for judgment can be read as a claim that knowledge of the Law gives rights in land. But, in view of his affidavit evidence extracted at [528] of these reasons for judgment it is probable that Mr Phillip Roe was not speaking of the acquisition of rights as an owner, but speaking of a responsibility to look after country. The other evidence of the Goolarabooloo Aboriginal witnesses was about what Law men were required to do rather than whether they held rights in the land. The role described was to take care of and protect the country. Insofar as the evidence relied on referred to the interaction with rights holders by descent, that evidence was that the Law bosses were called on for “advice of how we can protect it [the land] a lot better”. That evidence mirrored the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses.
579 The evidence of Mr Bagshaw, agreed to by Dr Weiner, Dr White and Professor Sutton, reflected the views of the Bindunbur and Jabirr Jabirr Aboriginal witnesses. Mr Bagshaw’s conclusion was that ritual status “does not in itself give rise to any proprietary right in country”. That is to say under traditional laws and customs the rights holders by descent have the final say about the use and care of the local estates. Ritual leaders who are not rights holders by descent require permission to access and use the land and do not have the final say in such matters. The ritual leaders are dependent on the permission of the rights holders by descent. The principles derived from the Akiba litigation discussed at [485] – [493] of these reasons for judgment apply equally to the position of the ritual leaders. Their advisory function and the rights accorded to them do not amount to native title rights and interests. They are not rights or interests in relation to the land.
580 Although Professor Cane’s view was put forward in support of the Goolarabooloo applicants’ pleaded case, it may be that, on a proper understanding, his opinion was not materially different from the other experts on this issue. It seems that the pleaded case depended on ritual and mythical knowledge alone as a basis for acquiring rights irrespective of descent. But that probably was not Professor Cane’s approach. He said:
436. … the accumulation of religious knowledge is the primary mechanism through which social and territorial rights are given force, albeit in conjunction with other traditional laws that give rise to territorial belonging via criteria such as descent, succession, Rai and birth.
[Emphasis added.]
581 He also said:
440. … rights derived from knowledge of the law … and knowledge of its religious narratives … are not rights of territorial possession per se. They are rights of a socio-political kind – derived from religious tradition and transformed from territoriality through the impregnation of the land with religious features.
582 The long extract from Professor Cane’s primary report from which these statements are taken and which is extracted at [569] of these reasons for judgment is the most explicit source of Professor Cane’s reasoning on the issue. It is not easy to understand. But it does seem to say that rights are acquired as a result of ritual authority, but only where the holder of ritual authority has rights, albeit of a different kind, in the land acquired by descent, succession or rayi. If that is a correct understanding of Professor Cane’s opinion then it does not support the Goolarabooloo applicants’ pleaded case which contended that ritual status and mythical knowledge alone give rights to land. In any event, such approach cannot be accepted in view of the earlier rejection of Professor Cane’s views that rights in land are acquired through descent based on shallow generational memory, through a process commencing with custodianship and through a rayi connection. If Professor Cane intended to express the opinion that, under traditional laws and customs, ritual knowledge alone gave rise to rights in land, then that view should not be accepted in light of the clear evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses and the support of that evidence from Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton.
583 The Goolarabooloo applicants also sought to rely on the evidence about the nguril seating arrangements at initiation ceremonies. It appears that the Goolarabooloo applicants sought to make two points in relation to the nguril seating arrangements.
584 The first point was that it showed that there was social and societal acceptance of particular relationships of particular Goolarabooloo witnesses to particular country through the Law. That senior Goolarabooloo men, like Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe have an important role in ritual practice in the application areas was not disputed. Nor was it disputed that the Goolarabooloo families have an association with the Goolarabooloo application area. In that regard, the nguril seating arrangements are, as Mr Bagshaw said in concurrent evidence, “a recognition of where people are from and identify with”. However, the nguril seating arrangements do not shed further light on whether rights and interests in land are acquired through ritual and mythical knowledge.
585 The second point regarding nguril seating arrangements was that the relationship between Law men and particular areas is not shared equally between all Law men because local knowledge is important. In final submissions, counsel for the Goolarabooloo applicants said:
[W]hat's shared by all lawmen is at the risk of harm if law grounds and significant law objects are damaged. So in that sense, the duty to prevent that and maintain the law is shared by all of them, and obviously the obligation to protect - the highest obligation goes to those whose country it is as delineated, inter alia, by the nguril seating arrangements. Those are the people who know what needs to be protected.
That submission appears to be a response to the point made by Professor Sutton during concurrent evidence that Bardi senior Law men have not put in an application for native title over the application areas, even though they have the same relationship to the sacred sites and songlines in the application areas as the senior Goolarabooloo Law men.
586 That senior Bardi Law men have not claimed native title rights and interests over the application areas on the basis of their ritual knowledge may be explained by reference to certain assumptions those Bardi Law men may have about whether rights and interests that fall short of full ownership may constitute native title rights and interests. In any event, the nguril seating arrangements do not show that senior Law men have exclusive responsibility for particular geographic areas. At its highest, it may be said that the nguril seating arrangements represent the areas of greatest religious responsibility for each Law man. But, given the evidence to the effect that the senior Law men of the Northern Tradition work together in a collegiate system, regardless of territorial affiliation, it appears that at a certain level of generality, all Law men share responsibility for all sacred sites associated with the tradition. Thus, if it were the case that native title rights and interests in land were acquired through ritual and mythical knowledge, then it would follow that, contrary to the Goolarabooloo applicants’ pleaded case, all senior Law men initiated in the Northern Tradition would have native title rights.
587 In the following two sections of these reasons for judgment the remaining two connection issues will be considered. Section 13 deals with the acquisition of native title rights and interests on the Lacepede Islands. Section 14 deals with the identification of land holding groups by language.
13. DO THE JABIRR JABIRR AND NYUL NYUL HAVE NATIVE TITLE RIGHTS AND INTERESTS IN THE LACEPEDE ISLANDS?
588 The Lacepede Islands are a collection of four small islands (West Island, Middle Island, Sandy Island and East Island) located north-west of the Dampier Peninsula in the Indian Ocean. The islands are made up of coarse sand and coral rubble that lie on top of a platform reef. East Island is the closest island to the mainland, with the Lacepede Channel running between the mainland and the Lacepede Islands. The colour green depicted in the map below indicates the areas that are exposed at low tide. The distance between the exposed seabed of the Lacepede Islands to the exposed seabed of the mainland at low tide is approximately 9 nautical miles (over 16.67 kilometres):
589 The Bindunbur applicants contended that the evidence established that the Jabirr Jabirr and Nyul Nyul had an historical and continuing connection with the Lacepede Islands.
590 The State argued that the evidence did not establish such a connection. Rather it showed that the connection probably arose after or as a result of white settlement. Further, the evidence demonstrated that the Bardi had the same connection and hence, no determination could be made in respect of the Lacepede Islands because the Bardi are not party to the proceeding. The Commonwealth also argued that the evidence did not establish pre-sovereignty connection.
591 Many witnesses spoke of Aboriginal people visiting the Lacepede Islands by raft to hunt for turtles and turtle eggs. For instance, Ms Cissy Djiagween said in examination-in-chief:
CISSY DJIAGWEEN: …. – with the big high tides the men would walk and carry that raft right out to the channel and cross over, and they’re on the island then.
MR KEELY: So, they’d carry the raft as far as they could and then when they – when they struck water, they’d put the raft in the water?
CISSY DJIAGWEEN: Yes, and they’d cross over. And they used to go to collect turtles - - -
MR KEELY: Turtles?
CISSY DJIAGWEEN: - - - and eggs, and turtle eggs.
MR KEELY: And turtle eggs?
CISSY DJIAGWEEN: Yes.
MR KEELY: And - - -
CISSY DJIAGWEEN: And even sometime they’d pick up birds eggs, you know? Well, there’s so many things out there, with the food what’s there.
592 As to how far back in time these visits occurred, the evidence was generally based on stories told to the witnesses a number of whom were in their 80s and many in their 60s. They said that the stories were told to them by their old people. For instance, Ms Rita Augustine, who was born in 1934, said in her affidavit sworn 30 September 2015:
122. … From Winawal, near Baldwin Creek, there are sand bars going out and the old men used garrawal, paddle, on galwa rafts, out to the Lacepedes at king tides. This was before I was born.
593 Mr Walter Koster, who was born in 1972, stated in his affidavit sworn 8 April 2016:
63. A long time ago, at turtle mating time of year, the old people used to camp on the beach. And the men would go with their rafts to the Lacepedes Islands on the big tides and get turtles and then come back using the tidal pull. Before they used to go, they used to stand up on the beach and all the women used to stand up with them and count how many men left and then when they got back, count how many were coming back. This was a long time ago, maybe around the time of my great-great grandmother.
594 Mr Anthony Watson, who was born in 1971, stated in his affidavit sworn 10 April 2016:
70. It is a common story that at low tide people used to go across to the Lacepedes. The old people used to talk about that place. They used to go there by raft and camp there. For example, I heard my grandmothers and my grandfather talk about it, about going there for turtle and turtle eggs. I heard them say he went there on the tide and came back on the returning tide. The time to go was at neap tide when the current is slow and you can go across there with the current. They used to cart their water from the mainland.
595 Mr Stephen Victor, who was born in 1944, stated in his affidavit sworn 27 September 2015:
103. Nyul Nyul people used to go fishing in the water all around the coast. From the stories I heard from my old people, old people used to go out in their barawal, rafts, hunting turtles and dugong, right up to the Lacepedes. When they did that I don't think they thought they were outside their country or doing anything wrong. It was part of their fishing area.
596 Some witnesses gave evidence of visits to the Lacepede Islands in the era of the pearling luggers. Thus, Ms Betty Dixon said that her father went past the islands and collected turtle eggs when he was with the luggers. Mr G Dixon said he camped on the Lacepede Islands when working on the pearling lugger as his first job.
