FEDERAL COURT OF AUSTRALIA

 

De Rose v State of South Australia [2002] FCA 1342

NATIVE TITLE – application for a determination – Pastoral Leases containing reservations of rights in favour of Aboriginal people – whether the grant of Pastoral Leases extinguished native title – s 223 of the Native Title Act 1993 (Cth) – whether rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed – whether the claimants ever had a connection with the claim area – whether the connection has been abandoned.

EVIDENCE – application for a determination of native title – subs 82(1) of the Native Title Act 1993 (Cth) – when should the Court order that it is not bound by the rules of evidence.

Act, 1834 (4 and 5 William IV c. 95) ss 3, 4, 6, 8, 9, 17-19

The South Australia Act, 1842 (5 and 6 Vict c. 61)

Native Title Act 1993 (Cth) ss 61, 64, 82, 84, 222-225, 228, 229, 237, 248A, 248B, 249C, 251B

Evidence Act 1995 (Cth) ss 62, 63, 73, 74

Racial Discrimination Act 1975 (Cth) ss 9, 10

Federal Court Rules O 78 rr 1, 4

Pastoral Land Management and Conservation Act 1989 (SA) s 47, transitional provisions cls 5, 6

The Native Title (South Australia) Act 1994 (SA) ss 32, 33, 36F

Pitjantjatjara Land Rights Act 1981 (SA)

Pastoral Act 1893 (SA)

Pastoral Act 1936 (SA)

Aboriginal Heritage Act 1988 (SA)

Mabo v Queensland (No 2) (1992) 175 CLR 1 applied

Cooper v Stuart [1889] 14 App Cas 286 not followed

Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied

Jones v Dunkel (1959) 101 CLR 298 applied

The Wik Peoples v The State of Queensland (1996) 187 CLR 1 applied

Western Australia v Ward (2002) 191 ALR 1 applied

Ward v State of Western Australia (2000) 159 ALR 483 cited

Western Australia v Ward (2000) 99 FCR 316 considered

Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 applied

Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Kogolo v Western Australia (2000) 102 FCR 38 followed

Subramaniam v Public Prosecutor [1956] 1 WLR 965 applied

Milirrpum v Nabalco (1971) 17 FLR 141 cited

Daniel v Western Australia (2000) 178 ALR 542 cited

Lardill v Queensland [2000] FCA 1548 cited

Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 considered

Semple v Noble (1988) 49 SASR 356 cited

Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 applied

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 cited

Mason v Tritton (1994) 34 NSWLR 572 applied

Yanner v Eaton (1999) 201 CLR 351 considered

Members of the Yorta Yorta Aboriginal Community v State of Victoria (2000) 110 FCR 244 followed

Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 considered

Kanak v National Native Title Tribunal (1995) 61 FCR 103 cited

R v Van Der Peet (1986) 137 DLR (4^th) 289 cited

Hayes v Northern Territory (1999) 97 FCR 32 considered

Anderson v Wilson (2000) 97 FCR 453 considered

Wilson v Anderson (2002) 190 ALR 313 cited

Delgamuukuw v British Columbia (1997) 153 DLR (4^th) 193 cited

Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] FCA 1606 cited

Coe v Commonwealth (1993) 118 ALR 193 applied

Risk v National Native Title Tribunal [2000] FCA 1589 cited

Ngalakan People v Northern Territory of Australia [2001] FCA 654 cited

Russell v Bissett-Ridgeway [2001] FCA 848 cited

NB Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution. Limits and Proper Names (Canberra: Australian National University Press, 1974).

RM Berndt and CH Berndt, The World of the First Australians (Canberra: Aboriginal Studies Press, 1999).

GH Manning, Manning’s Place Names of South Australia (Adelaide: GH Manning, 1990).

RC Cockburn, South Australia; What’s in a name?, 3^rd Ed, (Asciom Publishing, 1990).

Rev WH Edwards, “Patterns of Aboriginal Residence in the North West of South Australia” in Journal of the Anthropological Society of South Australia Vol 30, No 1 (1992), pp 2-32.

NB Tindale, “Results of the Harvard–Adelaide Universities Anthropological Expedition, 1938 – 1939: Distribution of Australian Aboriginal Tribes: A Field Study” in Transactions of the Royal Society of South Australia, Vol 64, No 1 (1990) pp 140-231.

AP Elkin, “Kinship in South Australia” in Oceania, Vol VIII, No 4 (1938), pp 419-452.

RM Berndt, “The concept of ‘The Tribe’ in the Western Desert of Australia” in Oceania, Vol XXX, No 2 (1959), pp 81-107.

PETER DE ROSE AND OTHERS v STATE OF SOUTH AUSTRALIA AND OTHERS

NO SG 6001 OF 1996

 

O’LOUGHLIN J

1 NOVEMBER 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 6001 OF 1996

 

BETWEEN:	PETER DE ROSE FIRST APPLICANT   OWEN KUNMANARA SECOND APPLICANT   PETER TJUTATJA THIRD APPLICANT   JOHNNY WIMITJA DE ROSE FOURTH APPLICANT   MICHAEL MITAKIKI FIFTH APPLICANT   RINI KULYURU SIXTH APPLICANT   PUNA YANIMA SEVENTH APPLICANT   JULIE TJAMI EIGHTH APPLICANT   SADIE SINGER NINTH APPLICANT   WHISKEY TJUKANKU TENTH APPLICANT
AND:	THE STATE OF SOUTH AUSTRALIA FIRST RESPONDENT   R D FULLER PTY LTD AND DOUGLAS CLARENCE FULLER SECOND RESPONDENTS
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	1 NOVEMBER 2002
WHERE MADE:	ADELAIDE

 

 

 

THE COURT ORDERS THAT:

 

1. The application for a determination of native title be dismissed.

 

2. There be liberty to apply.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

INDEX

 

Heading	Paragraph No
INTRODUCTION	1
THE WITNESSES	9
THE CLAIMANTS’ CASE	29
THE PROPOSED DETERMINATION	39
THE TJUKURPA	52
The Kalaya Tjukurpa – The First Dreaming	53
Malu, Kanlaya and Tjurki Tjukurpa – The Second Dreaming	62
Pakalira Tjukurpa – The Third Dreaming	66
Papa Itari Tjukurpa – The Fourth Dreaming	68
The Seven Sisters Tjukurpa – The Fifth Dreaming	72
THE NGURARITJA	75
YANKUNYTJATJARA COUNTRY	108
ANTIKIRINYA	117
EUROPEAN DEVELOPMENT	145
THE CLAIM AREA	197
Agnes Creek	208
Paxton Bluff North	221
Paxton Bluff South	223
IMPROVEMENTS AND DEVELOPMENTS	225
LEGISLATION	234
THE STATUTORY LEASE?	245
ALLOWANCE FOR ABORIGINAL WITNESSES	249
HEARSAY	260
STAGES OF MANHOOD	272
SNOWY’S ACCIDENT	277
THE DEATH OF BOBBY	284
ETHNOGRAPHERS	292
EXPERT WITNESSES
Associate Professor Cliff Goddard	306
Associate Professor Peter Veth	314
Dr Robert Foster	317
Mr Daniel Vachon	322
Dr John Willis	332
Mr Craig Norman Elliott	347
PROFESSOR KENNETH MADDOCK	368
SITE VISITS	379
Wantjapila and Intalka	384
Ilpalka	391
Wipa	403
Kantja	411
Apu Maru	417
Tiilkatkara	426
DOUGLAS CLARENCE FULLER	430
REX FULLER	463
LOCKED GATES	478
SECTION 223 OF THE NTA	492
EXTINGUISHMENT	513
OPERATIONAL INCONSISTENCY	542
CONNECTION	559
PETER DE ROSE	572
RILEY TJAYRANY	600
WHISKEY TJUKANKU	621
ALEC BAKER	638
WITJAWARA CURTIS	648
PETER TJUTATJA	658
TIM DE ROSE	683
SANDY PANMA WILLIAMS	700
ALAN WILSON (MANTJAKURA)	705
ROLEY MINTUMA	713
MABEL PEARSON	726
OWEN KUNMANARA	736
MICHAEL MITAKIKI	761
JOHNNY WIMITJA DE ROSE	772
CISSIE RILEY	795
MINNIE NYANU	809
EDIE ANGKALIYA	817
CARLENE THOMPSON	824
MAGGIE WARD	829
LILLY YUPUNA BAKER	834
JEANNIE KAMPUKUTA INPITI	849
TILLIE YALTJANGKI	858
SADIE SINGER	860
TANYA SINGER-DUCASSE	867
BERNARD SINGER	871
MONA TUR	879
REASONS FOR LEAVING	888
CONCLUSION	897
A SUGGESTED DETERMINATION	916
SECTION 251B OF THE NTA	924
MAP – EXHIBIT A2	Page 393

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 6001 OF 1996

 

BETWEEN:	PETER DE ROSE FIRST APPLICANT   OWEN KUNMANARA SECOND APPLICANT   PETER TJUTATJA THIRD APPLICANT   JOHNNY WIMITJA DE ROSE FOURTH APPLICANT   MICHAEL MITAKIKI FIFTH APPLICANT   RINI KULYURU SIXTH APPLICANT   PUNA YANIMA SEVENTH APPLICANT   JULIE TJAMI EIGHTH APPLICANT   SADIE SINGER NINTH APPLICANT   WHISKEY TJUKANKU TENTH APPLICANT
AND:	THE STATE OF SOUTH AUSTRALIA FIRST RESPONDENT   R D FULLER PTY LTD AND DOUGLAS CLARENCE FULLER SECOND RESPONDENTS

 

JUDGE:	O’LOUGHLIN J
DATE:	1 NOVEMBER 2002
PLACE:	ADELAIDE

 

 

REASONS FOR JUDGMENT

 

INTRODUCTION

1                     Ten Aboriginal men and women have applied for a determination of native title over the land that is contained in three pastoral leases that together comprise De Rose Hill Station (“the Station”). As presently constituted, the three leases are registered in the joint names of Douglas (“Doug”) Clarence Fuller and RD Fuller Pty Ltd, the second respondents in these proceedings (“the Fullers”). The first respondent is the State of South Australia (“the State”). When the application was first filed in the Federal Court on 1 November 1996, there were twelve applicants, but two have died in the intervening space of time. By consent, their names have been removed from the title of the proceedings. The Station, which is situated in the far north-west of South Australia, will sometimes be referred to as “the claim area” or as “De Rose Hill”. It is within the eastern extremity of a large area of land that was known to the early ethnographers as “the Western Desert Bloc”. It started life as a sheep station in the early 1930s when it was leased to one Thomas (“Tom”) Gregory O’Donoghue, but later it converted to a cattle station. For the purpose of taking the evidence of the Aboriginal witnesses, the Court was based in a marquee at a location known as Ilintjitjara which is on the northern bank of the Tarcoonyinna (also known as Tarkan) Creek. Ilintjitjara is a few kilometres to the south of the southern boundary of De Rose Hill Station. In addition to sitting at Ilintjitjara, the Court also took evidence in a community hall in Marla (because of inclement weather) and at numerous sites which were said to be sites of significance to the Aboriginal claimants.

2                     I will refer to the applicants and the other persons for whom they claim native title over the claim area as “the claimants”. They have claimed in their application that they continue to follow the traditional laws and customs and that they maintain the necessary connection with the land and waters in the claim area that those laws and customs require. They have further claimed that they follow the traditional laws and customs which were followed for some time before the acquisition of sovereignty over the land by the British Crown.

3                     Section 225 of the Native Title Act 1993 (Cth) (“the NTA”), entitled “Determination of Native Title”, is the particular provision that outlines the task that confronts the Court in native title proceedings. In the first place, it identifies a determination of native title as a determination whether or not native title exists in relation to a particular area of land or waters. That area is described in s 225 as “the determination area” but the term “the claim area” is also in common use and it is the one that I have chosen to use in these reasons. The second leg of s 225 identifies the five particular subject matters that must be addressed by the Court if it is to make a determination that native title exists in relation to the claim area:

·                    Who are the persons, or each group of persons, who hold the common or group rights that comprise the native title?

·                    What is the nature and extent of the native title rights and interests in relation to the claim area?

·                    What is the nature and extent of any other interests in relation to the claim area?

·                    What is the relationship between the rights and interests that have been identified in answer to the two preceding questions (taking into account the effect of the NTA)? and

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

4                     The first two of those questions, the identities of those who comprise the native title claim group and the nature and extent of their rights and interests, are, of course, fundamental issues in these proceedings and must be addressed in some detail. If, upon an assessment of the evidence, it becomes apparent that native title rights and interests exist, it will be further necessary to identify and resolve the relationship between the competing rights and interests. The third question is, on the other hand, relatively easy to answer; the Fullers, in their capacity as the Crown lessees of the three pastoral leases, have rights and interests in relation to the claim area and the nature and extent of these rights and interests are to be found, primarily, in the terms and conditions of the three Crown leases and in the Pastoral Land Management and Conservation Act 1989 (SA) (“the 1989 Pastoral Act”). As to the fourth question, the claimants submitted that the relationship between their native title rights and interests and the rights and interests of the Fullers pursuant to the three Crown leases is governed by the terms of the Native Title (South Australia) Act 1994 (“the NT (SA) Act”) which, so it was claimed, mirrors certain of the terms of the NTA as to how the two sets of interests are be treated. That was a contentious proposition for the Fullers had submitted that the 1989 Pastoral Act had fully extinguished native title because it had created new leases.

5                     The last of the five subject matters did not arise in these proceedings. It is quite clear that the claim area is covered by three pastoral leases, each of which is a non-exclusive pastoral lease. The terms “pastoral lease”, “exclusive pastoral lease” and “non-exclusive pastoral lease” are defined in ss 248, 248A and 248B of the NTA. A pastoral lease is defined in this manner:

“A pastoral lease is a lease that:

(a)     permits the lessee to use the land or waters covered by the lease solely or primarily for:

(i)                 maintaining or breeding sheep, cattle or other animals;

or

(ii)               any other pastoral purpose; or

(b)     contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.” (original emphasis)

An exclusive pastoral lease is either a Schedule Interest or a pastoral lease that confers a right of exclusive possession over the land and waters that are covered by the lease. The term “Schedule Interest” is defined by s 249C of the NTA as meaning (subject to some exceptions such as mining leases) the many interests that are set out in Sch 1 to that Act. I do not consider that any of the three Crown leases is either a “Schedule Interest” or a pastoral lease that confers a right of exclusive possession. In the first place, all leases were originally issued with a reservation of rights for the benefit of Aboriginal people. In the second place, when those rights were removed by the introduction of the 1989 Pastoral Act, they were immediately replaced with the statutory rights that s 47 of that Act gave to Aboriginal people. The last of the definitions, “non-exclusive pastoral lease” does no more than say that such a lease is a pastoral lease that is not an exclusive pastoral lease (s 248B).