597 Ms Betty Dixon, Ms Pat Torres, Mr Alec Dann and Mr Henry Augustine Jr told of old dreaming stories relating to the Lacepede Islands. Each of the stories was different. It is true, as the State submitted, that these stories were fragmentary and lacking in detail.
598 The State relied on what it argued were inconsistencies in the evidence as to the way, and the time at which, the islands were accessed. Thus, some witnesses said that people walked to the islands and other witnesses said that rafts were used. Some witnesses said that the trip was done at high tide and some said the trip was done at low tide. Other witnesses gave evidence that the islands were accessed on pearl luggers, and gave no evidence whether access occurred before the arrival of the luggers. The State also said that evidence of seafaring skills of Jabirr Jabirr and Nyul Nyul people was lacking particularly when compared with the evidence in the Bardi and Jawi application. That evidence demonstrated that the Bardi and Jawi were people with high levels of marine competence and navigational skills. Further, the State submitted that turtles and turtle eggs were available in and about the reefs on the mainland coast, implying that there was no reason for the applicants to access the islands.
599 The detailed criticisms of the evidence made by the State do not detract from the central elements of the Bindunbur and Jabirr Jabirr application in respect of the Lacepede Islands. The weight of the evidence established that the Bindunbur and Jabirr Jabirr people used the Lacepede Islands for hunting turtles and turtle eggs. The fact turtles and turtle eggs were found elsewhere, does not establish that the Lacepede Islands were not used for hunting turtle and turtle eggs. Such a conclusion is unavailable in view of the extensive evidence of use for that purpose. Further, the weight of the evidence established that the islands were accessed by rafts. As with any story about times long past there may be differences in detail. The considerable evidence that the islands were accessed by raft should not be rejected on the ground that there was some other evidence that some access was by walking. Similarly, in relation to whether access was at high or low tide.
600 The same approach applies to the evidence about whether the Lacepede Islands were accessed in pre-sovereignty times. The tenor of the evidence was that travel to the Lacepede Islands has been happening from a time back beyond memory. The source of the stories about hunting on the islands was from the old people, and in the case of Mr Walter Koster, related to the time of his great-great-grandmother which was likely to have been around the time of sovereignty. The reference by two witnesses to visits at the time of the pearling luggers does not colour the other evidence which suggested a long standing practice of using the Lacepede Islands as a hunting ground. The evidence, although limited, of dreaming stories associated with the islands supports the view that the use of the Lacepede Islands was a long standing tradition of the people. Because the stories related to the dreaming, they are unlikely to be of recent origin.
601 In view of the richness of the reefs as a source of food, it is likely that the Lacepede Islands were very much a secondary source of food. The comparative difficultly of accessing the islands explains why they were not central in the thinking of the witnesses and why the evidence had some inconsistencies and some lack of detail.
602 The final issue is whether, as the State contended, the evidence demonstrated that any rights and interests in the Lacepede Islands are held by the Jabirr Jabirr and/or Nyul Nyul together with the Bardi. The Bindunbur applicants submitted that the evidence demonstrated that the Jabirr Jabirr and Nyul Nyul held the rights and interests in the Lacepede Islands and the Bardi shared in the use of the islands but did not hold rights and interests in the them.
603 Ms Rita Augustine said that the Lacepede Islands were shared by the Nyul Nyul, Bardi and Jabirr Jabirr but she said she did not know who was the boss for the country.
604 Ms Betty Dixon said that the Nyul Nyul, Bardi and Jabirr Jabirr shared the islands, but only the Jabirr Jabirr would make decisions for the area. Mr G Dixon’s evidence was to the same effect.
605 Ms Cissy Djiagween said that the islands belong to the Jabirr Jabirr and to those Nyul Nyul on the other side of Winawal.
606 Mr Henry Augustine Jnr said that the Lacepede Islands belong to the Nyul Nyul and Jabirr Jabirr. Bardi people with connections to the Jabirr Jabirr and Nyul Nyul could use the area as well.
607 Ms Cissy Churnside said that the Nyul Nyul and Bardi, and probably the Jabirr Jabirr, shared the use of the islands, and she did not know who made decisions for the them.
608 Ms Mary Tarran said that the Jabirr Jabirr were the owners of the Lacepede Islands.
609 Ms Margaret Smith said all the coastal people shared the islands.
610 Both Mr Otto Dan and Mr Alec Dann said that the Lacepede Islands belong to the Jabirr Jabirr and Nyul Nyul people.
611 Mr Stephen Victor said that the Lacepede Islands were shared between the Nyul Nyul, Jabirr Jabirr and Bardi.
612 Clearly most of the witnesses saw the Bardi as sharing in the use of the islands. But it is not clear that these witnesses were referring to the Bardi holding rights and interests in the islands as owners. The better view is that when speaking about sharing the islands those witnesses were not referring to holding rights and interests as owners.
613 Evidence about the holding of rights and interests came from the witnesses who directly referred to the islands belonging to, owned by, or for which decisions could be made.
614 Evidence that both the Jabirr Jabirr and Nyul Nyul held such rights was given by Ms Cissy Djiagween, Mr Henry Augustine Jnr, Mr Otto Dann and Mr Alec Dann. Evidence that the Jabirr Jabirr held such rights was given by Ms Betty Dixon, Mr G Dixon, and Ms Mary Tarran. The preponderance of evidence was that the Jabirr Jabirr and Nyul Nyul together hold rights and interests in the Lacepede Islands, and that the Bardi shared in the use of the area. That the Bardi do not hold rights and interests in the Lacepede Islands is confirmed by the fact that they have not come forward to assert such rights in the proceeding. That is despite a number of Bardi people having given evidence in the case. In particular, Mr P Sampi, the most senior Bardi Law man, gave evidence in the proceeding including evidence that he had visited the Lacepede Islands.
615 The evidence thus establishes on the balance of probabilities that the Jabirr Jabirr and Nyul Nyul people have native title rights and interests in the Lacepede Islands.
14. SHOULD LAND HOLDING GROUPS BE IDENTIFIED BY REFERENCE TO LANGUAGE GROUPS
616 Section 225(a) of the NTA 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;
617 Section 94A of the NTA requires that:
An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).
618 The form of determination proposed by the State includes the following:
(a) Jabirr Jabirr people hold native title in the following parts of the Determination Area to the exclusion of all other native title holders:
That portion of the Determination Area bordered with a black line and marked "A" in Map 1 of Schedule 2.
(b) Nyul Nyul people hold native title in the following parts of the Determination Area to the exclusion of all other native title holders:
That portion of the Determination Area bordered with a yellow line and marked "B" in Map 1 of Schedule 2.
(c) Nimanbur people hold native title in the following parts of the Determination Area to the exclusion of all other native title holders:
That portion of the Determination Area bordered with a blue line and marked "C" in Map 1 of Schedule 2.
(d) Jabirr Jabirr and Nyul Nyul people hold native title in the following parts of the Determination Area to the exclusion of all other native title holders:
That portion of the Determination Area bordered with a red line and marked "D" in Map 1 of Schedule 2.
(e) Jabirr Jabirr, Nyul Nyul and Nimanbur people hold native title in the following parts of the Determination Area to the exclusion of all other native title holders:
That portion of the Determination Area bordered with an orange line and marked "E" in Map 1 of Schedule 2.
619 Below is the map referred to in the proposed Schedule 2:
620 The Commonwealth adopted the position of the State regarding the identification of the land holding groups by reference to language.
621 The Bindunbur applicants propose a different form of determination. Paragraph 2 of the order designed to comply with the above sections provides:
The native title is held by the persons described in Schedule 2 (native title holders).
Schedule 2 provides that the persons referred to in order 2 are the descendants (including by adoption) of apical ancestors who are then named in the schedule.
622 The Bindunbur applicants opposed the form of determination proposed by the State. The main arguments of the Bindunbur applicants were that the allocation of land among the Jabirr Jabirr, Nyul Nyul, and Nimanbur people within the Bindunbur application area is an intra-mural issue, that the boundaries proposed do not accord with the evidence, that the people of the area have numerous interconnecting relationships not reflected in the proposed order, and that the allocation of people to country would freeze interests for all time in a rigid way which does not reflect the laws and customs of the people.
623 There is no force in the Bindunbur applicants’ arguments that the orders proposed by the State would freeze the allocation, or would interfere with the interconnecting relations of the people of the area. A determination of native title necessarily fixes rights and interests as determined unless the determination is varied. It is in the nature of a determination of native title that rights and interests are fixed as a result of the process. However, the determination does not interfere with interconnecting relations which do not give rise to native title rights or interests. They are left untouched by the determination.
624 The primary point made by the State is that the evidence demonstrated that people identified with areas within the Bindunbur application area by reference to language group. Thus, for instance, a Nimanbur person would claim rights in Nimanbur country but would not claim rights in Nyul Nyul or Jabirr Jabirr country. The order proposed by the Bindunbur applicants would leave open the conclusion that all the Bindunbur people have native title rights and interests in all of the Bindunbur application areas. This would be contrary to the case of the Bindunbur applicants. For instance [19A(b)] of the Bindunbur applicants’ Proposed Further Statement of Issues, Facts and Contentions dated 22 August 2016, reads as follows:
[A]t the local level – in a local area of land and waters sometimes referred to as buru and generally described today by reference to a family surname (local area) – through membership of a group by descent (ideally) from a male person acknowledged to be from the local area; but generally on the basis of cognatic descent from a person acknowledged to be from the local area (including by child adoption) (local group).
625 In response, the Bindunbur applicants contended that the native title rights and interests determined by the Court would be held in accordance with traditional laws and customs, and the application of those laws and customs would prevent any such confusion or uncertainty.
626 There is considerable force in the position of the State. The only factor which would counter the force of the argument of the State is if, as the Bindunbur applicants contended, the evidence did not support the boundaries drawn in the order proposed by the State. The Bindunbur applicants said that the State did not make an evidentiary case to support the boundaries proposed.
627 The State outlined the evidentiary basis for the boundaries in final submissions. A table of map references for the boundaries which specified the evidence which supported each particular location was produced. The Bindunbur applicants were invited to consult with the State if they thought the boundary designations could be improved. That offer perhaps reflected the fact that the State’s evidentiary case was first made comprehensively in final submissions. It is immaterial now how that situation arose. The Bindunbur applicants in reply reiterated the objection to the order proposed by the State but did not seek to respond to the State’s evidentiary case.
628 In principle the contention of the State should be accepted. The determination should specify the land holding areas by reference to language identity. In the course of the drafting of the determination the Bindunbur applicants and the State should consult on the boundary designations. In the event that agreement cannot be reached, the parties have liberty to apply to the Court to resolve that issue.
629 These reasons for judgment now address the issues concerning extinguishment of native title rights and interests.
15. THE STRUCTURE OF THESE REASONS FOR JUDGMENT CONCERNING EXTINGUISHMENT
630 The arguments below relating to extinguishment advanced by the State will be addressed as follows:
Section 16 - Should be included in other interests in the determination?
Section 17 - Has the location of the intertidal zone been established?
Section 18 - Was the making of each of the existing pastoral leases in the application area a valid future act or not?
Section 19 - Should the Court make a negative determination?
Section 20 - Have the applicants established occupation of certain parcels of unallocated Crown land for the purposes of s 47B(1)(c) of the NTA?
Section 21 - Should the “buffer zone” created under the Browse LNG Precinct Project Agreement be included as an other interest in the determination?
631 The arguments below advanced by the Commonwealth will then be addressed as follows:
Section 22 - What is the extent of the area of public works in respect of the East Island Lighthouse?
Section 23 - To what extent should certain rights, interests, powers and functions under Commonwealth provisions be reflected as other interests in the determination?
632 Finally, the arguments below advanced by the Shire will be addressed as follows:
Section 24 - Did certain assets belonging to the Shire extinguish native title?
Section 25 - Should certain tracks and ungazetted roads maintained by the Shire of Broome be reflected as other interests in the determination?
16. SHOULD PUBLIC ACCESS BE INCLUDED IN OTHER INTERESTS IN THE DETERMINATION?
633 Section 225(c) of the NTA requires the determination to include the nature and extent of interests other than native title interests.
634 Section 253 of the NTA provides the following definition of interest, in relation to land or waters:
(a) a legal or equitable estate or interest in the land or waters; or
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i) the land or waters; or
(ii) an estate or interest in the land or waters; or
(a) a restriction on the use of the land or waters, whether or not annexed to other land or waters.
635 Section 212 of the NTA provides:
212 Confirmation of ownership of natural resources, access to beaches etc.
Confirmation of ownership of natural resources etc.
(1) Subject to this Act, a law of the Commonwealth, a State or Territory may confirm:
(a) any existing ownership of natural resources by the Crown in right of the Commonwealth, the State or the Territory, as the case maybe; or
(b) any existing right of the Crown in that capacity to use, control and regulate the flow of water; or
(c) that any existing fishing access rights prevail over any other public or private fishing rights.
Confirmation of access to beaches etc.
(2) A law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of:
(a) waterways; or
(b) beds and banks or foreshores of waterways; or
(c) coastal waters; or
(d) beaches; or
(da) stock-routes; or
(e) areas that were public places at the end of 31 December 1993.
Effect of confirmation
(3) Any confirmation under this section does not extinguish any native title rights and interests and does not affect any conferral of land or waters, or an interest in land or waters, under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders.
636 Section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) provides:
14. Confirmation of access to certain places (s. 212(2) NTA)
Existing public access to and enjoyment of the following places is confirmed —
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) coastal waters;
(d) beaches;
(da) stock routes;
(e) areas that were public places at the end of 31 December 1993.
637 The State seeks the following other interests to be included in the determination of native title:
So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; or
(vi) areas that were public places at the end of 31 December 1993.
638 The applicants opposed the clause in that form. The difference between the applicants and the State, supported by the Commonwealth, derived from a difference in the construction of s 212(2) of the NTA.
639 The State argued that the purpose of s 212(2) is to ensure that existing public access to areas of recreation such as beaches and waterways could continue even if that continued access impaired the unfettered exercise of native title rights and interests. The section was therefore concerned with the relationship between the exercise of native title rights and interests and the enjoyment by the public of places of recreation. It is concerned with the activities undertaken by people, not with rights held by them. That follows from the contrast between s 212(1) which expressly concerns rights, and s 212(2) which does not. Section 212(2) provides for the confirmation of the ability of the public to access areas, not a confirmation of a right to access an area. That ability is not established by the fact of use and, hence, it is not necessary for the State to stipulate in the proposed clause specific instances of use or specific places of use in order to comply with the requirement of s 225(c) of the NTA.
640 The clause proposed by the State follows the form of clauses used in many determinations made in the past, although the question raised in this case has not been decided before. Most instances of that form of determination are found in consent determinations.
641 One reason advanced by the State in support of its argument that it is not necessary to define the nature and extent of the public access more elaborately is the difficulty of doing so. For instance, is it sufficient if one person has accessed a long beach since the passing of the TVA, does access to part of that beach establish access to the whole of the beach, and if access was prohibited but nevertheless occurred, does the section operate. In view of these difficulties, the State submitted that Parliament was not likely to have intended that such detailed specification would be necessary.
642 The applicants contended that if the construction of s 212(2) of the NTA proposed by the State is correct and the section does not deal with existing rights but rather with activities and practices, then the section is not concerned with interests as defined by s 253 of the NTA and the activities and practices should not be included in the determination as other interests.
643 The alternative construction advocated by the applicants was that s 212(2) of the NTA is concerned with rights and interests of access and not merely activities and practices. If that be so, then, the applicants submitted, the clause proposed by the State suffers from a failure to comply with s 225(c) of the NTA in that it does not set out the nature and extent of the rights to access. To do so it would need to specify what the rights entailed and the places in which they could be exercised.
644 In view of the width of the definition of other interests in s 253 of the NTA, the public access referred to in s 14 of the TVA is likely to have been intended to fall within the definition. Further, the purpose of s 225(c) of the NTA is to require identification of the interests which must coexist with the native title interests and thereby to allow notification to those concerned of the relationship between the two sets of interests so that people may regulate their conduct accordingly. The amount of detail required by the reference to the nature and extent of other interests in s 225(c) must be assessed in light of the purpose of the section, namely, to give notice of other interests to those entitled to exercise them. Repeating the terms of the section, as the clause proposed by the State does, fails to specify the extent of the interest. It may be sufficient to describe the nature of the interest to refer to public access, but a description of the extent of the interest requires some identification of the place at which access is to be undertaken.
645 The parties should attempt a greater degree of identification of the geographical locations of the public access locations, even if the identification is short of precise geographical placement. The parties have leave to apply to the Court if they are unable to reach agreement on the final form of the clause.
17. HAS THE LOCATION OF THE INTERTIDAL ZONE BEEN ESTABLISHED?
646 It is common ground between the parties that exclusive native title rights and interests cannot be found to exist in the intertidal zone. There are, however, instances of unallocated Crown land at various places along the coast in the application areas in which, subject to the application of s 47B of the NTA, exclusive native title exists. It is necessary to define the boundary between those areas and the intertidal zone as that boundary marks the division between where the native title rights and interests are exclusive and where those rights are non-exclusive.
647 It is also common ground that the intertidal zone starts on the landward side of the high water mark. The parties further agreed that the high water mark at common law is the mean high water mark being the average tidal level reached by the high springs and high neaps over a year.
648 The State seeks a form of determination which lists the areas of unallocated Crown land within the intertidal zone in which no exclusive native title rights and interests exist.
649 The State relied on the evidence of Allan John Campbell who is the Principal Consultant (Boundary Capture) within Landgate. Landgate is the statutory authority responsible for maintaining the register of land ownership in Western Australia. Mr Campbell analysed the information contained on the spatial cadastral database kept by the State relating to each of the lots of unallocated Crown land in issue and provided an opinion whether the lots were wholly or partly within the intertidal zone.
650 The applicants opposed the form of determination on this aspect proposed by the State. They submitted that the determination should state that the high water mark is the boundary between the relevant unallocated Crown lots and the intertidal zone. If the need arises for the boundary to be fixed with certainty for some particular purpose in the future, that can be attended to at the time. The applicants contended that it is unnecessary and undesirable to seek to fix the precise boundaries in the determination on the evidence available.
651 There are two considerations which arise from the differences between the parties.
652 The first consideration is that the high water mark is an ambulatory marker. The location will vary from time to time as the average tide levels fluctuate in the way of nature. The applicants submitted that the ambulatory nature of the high water mark is a reason why the determination should not fix the location. The determination could only do so for the moment. The designation would become outdated and the determination inaccurate over time. The State did not contest that the high water mark is an ambulatory marker. The evidence did not show to what extent there would be a variation in the location of the high water mark over time. If the variation would be insignificant, the ambulatory nature of the boundary might not be a good reason to omit the particular unallocated Crown land lot from specific designation in the determination. However, the absence of information about the extent of the possible variation militates against the form of determination sought by the State.