6                     The High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (“Mabo (No 2)”) held that the concept of native title is, and always has been, part of the common law of Australia. In coming to that conclusion, the Court rejected the advice of their Lordships in the Privy Council in Cooper v Stuart [1889] 14 App Cas 286 at 291. Lord Watson, who delivered that advice, said:

“There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.”

Those remarks would have had equal and like application to the then Colony of South Australia.

7                     Paragraph 13(1)(a) of the NTA provides that:

“(1) An application may be made to the Federal Court under Part 3:

(a)                for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b)                …”

Section 61 of that Act, which is to be found in Part 3, contains a table that sets out the nature of the applications that may be made to the Federal Court. The section also identifies the persons who may make each of those applications. Thus, so far as it is relevant to these proceedings, s 61 specifies that an application, as mentioned in subs 13(1) of the Act, for a determination of native title in relation to an area for which there is no approved determination of native title, may be made by:

“A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or …” (original emphasis)

Subsection 61(2) of the NTA then provides, inter alia, that, in the case of a native title determination application that is made by persons who are authorised to make the application by a native title claim group, those persons are to be identified jointly as the applicants.

8                     Native title originates in the traditions and customs of the indigenous people. It is from them, and not from the common law, that it takes its content: Mabo (No 2) at 57 – 58 per Brennan J; at 110 per Deane and Gaudron JJ; at 178 per Toohey J; see also Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 148 (“Fejo”) per Kirby J. The onus is upon the claimants to prove, to the satisfaction of the Court, that they have established their right to a determination in their favour.

THE WITNESSES

9                     Twenty-six Aboriginal persons gave evidence as part of the claimants’ case. Seven of those had earlier been named as applicants in the proceedings. They were Peter De Rose, Owen Kunmanara, Peter Tjutatja, Johnny Wimitja De Rose, Michael Mitakiki, Sadie Singer and Whiskey Tjukanku. Three of the applicants did not, however, give evidence – Julie Tjami, Puna Yanima and Rini Kulyuru. The evidence of most of those twenty-six witnesses was directed towards establishing that most of them (and others who were claimants) were Nguraritja: the traditional owners of the claim area.

10                  Peter De Rose, the first named of the applicants and the first of the witnesses for the claimants, would not agree that he and his wife Sylvia have been the main organisers of the Aboriginal people in their claim for a determination of native title. Neither would he agree that he is a spokesman for the Aboriginal people. Rather, he said, he deferred to the older people. It is not possible to make any findings about Sylvia. She did not give evidence in the trial. Peter was a different matter however. He was the dominant figure in the presentation of the claimants’ case. He was not only their principal witness, he was the individual who, more than any other person, was the one to whom the legal advisers turned for instructions. It might be the case that in matters of importance dealing with Aboriginal laws and customs, he had to defer to the old men. In such matters, Peter might only have been the spokesperson. But in the practical day-to-day handling of the case, he can quite properly be regarded as the leader of the Aboriginal claimants.

11                  Peter De Rose said that he knew Julie Tjami as a person who had been born on De Rose Hill Station; she is younger than Peter. He could not express the difference in their ages in years, but he said that he was a grown man when she was born. According to Peter, she left De Rose Hill with her mother and her brother Richard Nginingini (otherwise known as Richard Yangki) when she was quite young and before she was old enough to work. If, for example, Peter De Rose was born in 1949 and if he was a grown man when she was born, it suggests that Julie could now be in her mid thirties. Her evidence would have been of value in assessing her generation’s views on native title. Julie had another brother Tima (otherwise know as Tim). Peter said that he regarded each of the siblings, Julie, Richard and Tima as Nguraritja, that is, as a traditional owner, for De Rose Hill based on the fact that they were each born in the area. Julie Tjami is listed as Nguraritjain an anthropological report that was prepared by Mr Craig Elliott as well as in the claimants’ closing submissions. She appears in Sheet 6a of Ms Woenne-Green’s genealogies as the daughter of Maggie Yilpi and Kunmanara Nginingini. That, however, would seem to be her only exposure in the case. Bearing in mind that she was presumably regarded as being a person of sufficient importance to be included as one of the original twelve applicants, it was puzzling that she did not give evidence and that no evidence was led to explain her absence. I can only infer that if she had given evidence, it would not have assisted the claimants’ cause: Jones v Dunkel (1959) 101 CLR 298.

12                  Puna Yanima appears in the genealogies of Ms Woenne-Green as the daughter of Kunmanara Yanima.Johnny Wimitja De Rose (“Wimitja”) said that Puna had been born at Puna Well, which is a location on De Rose Hill Station. Wimitja also said that Puna was Nguraritja for De Rose Hill. The claimants put her forward as Nguraritja solely on the basis of her place of birth but without any explanation about her present whereabouts, her present connection (if any) to De Rose Hill or her absence as a witness.

13                  Rini Kulyuru was identified as Nguraritja for the claim area on the basis of a long-term physical association. Ms Woenne-Green’s genealogies indicate that she is the daughter of Jeannie Kampukuta Inpiti, (“Kampukuta”) who is a claimant in this application and who was a witness in the trial. According to Kampukuta’s witness statement, Rini was born at Iranytjirany (a location to the west of the claim area) and now lives at Amata (Musgrave Park). Amata is about a further 100 kilometres to the west of Iranytjarany. It is, in my opinion, of some significance that Kampukuta considered that her son, Sammy, who she said was born on De Rose Hill, was Nguraritja, but she did not suggest in her witness statement that any of her other children (who were born outside the claim area) were Nguraritja for the claim area.

14                  Three of the Anangu witnesses– Maggie Ward, Alan Wilson and Mona Tur – were not advanced as Nguraritja. Maggie Ward was born in about 1935 and was originally presented as a witness who was said to be Nguraritja for the claim area. However, in the course of her testimony it became clear that she repudiated the greater part of her witness statement, including, most importantly, any claim to being Nguraritja for the claim area. The claimants did not press her as Nguraritja in their closing submissions. Alan Wilson, who identified himself as a Pitjantjatjara man, was never put forward as Nguraritja for the claim area. He said that his country was further to the west of the claim area. Mona Tur identified herself as an Antikirinya woman. She was neither born on the claim area nor was she put forward as Nguraritja for the claim area.

15                  I have divided the remaining twenty-three Aboriginal witnesses, who asserted some interest in the claim area, into three groups. The first and the largest group consists of those thirteen witnesses whose estimated ages exceeded sixty years. The oldest was Owen Kunmanara, who was born around 1910. The word “Kunmanara” was not part of his name; it is more like a title or a description. Owen’s other name happened to be the same as that of a man who had died recently. In accordance with Aboriginal tradition, the name of the deceased man could not be spoken. Instead, the living person is referred to as “Kunmanara” – which literally means “substitute name” – thereby identifying him or her as a person whose name could not be spoken because of the death of another who had the same name. The second or middle group are the eight witnesses who were aged in their fifties at the time when they gave evidence. Only two of the Aboriginal witnesses, Bernard Singer (aged thirty-five when he gave his evidence) and his younger sister, Tanya Singer-Ducasse, aged twenty-four, fell into the third category. It was, in my opinion, very disappointing and somewhat significant not to have received evidence from more young people. One is left wondering whether the members of the younger generations have the same interest in native title entitlements as their elders.

16                  The twenty-three Aboriginal witnesses and their years of birth and groupings are as follows:

Name

 

Group A Approximate Year of Birth

 

Owen Kunmanara 1910

Peter Tjutatja 1912

Cissie Riley 1926

Jeannie Kampukuta Inpiti 1928

Riley Tjayrany 1930

Witjawara Curtis 1931

Alec Baker 1932

Johnny Wimitja De Rose 1933

Minnie Nyanu 1935

Mabel Pearson 1935

Lily Yupuna Baker 1938

Whiskey Tjukanku 1939

Edie Angkaliya 1940

Group B

Roley Mintuma 1943

Michael Mitakiki 1944

Sandy Panma Williams 1946

Tim De Rose 1948

Peter De Rose 1949

Tillie Yaltjangki 1949

Carlene Thompson 1950

Sadie Singer 1950

Group C

Bernard Singer 1966

Tanya Singer-Ducasse 1977

17                  In addition to the Anangu witnesses, there were a number of other witnesses who gave evidence for the claimants. I will do no more than identify them at this stage; I will discuss their evidence at a later stage of these reasons. The first person who should be mentioned, however, did not give evidence. Ms Susan Woenne-Green is an anthropologist who was to have been, on my understanding, the main anthropological expert witness for the claimants. Two reports written by Ms Woenne-Green were marked for identification on the first day of the trial in anticipation of her giving evidence. Unfortunately she became quite seriously ill during the course of the trial and was unable to give evidence. Her reports were therefore not tendered, although, by consent, her genealogies with respect to the claimants and their ancestors were admitted as Ex A64. Ms Woenne-Green provided invaluable assistance to the court, the parties and the transcript providers by supplying spelling and pronunciation of Aboriginal words during the hearing. I am indebted to her for that very considerable help and I wish her a speedy recovery.

18                  Associate Professor Cliff Goddard provided expert linguistic evidence for the claimants. Professor Goddard has written a Pitjantjatjara/Yankunytjatjara to English Dictionary, which is now in its second revised edition. The dictionary was relied upon quite extensively in the trial by the Court and the parties. Professor Goddard was asked to examine the differences between certain Yankunytjatjara and Antikirinya word lists. He concluded that there was little, if any, material difference between the two dialects.

19                  Associate Professor Peter Veth provided archaeological evidence about the claim area. He holds a first-class Honours degree in Arts and a PhD in Anthropology from the University of Western Australia. Professor Veth has held a number of positions within government, academic and commercial spheres. He was asked to visit a number of sites on and around the claim area. His evidence related to pre-and post-colonial occupation of those sites by Aboriginal people.

20                  Dr Robert Foster, a historian, examined a large number of documents (mainly government records) to piece together a history of the claim area and its surrounds from the time of the first European expeditions to the area until the mid 1960s.

21                  Mr DA Vachon, a Canadian, completed a Bachelor of Arts with Honours in Anthropology and Psychology from the University of Windsor and a Master of Arts from the University of Toronto. He has had extensive experience in the Western Desert through his employment by the Pitjantjatjara Council as an anthropologist. His evidence was primarily concerned with the observations that he made in the late 1970s in the course of his research programme at Indulkana and its surrounds (which included De Rose Hill). He has also undergone several stages of initiation that Western Desert male Anangu are required by traditional law and custom to endure to become a Wati (an initiated man).

22                  Dr John Willis obtained a Bachelor of Arts with First Class Honours in Anthropology and Sociology from the University of New South Wales. He was awarded a Master of Letters with Distinction in Sociology from the University of New England in 1989, and in 1997 he completed his PhD through the Tropical Health Program at the University of Queensland. His PhD involved extensive fieldwork at a variety of sites throughout the Western Desert. Dr Willis is a fully initiated Anangu. His evidence, the great majority of which was taken in closed session, centred on the ceremonial life of males and its importance within the Western Desert culture. However, he had virtually no specific knowledge of the practices within the claim area itself – his evidence was of the wider Western Desert rather than focusing on De Rose Hill.

23                  Mr Craig Elliott became the main anthropological witness for the claimants following the illness of Ms Woenne-Green. He has had extensive experience in anthropological research into central Australian Aboriginal groups. Mr Elliot conducted research among the claimants on site to assess their current level of adherence to traditional laws and customs. He also described those laws and customs and reviewed previous ethnographic literature that was of relevance to the claim area.

24                  The Reverend William Howell Edwards was called by the claimants to give evidence, primarily as a result of his experience at the Ernabella Mission. A Minister of the Presbyterian Church since 1958, he worked at the Ernabella Mission in the far north-west of the State from May 1958 to February 1972. He also worked at Fregon in 1973 and at Amata from 1976 to 1980. He was Acting Superintendent from September 1958 and became Superintendent at Ernabella in 1963. He has had a long and distinguished history in all aspects of Aboriginal affairs. He holds Bachelor degrees in Arts and Education, has completed a qualifying MA entry in Anthropology and is currently enrolled for a Master of Arts in History. At the time of giving his evidence, he held the position of Adjunct Lecturer in the Unaipon School at the University of South Australia, lecturing on matters relating to Aboriginal culture. He has conducted summer schools in the Pitjantjatjara language and he works as an interpreter in hospitals, courts and prisons.

25                  The only witness called by the State was Professor Kenneth Maddock, an anthropologist. He provided two reports to the court, which were tendered as Exs S36 and S37; he also gave extensive oral evidence. Professor Maddock graduated with a Bachelor of Laws degree in 1960. Later, in 1964, he was awarded a Master of Arts with First Class Honours in Anthropology from the University of Auckland, New Zealand. He completed his PhD at the University of Sydney in 1969. He is currently Emeritus Professor in Anthropology at Macquarie University and, in the past, he has held a number of academic positions in Australia, Europe and South Africa. Professor Maddock has extensive experience working as a consultant on a number of land rights and native title claims and has published many articles and books since 1969. He is clearly an extremely learned and experienced anthropologist as was acknowledged by Mr Elliot.

26                  There were three witnesses who gave evidence for the Fullers. They were Doug and Rex Fuller and Bruce Evans. Doug Fuller was ninety-two years of age when he gave his evidence. After working in the claim area for some years, including a period when he had an association with the O’Donoghue brothers (Tom and Mick), Doug became the sole proprietor of De Rose Hill Station. He worked on De Rose Hill for many years steadily developing its capacity as a cattle station. Although he has now retired to Beachport, a small town on the south-east coast of South Australia, he still retains a fifty percent interest in the three pastoral leases that today comprise De Rose Hill Station.

27                  Rex Fuller is the only son of Doug Fuller. Following his father’s retirement to Beachport, he took over the position of Station Manager. He has continued the development of the improvements on De Rose Hill in order to maximise the cattle capacity and the efficiency of the station. His company, RD Fuller Pty Ltd owns the other half of the three leases.