653 The second consideration is whether Mr Campbell’s evidence fixed the high water mark in accordance with the common law definition. The Land Administration Act 1997 (WA) (LAA) uses a different concept of high water mark, namely, the long term average of the heights of two successive high spring tides. It can immediately be seen that this definition, unlike the common law definition, does not include any reference to the high neap tides. That necessarily means that the common law high water mark will be further seaward than the LAA high water mark. If the common law definition is used the area of exclusive native title in unallocated Crown land lots on the coast will be greater than if the LAA definition were used. The State accepted that it was necessary for Mr Campbell to use the common law definition in formulating his view as to whether the relevant unallocated Crown land lots were wholly or partly within the intertidal zone. The State argued that he had done so.
654 Mr Campbell explained how he arrived at his view. His starting point was to use the information in the spatial cadastral database which was compiled on the basis of the LAA definition. He adjusted this information by reference to other sources such as aerial photographs and documents relating to land holding. However, in cross-examination, and again in re-examination, Mr Campbell was asked a number of times whether he formed his opinion using the LAA definition and he confirmed that he had. An example in the course of cross-examination is the following exchange:
MR BLOWES: Alright. Well, depending on what the notion of – ambulatory pastoral lease boundaries means, I suppose. Alright. Now, are we clear that, when you did the exercise and provided your opinions, you based it on the high water – on the term "high water mark" as the Land Administration Act definition.
MR CAMPBELL: Yes.
655 It follows that the evidence does not establish that the high water mark used for the determination proposed by the State reflects the common law definition of high water mark. Consequently, the evidence does not correctly mark the location of the landward boundary of the intertidal zone.
656 On the evidence provided, the only option open which accurately reflects the legal position is for the determination to state that the landward boundary of the intertidal zone is the high water mark. If an issue arises in the future about the location of the boundary, the accurate position of the high water mark at the time in respect of a particular area of land will have to be determined. As there is still time before the determination is made by the Court, it may be that, taking account of the view expressed in these reasons for judgment, a more useful way of describing the landward boundary of the intertidal zone in respect of the relevant unallocated Crown land lots can be formulated. If further evidence were provided but agreement could not be reached by the parties, it is still open to the Court to adjudicate that issue.
18. WAS THE MAKING OF EACH OF THE EXISTING PASTORAL LEASES IN THE APPLICATION AREA A VALID FUTURE ACT OR NOT?
657 Unless otherwise provided by the NTA a future act is invalid to the extent that it affects native title (s 24OA of the NTA).
658 The renewal of a lease is a future act if the original lease was granted on or before 23 December 1996 and the renewal does not “otherwise create a larger proprietary interest in the land or waters than was created by the original lease” (s 24IC(1)(c)(ii)).
659 There are three existing pastoral leases in the application area, namely, Mount Jowlaenga (N050161), Kilto (N050224) and Country Downs (N050014). Each of the existing pastoral leases commenced on 1 July 2005. Each of the pastoral leases were preceded by former leases which ended on 30 June 2015.
660 The former Mt Jowlaenga pastoral lease commenced on 25 June 1965, for a term of 50 years and 6 days. The current Mt Jowlaenga pastoral lease commenced on 1 July 2015, for a term of 50 years.
661 The former Kilto pastoral lease commenced on 9 April 1965 for a term of 50 years, 2 months and 22 days. The current Kilto pastoral lease commenced on 1 July 2015 for a term of 50 years.
662 The former Country Downs pastoral lease commenced on 1 April 1968, for a term of 47 years and 3 months. The current Country Downs pastoral lease commenced on 1 July 2015 for a term of 47 years and 3 months.
663 It is common ground that the existing pastoral leases are other interests within the meaning of s 225(c) of the NTA and should be so recorded in the determination.
664 The applicants contended that each of the existing pastoral leases was not a valid future act because the renewals created a larger proprietary interest in the land and waters than was created by each of the former pastoral leases. As a result, the determination should include in the description of the existing pastoral leases as other interests the consequence that, to the extent that the exercise of rights and permissions pursuant to the existing pastoral leases is inconsistent with the enjoyment or exercise of native title rights and interests, the native title rights and interests prevail over the rights and interests pursuant to the existing pastoral leases.
665 The State submitted that the existing leases were valid future acts and no qualifying clauses should appear in the description of them as other interests in the determination.
666 The applicants contended that the proprietary interest referred to in s 24IC(1)(c)(ii) includes a temporal aspect.
667 The applicants argued for two alternative approaches. First, what is required is a comparison of the proprietary interest in force immediately before the renewal with the proprietary interest granted by the renewal. In the present case the interest in existence immediately before the renewal was a term of one day. The renewals were for periods of more than one day and hence the renewals created greater proprietary interests than the proprietary interests granted by the former leases. On this argument any renewal for more than one day would have created greater proprietary interests than the proprietary interests granted under the former leases. This argument was barely pressed in oral submissions. It should not be accepted. As argued by the State, the term of a lease is not the proprietary interest referred to in the section. The term has the effect of prescribing how long the proprietary interest will last. The proprietary interest is the right in the land, not the length of time for which it lasts. Further, the choice by the applicants of the time immediately before the renewal as the moment for the assessment of the temporal aspect of the interests relied on a statement in Western Australia v Graham (2016) 242 FCR 231 (Ngadju FC) at [143]. However, that statement addressed a different issue. Nothing in s 24IC(1)(c)(ii) suggests the exercise on which the applicants’ reasoning is based.
668 Second, the applicants contended that where the former lease had, for example, a term of 50 years and the renewal was for 50 years, the former lease created a term of 50 years but the renewal doubled that term and hence created a larger proprietary interest. The first answer to this argument is again that the term of the lease is not the proprietary interest referred to in the section. But, even if it were, the section requires a comparison of the former lease with the renewal, not an accumulation of the terms of both. In the same paragraph from Ngadju FC just referred to the Full Court said:
The text of s 24IC, in particular s 24IC(1)(c) which requires comparison between the original lease and the future act, indicates that the ‘original lease’ means the interest being renewed, re-granted or extended. That is to say, it is the interest as in force immediately before the renewal, re-grant or extension which is to be compared to the future act …
669 In the present case each of the temporal aspects of the renewal was shorter than the temporal aspect of the former leases. If the temporal aspect is part of the proprietary interest, then comparing the former leases with the renewals demonstrates that the renewals have a lesser, not greater, temporal aspect than the former leases. If follows that the applicants’ arguments are not sustained.
19. SHOULD THE COURT MAKE A NEGATIVE DETERMINATION?
670 There is an issue between the parties whether the Court should make a determination that native title does not exist where the State or another party has proved that by an inconsistent act native title rights and interests have been extinguished in the area. The State argued that a decision on this matter should await the formulation of a draft determination in accordance with these reasons for judgment. That is a convenient course which is adopted.
20. HAVE THE APPLICANTS ESTABLISHED OCCUPATION OF CERTAIN PARCELS OF UNALLOCATED CROWN LAND FOR THE PURPOSES OF S 47B(1)(c) OF THE NTA?
671 Section 47B(2) of the NTA provides that, in certain circumstances, any prior extinguishment of native title rights and interests on unallocated Crown land (UCL) by the creation of any interest, must be disregarded. One of the conditions for the operation of the section is that, when the application for a determination of native title was made, one or more members of the native title claim group “occupied the area” (s 47B(1)(c)). The onus of establishing occupation for the purpose of the section lies on the applicants. Occupation is not easily described and cannot be reduced to a simple formula: it is a matter of fact and degree: Moses v State of Western Australia [2007] FCAFC 78 at [206].
672 There has been a large measure of agreement between the parties as to the operation of s 47B of the NTA on unallocated Crown land within the application areas. Only five areas or groups of areas remain in contention. In each case the question is whether the evidence established occupation by at least one of the members of the relevant claim group at the date of the application for a determination of native title. Each of the areas or groups of areas will now be considered.
673 The location of UCL 48 is depicted on the map below:
674 UCL 48 is on the northernmost southern boundary of the Bindunbur application area. It is on the coast of King Sound. The boundary at that point is described as following the boundary of Yeeda Station pasotral lease. The Bindunbur applicants accepted that the land seaward of the high water mark using the LAA definition falls within reserve 51146, which is a reserve for harbour purposes, and in which area native title is extinguished. However, there was evidence that many coastal pastoral leases extend to a point 40 metres above the high water mark. In that circumstance a 40 metre strip of UCL is created between the seaward boundary of the pastoral lease and the high water mark. The Bindunbur applicants contended that despite there being no precise evidence of the Yeeda Station pastoral lease boundary, it could not be said that such a strip of unclaimed Crown land did not exist.
675 The Bindunbur applicants relied on evidence of Mr Ninjana Walsham and Mr Laurie Cox to establish occupation in the area of UCL 48.
676 In his affidavit sworn 14 April 2016, Mr Ninjana Walsham said that he hunted in an area marked Jinyaadi Hunting on a map annexed to his affidavit. The affidavit also stated “sometimes I don’t have to go that far but when places are drying up I have to go further to get meat”. UCL 48 is not in the Jinyaadi Hunting area but the Bindunbur applicants rely on the reference to going further as sufficient to include UCL 48. However, the better understanding of going further is as a reference to the Jinyaadi Hunting area itself. That area is further than the places when Mr Ninjana Walsham usually hunts when conditions are not too dry. In oral evidence Mr Ninjana Walsham seemed to accept that he hunted only up to the Yeeda Station pastoral lease boundary. Mr Laurie Cox gave evidence that his sons went hunting beyond the Yeeda Station pastoral lease boundary. However, the Yeeda Station pastoral lease boundary in that area extends east – west for about 40 kilometres. The evidence is not sufficiently precise to locate the hunting activities on or even in the vicinity of UCL 48. The Bindunbur applicants have not established occupation of UCL 48 for the purposes of s 47B(1)(c).
1.32 UCLs 78, 138, 140, 141, 143, 147, 148, 150, 151, and 152
677 The UCL areas in contention are shown on the map below:
678 All but UCL 78 and 147 are on the western side of the Broome-Cape Leveque Road previously covered by the Country Downs and Waterbank pastoral leases.
679 UCLs 140, 143 and 147 are wholly within the Jabirr Jabirr application area. UCLs 78, 151 and 152 are wholly within the Bindunbur application area. UCLs 138, 141 and 148 are partly within each of the Bindunbur and Jabirr Jabirr application areas.
680 Ms Pat Torres explained in her primary affidavit affirmed 10 April 2016, that she and her family have been involved in the native foods industry for more than 20 years. The main food and medicine she collects is gubinge. 2006 was the best year when she and her family collected 10 tonnes of gubinge from Ngumbarl and Jabirr Jabirr country. In 2013-14 she collected an average of two to three tonnes of gubinge. She sold most to a buyer, but made jams and preserves with the rest. She sells and conducts food tastings at festivals. In 2013-14 she also collected and packaged lemongrass from Jabirr Jabirr country. She has done the same with native mint, basil and figs. Annexure PGT4 to her primary affidavit is a map which records some of the main places where Ms Pat Torres collected bush food. The places marked are numerous and are located all over the application areas, that is to say, both along the coast and inland in the Pindan and along the Broome-Cape Leveque Road. Annexure PGT6 to Ms Pat Torres’ supplementary affidavit also affirmed 10 April 2016, indicates the UCL areas presently under consideration. Her supplementary affidavit located places where food was collected by reference to the UCL areas. For instance, in relation to UCLs 78, 140, 148, 150 and 152 she stated:
50. Almost always, we stop along this road near our favourite gubinge areas, collecting the fruit from both sides of the road. When we pull up on the side of the road, we walk up to about three kilometres from the road to pick gubinge. We do this around the areas marked on the map at Annexure PGT6 with the labels "UCL 078", "UCL 140", "UCL 148", "UCL 150" and "UCL 152". There is a Telstra tower on the small area marked "UCL 078" and we use this to help to orient ourselves when we are in the bush.
681 Ms Pat Torres also explained:
53. We collect at least 10 to 20 different species from along the Cape Leveque Road in these areas. For example, we collect the bark of narrabun trees, which are stringy bark eucalypts, to make containers for my presentations on bush foods. There is also an edible nut on the same tree. When you break open the nut it tastes like eucalyptus and coconut. There are many other trees in the area south of Half Way Point like the bloodwood tree which has the bush coconut and there is a miniature wasp in there that we eat and is high in protein. There is also the sandpaper fig, cork tree, hakea seeds, jigal trees (from which we collect the gum), guda guda, kurrajong trees and the bush peanut. My family has collected all of these from this area.
…
62. When travelling along the Cape Leveque Road and stopping to harvest bush fruit, we sometimes go quite a long way from the road, as much as two miles depending on the fruit we are after. For example, the bush orange can grow in isolated spots well away from the main road. The bush orange prefers rocky, gravelly areas and I commonly walk a long way along creek beds to find and collect them. As well as walking along creek beds to find bush oranges, I also drive along little bush tracks that go off the Cape Leveque Road to find other fruit trees.
63. In this area, we also collect the saplings of kurrajong trees as they have a type of swollen taproot, a bush potato that can be eaten. This bush potato is normally found about half a metre underground, so it is hard work to dig it out. There is also the "pindan wattle" which has green beans that I cook over hot coals.
682 A further illustration of the depth and detail of Ms Pat Torres’ knowledge of and use of the application areas for collecting food and medicines occurred in examination-in-chief concerning UCL 111, which is not in contention. Her explanation demonstrated that the collecting also happened in UCL 138, one of the areas presently in contention. It is adjacent to UCL 111. The passage commences with a question about UCL 111 and is as follows:
PAT TORRES: … However, in that region there’s a lot more on the sandy areas, there’s a lot more of that beautiful little bush carrot that grows along there. Sometimes you’ll find the – you also find the native millet, or the native oats, which is coming out as a grass since they’ve been doing more burning. I collect them, because they’re a high value food and I’m trying to sort out – plus wattle. I collect wattle from that region too. I then roast them, or process them into smaller – small packets of food, which I sell to restaurants or chefs. What I’m doing there is I’m basically trying to introduce people to our bush tucker, so that we can create future industries for our families.
MR KEELY: Do you – are you talking about areas just beside the road, or are you talking about something different?
PAT TORRES: If we know that there is a particular species further inland towards the pindan side, we’ll walk into those areas.
MR KEELY: How far might you typically walk?
PAT TORRES: We could walk up to 3 Ks. During the gubinge season we follow where the bush trees are and, because I’ve been doing it for more than 20 years, we pretty much know where those places are. And there’s other things like, you know, the timber – there’s timber, there’s bandgurr.
MR KEELY: Just a moment, what’s bandgurr, please?
PAT TORRES: Bandgurr is like a spiny plant that has a beautiful purple fruit, a sweet fruit. But the timber is used for smoking and blessings and I use it for when we want to smoke out a house, because people’s spirit is still residing in the home, or if people are having dreams, bad dreams and they can’t shift the bad spirits from that place.
MR KEELY: Are you involved in that directly?
PAT TORRES: Yeah, I’m asked to do that by families, so I collect the wood like that for those purposes, for smoking people.
683 The Bindunbur and Jabirr Jabirr applicants also relied on the affidavit evidence of Ms Neenya Tesling that she collected fruit along the Broome-Cape Leveque Road, and of Mr Walter Koster and Mr Ninjana Walsham of hunting in the areas of UCLs 138, 141 and 148.
684 The State contended that the evidence of Ms Pat Torres did not establish occupation of the entirety of the UCL areas in question. The argument is captured in the State’s extinguishment submissions in reply in respect of the Bindunbur application area filed 1 June 2017 as follows:
387. The Applicant identifies various parts of Mrs Torres' affidavit evidence concerning the collection of various plants, including whilst travelling along the Cape Leveque Road. That evidence, it is submitted, must be considered in the context of the oral evidence given by Mrs Torres.
388. To the extent that Mrs Torres' evidence establishes the fact of occupation, it does so, it is submitted, in relation to areas directly along the coast in the Jabirr Jabirr claim area and otherwise areas in and around Winawal (E3 on Exhibit B1). It does not establish occupation of the areas here considered (namely, UCL 78, 138, 140, 141, 143, 147, 148, 150, 151, 152).
[Footnotes omitted.]
685 The submissions then referred to Ms Pat Torres’ oral evidence. Both examination and cross-examination by the State focused on her activities at places along the coast. The State’s said submissions concluded:
406. Although Mrs Torres' evidence went on, it is unnecessary to set it out further. Again, that evidence is, it is submitted, consistent with the evidence given by Mrs Torres in examination-in-chief. The locus of her activity and use of country on a fortnightly basis, or as an area where she and her children camp during the holidays is immediately adjacent to the coast line.
407. Insofar as Mrs Torres' evidence was that she "travels the breadth of the country" on a fortnightly basis, that "breadth of the country" can only be understood, it is submitted, to be a reference to that area of coast which Mrs Torres gave evidence about in examination-in-chief.
408. It is acknowledged by the State that Mrs Torres' evidence also relates to or describes the collation [sic] of resources along areas adjacent or close to the Cape Leveque Road. Those resources may be collated from areas of unallocated Crown land or the Country Downs pastoral station. It is also accepted that Mrs Torres' evidence describes various uses of resources found on country, including in areas of unallocated Crown land. That latter evidence however is directed to the use made of those resources and is not directed to a particular time or period.
409. That evidence must, it is submitted, be seen in the context of Mrs Torres' evidence-in-chief and cross-examination.
410. The weight of Mrs Torres' evidence as it regards use of and activities upon country is predominantly directed towards a small area along the coast and Winawal. That evidence establishes that the camping activities, day visits and fortnightly attendances wherein there is resource collation (whether from the sea or plants) are undertaken in that particular area of the coast. At its highest, that evidence establishes that on certain of those occasions, travel can extend 3 kilometres inland.
[Footnotes omitted.]
686 The reason why Ms Pat Torres’ oral evidence was almost wholly concerned with activities along the coastline was that the State did not accept the affidavit evidence on the subject and the applicants agreed to lead evidence on that subject matter orally. Furthermore, the cross-examination by the State dealt mainly with that aspect of Ms Pat Torres’ evidence. The focus of the oral evidence on activities along the coastal area does not give context to the affidavit evidence about activities in the other areas. The evidence about activities in the contested UCLs, as outlined above, was detailed and comprehensive. It established wide ranging use of the areas in question. The inland areas in which the UCLs are located are more difficult to access than the coastal areas and are larger in area. That explains the way in which Ms Pat Torres and her family utilised the areas. The use was consistent with the nature of the country.
687 Further, Ms Pat Torres resisted the suggestion in cross-examination that her collecting activities were concentrated on the coast and limited to camping trips at places on the coast or at her settlement at Milare near Winawal. That resistance is demonstrated in a passage of cross-examination as follows:
MR QUINLAN: And in terms of, - let's take since you've moved back to Broome in 2008 - in terms of the place that you would go to most often, it would be up in that Winawal area where the infrastructure is?
PAT TORRES: No, we alternate between two areas.
MR QUINLAN: Okay.
PAT TORRES: We go to the southern part and we go to the northern part.
MR QUINLAN: You don't have any infrastructure anywhere else?
PAT TORRES: No, we just camp out with tents and canvasses and make shelters when we're there for a longer period, shade.
MR QUINLAN: And exactly when that would be or how often you do that wouldn't be every three weeks or month going to the same places?
PAT TORRES: No, well, when I'm talking about every two weeks, I'm actually going the breadth of the country looking for specific species.