28                  Bruce Freebairn Evans was seventy-six years old when he gave his evidence. He has had extensive contact with the claim area and the surrounding country as a result of his former employment. From 1955 to 1960 and from 1963 to 1966 he was a Police Officer stationed at Oodnadatta. His patrol area, which was enormous, covered a number of pastoral stations in the north-west of the State, including De Rose Hill. From 1966 to 1985 Mr Evans, having left the police force, was employed by the South Australian Pastoral Board and worked as a pastoral inspector and Board member. His duties as an inspector required him to make regular inspections of De Rose Hill Station and other pastoral properties in the north-west of the State. As a result of his employment, first as a police officer and, later, as a pastoral inspector, Mr Evans was able to provide evidence about the conditions in the north-west with specific references to De Rose Hill, from the mid 1950s until the 1980s. He gave evidence that the De Rose Hill lease was one of the best improved cattle stations he had seen.

the claimants’ case

29                  The claimantswere represented at the trial by Mr KR Howie SC, Mr AC Collett and Mr R Bradshaw of counsel, but Mr J Basten QC appeared during the course of closing submissions to address the Court on the issue of extinguishment of native title. Until his judicial appointment, Mr AJ Besanko QC led Ms GA Brown for the State. Mr GF Barrett QC, Ms R Webb and Ms E Strickland also represented the State during the later stages of the trial. Mr RJ Whitington QC, Mr CH Goodall, Mr JP Keen and, in the latter stages of the trial, Dr MA Perry appeared as counsel on behalf of the Fullers. Three interpreters were used in the trial. They were Mr Yami Lester, Ms Mary Anderson and Mr Alec Henry. Mr Lester and Ms Anderson divided the work based on the gender of the witness whilst Mr Henry was used only for the evidence of Johnny Wimitja De Rose. An avoidance relationship prevented Mr Lester acting as interpreter for Wimitja.

30                  The claimants are said to be Nguraritja, that is, the traditional owners of the claim area according to the traditional laws and customs that are acknowledged and observed by the people of the region. They seek to be acknowledged as Nguraritja of the claim area, possessed of the rights and interests that have been outlined in the submissions that were made to the Court on their behalf.

31                  Many of the witnesses, during the course of their evidence, referred to themselves as Yankunytjatjara people; others referred to themselves, or to one or both of their parents, as Pitjantjatjara, thereby holding out that Yankunytjatjara and Pitjantjatjara were two separate peoples. However, the name Yankunytjatjara did not appear in the application for a determination of native title. It was not, for example, propounded that the claimants were pursuing their claim for themselves and for the Yankunytjatjara people as a whole. Nor did the name Yankunytjatjara appear in the written outline that counsel for the claimants submitted as part of his opening address. Any reference to the word Yankunytjatjara was, initially, a reference to a dialect of the western desert language: see, for example, par 10 of the claimants’ outline of facts and contentions and par 37 of the claimants’ further and better particulars. On the other hand, from an early stage of the proceedings, the claimants filed documents which were headed:

“Peter De Rose and others on behalf of those Yankunytjatjara people who have historical, spiritual and ancestral relationship to the claim area.”

32                  Furthermore, in par B21 of the claimants’ answer to the statement of facts and contentions that were filed on behalf of the State, a different emphasis was placed on the word Yankunytjatjara. Rather than using it in a dialectal context, it was there used to describe a people.

33                  In their outline of facts and contentions, the claimants sought to place the claimant group within the larger “Western Desert Bloc”. For example, in par 10 they asserted that:

“Aboriginal people residing within this wider region speak dialects of the ‘Western Desert’ language which include Ngaanyatjara, Pitjantjatjara and Yankunytjatjara.”

In par 11 there was an asserted connection between the claimant group and the claim area:

“Claimants and the claimed land and water are a part of a regional network of classical and contemporary relationships shared with other Aboriginal people and land within what is known in anthropological writings as the ‘Western Desert bloc’ of Australian Aboriginal culture.”

That association with the Western Desert Bloc was further developed in pars 12 and 79:

“12. The system of rules binding upon claimants in respect of the claimed land and water is the system of rules shared with the other Aboriginal people within the ‘Western Desert bloc’ …”

…

79. The system of rules applicable to the wider social and cultural network integrates the claimed land and water with the wider region. The claimants and their land and water are recognised as being an integral component of the wider social and cultural network.”

Thus, the claimant group was not described in the claimants’ outline of facts and contentions as the Yankunytjatjara people (or as a discreet section or division of the Yankunytjatjara people) but, rather, as a group within the Western Desert Bloc, the members of which adhered to the same set of rules that prevailed throughout that Bloc. The case that the claimants developed in their pleadings was to the effect that there are groups within the Bloc who are connected by language, myth and their environment. In support of this proposition they relied upon some of the writings of Professor RM Berndt who was of the opinion that:

“Diagrammatically, the whole of the Western Desert could be seen as a series of overlapping interactory zones or as small communities.”

34                  In their submissions in reply at par 1.3, the claimants presented themselves in a different fashion. They said:

“The claimants are a group of Aboriginal people. They are Yankunytjatjara and Pitjantjatjara speaking people. They acknowledge and observe traditional laws and customs. These laws and customs are the laws and customs of the broader Aboriginal Community or Society of the area known as the Western Desert, of which the claimant group is a part … The claimed land is within the region of the Western Desert.”

35                  The intermix between Yankunytjatjara and Pitjantjatjara was made the more interesting because of the usage of certain words such as Anangu and Tjukurpa. The Pitjantjatjara people and the Yankunytjatjara people are closely related, both in language and culture. Anangu is the word for “person” or “people” in the Pitjantjatjara language. It is, historically, the word that the Pitjantjatjara use to refer to themselves but it would seem that it has become a word of extended usage and that it is now also used by Yankunytjatjara people to refer to themselves and other Aboriginal people. It will be convenient to use the word Anangu from time to time in the course of these reasons because of its frequent use in the evidence and exhibits. The relationship between the Anangu and their relationship with the land that they occupy is governed by a body of oral traditions, laws and customs (which non-Aboriginal people have called “the Dreamings”). The Dreamings are known to the Pitjantjatjara as the Tjukurpa and to the Yankunytjatjara as the Wapar, but it was the word Tjukurpa that was universally used by all the Aboriginal witnesses throughout the trial.

36                  The first named of the claimants, Peter De Rose, gave his address in the application as Railway Bore, Indulkana, South Australia, but he now lives in his wife’s country at Papalangkuntja – otherwise known as Blackstone – in Western Australia, almost 500 kilometres from the claim area. Some of the claimants live in the Iwantja Community which is in the Indulkana area to the south of the claim area. Using the scale on Ex A1, one of the maps that was tendered by the claimants, it would seem that Indulkana and Iwantja are about twenty-five kilometres from the southern boundary of De Rose Hill Station. Those communities are north of the small township of Marla and to the west of the Stuart Highway and the Alice Springs Railway line. Other claimants live in the Amata Community, which is almost 200 kilometres to the west of the claim area; another claimant lives at Mimili, which is due west of Indulkana. Amata and Mimili were once cattle stations known as Musgrave Park and Everard Park respectively. Indulkana, Iwantja, Amata and Mimili are all within the boundaries of the Anangu Pitjantjatjara Lands (“the AP Lands”).

37                  At the end of the day, the claimants seemed to be arguing that each member of the claimant group is Nguraritja for the claim area and that the application for a determination of native title has been made by named individuals in their own right and on behalf of all other individuals who fulfil the criteria of Nguraritja according to traditional law and custom. In par 1.6 of their principal submissions the claimants submitted that the claimants are:

“… a group of people seeking a determination of their rights and interests as a group or aggregation of persons. The rights and interests claimed are not a communal title.”

38                  Confusing as the claimants’ case was, it would appear that, in the end, they sought to establish the following propositions:

·        the claim area is and always has been Yankunytjatjara country;

• Antikirinya and Yankunytjatjara are different names that are used to refer to the same people;

·        the claimant group comprises those individual Anangu (Aboriginal people) who are Nguraritja (traditional owners) and who are connected with the claim area: that is, there is no claim on behalf of the entire Yankunytjatjara people; and

·        the Nguraritja are part of the greater western desert culture.

the proposed determination

39                  Some, but not all, of the Aboriginal witnesses were asked what it would mean to them if the claimants were to be successful in obtaining a determination of native title. Of those who were questioned on the subject, some did not have an answer. None of them gave detailed evidence that amounted to statements of intention to resume the observance of traditional customs or the maintenance and acknowledgement of traditional laws.

40                  Johnny Wimitja De Rose was the first of the Aboriginal witnesses to be asked about his hopes and expectations for De Rose Hill, but he merely replied:

“I haven’t really given that much consideration to that far down the track.”

He was asked again: had he not thought about what might happen and he replied:

“I’m telling the truth, we haven’t thought that far down the track.”

41                  Riley Tjayrany was asked what he thought it would mean if the Aboriginal people were to win. His answer, as recorded in the transcript was:

“I reckon its palya, good.”

42                  Mr Whitington then explored with him what the likely consequences of winning the case would be for the Aboriginal people and for the Fullers. His first answer was to indicate a return to bush tucker and a return to traditional customs saying:

“We might have tawal-tawal, bush tomato; kampurara, other bush tomato; ili, the figs; and wangunu, the grass-seeds.”

 

Riley then switched his attention to meats referring to malu, the kangaroo, kalaya the emu and kipara, the wild turkey. Much seemed to depend on what Wapala (Peter De Rose) might do. If he were to go to live on the Station, Riley thought that others would follow him. Riley said that if Peter and the other Aboriginal people were to live on the station:

“We’ll tell the young people to do the cattle work and they can do the work. I’ll tell them.”

Asked what cattle would he use, Riley replied:

“Yes, if someone might help us out by buying the cattle for us, we will run that cattle.”

43                  Riley said that he did not know what would happen to the “whitefellas” and their cattle, but he speculated that they might truck some away or they might leave some cows and calves. But, so he said, the “whitefellas” would not be able to stay there if the Aboriginal people were to live on the Station and run their own cattle. In other words, it was quite clear in Riley’s mind that he, at least, was seeking exclusive possession, occupation, use and enjoyment of De Rose Hill Station. Furthermore, it would seem that, whatever his reasons might be for wanting exclusive possession, they included the wish to carry on a commercial cattle operation. Despite these answers, however, Riley said that he had not spoken to any of the other Aboriginal people about what might happen if the claimants were to win the case.

44                  Mr Whitington asked Roley Mintuma what he thought might be achieved if the Aboriginal people were to be successful in obtaining a determination of native title over the De Rose Hill Station. Mintuma said that “maybe if they win the case, then it will become Aboriginal land”. He was then asked, if it were to become Aboriginal land, what would happen to the cattle that are now on it. His evidence was as follows:

A “Maybe if it became Aboriginal land he might take his cattle to his own country.

Q If it becomes Aboriginal land, what do you think the Aboriginal people will do with it?

A Maybe the Aboriginal people do something – I don’t know – maybe they will get cattle or maybe they will make something.

Q Will some Aboriginal people go and live there?

A Yes, maybe they will work it out – I don’t know how they would work it out – to go there to live on that place. I don’t know they might work it out.

Q Will you go and live there?

A Yes, if I think I can go and live there, I will work it out, if I want to go there. Maybe if Wapala [Peter De Rose] goes there then I will have to think about going there and to live there, but I don’t know how we will work it out.

Q But if Wapala goes there, that may make you decide to go there too, is that right?

A Yes, if all the Nguraritja thinks that – and Wapala is a Nguraritja – and all the Nguraritja go back there, then we, that we grew up there, then we will think about maybe going there.

Q Are you a Nguraritja or not?

A Yes I am a Nguraritja. I grew up from a baby at that place.”

45                  Jeannie Kampukuta Inpiti was asked to give her understanding of what benefits the Aboriginal people would enjoy if they were to win the present case. She replied saying:

A “Maybe people who they’re thinking that they might get that place, people who are born there.

Q And people who are Nguraritja?

A Yes, Nguraritja people might get that place and we might help and go there.

Q Do you think that you worked very hard on De Rose Hill for Doug Fuller, working with the sheep?

A Yes, I used to look after sheep for him.

Q Do you think that because of your hard work there you deserve to be Nguraritja?

A Yes.

Q Do you think because of your hard work that you are one of those people who might deserve to get De Rose Hill Station?

A Yes, maybe.

Q Would you like to live there if you could?

A Yes, maybe.”

 

46                  Cissie Riley did not assist; she could only say that she would like to go back to De Rose Hill Station because it is:

“… our place. I don’t know. It might happen, it mightn’t happen.”

47                  Although Sadie Singer claimed that she is Nguraritja for De Rose Hill because of her mother and her mother’s ancestors, she made it clear that she does not seek to live on the claim area in the event of the native title claim being successful. She claimed that she was participating in the application on behalf of other Aboriginal people and, presumably, her children. On the other hand, and contrary to the submissions that were advanced on behalf of the claimants, she said that she wanted the Fullers and their cattle off the property; she wanted exclusive possession for the Anangu.

48                  During the course of his opening, Mr Howie SC, counsel for the claimants, made it clear that his clients were not seeking exclusive possession, occupation, use and enjoyment of the claim area; they were, however, so he submitted, seeking more than that to which they are entitled under s 47 of the 1989 Pastoral Act. That section is in the following terms:

“47(1) Despite this Act or any pastoral lease granted under this Act or the repealed Act, but subject to subsection (2), an Aborigine may enter, travel across or stay on pastoral land for the purpose of following the traditional pursuits of the Aboriginal people.

(2) Subsection (1) does not give an Aborigine a right to camp:

(a) within a radius of one kilometre of any house, shed or other outbuilding on pastoral land; or

(b) within a radius of 500 metres of a dam or any other constructed stock watering point.”

“Aborigine” is defined in the 1989 Pastoral Act as meaning:

“… a descendant of the Aboriginal people who is accepted as a member by a group in the community who claim descent from the Aboriginal people.”

“Aboriginal people” is also a term that is defined in that Act. It means:

“… the people who inhabited Australia before European colonisation.”

It was common ground that the three leases with which these proceedings are concerned were pastoral leases to which s 47 of the 1989 Pastoral Act applied.

49                  Whilst the claimants asserted that they are entitled to native title rights and interests over the claim area, they nevertheless acknowledged, from the outset, that their rights, in terms of possession, occupation, use and enjoyment, must be compatible with the rights, interests and obligations of the Crown lessees: see The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 132-133 (“Wik”). They recognised that the terms of the original and the present crown leases deny them the right to exclusive possession, occupation, use and enjoyment of the claim area. Expressed another way, the claimants acknowledged the rights of the crown lessees to possess, occupy, use and enjoy the claim area in terms that are compatible with the provisions of the relevant leases, subject always to the reservations of rights in favour of the Aboriginal people. So much was not, I think, in dispute; the dispute was centred upon whether the claimants have ever had a connection with the claim area, and if they did, whether they have retained that connection. If they have retained such a connection, the next question was what (if any) additional rights or interests, over and above those that are contained in the 1989 Pastoral Act, would be available for the Aboriginal people if a determination of native title were to be made in their favour?