688 The State contended that the reference to the breadth of the country was limited to the places on the coast referred to in examination-in-chief. That interpretation is too narrow. The evidence of Pat Torres, both written and oral, demonstrates regular collection of foods and medicines from the coast to at least as far east as the Broome-Cape Leveque Road. The collecting trips were not limited, as contended by the State, to the longer camping or holiday occasions. The use of the area was shown as having occurred at the times the applications for determinations for native title were made. The evidence established that Ms Pat Torres and her family used the areas of the contested parcels of UCL for the purposes of their Aboriginal way of life. They did not use every part of each parcel, but that is not required in order to establish occupation. As the evidence of Ms Pat Torres established occupation it is unnecessary to canvas the State’s contention concerning the alleged inadequacies of the evidence of Ms Neenya Tesling, Mr Walter Koster and Mr Ninjana Walsham in respect of the occupation of the contested UCLs.
689 The Bindunbur and Jabirr Jabirr applicants have established occupation of UCLs 78, 138, 140, 141, 143, 147, 148, 150, 151 and 152 for the purposes of s 47B(1)(c) of the NTA.
690 UCL 139 is an area formerly covered by the Waterbank pastoral lease. It is an east-west elongated area on the east side of the Broome-Cape Leveque Road. To the north of the central part of the area is the Country Downs Station and to the south of that same central part is the Kilto Station. UCL 139 is partly in the Jabirr Jabirr application area and partly in the Bindunbur application area. The area of UCL 139 is shown on the map below:
691 The applicants rely on the evidence of Ms Pat Torres referred to in the previous section of these reasons for judgment to the effect that she collected food and medicines in the area of UCL 139 in the same way as she utilised the areas referred to in that section. The State relied on its arguments which contested that evidence. The arguments of the State have not been accepted. The evidence of Ms Pat Torres in respect of UCL 139 establishes occupation for the purposes of s 47B(1)(c) of the NTA in the same way as referred to in the previous section of these reasons for judgment.
692 The applicants also rely on further evidence of Ms Pat Torres that her son hunted bush turkey on UCL 139 in 2013. The State argued that one instance of hunting was insufficient to establish occupation. It is unnecessary to determine that argument because occupation has been established from the evidence of Ms Pat Torres’ familiarity with the area and her use of it for collecting food and medicines.
1.34 UCL 14 – Valentine Island
693 Valentine Island is on the east side of the Bindunbur application area surrounded by water in King Sound.
694 Mr Henry Ah Choo explained in his affidavit affirmed 28 September 2015:
103. Valentine Island is a Nimanbur place. It dangerous to go onto the island, it's a dangerous sacred place that needs to be respected. Spirits kill people there. Since I was a kid I've known that, I was taught that it's somewhere that needs to be kept free -left alone. Valentine Island is a dangerous Dreamtime place; it' s a sacred site for us.
695 Mr Henry Ah Choo further said at [120] that the danger is “just on the island itself. Its’s okay to fish from the beach but not to go onto the main island”.
696 Mr Damien Manado said in his affidavit affirmed 9 April 2016:
101. … Nobody lives on Valentine Island or camps there, but you can go for fishing.
697 Mr Laurie Cox told about Valentine Island in his supplementary affidavit sworn 10 April 2016 as follows:
30. Valentine Island is labelled "UCL 014". I don't walk on the island or in the mud or mangroves around it; it's too dangerous. We have to make sure there's nobody going on Valentine Island because there's little men rayi who occupy that area. If someone was camping on Valentine Island or walking in the mangroves or mud I'd chase them off. I make sure no one is on that island or around it. I've been doing that since I started living at La Djadarr in the 1980s, every month or so. I have to look after that place because I'm a traditional owner so I'm responsible for it.
31. There are good fishing spots in the waters around Valentine Island there but there are lots of crocodiles. When I go there by boat I have to be very aware. There's a lot of flat back turtles in that area; they lay their eggs on the beach. I look after that country by going down there and looking around and making sure there's no humbug down there. I do that every month or so, and I was doing that in 2013. I'm a traditional owner for that area so I'm responsible for it. I've been looking after that area since I started living at La Djadarr in the 1980s.
32. My family and I also go down near Valentine Island for hunting. I go down there once a fortnight or so just to check up on it, and I've done that right through 2013. I'm a traditional owner for that country and I look after those areas. There's three little outstations or blocks down there. I make sure there's nobody camping there or squatting there or making humbug, like stealing things from there.
[Emphasis added.]
698 The Bindunbur applicants contended that the nature of their occupation of Valentine Island was in accordance with its particular status under traditional law and custom.
699 The State pointed to the evidence of Mr Henry Ah Choo that it is okay to fish from the beach, and to other evidence of past use of the beaches around the island. That evidence established that, whilst the area on the island itself is a prohibited place, the surrounding beaches, mangroves and mudflats are not. In respect of those places, the State argued that there was no evidence of use of those areas at the relevant time in 2013.
700 The argument advanced by the State does not take account of the evidence of Mr Laurie Cox extracted above. In particular, in [31] he spoke of turtles laying eggs on the beach and of him going there looking around and making sure there is no trouble. Properly understood that is a reference to Mr Laurie Cox exercising his responsibility as a traditional owner to ensure protection of the island by going to the beach on the island where turtles laid eggs. In view of the nature of the island under traditional law and custom, it is sufficient to establish occupation to show that a member of the claim group used that part of UCL 14 which was not a prohibited area. The evidence of Mr Laurie Cox concerning his use of the beach in order to fulfil his responsibilities as traditional owner established occupation of UCL 14 for the purpose of s 47B(1)(c) of the NTA.
701 UCL 2 is an island off the west coast of the application areas. The Bindunbur and Jabirr Jabirr applicants relied on the evidence of their extensive use of coastal areas from Minarin to Willie Creek to argue that UCL 2 was occupied for the purposes of s 47B(1)(c) of the NTA. The evidence established that they frequently visited locations such as Wadarr, Murrjal, Gadalargun and Minarin but also unnamed coastal areas where there were particularly attractive reefs or access to fish, bush fruits or attractive locations.
702 The State observed that the island is not less than one kilometre off the coast. It is opposite the Coulomb Point Nature Reserve, an area in which native title has been extinguished. Whilst there was abundant evidence of occupation of other coastal areas, there was no specific evidence of this part of the coast on the western boundary of the Coulomb Point Nature Reserve.
703 There is force in the argument advanced by the State. In the absence of any direct evidence about the use of UCL 2 it should not be inferred that an island, distant from the coast, was occupied by the Bindunbur and Jabirr Jabirr applicants within the meaning of s 47B(1)(c) of the NTA.
21. SHOULD THE “BUFFER ZONE” CREATED UNDER THE BROWSE LNG PRECINCT PROJECT AGREEMENT BE INCLUDED AS AN OTHER INTEREST IN THE DETERMINATION?
704 Section 225(c) of the NTA requires that the nature and extent of any interests other than native title interests be included in the determination.
705 Interest is defined in s 253 of the NTA and includes a right or power over or in connection with land or a restriction on the use of land.
706 On 30 June 2011, the State entered into the Browse LNG Precinct Project Agreement including with the then native title applicants. The purpose of the project was to enable the production, storage and shipping of liquefied natural gas.
707 The agreement established a buffer zone extending generally three kilometres landward from the port and industrial area of the precinct. Clause 4.2(d) of the agreement provided:
The State will not create tenure to establish the Buffer Zone. The State will do such legislative acts as may be necessary to limit activities in the Buffer Zone as required. The Native Title Party does not consent to the surrender of native title rights in the Buffer Zone.
708 The existence of the buffer zone was registered under s 70A of the Transfer of Land Act 1893 (WA). That section allows for the notification on title of a factor affecting the use and enjoyment of land.
709 The buffer zone was in the Jabirr Jabirr and Goolarabooloo application areas. It was common ground that native title rights and interests existed in the buffer zone.
710 The effect of the agreement was that as between the State and the native title holders the State was entitled to take legislative steps to limit activities in the buffer zone. Under the agreement the State was entitled to take further action without requiring any further consent of the native title holders.
711 The Goolarabooloo applicants opposed the inclusion of the terms of the agreement concerning the buffer zone as an other interest in the determination because any right was prospective, contingent and the nature of the restrictions could not be identified. The right was analogous to a regulatory power such as considered by Barker J in Banjima People v State of Western Australia (No 2) [2013] FCA 868 (Banjima) at [1768] – [1771]. The Goolarabooloo applicants argued that it was not necessary to record the assertion of control as an other interest.
712 There is force in the response of the State, namely, that the contractual right to restrict activities is a right which presently exists, whether acted upon or not, and is thus an interest in relation to or in connection with land. It is distinguishable from the general right to control considered by Barker J in Banjima.
713 In any event, the Goolarabooloo applicants who oppose the inclusion of the reference to the rights of the State under the agreement, have been found in these reasons for judgment not to hold native title rights and interests in the area including the area of the buffer zone. The Jabirr Jabirr applicants do hold native title rights and interests in the area. They do not oppose the reference in the determination to the contractual right of the State to restrict activities in the buffer zone as an interest other than native title interests. The fact that the native title holders of the area of the buffer zone do not oppose the course proposed by the State is a compelling factor in favour of the inclusion of such reference.
22. WHAT IS THE EXTENT OF THE AREA OF PUBLIC WORKS IN RESPECT OF THE EAST ISLAND LIGHTHOUSE?
714 The Australian Maritime Safety Authority has an aid to navigation on East Island which is one of the Lacepede Islands. The existing aid to navigation is a lighthouse tower built in July 1981. It replaced the original tower which was built in 1968. The tower is a 21 metre high steel frame mounted on a concrete footing.
715 The tower is constructed within reserve 37168 which was set aside for a lighthouse by the State, and then vested in the Commonwealth. It is common ground that the reserve extinguished native title on East Island landward of the high water mark. It is also common ground that when reserve 7279 was created in May 1971 in favour of the Australian Wildlife Authority it extinguished native title to the low water mark in the area of the reserve, which at that time covered Middle Island and West Island, but not East Island. In January 1992, the reserve was extended to East Island and covered the area landward of the low water mark. In the result it is accepted by the parties that native title was extinguished by 1992 landward of the low water mark on East Island.
716 The construction of the new tower was a public work within the meaning of s 253 of the NTA and is a previous exclusive possession act within the meaning of s 23C(7) of the NTA. Pursuant to s 23C(2) of the NTA a previous exclusive possession act extinguishes native title in relation to the land or waters on which the public work is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began.
717 The matter in contention is the geographic extent of the public work. That issue brings into consideration s 251D of the NTA which provides:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
718 The Commonwealth argued that the T-shaped piece of land and waters depicted in the map below was adjacent land and waters, the use of which was necessary for or incidental to, the construction, establishment or operation of the lighthouse tower, and, hence, formed part of the land or waters on which a public work was constructed with the consequence that native title was extinguished in the area.
719 The Commonwealth relied on the affidavit of Gregory John Hansen affirmed 15 December 2015. Mr Hansen is employed by the Australian Maritime Safety Authority as the Aids to Navigation Engineering Manager. He holds a Bachelor of Marine Engineering (Marine and Off-shore Systems) with honours from the Australian Maritime College, Launceston. The primary purpose of Mr Hansen’s work is to provide engineering and project management expertise and advice on the installation of new aids to navigation and the maintenance of existing installations including the lighthouse tower on East Island. Mr Hansen has knowledge of the construction of towers similar to the East Island tower. However, he was not employed by the Australian Maritime Safety Authority at the time that the lighthouse tower was constructed.
720 From his knowledge, and by reference to photos taken in 1981 of the construction of the lighthouse tower, Mr Hansen concluded that the tower required a concrete foundation. In his view a small excavator would have been needed to construct the concrete foundation. The construction would have required an area for the stockpile of raw materials near to the site. The original tower would have been removed by dismantling it in sections and laying those sections on the ground. The new tower would have been transported to the site by ships used by the Australian Maritime Safety Authority at the time. It would have been landed in pieces and laid out on the ground nearby. Mr Hansen said that the construction required anchorage points in the sea for the ship delivering machinery and materials. The construction also required approaches on the sea and on the island for the LARC, an amphibious vehicle brought by the ship and used for transporting equipment and materials from the ship to the site. Mr Hansen estimated the location of the sea anchorages having regard to the size of the ship required for the work and in view of the vessels used by the Australian Maritime Safety Authority at the time. Based on his experience and knowledge he estimated the lay down area, the stockpile area, the foundation areas, the location of the anchorage points and the necessary access routes as indicated on the map above.
721 The Bindunbur applicants accepted that reserve 7279 extinguished native title landward of the low water mark. Thus, that part of the area regarded by Mr Hansen as necessary for the construction which was landward of the low water mark was not in contention. The Bindunbur applicants however, argued that the public work did not extend seaward of the low water mark and hence contested that part of the T-shaped area which was located in the sea. Two reasons were advanced.
722 First, the Bindunbur applicants argued that no part of the ocean was necessary to ensure access to the site. The Commonwealth was entitled to utilise the sea area in co-existence with the public right to fish and navigate. Similarly, it was entitled to use the area for access for the construction of the lighthouse tower in co-existence with non-exclusive native title rights.
723 The question which s 251D raises is, relevantly, whether the use of the sea area was necessary for the construction of the lighthouse tower. That question is directed to the practical matter of usage. The fact that other rights co-exist in the waters which would allow for the use of the sea area does not mean that the area was not necessary for the purposes of s 251D of the NTA.
724 As part of this first argument, the Bindunbur applicants also contended that if the Commonwealth could claim that the sea area was necessary for the construction of the lighthouse tower, there was no reason why, on the same basis, the Commonwealth could not claim the sea route from Perth or from whereever the journey commenced. However, s 251D of the NTA relates to adjacent land or waters. The shipping route to Perth is not adjacent to East Island.
725 Second, the Bindunbur applicants argued that Mr Hansen’s evidence did not establish that the sea area was necessary for the construction of the lighthouse tower. His evidence was speculative. He estimated the area required. He did not have personal knowledge of the construction of the tower. There were no records of the construction and Mr Hansen did not examine any plans or drawings of the construction of the lighthouse tower. The area of the access route is entirely disproportionate to the size of the tower. The three legs of the sea area depicted on the above map are each about one nautical mile wide and each accommodates one of the three anchorage points. Mr Hansen deposed that the area was:
[D]etermined on the basis of the sea area that was likely necessary for a support vessel to navigate and then safely anchor, so that it could provide for the transport of equipment and materials to the AtoN [Aid to Navigation] site. The safe anchorage area would need to be utilised by the vessel for as long as it took to construct the AtoN.
726 The Bindunbur applicants observed that Mr Hansen said that the area was “likely necessary”. In the same way Mr Hansen could not say whether each of the anchorages was used. He stated:
Anchorages for a vessel of the size required for this scale of work are more difficult to be certain about. Reviewing the nautical chart identified that there are areas of deep Lacepede channel all similar distances from the island. Dependant on the weather conditions at the time it is quite plausible that at the time of the works the vessel would have been moved so that it was anchored in the lee of the island in sheltered waters.
727 The Bindunbur applicants did not contest the need for the three anchorage points. However, they argued that Mr Hansen could not say whether any one of them was the one used for the construction. It was argued that the Court cannot find, on the basis of this evidence, that any one of the anchorage points or all three of them were necessary for, or incidental to, the construction of the lighthouse tower. The Bindunbur applicants contended that extinguishment of native title is a serious matter. Mr Hansen’s evidence was not sufficient to establish, on the balance of probabilities, that the sea area was necessary for, or incidental to, the construction of the lighthouse tower.
728 Mr Hansen had the experience and knowledge necessary to determine what area of the sea would have been necessary to utilise in the construction of the lighthouse tower. He knew the vessels used by the Australian Maritime Safety Authority at the time. It was obvious that the ship delivering materials necessary for the construction and the machinery used in that project had to have anchorages to undertake the project. Mr Hansen located sites for the anchorages by reference to charts which showed the sea depths in the area. The essential dispute is whether the evidence sufficiently established the need for all three of the anchorage positions or any of them. Mr Hansen’s evidence suggested that the need for three anchorage points was to deal with changing weather conditions. The ship could be shifted from one position to another to ensure that it was protected from prevailing weather. The Bindunbur applicants’ criticism of the evidence was that it did not establish that the three anchorages were used in the construction of the tower. The three locations were, on Mr Hansen’s evidence, necessary, even if all were not used. The project required them to be available.
729 The Bindunbur applicants did not seek to cross-examine Mr Hansen. His unchallenged evidence is sufficient to establish on the balance of probabilities that the sea area marked on the above map was necessary for use in the construction of the lighthouse tower.
730 The Commonwealth also argued, pursuant to s 251D that the sea area was necessary for, or incidental to, the operation of the lighthouse tower. As the Commonwealth has succeeded on the necessity of the sea area for the construction of the tower, and that finding results in the extinguishment of native title from 1981, it is unnecessary to address the further issue.
23. TO WHAT EXTENT SHOULD CERTAIN RIGHTS, INTERESTS, POWERS AND FUNCTIONS UNDER COMMONWEALTH REGULATION BE REFLECTED AS OTHER INTERESTS IN THE DETERMINATION?
731 The Commonwealth sought the inclusion of certain statutory rights and licences granted under fisheries legislation in the determination as other interests under s 225(c) of the NTA in the way Finn J included such interests in the determination in Akiba SJ at [934] – [951]. That course was not opposed by the applicants.
732 It was also common ground that reference to the powers and functions of the Australian Maritime Safety Authority under the Navigation Act 2012 (Cth) and the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 (Cth) and the Fisheries Management Act 1991 (Cth) should be included in the determination. It is not certain whether the way in which the drafting of the determination to reflect that common ground will itself be the subject of agreement.
733 In particular the Commonwealth urged that the determination refer to the arrangements made for the management of tuna in the Western Tuna and Billfish Fishery and the Western Skipjack Fishery which are fisheries within the waters of the application areas. Similarly, the Commonwealth urged that the Kimberley Commonwealth Marine Reserve made by proclamation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) be referred to in the determination. There is substance in that approach because the express reference to such areas allows the reader of the determination to ascertain that particular statutory arrangements affect native title rights and interests in the application areas.
734 In the event that the parties are unable to formulate an agreed reference to these matters in the determination, the issues will be resolved by the Court.
24. DID CERTAIN WORKS REFERRED TO BY THE SHIRE OF BROOME EXTINGUISH NATIVE TITLE?
735 In the written submissions filed by the Shire a large number of works mainly connected with the Broome-Cape Leveque Road were said to have extinguished native title. By agreements made between the parties, the number of works in issue was narrowed very considerably. In the end the Shire argued that five pits, two bores, two camps and a grader parking area on roads in the application areas extinguished native title.
736 The following statutory provisions are relevant:
737 Section 23C(2) of the NTA provides:
(2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:
(a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and
(b) the extinguishment is taken to have happened when the construction or establishment of the public work began.
738 Section 23B(7) of the NTA provides:
(7) An act is a previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A); and
(b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.
739 Section 253 of the NTA relevantly provides:
public work means:
(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
…
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
major earthworks means earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.
740 Section 251D of the NTA provides:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
741 The Shire contended that each of the pits, bores, camps and the grader parking area was a public work on its own account or, alternatively, was adjacent to the road and necessary for, or incidental to, the construction, establishment or operation of the road.