50                  The proceedings were concluded and judgment was reserved before the decision of the High Court in Western Australia v Ward (2002) 191 ALR 1 (“Ward”). However, as a result of that decision, further written submissions from all parties (“the supplementary submissions”) were received, by consent, by the Court during September and October 2002. The claimants had initially provided the Court with a statement of the native title rights and interests that were claimed on their behalf. That statement was provided, during the course of the trial on location at Ilinyjitjara in the far north-west of the State on 8 June 2001. It was later included as part of the claimants’ final submissions. The claimants have since revised their claims as a result of the High Court’s decision in Ward. They accept that any exclusive native title rights that may have once existed in respect of the claim area have been extinguished. However, they seek to establish that they have a non-exclusive right to make decisions about the use and enjoyment of the claim area. They submitted that the content of this non-exclusive right was the right to make decisions about the use and enjoyment of the claim area by people, other than the pastoral leaseholders and their employees, agents and invitees (who would be using the land and waters for pastoral purposes in accordance with the terms of the pastoral leases) and also other than people who would be exercising a statutory right in relation to the use of the land and waters in the claim area. The rights that are now claimed and the determination that the claimants now seek, as set out in their supplementary submissions, are as follows:

“PROPOSED DETERMINATION

THE COURT DETERMINES:

1. Native title exists in relation to the land and waters covered by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease Pastoral No. 2190A (“the determination area”).

2. The persons who hold the group rights comprising the native title are the Aboriginal persons who are recognised as nguraritja of the land in the determination area under the traditional laws and customs acknowledged and observed by the Aboriginal people of the region, as common law holders.

3. The nature and extent of the native title rights and interests in relation to the determination area are:

(i) The right to non-exclusive possession, occupation, use and enjoyment of the land and waters of the determination area, including as incidents of the entitlement –

(a) the right to hunt on the land, to gather and use the products of the land such as food, medicinal plants, wild tobacco, timber, stone and resin, and to access and use water on the land;

(b) the right to live on the land, to camp, to erect shelters, and to move about the land;

(c) the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, to teach the physical and spiritual attributes of places, to participate in cultural practices relating to birth and death;

(ii) the right to access, maintain and protect the sites of significance on the land of the determination area;

(iii) the non-exclusive right to make decisions about the use and enjoyment of the land and waters by people other than the pastoral leaseholders, their employees, agents and invitees (using the land and waters for pastoral purposes, in accordance with the terms of the pastoral leases) and others exercising a statutory right in relation to the use of the land and waters;

(iv) the non-exclusive right to refuse access to people other than the pastoral leaseholders, their employees, agents and invitees (who have a right of access to the land and waters for pastoral purposes, in accordance with the terms of the pastoral leases) and others who have a statutory right of access, and to grant access to Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;

(v) the non-exclusive right to control the use and enjoyment of the resources of the land and waters by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders *other than* the pastoral leaseholders, their employees, agents and invitees (using the land and waters for pastoral purposes, in accordance with the terms of the pastoral lease [sic]) and others exercising a statutory right in relation to the use of the land and waters;

*[In their supplementary submissions in reply, the claimants substituted the words “and who are not” for the words “other than” so as “to overcome the ambiguity”; they did not make like alterations in subpars (iii) and (iv) however.]

(vi) the right to prevent the disclosure otherwise than in accordance with traditional laws and customs of tenets of spiritual beliefs and practices (including songs, narratives, rituals and ceremonies) which relate to areas of land or waters, or places on the land or waters;

(vii) the right to be acknowledged as the owners of the land and waters in accordance with traditional laws and customs.

4. The nature and extent of other interests in relation to the determination area are the interests of Douglas Clarence Fuller and R D Fuller Pty Ltd as the holders of:

(i) Crown Lease No. 2133,

(ii) Crown Lease No. 2138A, and

(iii) Crown Lease No. 2190A

which interests are held subject to the Pastoral Land Management and Conservation Act 1989 (SA).

5. The relationship between the rights and interests of the native title holders and the rights and interests of the pastoral lessees is that of parties with co-existing rights and interests, which must be exercised having regard to the following principles:

(i) the Pastoral Land Management and Conservation Act 1989 and the pastoral leases [that] are the source of the rights and interests of the pastoral lessees;

(ii) section 47 of the Pastoral Land Management and Conservation Act 1989, which guarantees to Aborigines the right to enter, travel across and stay on the land for the purpose of following the traditional pursuits of Aboriginal people, but does not give a right to camp within a radius of one kilometre of any house, shed or other outbuilding, or within a radius of 500 metres of a dam or a constructed stock watering point;

(iii) the rights and interests of the pastoral lessees are of a limited character confined principally to the right to graze stock and the right to make improvements for that purpose;

(iv) as a consequence of s.44H of the Native Title Act 1993 (Cth) and s.36I of the Native Title (South Australia) Act 1994 the rights and interests granted by the pastoral leases and the doing of any activity permitted by them prevail over the native title rights and interests, and are not prevented by the existence or exercise of the native title rights and interests;

(v) section 23 of the Aboriginal Heritage Act 1988 prohibits any damage, disturbance or interference with any Aboriginal site, object or remains;

(vi) the coexisting rights of the native title holders and the pastoral lessees must be exercised by each party reasonably, having regard to the interests of the other.

AND THE COURT FURTHER ORDERS THAT

6. The native title is not to be held in trust.

7. An Aboriginal Corporation whose name will be provided within ‘X’ months is to:

(a) be the prescribed body corporate for the purposes of s.57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in s.57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.”

51                  The claim in subpar 3(vi) above to prevent improper disclosure of cultural information about the claim area was considered and accepted by Lee J at first instance in Ward v State of Western Australia (2000) 159 ALR 483. Lee J’s decision on that point was overturned by the majority decision of Beaumont and von Doussa JJ when the matter went on appeal: Western Australia v Ward (2000) 99 FCR 316 and the High Court did not interfere with that particular finding of their Honours. The claimants argued that the right to prevent the disclosure of spiritual beliefs and practices related to “places on the land”; they submitted that what they sought was different from that which had been rejected in Ward, arguing that the native title right that has been claimed in this case was not a broad claim of a right to protect cultural knowledge of the kind considered in Ward. In Ward the right that was sought was the “right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area”. In this case the claimed right, according to the claimants, was a limited right confined to disclosure of tenets of spiritual beliefs and practices (including songs, narratives, rituals and ceremonies) which relate to areas of land or waters, or places on the land or waters. I cannot see that there is a distinction. The decisions in the Full Court and the High Court have made it clear that matters of spiritual beliefs and practices are not rights in relation to land and do not give the connection to the land that is required by s 223 of the NTA.

the Tjukurpa

52                  Peter De Rose was asked, during the course of his examination in chief, to explain the main Tjukurpa or Dreamings for his country; initially he replied that there were three, the first of which was his Tjukurpa. That was the Kalaya (emu) Tjukurpa – in the track of which he was born. The second Dreaming Track was to the east. It was the track of Malu (the red kangaroo), Kanyala (the euro) and Tjurki (the owl). Sometimes during the course of the trial a reference to this Tjukurpa was abbreviated so that it was simply called “the Malu Dreaming” or “the Malu Tjukurpa”. The third Dreaming was to the west and was one of great significance and secrecy to men; it was one about which Peter could not speak in mixed company. He did no more than name it – Pakalira. Later, as his evidence progressed, he referred to a fourth and fifth dreaming, Papa Itari and The Seven Sisters. In the ensuing discussion, references to the various places along the Tjukurpa paths will incorporate site references on the map, Ex A2, a copy of which is annexed to these reasons.

The Kalaya Tjukurpa –The First Dreaming

53                  Peter De Rose said that the Kalaya Tjukurpa (or the emu Dreaming) started near Indulkana at a place called Kirara (site 26). Kirara is to the south of De Rose Hill Station. The emus, travelled north, entering De Rose Hill country where they travelled to Kantja (site 29). Kantja is where Peter’s story starts. At Kantja, the Kalaya met up with the local Kalaya and from Kantja they all then went to Tjinytjirapila (site 30), Tjaapila (site 33), Watarkatjara (site 39) and then on to Ilpalka (site 40). At Ilpalka they met up with other Kalaya who had come from Tiilkatjara (site 43). Yet another group of Kalaya had travelled from Kalkatja (site 47) and they, together with those who had come from Tiilkatjara, travelled through the area of the homestead of De Rose Hill Station and the ironwood tree under which Peter had been born until they arrived at Ilpalka. From Ilpalka, they all left De Rose Hill and travelled to Ngatiri (site 4) which is located on Ayers Range South. (Neither the oral evidence nor the maps that were tendered in evidence established whether Ayers Range South is a separate pastoral Station or, as I think, the southern section of Mt Cavenagh Station. It is not a matter of importance in the final determination of this case but there have been numerous references to Mt Cavenagh Station and only the occasional reference to Ayers Range South. I will refer to Mt Cavenagh Station in the belief that Ayers Range South is part of that Station.) From Ngatiri the Kalaya went to Wipa (site 5) which is directly to the east but located on Tieyon Station. Mt Cavenagh Station, known to the Anangu as “Watju” is to the north of De Rose Hill Station; Tieyon Station is to its east. Peter De Rose, speaking of Wipa, said:

“Wipa is very important place and at that place the Kalaya – all the Kalayas – they kill that devil dog called Kurpanga. They kill him there.”

 

And that is where Peter’s story ends – at Wipa. The story of the Kalaya Tjukurpa, as it unfolded in Peter’s evidence, was difficult to follow. In his initial answers to questions, he referred to the Kalaya as emus saying that there were many of them and that they had come from many different directions before joining up at Wipa. His counsel then put to him, in quite leading terms:

Q “Sometimes I have heard people say ‘Well, really they were men’. Have I misunderstood that or can you explain that to me?

A Tjukurpa, the story dreamtime, they were people – Wati, man, minyma, woman, tjitji, children – back in Tjukurpa, creation time.

Q Are you able to tell the court what they were doing when they were travelling along like that?”

Peter explained that he could only tell part of the story – being that part that women can hear. He then said in answer to the question:

“They weren’t only travelling; they were creating songs and dances.”

Peter said that he had learnt this story – and more which he could not disclose – from a lot of men, but his father, Snowy, was the one who first told him the story.

54                  Peter Tjutatja gave evidence about this Dreaming when the Court took evidence on site at Kantja. He said that the Kalaya Tjukurpa starts from Kirara where it comes out of the ground. Tjutatja said that a male emu and some emu chicks travelled to Kantja from Kirara at which site restricted evidence had been taken earlier on the same day. When the emu and the chicks arrived at Kantja they introduced themselves to the local Kalaya. Tjutatja pointed to two trees at that stage – one to the south which represented the Kalaya who had travelled from Kirara and one to the north, a larger tree, representing the local Kalaya. After the Kalaya had introduced themselves, they joined together and travelled through the country near the De Rose Hill homestead to Ilpalka (site 40).

55                  Tjutatja said that from Ilpalka, the Kalaya went further north to Warura (site 2). Warura is quite a distance to the north of De Rose Hill on Mt Cavenagh Station. Tjutatja said that he has been to Warura and he knows that the songs that have been sung at Kantja are the same as the songs that are sung at Warura; they are also the same as the songs that are sung at Ilpalka and at Kirara. However, Tjutatja said that his songs (Inma) finish at Wipa which is south of Warura, although north of Ilpalka. At Wipa, the Tjukurpa goes down into the ground and then off to some other place. He then said at par 31 of his witness statement:

“We are talking about many watis back then. The eggs hatched there at Kirara and the emus grew bigger and bigger.”

There is an interesting mixture of man and bird in those two sentences. Still referring to the Kalaya Tjukurpa, he said:

“They were young men moving in a northerly direction. They were singing (inma) of the places near the homestead, Tiilkatjara, Ilpalka – all the sites. It is a very important story. At Wipa they stomped the demon into the ground. They then went into the ground and went east. It becomes other people’s story from then on.”

He described the Kalaya Inma as a song to which only young married men can dance; it cannot be danced in mixed company. He added:

“I am the Mayatja [the boss] for the section Kirara to Wipa. I have done the Inma for Kalaya from Kirara through to Wipa.”

56                  He learnt those songs from his uncles, Tjaapan Tjaapan, Old Panma and Jimmy Piti Piti. Those three old men came from Iranytjirany in the west but the songs came from Kirara in the south. According to Tjutatja, however, his uncles had learnt the songs at Iranytjirany. Tjutatja said that he also had learnt the Kalaya Inma at Iranytjirany, which is difficult to accept if his evidence is correct that he was only ten or twelve when he left Iranytjirany for Kantja. Tjutatja said that the Kalaya made ngaru ngaru at Ilpalka. Ngaru ngaru means more than one hole in the ground. Ngaru ngaru is also the word that is used for tjukula or a rock hole and there is a rock hole of significant size at Ilpalka.

57                  In cross-examination, Tjutatja said that, in travelling from Kantja to Ilpalka, the Kalaya also stopped at Tiilkatjara (site 43). They always travelled from south to north and the places where they have stopped and the way in which they have travelled have always been the same. There are many songs for the Kalaya and the women can stay in the camp and can listen to the singing, but only the men can sing the Inma.

58                  Riley Tjayrany agreed with Tjutatja that the two trees at Kantja represented the two groups of Kalaya. According to Riley, after the two groups of Kalaya had met and introduced themselves, they moved off together towards Ilpalka. That was in a north-easterly direction passing by a claypan that is called Tjinytjirapila (site 30). Riley said that the Kalayas stopped between Tjinytjirapila and Ilpalka but he could not remember the name of the place. He said that the Kalaya left rules at these places and the rules included the right of women to hear about the Inma.

59                  In cross-examination, Peter De Rose recognised the three photographs in Ex F3 as photographs of a location known as Tiilkatjara (site 43). The photographs showed lines of small rocks in geometric patterns. Some of the lines have been broken and, according to Peter, that had been caused through cattle moving about in the area. Peter believed that the stones had been there from the creation days and the old men used to say that it was part of the Kalaya Tjukurpa. The rocks were said to be emu eggs. However, Peter had never seen a ceremony conducted at Tiilkatjara, nor had any of the old men, other than Johnny Wimitja De Rose, ever mentioned a ceremony being conducted there.

60                  Johnny Wimitja De Rose gave evidence near the site of the De Rose Hill homestead. The homestead is not much more than a kilometre to the east of the Stuart Highway and the Court took evidence in a paddock a short distance to the west of the nearest outbuilding near a stand of mulga trees. Wimitja said that the location of the Court was on, or near, the path of the Kalaya Tjukurpa which had come from Kalkatja (site 47) and Tiilkatjara (site 43). The Dreaming track passed close by the homestead, following the line of a creek until it reached a swamp which is further to the east. From the swamp, the track went on to Ilpalka (site 40). At Ilpalka, the Tjukurpa had an Inma with another Kalaya who had come from Kirara (site 26) via Kantja (site 29), Tjinytjirapila (site 30), Tjaapila (site 33) and Watarkatjara (site 39) to Ilpalka. Wimitja said that there was only one emu but that he had a lot of little chicks with him. Wimitja also said that, originally, the track of the Tjukurpa could be seen in the shape of a line of ironwood trees to the west of the homestead. However, the trees are not there now; he does not know what happened to them but he is sad that they are gone.

61                  Wimitja continued with his story. The Kalaya from each group joined together at Ilpalka and, together, they travelled to Ngatiri (site 4). That was where they met Kurpany (also called Kurpanga), the devil dog. One of them, Mala (the rufous hare – wallaby), was bitten by the dog. The Kalaya went to Wipa (site 5), and from there, two emus went out to meet the devil dog. The devil dog saw them and started to chase them, but luckily, he fell into a big hole that the Kalaya men had built. He died in that hole and, perhaps, said Wimitja, he is still there today. That was the end of Wimitja’s story. He did not know where the devil dog had come from; he had learnt that story from the old men - from his father, Jimmy Piti Piti, from Old Panma and Tjaapan Tjaapan and from the other old men who have since died. He said that the old men had shown him the Kalaya tracks. He knew that Tjaapan Tjaapan had been born at Katji Katji Tjara, far to the west but, as Wimitja said, referring to De Rose Hill, “he grew old here”. (T574)

Malu, Kanyala and Tjurki Tjukurpa – The Second Dreaming

62                  Peter Tjutatja claimed that he is the “boss” for Malu. He described that Dreaming as coming from Indulkana through De Rose Hill on to the eastern side of the Station naming the following places through which it travelled: Yura (site 19), Apu Maru (site 17), Urtjantjara (site 16), Inyata (site 13), Malu Kapi (site 12), Alalyitja (site 11) and Kulpitjara (site 10). This description is not as complete as that of Peter De Rose (which is set out below) but I do not attach any significance to the small variations.

63                  Tjutatja also said that there are special places on Iranytjirany for the Malu Tjukurpa and that he knew the stories and understood them. In addition, there are important places on Watju (Mt Cavenagh) and Wapirka (Victory Downs) and he knows the Tjukurpa for those places. Mt Cavenagh and Victory Downs are adjoining cattle stations in the Northern Territory immediately to the north of De Rose Hill Station.

64                  Peter De Rose said that the Malu Tjukurpa comes “from long way but I’ll tell you from the close, close up in Granite Downs boundary …”. He commenced his evidence about the second Dreaming by referring to Wantjapila (site 23) Intalka (site 24) and Iwantja (site 25). These three locations are, as Peter indicated, within the boundaries of Witjintitja (Granite Downs Station) and to the south of De Rose Hill Station. From Iwantja, the Tjukurpa travels to Yura (site 19) which is in the south-eastern corner of De Rose Hill Station on the banks of the Alberga Creek. Thereafter, the Dreaming travels up the eastern side of De Rose Hill, passing through Apu Maru (site 17), Urtjantjara (site 16), Malu Kapi (site 12) and then on to Inyata (site 13) (which is due west of Malu Kapi). However, after passing through Inyata, the Dreaming doubles back to the north-east to Alalyitja (site 11) and then resumes its track to the north, passing through Kulpitjara (site 10). At Kulpitjara, it leaves De Rose Hill and travels to Tjula (site 6) before turning to the east where the story, for Peter, finishes at Arapa (site 8) on Tieyon Station. That, said Peter, is “where our country ends”. In giving this description of the Malu Tjukurpa, Peter explained that he had only mentioned those places where there was water; the Malu passed through other areas but as they had no water point he did not mention them. Peter’s ability to speak about the Malu was restricted. He said:

“… the women can talk about the water point and the name of the places and that’s OK. But I can’t tell you any more because its sacred secret things now, only for the men.”

65                  In response to a question from his counsel, Peter said that he had learnt about the Malu Dreaming from Snowy (his step-father) and from those other elders who had given evidence in the trial. He named the witnesses Riley Tjayrany, Whiskey Tjukanku, Alec Baker and Peter Tjutatja but significantly, he failed to mention Owen Kunmanara whom he had, elsewhere in his evidence, named as a source of much information. Perhaps it was a case of a simple oversight. Peter was then asked what was his understanding of how these old men had learnt about the Dreamings. He answered saying:

“When they tell me and teaching me, telling me the stories they say they learned from their fathers and from their grandfathers and then they were teaching me.”

He added that he could not tell much more about the story, saying that “it started back in creation days and stays with this land, this country and it’s a law for this land for our country”.

Pakalira Tjukurpa – The Third Dreaming

66                  Peter De Rose said that he could not speak about the third Dreaming, the Pakalira, in the presence of women. Asked what would happen if he talked about it openly, Peter said that the old people would not like it because it is a:

“… secret sacred thing and I can’t mention that. If I do I will get into trouble and they might kill me.”

The most that he was prepared to say was that some of the water points for the Pakalira Dreaming are to the west on the Kenmore Park boundary and that one of them was at Kumpalyitja (site 55) which is in the south western corner of De Rose Hill Station. The court subsequently took evidence in closed session at Kumpalyitja.

67                  Wimitja, who said that old Panma had taught him the stories for the Tjukurpa Dreaming, said that the Pakalira Tjukurpa connects De Rose Hill with Ernabella. He also made reference to the Pakalira at Granite Downs. However, he did not give any details of the Dreaming in open evidence. Mitakiki also said that he understood the Pakalira Dreaming. He agreed that it was very miilmiilpa (very sacred) and only men could know the details of the story.

Papa Itari Tjukurpa – The Fourth Dreaming

68                  Peter De Rose talked of a fourth Tjukurpa which he called Papa Itari. Papa Itari is also a location on De Rose Hill Station (site 48). It is a natural depression which has been bisected by the Stuart Highway. The Court took evidence about 200 metres to the east of the highway on a small sandy rise. Further to the east there were two small round depressions, both of which were covered with water and surrounded by samphire. Tim De Rose, who also gave evidence at this stage, said that he was authorised to speak for the place. He identified Papa Itari as words in the Yankunytjatjara language: “Papa” means “dog” and “Itari” means “to drag along the ground”. He said that he had been to the location on quite a few occasions because it was so close to De Rose Hill Station where he had worked as a young man.

69                  Tim said that he knew the Tjukurpa for this place. It was about a dog that had killed a man. The dog did not have a name; it was simply referred to as “Papa”: nor in the Dreaming did the man have a name. The dog had travelled from a place called Winpira to Yalparla. Winpira was to the west on Kenmore Park Station and it was the place where the dog had started its travels. Yalparla was to the east of De Rose Hill, Tieyon and Lambina Stations. The dog’s owner was a blind man and, according to the Dreaming, the man and the dog were together at Winpira; the dog was sleeping and the man was just sitting there. The dog woke up, smelled the scent of his victim and ran to the east. Finding its victim asleep, the dog bit him and killed the man. The dog then started dragging the corpse along the ground. According to the Dreaming, the karu karu (“the watercourse”) was the route where the body had been dragged and the depression to the east of the Stuart Highway represented the location where the body had laid while the dog rested. Once the dog had rested, he continued moving in a westerly direction stopping once more to rest where there is another depression similar to the one at Papa Itari. It is located to the west on Kenmore Park Station near the boundary of De Rose Hill Station. After his last resting-place, the dog dragged the corpse back to his owner at Winpira. The blind man touched the dead man with his hand; he touched his hair, his face and his puturu (his headband). Miraculously his sight was restored; he saw the face of the victim and recognised him “Oh, this is my yuwatja”. Yuwatja is the name of a man who, during ceremony, wears the pukuti (which is a hairbun worn at the back of the head). There is a relationship between a man and his yuwatja. It is the man’s responsibility to look after his yuwatja and to give him food. The man who regained his sight now sits on the country and is represented by Apu (the rock or the hill).

70                  That was the end of Tim’s story. It is a story that Tim knew because he had been taught by the old men, Tjaapan Tjaapan and Nyankanpi. Tim was a man when Tjaapan Tjaapan died and Nyankanpi survived Tjaapan Tjaapan. Tim identified Tjaapan Tjaapan as his maternal grandfather. According to Tim, Tjaapan Tjaapan had three brothers, Old Panma, Pampula and Jimmy Piti Piti and he also had a sister, Kalykula. According to Tim, Kalykula was the mother of Peter Tjutatja.

71                  Peter De Rose’s version of the Papa Itari Dreaming did not refer to the man regaining his sight. Otherwise, it was similar to Tim’s. He said:

“He touched it and feel and recognise he’s yuuta, [ie Yuwatja] his relation through ceremony, become relationship. It’s another relation from cousin or anything like that but yuuta mean they been through the ceremony and it did something.”

The Seven Sisters Tjukurpa – The Fifth Dreaming

72                  Peter De Rose’s counsel asked him if he knew of the Seven Sisters. Peter replied that he knew that name but that it was located on Kenmore Park and that he could not talk about it as “it is only for the women”.

73                  That was, apparently, contrary to what Owen Kunmanara thought. Asked whether he had a number of Dreaming stories Owen replied:

“Yes I got seven sisters. That’s why I’m single.”

It would appear that he has the Seven Sisters Dreaming because of the place of his birth. Tanya Singer-Ducasse said that the Seven Sisters Tjukurpa was performed by her mother, her grandmother and other senior ladies in the bush in creek-beds but she acknowledged that she was too young to understand it.

74                  Cissie Riley claimed that she had a special connection with the Seven Sisters Dreaming. In her witness statement she said:

“Also I am mayatja for the Seven Sisters Tjukurpa from Payarkura (on De Rose Hill) to Ullballa on Kulgera.

Those three old ladies (Wuuta, Upitja and Alutja) showed and taught me the country and the women’s songs for the country connected to Seven Sisters Tjukurpa.

I have taught my grand-daughters about those stories. When they were young I took them to places like Kalkatja (Kalaya) and Payarkura (Seven Sisters).”

 

Cissie Riley said that her grandmother had told her about the Seven Sisters Inma. In her witness statement, Cissie had referred to Payarkura; she said that it is on the western side of De Rose Hill Station near Wakulan. (In the map Ex A2, site 61 is spelt Payalkura and in par 51 of Cissie’s witness statement the spelling is Payarkura. Counsel accepted that it was a case of two spellings for the one place). Cissie said she knew Payalkura and she had been there with Ms Susan Woenne-Green and with others. She said that it was a swamp. There was a fence at the location and on the other side of the fence was Wakulan, a rock hole. The swamp is on De Rose Hill Station but the rock hole is on Kenmore Park. When Cissie gave evidence at Ilpalka, she was questioned about the Seven Sisters Tjukurpa. She said that the Seven Sisters “went through, they sang a song, but a long way from here”. Mr Besanko asked her to identify the place where they had sung their song and she said it was from Wakulan to Alpala. At Ilpalka, counsel for the claimants asked Cissie whether she had taught the songs to other people and she replied: “They’re mine, wiya (no)”. Mr Besanko later asked her in cross-examination:

Q “Do you mean that those songs are yours and you do not teach them to anyone.

A Yes, I was saying that.”

THE Nguraritja

75                  Peter De Rose explained that the Nguraritja look after their country; they are able to live and hunt and look for bush tucker on their country; theycan move around to all the places that are located on their country. Mr Howie asked Peter about visitors to his country under his Tjakangka – his Anangu Law. Peter answered that the visitors would always be welcomed and looked after; they would be given food and water, shown the places and told the stories, but if the visitors did not listen to the Nguraritja, if they did their own thing, such as getting their own firewood or breaking down a wind break, it could have led, in the old days, to a spear fight. If, for example, a visitor were to go hunting without the invitation of the Nguraritja, the Nguraritja “will get angry and get hold of him and do something, kill him”. The role of the Nguraritja is therefore highly significant. A visitor from another country would have to ask the Nguraritja whether he or she can enter upon the land; the visitor would have to receive instructions on where he or she could go and where he or she could not go. The visitor would also be instructed on where he or she could hunt and where he or she could get water. The visitor would be told of the places that had to be avoided. Peter said that, as Nguraritja,he was able to do all the things that were needed for his country; he could hunt and he could collect food, water and other resources; he could camp and travel wherever he wanted to go; he could do all these things so long as he did not offend the Tjukurpa.

76                  The Nguraritja can erect shelters on the land, and today, according to Peter, they could even erect a house on the country. The country will also supply bushes and shrubs to the Nguraritja that can be used for medicinal purposes. In addition, the Nguraritja can get bush tobacco from the country. The bush tobacco grows at Alalyitja (site 11) and Kulpitjara (site 10). The Nguraritja can use the timber on the land to make miru (a spear-thrower) and the women can make wana (the digging stick) which they use to dig for tjala (the honey ant) and for goannas. Peter was asked by his counsel:

“And do Nguraritja for this country still make spears and digging sticks?”

Peter’s answer was equivocal in its reference to “other places”. His answer was as follows:

“Yes, in other places they still have the wana, digging sticks, spears, kali –boomerang – and tyalai, shield. They have them in other places.”

77                  So far as I can ascertain, that subject was not further explored during Peter’s evidence save for his comment, in answer to a question from his counsel, that when hunting kangaroos whilst living at Railway Bore he went “in Toyota with a rifle”. Peter said that the wood (urtjany) that is used for spears grows at a place called Urtjantjara (site 16). That is but one of many places, however. Peter also said that the Nguraritja for his country are still making coolamons and his people are still using kanti (stones) in their spearthrowers. They use a form of glue (kiti) to hold the sharp stone in place. This glue comes from the minyuru – the leaves and buds of a form of mulga. One commodity that is missing from Peter’s country is ochre. However, it would seem from his answer on this subject, that it was available through other people from trading or, as he said, “… they always give presents …”.

78                  The Nguraritja teach their young people about the country: about special places and water points and about food and bush tucker; they teach them how to dress the malu, the red kangaroo. As malu is very sacred, the young people have to “learn the proper way, right way” to kill it, dismember it and prepare it for cooking. The young people are told “how to open the guts and how to break the legs”. After the kangaroo is cooked young people are taught the correct way to cut it up. All these things were important to Peter because he said that the young people have to “learn their own country because they look after that country when they grow up”. Peter described it as:

“… arangka, it is important malu and it is a tjukuritjafrom the creation days and it’s a law that we have got to learn to do it properly in the right way.”

Peter said he had learnt these things from his step-father, Snowy De Rose, from Ray Mungkuri, from Johnny Wimitja De Rose and from Riley Tjayrany. He did not, however, identify any occasions when he passed on any of this knowledge – either on De Rose Hill or elsewhere – to any young person.

79                  Peter named others who were Nguraritja for his country. They included the witnesses Johnny Wimitja De Rose, Tim De Rose, Sandy Panma Williams, Michael Mitakiki, Whiskey Tjukanku, Riley Tjayrany and Roley Mintuma. Women who he named as Nguraritja included Tillie Yaltjangki, Minnie Nyanu, Edie Angkaliya and Kampukuta. All these men and women subsequently gave evidence. Peter also said that Timpanga, (otherwise known as Ronnie Russell), Ray Mungkuri, Sandy Curtis, Minyungu (the biological brother of Roley Mintuma) Rupert and Pimpi, were Nguraritja but they were not present at Court on the day on which he gave his evidence nor did they give evidence. Peter said he did not know where Tillie Yaltjangki had been born, but Pimpi, her daughter was born on De Rose Hill Station and she was therefore said to be Nguraritja for that area. Peter agreed that Nyanu, Angkaliya and Kampukuta had not been born on De Rose Hill, but he claimed they had come to the Station as very young girls and had grown up there; they had married and they had raised their families on De Rose Hill Station. That, so he said, was why they are Nguraritja. It was put to him that “growing up on country” does not make a person Nguraritja for that country. He replied, however, that people could become Nguraritja if they grew up on country “in Anangu way”. Peter included his two daughters, Rita and Christine as persons who were Nguraritja for the claim area. He said that they, by virtue of being his daughters, were also Nguraritja. The concept of Nguraritja, utilising the evidence of Peter, and the like evidence of other Aboriginal witnesses, was the base upon which the claimants asserted that those Anangu who are Nguraritja for the claim area derive personal, spiritual and social identity through their connection with that land.

80                  It was put to Peter De Rose in cross-examination that it was Aboriginal Law that a person could only be Nguraritja for a place if he was born at that place. Peter did not agree; he claimed that it was not just the place of birth but, as he said, “it is through that way, this way, this way and that way – all area, they become Nguraritja”. In giving that answer, he gesticulated, indicating that the person was Nguraritja for an area and that the place of birth was merely the centre of that area. Peter’s evidence was that a person could be Nguraritja for one of several reasons. In the first place, the person might be Nguraritja because it was the place of his or her birth; secondly, a person might be Nguraritja for an area because he or she grew up in that area. If a boy comes to the land as a small child and becomes a Nyiinka (a bush boy) and then a Wati and learns the Tjukurpa, achieving all of those objectives would make the man Nguraritja for the land. The third reason for being Nguraritja would be because it is the location where the person “lost the belly button cord”. Finally, a person might be Nguraritja in respect of an area because his or her grandfathers or grandmothers had been Nguraritja for that area. Peter claimed that other men who were to give evidence in this case, such as Whiskey Tjukanku, Johnny Wimitja De Rose, Michael Mitakiki and Sandy Panma Williams and the various women who would give evidence would support what he said about the identification of Nguraritja. Peter maintained that, in his discussions with Ms Woenne-Green, he could not remember saying, nor could he remember any Aboriginal person saying, that he or she was “not really Nguraritja because he was not born on De Rose Hill”. On the other hand, Peter agreed that there would be people who would not be Nguraritja, even though they knew the Tjukurpa for places.

81                  Peter was cross-examined in an attempt to identify the country for which he is Nguraritja:

Q “But your country in Aboriginal terms is not De Rose Hill Pastoral Station is it?

A Yes, we get the place from Tjukurpa, the Dreamings, and it’s not in boundary but might go over the boundary of the pastoral lease. We follow that Tjukurpa.

Q You are not Nguraritja for other places on De Rose Hill like the places on the eastern side?

A Where I was born and that other place, the east side, it’s not far and it’s our Tjukurpa and it’s still our Tjukurpa on that side.

Q But you told us before the break that people can know the Tjukurpa but not be Nguraritja for that country.

A Yes. They know the Tjukurpa because the Nguraritja have told them about the Tjukurpa and they know that and they understand the Tjukurpa.

Q Why are you Nguraritja for the places on the eastern side of De Rose Hill Station?

…

A The Nguraritja, that Tjukurpa – the Dreaming stories – tells me I’m a Nguraritja. I know the Tjukurpa and it’s not only inside the pastoral lease it’s outside where the Tjukurpa went, that’s our country.”

82                  There was a wistful futility in this line of questioning, trying, as it did, to make Aboriginal Dreaming Tracks compatible with European boundaries.

83                  During the course of his cross-examination by Mr Besanko, Peter agreed that he went to the site at Papa Itari with Mr Craig Elliott in the course of preparing for the native title claim. Ms Susan Woenne-Green and other men and women who were claimants were also present. Peter agreed that Mr Elliott asked him questions and he saw Mr Elliott writing in his notebook as Peter gave his answers. He agreed that one subject that was discussed was the identity of the people who were Nguraritja for Papa Itari. Peter said:

“Yes, he was asking all of us and we were saying, yes, we were all Nguraritja.”

 

84                  Mr Besanko then put a series of positive assertions to Peter and to each of those assertions Peter answered by saying that he could not remember making a statement in those terms to Mr Elliott. In the first place, he was asked whether he had told Mr Elliott that as Carlene Thompson had been born at Finke she should not be listed as Nguraritja. The second proposition was that he had said to Mr Elliott that Mr Elliott should not include Michael Mitakiki, Sandy Panma Williams, Kelly Williams and Yuminiya Ken as Nguraritja for the claim area because they had not been born on De Rose Hill but had only lived there. It is interesting to note that Peter claimed that he could not remember saying that; he did not deny saying it. Mr Besanko put to him:

“Might you have said that to Mr Elliott?”

Peter’s reply was:

“I don’t know. I can’t remember saying that.”

Mr Besanko told Peter that he held in his hand a note that stated that Peter had said those things to Mr Elliott. Mr Besanko then said to him:

Q “Did you ever say those things to Mr Elliott either at Papa Itari or anywhere else?

A No, I don’t know.

Q Are you quite certain of that, are you?

A I can’t remember I said that, so I don’t know.”

Mr Besanko then named each of the individuals in turn, asking Peter whether that person was or was not Nguraritja for De Rose Hill. Peter’s responses were as follows: As for Michael Mitakiki, Peter said that he is Nguraritja because he had grown up on De Rose Hill and he – Peter – had always considered Mitakiki to be Nguraritja. Sandy Panma Williams is Nguraritja for De Rose Hill because of his grandmother and his father and Peter had always thought of him as being Nguraritja. Kelly Williams is also Nguraritja and Peter had always thought of him as Nguraritja for De Rose Hill. Yuminiya Ken is Nguraritja, even though she did not grow up in the De Rose Hill area; she is Nguraritja because of her father and her grandparents and Peter had always thought of Yuminiya Ken as being Nguraritja for De Rose Hill. As for Carlene Thompson, although she was born at Finke, she had come to De Rose Hill as a small child and had grown up at De Rose Hill. Her father Tjaapan Tjaapan “is from there, and she’s a Nguraritja”. Peter said that he had always believed her to be Nguraritja for De Rose Hill.

85                  When the time came for Mr Elliott to give his evidence, he confirmed that he had questioned Peter De Rose on 30 March 1995 at Papa Itari and that Peter, on that occasion, had told him that Carlene Thompson and the others were not to be included as Nguraritja because they had not been born on De Rose Hill. He had recorded that information in his field notes. Mr Elliott went further; he said that Peter had explained that there could be exceptions to the rule that a person had to be born on the land to be Nguraritja and that Owen Kunmanara was one such exception. But Mr Elliott did not suggest that Peter included Carlene Thompson or any of the others in that exception. In the clash between Peter and Mr Elliott on this vital piece of information, I accept the evidence of Mr Elliott. I have concluded that Peter deliberately lied when he gave his evidence. He could not escape by saying that he did not remember the conversation for he was forced into admitting, during his cross-examination, that, not only did he now regard Carlene and the others as Nguraritja, but that he had always regarded them as Nguraritja. If he had always thought of them as Nguraritja, he would have said so to Mr Elliott and Mr Elliott would have recorded that in his note book. This was not a case where a witness could be excused because of a bad memory or because he did not understand the questions that had been asked of him. Not only does it call into question the credit of Peter De Rose (the claimants’ main witness) but it calls into question whether the laws that are said to be followed by the claimants are “traditional”. If Peter De Rose said those things to Mr Elliott, the most obvious explanation is that he believed them to be true and I so find. That means one of two things. Either Peter De Rose did not know in 1995, when he was interviewed by Mr Elliott, the rules for being classed as Nguraritja or the rules have changed in the last six years or so. But how traditional could a law be that has so markedly changed in such a short time? I have concluded that the former explanation is the more likely explanation for many of the Aboriginal witnesses gave evidence to the effect that place of birth was one only of several ways whereby a person might become Nguraritja for his or her country.

86                  There was evidence that pointed to the importance of a person’s place of birth. However, it would seem that it, together with patrilineal descent, are now receding traditions. Riley Tjayrany and Peter Tjutatja both knew of the practice of a husband and wife returning to the husband’s country so that their child could be born in the father’s homeland. Riley said that he had heard it from his mothers, including his mother, Mimilya. Tjutatja said that he and his wife had travelled from De Rose Hill through Watju (Mt Cavenagh) intending to return to his country, but they had only got as far as Wapirka (Victory Downs) when Panma, their eldest child, was born. He and his wife had been on their way to Iranytjirany because that was Tjutatja’s place of birth. Tjutatja, nevertheless, took Panma to a special place at Iranytjirany after he was born. The practice of returning to the father’s birthplace had, according to Tjutatja, become more difficult in recent times, as people move about more and more these days. They find it harder to have their children born at the fathers’ places of birth.

87                  Whiskey Tjukanku, on the other hand, said that he did not know of the custom. Owen Kunmanara was asked whether, under old Aboriginal Law, a husband and wife would return to the husband’s country so that the wife could give birth to the baby on the husband’s land. He said he didn’t know: “that’s a woman land [sic: law?]. I don’t know”.

88                  On two occasions in his article “Patterns of Aboriginal Residence in the North West of South Australia”, the Reverend Edwards used the expression “patrilineal homelands”, in the context of people returning to those homelands. Asked to explain what he meant by the use of the expression “patrilineal” he said:

“This would have been an association with territory based on an understanding that rights are passed down from father to son and so on. This, in the early years of anthropology, was regarded as the whole basis of rights to land and I think was enshrined in the Northern Territory Land Rights Act. It is certainly, I think, an important part of association with land. People will talk about father’s country and grandfather’s country. Although, in reaction to the Land Rights Act, at times, people suggested that the claims could be made to land on other bases.”

A father’s country was one of the strong bases of relationship to the land but, according to the Reverend Edwards, it was not the only one; he mentioned returning to a grandparent’s country or, in some cases, men going to their wives country. Consistent with a concept of patrilineal connection, the Reverend Edwards had heard of the custom whereby a husband and wife would return to the husband’s country so that the wife could give birth to the child in that country. It was not something that he had experienced personally, but it was something about which he had read in the literature.

89                  Seeking the correct answer about the subject of returning to a husband’s country for the birth of a child is an example of how the adversarial process can be deficient. The findings of fact that I am able to make can only be based upon the evidence that was adduced during the course of the hearing. If that evidence was inadequate to deal properly with the subject, it could mean that the findings that I make on the subject are likewise inadequate. Doing the best I can, on the material that I have available, it would seem to me that patrilineal descent was originally the factor of prime importance in defining Nguraritja but that, whilst place of birth remains the matter of greatest importance, it does not command as great a status as in former times. Peter and Tim De Rose were universally regarded as being Nguraritja for De Rose Hill and were always the first mentioned. That was because they were born on De Rose Hill. It was apparent that they were recognised as having a strong connection by virtue of their place of birth. Indeed, Peter’s connection was even stronger because he knew the Tjukurpa for the area. The evidence that I heard from the Aboriginal witnesses in this trial is all one way: place of birth is important but there are other means by which a person can become Nguraritja for country.

90                  Much of the knowledge of the Aboriginal people about their secret and sacred places is beginning to fade. That was evident from an answer that Peter De Rose gave during the course of his cross-examination. It had been put to him that he had been a principal spokesperson for the Aboriginal claimants in discussions with Ms Susan Woenne-Green, Mr Craig Elliott and Professor Veth. He rejected that, saying that the elders “talk more in front of me”. He added “we all used to have a meeting together, all same time”. It was then put to him:

“Did all of the claimants have a discussion together as to the sites that they should take Mr Veth to?”

Peter’s reply was illuminating:

“Yes, we talk in the meeting together and the older ones, the elders, they know which places the other Anangu people used to camp a long time ago. We too young to remember that. Then they will say, ‘Oh yes, take him to that important place, you know, that’s where all the Anangu people used to camp’, Aboriginal people.”

At age fifty or more, Peter could hardly be considered “too young” to know the important places. In making this observation, I am aware of the comment that Mr Elliott made at p 22 of his principal report:

“Even when men only were present at a miil miil(pa) site, information regarded as esoteric was only divulged by the most senior men present. Sometimes information was related by them to younger men (with better spoken English), who then related a version of it to me. On other occasions certain esoteric details (such as a related song) were passed over because an individual regarded as the “right” person (that is, the most knowledgeable person with closest affiliations) was not present.”

 

91                  Peter Tjutatja said that if men sang “a Kalaya Inma at Kirara today” (ie an emu song), they would be “all Nguraritja for Kirara”. That entitlement would also extend to anybody else if that person were to learn the Kalaya Inma for Kirara; he or she would also become Nguraritja. That would apply to Wipa, Kantja and any other place where the emus stopped in the Kalaya Inma.

92                  Mr Besanko asked Riley Tjayrany:

Q “Is it right to say that a person is a proper Nguratja for their country of birth because that is where one gets the law from?

A Yes.”

A few questions later, Riley expanded on his answer by saying:

“That’s my country. But it’s not only me, it’s a lot of Nguraritja. There’s a lot of people born close around there.”

Mr Besanko then asked him:

“Is it right to say that in Aboriginal law, you are only Nguraritja for that place where you are born, not for those other places?”

In translating Riley’s answer, Mr Lester said:

“He said, yes, I’m Nguraritja where I born, but the mother taken me away when I was young and I grew up those place and I’m Nguraritja for that place too, where I grew up.”

This answer was an example of Riley’s astuteness and his ability to comprehend the significance of the questions that were asked of him. Mr Besanko pursued the topic, asking once again:

Q “Do you agree that you can’t be proper Nguraritja for those places?

A But from our dreamtime stories we become Nguraritja and this is wati maruku for black man Tjukurpa.”

93                  The positive nature of Riley’s answers was then undermined when he was asked:

Q “Do you agree that under old aboriginal law you were Nguraritja only for that place that you were born?

A Yes.”

Whether the reference to “old” Aboriginal law caused a change in his answer was not investigated.

94                  Riley’s description of the Nguraritja was interesting. In his witness statement he had this to say:

“27 ‘Nguraritja’ are people who are said by others to belong to country. They are able to speak for that country. Being born on the land is the main criteria, but it is not essential. Growing up on country and knowledge of the Tjukurpa are also important, as well as various other factors such as grandparents’ and parents’ birth connections or their burial places.

28 Being nguraritja gives you responsibility for what’s on top and underneath your country and the right to make rules about what is done on the land. To tell others (strangers) to go, a right to resources of land, a right to stay without asking anyone else.”

On the other hand, Riley remembered an occasion when there were discussions about the preparation of the native title claim. Those discussions involved Peter De Rose and an Aboriginal man who has since died. He remembered one of those men telling Mr Craig Elliott that the man who later died was “ not really Nguraritja because he was not born on De Rose Hill.”

95                  Riley also remembered saying something similar to Dr Willis. He was asked whether women can be Nguraritja. His answer, once again, placed an emphasis on the place of birth. His answer was:

“Yes, because they are born there.”

 

Exhibit F8 was a transcript of an interview by Mr Craig Elliott of Riley Tjayrany and Norman Yanima. Riley was asked whether he had told Mr Elliott, in answer to Mr Elliott’s question, that he was Nguraritja for Sundown; he said “No, I don’t know that one”. He did, however, agree that he told Mr Elliott that he was Nguraritja for Walangarantja which is close to Kunamata. The following extract from the transcript of Mr Elliott’s interview with Riley dealt with his connection to De Rose Hill:

Q “Are you Nguraritja over this way, that De Rose Hill country here too?

A No.

Q No. Right, you don’t come in for that one. But you go hunting on that country a lot but you are not Nguraritja for that country.

A Nguraritja wiya.”

“Wiya” means “no”. Under cross-examination, Riley agreed that he had given those answers to Mr Elliott but, so he said: “I was mixed up in my head. Then later I said I was Nguraritja”. Riley was asked:

“In your paper you have said that other people say you are Nguraritja for De Rose Hill. Can you remember that going in your paper?”

His reply was not to the point. The question had followed upon a series of questions about gates to De Rose Hill Station having been locked and Riley obviously still had that subject on his mind. He said:

“No, we worrying about our sacred areas, that Malu Nguraritja Dreaming. He locked that up and we can’t go in to see those sacred places and we Nguraritja for that.”

Mr Whitington persevered:

“Mr Tjayrany, I want you to help me by just thinking about the question I asked you. Somebody has written down in your paper that other people say you are Nguraritja for De Rose Hill. I don’t want you to answer anything about that yet. All I want to know is, did you tell somebody to write that in your paper?”

His answer was:

“No.”

96                  When Whiskey Tjukanku was cross-examined about his place of birth, he was reminded that he had not been born on De Rose Hill; he became quite defensive:

A “No I didn’t born there but I am a Nguraritja. The land tells me I’m a Nguraritja.”

Q Isn’t it true that the only way you can be a Nguraritja is if you are born on a place?

A Yes I’m Nguraritja for where I am born but also I’m a Nguraritja because I grew up there from a boy and the land tells me I’m a Nguraritja.

Q You weren’t on De Rose Hill Station for a very long time do you agree with that?

A Yes, I was there a long time. I grew up, all camps there in soakage places, all there. My camp is there.

Q But when you were a nyiinka and when you became a man, you were living at Granite Downs.

A But when I was a boy I was a long time at Kalkatja.

Q As a small child you were at other places. You were at Urkatjura.

…

A I born at Urkatjura and my mother brought me small child and when I grew up, tjakangka, that’s our way, I am Nguraritja.”

97                  In par 25 of her witness statement, Mabel Pearson gave an account of what the Nguraritja can do. First, they are taught about their country. Women who are Nguraritja know where they can go and where they cannot go. If they go to forbidden places, they can get killed. Nguraritja have the right to go and collect bush tucker and to camp in permitted places. In addition, Nguraritja have the obligation to teach others where to find bush tucker and where they can and cannot camp.

98                  The evidence of the Aboriginal witnesses about the qualifications for Nguraritja was not consistent. Minor variations are understandable but the approaches of Mabel Pearson and Tim De Rose, by way of example, were significantly different. Mabel explained how her elder son, George, could not be Nguraritja for any land because he had been taken away to St Mary’s Children’s Home in Alice Springs as a small child. She said that he was only ngura walytja. In contrast to George, her second son, David, had remained with her and had grown up on the land. Because of this, he is, according to her, Nguraritja for his land. Tim De Rose, on the other hand, acknowledged that his children had never seen the claim area, that they knew nothing about the claim area but, so he said, they were, nevertheless, Nguraritja simply because they were his children and he was Nguraritja.

99                  As is evident from the summaries of the evidence that I have given, the parties were not as one with respect to the meaning of the word Nguraritja. The Fullers, for example, submitted that its traditional meaning implied a religious leadership or a religious significance: it did not, so they claimed, have a relationship with land ownership. I do not agree. Despite the many contradictions, one issue was constant: the overwhelming thrust of the claimants’ evidence was that it was the Nguraritja who were the traditional owners; they had the rights and responsibilities in relation to that land. Dr Goddard’s definition in his dictionary, Ex A51 is a fair summary of the meaning:

“Nguraritja (noun)

someone that belongs to a place, traditional owner, custodian (from ngurara plus–(i)tja ‘of, from’.”

100               Many Aboriginal witnesses identified themselves as being Nguraritja with respect to named locations. Their evidence leads me to conclude that the correct approach to the concept of “Nguraritja” is to accept that a person is Nguraritja for a particular place or places – not Nguraritja for a larger area which includes that or those places. Thus Owen Kunmanara said that he was Nguraritja for Yuta (a location on De Rose Hill Station) – not Nguraritja for the Station. Mr Whitington submitted, and in my opinion, correctly so, that the Aboriginal concept of territory is a “constellation” of locations, often along a Dreaming track for which those who are Nguraritja have responsibility. For example, Peter De Rose said that his land extended from Yura to Arapa, along the Malu (kangaroo) Dreaming track. It would not, in my opinion be appropriate to use that passage in his evidence as a basis for asserting that Peter thereby claimed to be Nguraritja for the whole of the land that is represented by De Rose Hill Station. That, however, is not to say that the role of Nguraritja is limited to isolated locations. For example, a person could be Nguraritja for a creek, or a part of a creek. An example was the karu-karu (watercourse) at Apu Maru, which was said to be the path that the Malu, Kanyala and Tjurki took as they travelled across the landscape. Although taken in closed session, it was made clear that women and children would know that fact. There was, unfortunately, no evidence led as to how far that watercourse went, but the implication is that it would not be a short distance and a perusal of the map, Ex A2, suggests that there would be no difficulty in finding a path through the watercourse joining most, if not all of the Malu sites on De Rose Hill Station. I am prepared to accept that Peter is Nguraritja for the watercourse and that he conceptualised it as more than a mere point. It would probably be an important part of the Tjukurpa to protect.

101               The Fullers submitted that the claimants’ use of the word “Nguraritja”, and the value that they ascribed to it, were not traditional. They referred to an article by Professor RM Berndt entitled “The Concept of ‘The Tribe’ in the Western Desert of Australia” in Oceania, Vol XXX, No 2 (1959), pp 81-107. In it, the Professor explained at 101 that in the Aboriginal society there were two groups. The first of them was the “land-owning group”. The second was the “land-occupying group” (or “the local horde”). The land-owing group was, according to the Professor, “an enlarged family, consisting of a man and his living descendants in the male line.” The local horde consisted of the land-owning group plus unmarried female members and the wives and children of married male members. Inheritance, at that time, was clearly patrilineal. Ownership of land by the land owning group consisted of the country that surrounded the sites with which the group was associated. Those sites were often connected by a Tjukurpa path. Professor Berndt, however, distinguished between the land-owning group as a social unit, and the religious cult unit on the other hand. His only use of the word Nguraritja (he spelt it Nguraidja) was at 101 in the following terms:

“Inheritance of the same cult totem from both parents influences a man’s opportunities of becoming a nguraidja (or camp ‘owner’): in other words the leading representative of his local group, with no formal hindrance to block him from becoming a ritual leader of the religious unit.”

 

102               It would seem, from his reference to “a man” in his definition of the land-owning group, that Professor Berndt was of the opinion that only one male person could be Nguraritja for a particular piece of country. That proposal was at odds with the evidence of the Aboriginal witnesses. Furthermore, there was no evidence in this trial about a land-owning group and, separately, a land-occupying group. Whilst I see no reason why I should reject Professor Berndt’s writings, I am constrained to decide the issues in this case on the evidence that has been placed before the Court. I am of the opinion that I should accept the evidence of the Aboriginal witnesses, either as an example of evolutionary traditional law, or as an example of a sub-culture that was at variance with the culture or sub-culture that Professor Berndt examined. For much the same reason, I find myself unable to make findings that would be consistent with the tradition of patrilineal descent. Some of the ethnographic literature that was tendered during the course of the trial made much of patrilineal descent, a factor that was absent in the evidence of the Aboriginal witnesses in this trial. I do not necessarily regard the evidence of the witnesses as a contradiction of the earlier literature; rather it is explainable, either on the grounds of the evolutionary process, or because the traditional laws and customs of this area are and were at variance with the traditional laws and customs upon which the early writers had based their opinions. Most likely it is a question of evolution as the evidence in the case suggests that the traditional laws and customs that were asserted by the claimants are essentially the same as those that exist throughout the Western Desert. Furthermore, most of the claimants, through their parents and grandparents, are in relative terms, recent migrants. Presumably their ancestors brought their traditional laws and customs with them. It seems hard therefore to accept the “variance” model.

103               Peter De Rose, who gave evidence on site at Kantja, said that he was Nguraritja for Kantja because he grew up there and because his mother and father used to take him around there. He is also Nguraritja for each of the places that he described as part of the travels of the Kalaya (Emu)Tjukurpa; this was because he was born on the Tjukurpa track. Peter was asked about the rules for Kantja:

Q “Should this place be looked after?

A A long time ago all the people used to say to me to look after this place. They were looking after before, long time before, and today they still say we got to care for this place.”

104               It became clear during the course of the trial, and I find, that the cleaning of secret sacred sites is one of the major duties of Nguraritja with respect to their land. Peter said that the people who told him that were those who were the Nguraritja; they were the people who used to be at Kantja or who had been born there. Some of those who were Nguraritja for the Kantja area included Tim De Rose, Sandy Curtis, Rupert Curtis, Minyungu (the son of Kampukuta) and Lucky (the son of Angkaliya). However, neither Peter De Rose nor any of the other Aboriginal witnesses gave any evidence of significance that they maintained or cleaned any secret or sacred sites when they lived on De Rose Hill. That is clear from the following passage in Mr Besanko’s cross-examination of Peter De Rose:

Q “Yes. In fact if we go back to the time just after you became a man and you were going around doing pastoral work, you weren’t camping and looking after those places at that time either.

A Yes, we were working for him and doing work for that bloke. If we didn’t do the job and looking after our country, cleaning up our places, he would sack us.

Q Just so that we’re clear on this, you weren’t looking after those places after you started working for Doug and after you had become a man.

A Looking after mean you got to be camping at that spot and you give it a clean and look after it. But we were working for the white men and doing the white men’s work. If we taken time off and looking after our country, our places, he would give us sack.

…

Q But you didn’t go and clean the site?

A No, I didn’t. I was working for the white man. If I doing my thing I get into trouble.”

 

105               Peter was pressed to give details of the occasions upon which he, as Nguraritja for the country, attended at sites and cleaned them as was the Nguraritja’s responsibility. He was very evasive in giving his answers, claiming that it was sufficient to merely “check” on sites. Ultimately he was pressed:

Q “Since you were made a man, have you been to any of the sites on De Rose Hill Station to clean the site?

A Yes, once we cleaned place called Tjaapila.”

106               I am unable to accept Peter’s answers on these issues. The strength of Aboriginal culture is well-known; the attachment to land is intense; the importance that is attached to secret and sacred places is exceptionally strong. If Peter and the other witnesses who said that they were Nguraritja for De Rose Hill were intent on performing their duties as Nguraritja, I am quite satisfied that they would have entered upon the land – even surreptitiously if necessary – to perform their duties. Save for some occasional hunting trips, not one witness for the claimants has attended to any religious, cultural or traditional ceremony or duty on De Rose Hill Station in almost twenty years. I will, in due course, summarise the evidence of each of the claimants for the purpose of substantiating that statement.

107               Tim De Rose also defended his failure to care for the secret and sacred sites by saying that he would get “the sack”. Peter’s and Tim’s claims that Doug would have sacked them if they had cleared the sacred sites during working hours were answers of convenience. They would have known that they could have done the work that was necessary outside normal working hours. Their lament of “work or be sacked” did not have a ring of truth to it. The implication is that in choosing between traditional Aboriginal values and European values, Peter and Tim De Rose and the other stockmen appear to have chosen the latter. That this is understandable in the circumstances does not avoid the fact that their choice does not aid their claim for native title in any way. It is hard to see this as an “evolution” of the traditional law under the pressure of changing times. The evidence was that “cleaning” sites was, and still is, an important responsibility of the Nguraritja. Riley Tjayrany, for example, agreed that being Nguraritja for the country meant that there was a responsibility on the individual to keep the country clean. Like the others, however, Riley failed to give any evidence of any occasion upon which he attended to these duties.

Yankunytjatjara country

108               The case for the claimants was that the claim area is and always has been Yankunytjatjara land and that those Aboriginal persons who are Nguraritja for the claim area are those who are entitled to benefit from a determination of native title. In par 133 of their further and better particulars, the claimants have alleged:

“Nguraritja derive personal, spiritual and social identity through their connections with the claim area which they say is and always has been Yankunytjatjara …”

109               There was a preponderance of evidence from the Aboriginal witnesses to the effect that De Rose Hill Station was Yankunytjatjara country. Peter De Rose, who was born on the Station, said “I was born in Yankunytjatjara country”. Peter said that Yankunytjatjara land extended to the east as far as or, maybe, past Apu Maru and Tieyon Station. Asked who were the people who told him that, he answered saying “Riley, Whiskey and all these people – they know, they understand”. Pressed for further information, he added Wimitja and Panma as people who had told him. According to Peter, Ernabella, Fregon and Mimili are all part of the Yankunytjatjara land. If Peter has correctly identified the outer boundaries of Yankunytjatjara country, his reference to Apu Maru in the east means that De Rose Hill Station would form, in part, the eastern boundary of Yankunytjatjara country. Peter said that he knew the name, Wataru, otherwise known as Mount Linsday, as a place in the far west, beyond Fregon and to the north west of Iltur. Peter thought that a person who had been born at Wataru might be Pitjantjatjara but he was not sure. It would seem to me, having regard to other evidence, that Wataru is clearly in Pitjantjatjara country. Peter said that, according to the Tjukurpa, there was, in creation times, a dividing line between the Pitjantjatjara lands and the Yankunytjatjara lands but he was unable to say where that line was. He had only heard people talk about it being the “other side of Amata” (Musgrave Park). It was put to Peter in cross-examination that Ilypilyitja, his tribal father, was a Pitjantjatjara man. Peter responded by saying that he spoke Pitjantjatjara “but I think he was really Yankunytjatjara because west of Amata is Yankunytjatjara land”. It was put to Peter that Amata is Pitjantjatjara land. His reply was as follows:

“In the creation days the old people have told me tjukurtju – that’s the Dreaming times – that Yankunytjatjara land other side of Amata, this side of Angatja in between, and this is old people who tell me and that’s supposed to be the Yankunytjatjara land.”

110               Angatja is probably eighty or more kilometres west of Amata and Amata, in turn, is almost 200 kilometres to the west of De Rose Hill Station. Johnny Wimitja De Rose also referred to Angatja which he described as the line that separates the land of the Pitjantjatjara from the land of the Yankunytjatjara. He said that it was his understanding that Yankunytjatjara country includes Umerina, Kulgera and Aparatjara near Amata. In response to a further question, he added that the line is on the other side of Angatja and that he knew this because his mother had been born at Aparatjara and she had told him that she was Yankunytjatjara. The evidence of Peter and Wimitja was in contrast to that of the Reverend Edwards who thought that the boundary that separated the Pitjantjatjara people in the west from the Yankunytjatjara was near Cave Hill (which was to the north-east of Amata). Riley Tjayrany defined Yankunytjatjara country as extending from Kanpi in the west (which is west of Amata) to “the old railway line” (that is, the former railway line from Oodnadatta to Alice Springs, via Finke) in the east and from Areyonga in the Northern Territory to Coober Pedy in the south. That is a huge tract of land and De Rose Hill Station is in the middle of it. He said that he had learnt this as a boy and he had heard the people, who used to live in that area, speaking Yankunytjatjara. He was asked whether the Tjukurpa said anything about the extent of Yankunytjatjara country and he answered, saying:

“I only know Malu, Kalaya and Tjurki stories that come from Pipalyatjara …”

The question was repeated: “Does the Tjukurpa say anything about what is Yankunytjatjara country and what is Pitjantjatjara country?” His reply was

“Yes, I think so but I don’t know.”

Mr Besanko put to Riley that Kanpi, being far to the west, would have been Pitjantjatjara. He answered, saying:

“No, there is a lot of Yankunytjatjara because the Pitjantjatjara marry Yankunytjatjara women from a long time and they live there altogether like that.”

 

111               Tim De Rose, Owen Kunmanara and Michael Mitakiki all said that De Rose Hill is Yankunytjatjara country. Tim De Rose claimed that Yankunytjatjara country included De Rose Hill, Indulkana, Mimili (Everard Park), Fregon, Ernabella, Wataru, Amata (Musgrave Park), Uluru, Watju (Mt Cavenagh), Wapirka (Victory Downs) and Kalka (Kulgera). He said of those places that “they all speak Yankunytjatjara” and that was his justification for claiming that the places are within Yankunytjatjara country.

112               Michael Mitakiki believes that he is a Yankunytjatjara person because he was born in a Yankunyjatjara place. According to his belief, that makes him Yankunyjatjara even though his mother and father were Pitjantjatjara. It is Mitakiki’s understanding that Yankunyjatjara country extends from Finke in the east to Indulkana and Witjintitja in the south, and to Amata (Musgrave Park) in the west. When he was asked to explain why that was Yankunytjatjara country his reply was:

A “Tjukuritja, from the Dreaming. It’s Tjukurpa for Yankunytjatjara.

Q The tjukuritja that you mention, Mr Lester, is that a particular type of Dreaming that the witness was referring to or another word for the Dreaming?

A [Interpreter Lester]: No tjukuritja mean back in creation days, it was created.”

Mitakiki said that his grandfather had told him about that Tjukurpa when he was a big boy (a tjiranka). According to his grandfather, Yankunytjatjara country started at Aparatjara which is west of Amata, but that Pipalyatjara (sometimes spelt Piipalyatjara), which is further to the west, belonged to the Pitjantjatjara. Even though Kunamata is west of Amata, Mitakiki was insistent that Kunamata was still Yankunytjatjara country. I do not accept that evidence. Kunamata is far to the west. No other witnesses suggested that Yankunytjatjara country extended that far. I find that Kunamata is in Pitjantjatjara country.

113               According to Whiskey Tjukanku and, so he said, according to the creation story, the boundary between Pitjantjatjara land and Yankunytjatjara land was somewhere around Mimili and Atutja. He was asked whether anyone had ever told him why there were so many Pitjantjatjara people on land that was Yankunytjatjara land in the creation story. He answered:

“No, they were all related, the Pitjantjatjara and Yankunytjatjara.”

114               Alec Baker said that, as a young man, he travelled around Macumba, Mabel Creek and Todmorden (cattle stations several hundred kilometres to the south of De Rose Hill). He said that “those Anangu there were Yankunytjatjara”, thereby pushing the boundaries of the Yankunytjatjara country many hundreds of kilometres further south than almost all the other witnesses. Carlene Thompson was of the same opinion. She said that the Pitjantjatjara lands are further to the west of Yankunytjatjara country. This opinion also contradicts the evidence of the Reverend William Edwards.

115               Counsel for the Fullers submitted in his closing address that the evidence of the Aboriginal witnesses had established that they had “a distinct conception” of the country that could be ascribed to particular dialectical groups. I do not agree. In the first place, I am not able to conclude that the evidence showed that the claimants displayed “a distinct conception” of their own country. Witnesses were frequently and specifically asked to identify the extent of their country: where were the boundaries of Yankunytjatjara country? They answered, in my view, as best they could – but to me the exercise did not seem to be a particularly natural one for them. The questions effectively asked the witnesses to place fixed boundaries to territories – and that is not the Anangu way. It must be said that their answers were variable. That was because they saw their territory as radiating outwards in a flexible manner, depending on seasonal conditions and other factors, from a number of important sites (generally water points) that were, most often, associated with, and connected by, the Tjukurpa.

116               As can be seen from the evidence of this selection of witnesses, there was no commonality sufficient to state the location of a finite boundary that separates Pitjantjatjara land from Yankunytjatjara land. Indeed, the evidence hardly allows for an approximation. The most that can be said – based, of course, only upon the evidence that was adduced in this trial – is that the boundary is probably a north-south line somewhere to the west of Amata (Musgrave Park).

Antikirinya

117               Much evidence was led during the course of the trial which was directed towards answering the question whether there was a group of Aboriginal people known as the Antikirinya. There were several spellings and variations of the name such as Antakarinya, Antakirinja, Andekerinja, Andinari and Antikiri, but, for simplicity, I will use the spelling “Antikirinya” in these reasons. Where, however, the word appears in a quoted passage, I will retain the spelling as it appears in the quote.

118               A convenient starting point is the claimants’ answer to the statement of facts and contentions that was filed on behalf of the State. In that document, they pleaded:

“B21 The claimants deny that anthropological evidence shows that it is the Antakirinja people rather than the Yankunytjatjara people, who occupied the land in the vicinity of the claim area at the time of colonisation and for some time thereafter. The claimants further deny that the evidence shows that the Yankunytjatjara began replacing the Antakirinja during the early period of the 20^th century.

The claimants say that Antakirinja and Yankunytjatjara are the same language and that the names Antakirinja and Yankunytjatjara are different names used to refer to the same people who speak the same language but have grown up in slightly different locations.

B22 The claimants deny that the Antakirinja and Yankunytjatjara are distinct and separate groups of people…

B24 The claimants do not assert that they acquired the claim area by succession…the area of the claim and surrounds has always been Yankunytjatjara country.”

The blunt assertion that the names Antikirinya and Yankunytjatjara “are different names used to refer to the same people” was not, however, universally adopted by the Aboriginal people who gave evidence during the course of the trial.

119               The State, in its “Re-amended Statement of Facts and Contentions”, had asserted at pars B21 and B22 that the Antikirinya people had populated the claim area at sovereignty and that they were displaced “during the early period of the 20^th century”. The State also claimed that the Antikirinya and the Yankunytjatjara are “distinct and separate groups of people”. Whilst the Fullers submitted that it was the Antikirinya people who were the “original land holding group”, it was not their case that the Yankunytjatjara displaced the Antikirinya. Their pleadings were silent about how the Antikirinya left the land and how they were replaced.

120               Some of the Aboriginal witnesses, in their written statements, made reference to the Antikirinya people, although many neither commented on the word nor on the people. For example, Riley Tjayrany said that the daughter of Mungkutja, otherwise known as Wintinna Mick, had told him that Mick referred to himself as Antikirinya, but Riley said in his witness statement that “Antikiri and Yankunytjatjara are just one”. Mr Whitington asked Riley whether Wintinna Mick called himself an Antikirinya or an Antikiri man. His reply was

“No, he’s not Antikiri, he speak Yankunytjatjara.”

Riley said that he did not know the word Antikirinya; he had heard it for the first time “not long ago” when Wintinna Mick’s daughter came from Finke and used the word. According to Riley, Wintinna Mick’s daughter said:

“… that Antikirinya word was used by her father when she came other week with Mary Anderson.”

He explained his reference to “the other week” as meaning the occasion when she came to the marquee at Ilintjitjara where evidence was being taken. Riley stood firm in repeating that Wintinna Mick was a Yankunytjatjara man.

121               Alec Baker said that “Antikiri is the same as Yankunytjatjara”. Mr Besanko put to Alec Baker that Wintinna Mick described himself as an Antikiri man, but Mr Baker replied “No, he’s a Yankunytjatjara speaking man”. Mr Besanko put the issue again, this time describing him as an Antikirinya man. Again Mr Baker replied:

“No, he’s Yankunytjatjara.”

Mr Baker was asked whether other people describe Wintinna Mick as an Antikirinya man; once more he replied “no”. In answer to questions from the bench, Mr Baker said that he had never heard of the Antikirinya people or the Antikiri people before the day on which he gave his evidence; nor had he ever heard of any man or woman calling himself or herself Antikiri or Antikirinya. To each answer he replied that they are Yankunytjatjara people. He then proceeded to contradict himself by telling Mr Besanko that he had heard of people from Coober Pedy who called themselves Antikirinya. Indeed, he had referred to the Antikirinya in his witness statement, saying “maybe some people like Coober Pedy mob call themselves Antikiri, but they are all Yankunytjatjara like me”. He was asked how he knew that and he replied “I know they Yankunytjatjara people, they been always Yankunytjatjara people and they still Yankunytjatjara”. But when Mr Besanko asked him “Have you heard the Coober Pedy mob call themselves Antikiri?” he replied “no”. He then denied that there were people who had said to him that there are people at Coober Pedy who call themselves Antikiri. However, his counsel had earlier asked him this question:

“Are there other people that you can tell us about who are from Coober Pedy – who are from the Coober Pedy mob – who call themselves Antikiri?”

and Mr Baker had replied “Yes”. But he then went on to say that he could not give any names of those people because: “No, we only hear”. In cross-examination that passage from his evidence-in-chief was put to him and he was asked whether what he said to his counsel had been true. He replied: “Yes maybe I did”. Later he added: “Yes maybe I did, maybe my ideas I cannot remember”. Mr Besanko pressed the issue:

Q “Yes, and you have heard there are people at Coober Pedy who call themselves Antakiri.”

A No, when I hear Coober Pedy people speaking they always speak in Yankunytjatjara.”

Q … you have heard of people from Coober Pedy who call themselves Antakarinja? Is that right?

A No, they are Yankunytjatjara.”

Mr Baker said that he knew a man named Bill Lennon who lived at Mount Willoughby. He said that he was a Yankunytjatjara man and not an Antikirinya man. Asked whether Bill Lennon calls himself an Antikirinya man, his reply was “yes maybe he is, I don’t know”. He was reminded that, in his examination-in-chief, his counsel had asked him about Mr Lennon and whether he understood that Mr Lennon, who came from Coober Pedy, called himself Antikiri. He was also reminded that he had told his counsel that that was his understanding. However, in cross-examination, he repeated that Mr Lennon was a Yankunytjatjara man. As can be seen, the evidence of Mr Baker was quite confusing and I could not rely on it to support an assertion (if that was what he said) that there is not a people or group who call themselves Antikirinya.

122               Roley Mintuma, when he completed and signed his witness statement, was of the opinion: “Antakirinya is the same as Yankunytjatjara”. However, when the time came to give his oral evidence, he deleted that passage from his statement. He claimed, when cross-examined about this alteration to his evidence, that he had never heard of the word “Antikirinya”. He was asked when had he first heard the word Antikirinya. He answered by saying that he had never heard the word “Antikirinya” when he “was growing up in De Rose Hill. I only know Yankunytjatjara and