742 For present purposes a public work includes a bore (s 253 (a)(ii)) or a major earthwork (s 253 (a)(iv)). The bore or major earthwork must have been constructed or established by or on behalf of the Crown, or local government authority, or other statutory authority of the Crown. It only has extinguishing effect if it was constructed or established on or before 23 December 1996.
743 The alternative argument of the Shire which relies on s 251D of the NTA, requires that the land used for the pits, bores, camps or grader parking is adjacent to where the public work is constructed, and that it is or was necessary for or incidental to the construction, establishment or operation of the public work.
744 Evidence about the nature of the works was given in affidavits sworn by John Ockerby 23 September 2016 and 1 November 2016. He was employed by the Shire in 1996 to repair roads and then, from 2006 until the present, as Works Construction Supervisor.
745 The five pits in question were pits 32, 46, 9, 11 and 12. The first two pits are in the Bindunbur application area and the last three pits are in the Jabirr Jabirr and Goolarabooloo application areas. Pit 32 is 6 x 8 metres. It is 30 metres on the left of the road. Mr Ockerby said “I think this was constructed in about the 80s because that is when that part of the road was built up”. Pit 46 is 15 x 8 metres. It is 50 – 60 metres to the right of the road. Mr Ockerby said “I expect it was constructed in the late 70s or early 80s when the road was built up”. Pit 9 is 6 x 8 metres. It is 20 metres off the road. Mr Ockerby said “it was there in 2006”. Pit 11 is 6 x 8 metres. It is 20 – 25 metres off the road. Mr Ockerby said “I can’t remember when it was built”. Pit 12 is 4.5 x 10 metres. It is about 30 metres off the road. Mr Ockerby said “been there a long time. It was already there when I started working back with the Shire in 2006”.
746 The dates the pits were made is a critical matter of proof for the arguments of the Shire. In order to establish that the pits were previous exclusive possession acts the pits must have been constructed before 23 December 1996. The evidence is at best scant on this issue. Mr Ockerby could not say when pit 11 was made. He said pits 9 and 12 were there when he started with the Shire in 2006. That does not establish that they were made before 23 December 1996. In respect of pits 32 and 46, Mr Ockerby speculated that they were made when the road was built prior to 23 December 1996. But that was no more than a guess. The result is that if the pits are major earthworks within the meaning of s 253 their making was not an exclusive possession act within s 23B(7) and did not have an extinguishing effect.
747 A further reason is that the pits are not major earthworks. The explanatory memorandum to the Native Title Bill 1993 indicated at [103] that the definition of major earthworks was intended to cover constructions which permanently or significantly changed the land. In Banjima Barker J said at [1465] that major meant “something prominent or significant in size, amount or degree”. At [1467] he referred to contextual factors as follows:
Whether an earthwork is major would also depend, I consider, on the terrestrial context of the earthworks, for example a pit of this size in somewhere like Kings Park, Perth, in a nature reserve would I think be considered a major earthwork, but in a vast area of remote country near a gravel road, probably not so.
748 The pits under consideration in this case are in a remote and vast area of country. They are not large. They are not major earthworks within the definition.
749 A further reason that the pits do not qualify under the definition in s 253 of the NTA is that there is no evidence on whose behalf the pits were constructed.
750 The alternative argument also fails for want of sufficient evidence. Whilst it can be accepted that the pits are adjacent to the road, the evidence does not establish that they were necessary for or incidental to the construction, establishment or operation of the road. Proof of those matters requires more detail about the circumstances in which the pits were made and, would, at least, require some evidence of the timing of the making of the pits in relation to the timing of the building of the road.
751 The grader parking area is a place directly off the road which is used to park a grader safely off the road overnight. The evidence does not indicate whether the parking area involves any earthwork at all. The grader parking area is not therefore a major earthwork for the purpose of the primary argument of the Shire. Further, the evidence does not establish that the grader parking area is adjacent to the road. Its location is indicated by a small dot on a much larger map annexed to Mr Ockerby’s affidavit. The argument of the Shire therefore cannot be sustained in relation to the grader parking area.
752 The same deficiencies of evidence apply in relation to camps 19 and 44 as have been discussed in relation to the grader parking area. The camps are used by the people engaged on construction and maintenance of the road. But there is no evidence that the building of the camps required any earthworks, and the evidence of the location of the camps does not position them adjacent to the road.
753 Bores 6 and 2 fall within the definition of public works in s 253 which expressly refers to bores. However, the only evidence of the date on which they were constructed was from Mr Ockerby who expected that they were built in the 70s or 80s. He provided no basis for this expectation. It amounted to no more than a guess.
754 It follows that the Shire has not established that the five pits, two bores, two camps and the grader park have extinguished native title.
1. SHOULD ANY PUBLIC RIGHT TO USE AND THE POWER OF THE SHIRE TO MAINTAIN UNGAZETTED ROADS BE INCLUDED IN THE DETERMINATION AS OTHER INTERESTS?
755 In his affidavit sworn 23 September 2016, Mr Ockerby identified three ungazetted roads in the Bindunbur application area, namely, the Middle Lagoon Road, the Banana Wells Road, the Beagle Bay Road. Mr Ockerby identified four ungazetted roads in the Jabirr Jabirr and Goolarabooloo application areas, namely, the Manari Road, the Barred Creek Road south, the Barred Creek Road north, and the Willie Creek Road. The Jabirr Jabirr applicants submission in response to the Shire filed 2 June 2017, explained that the Manari Road is entirely within reserve 29983, the Coulomb Point Nature Reserve. The Jabirr Jabirr applicants conceded that all native title rights and interests have been extinguished in that area. Thus, the ungazetted Manari Road is not part of the claim area.
756 The Shire contended that the right of any person to use the ungazetted roads should be included in the determination as an other interest, within the meaning of s 253 of the NTA, pursuant to the requirement in s 225(c) of the NTA.
757 The applicants opposed a reference to any public right to use the ungazetted roads because the roads were not established by any statutory process or at common law, and hence, there is no public right of use. Further, the ungazetted roads in the Bindunbur application area are part of reserves which are governed by statutory provisions requiring the public to obtain permission or traverse the reserves. It is an offence to enter the reserves without permission: s 31(1) Aboriginal Affairs Planning Authority Act 1972 (WA) and reg 8 Aboriginal Affairs Planning Authority Regulations 1972 (WA). The applicants’ arguments should be accepted. In the absence of any public right to use the ungazetted roads there is no basis for a reference in the determination to such a right.
758 The Shire also contended that the determination should include, as an other interest, the right of the local government authority to maintain the ungazetted roads. The Shire referred, in particular, to the power under s 3.53 of the Local Government Act 1995 (WA) to control and manage an unvested thoroughfare belonging to the Crown and reserves under its control. The Shire also referred, in [44] of its Statement of Facts Issues and Contentions Concerning Extinguishment, to a large number of other powers exercisable by it. The applicants admitted the existence of those powers.
759 The applicants contended that the responsibility of the Shire was adequately referred to in the draft orders and determination proposed by the applicants. Paragraph 6(b) of the proposed orders reads thus:
The native title rights and interests are exercisable in accordance with and subject to the:
…
(b) laws of the State and the Commonwealth, including common law.
Paragraphs 4(b) and 4(c) of sch 5 relating to other interests in the proposed determination reads thus:
The following rights and interests:
…
(b) rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA); and
(c) the right to access the Determination Area by:
(i) an employee or agent or instrumentality of the State;
(ii) an employee or agent or instrumentality of the Commonwealth;
(iii) an employee or agent or instrumentality of any local government authority.
760 In response, the Shire contended that the specific power to maintain the ungazetted roads should be recorded in the determination. Those powers are not merely general regulatory controls which the Shire has in respect of land within its district, but rather are powers relating to the specified roads. The Shire relied on the evidence of Mr Ockerby that he had seen people using the roads, and that the roads provide access to campsites, tourist sites and fishing spots. His evidence was that, at present, the Shire graded Barred Creek Road north twice a year and Manari Road three times a year. That is to say the Shire presently only maintains one of the roads in issue.
761 It is a question of judgment in each instance as to the level of particularity with which statutory powers should be specified as other interests in a determination. The purpose of the specification is to provide notice of the powers which might be used that might impact on the exercise of native title rights and interests. If the specification is too detailed the determination becomes unwieldy and is thereby likely to reduce its value as a notification. In view of the evidence of the limited scope of the Shire’s maintenance activities which, in the end, related only to one of the roads in issue, it is sufficient in this case for a general reference to the power of the Shire proposed in the draft determination proffered by the applicants.
2. DISPOSITION
762 In the result there will be orders that the parties file and serve proposed orders and a draft determination reflecting these reasons for judgment. There will also be an opportunity for the parties to apply to the Court for the determination of any of the matters referred to in [628], [645], [656], [670] and [734] which are not agreed between the parties.
I certify that the preceding seven hundred and sixty-two (762) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
SCHEDULE
WAD 359 of 2013
First Applicants CECILIA CHURNSIDE
ALEC DANN
BETTY DIXON
WALTER KOSTER
PHILLIP MCCARTHY
Respondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
SHEFFIELD RESOURCES LIMITED
JAMIE PETER BURTON
VICTORIA JANE BURTON
KURT ELEZOVICH
YEEDA STATION PTY LTD
JD ARROW
SJ ARROW
WAD 357 of 2013
Third Applicants ELIZABETH DIXON
CECILIA DJIAGWEEN
PADDY IGNATIUS
ANTHONY WATSON
Respondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION
CLIPPER PEARLS PTY LTD
THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD
WAD 374 of 2013
Fourth Applicants BRIAN JOHN COUNCILLOR
TERRENCE HUNTER
JASON DAVID ROE
RONALD LESLIE ROE
Respondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION
CLIPPER PEARLS PTY LTD
THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD
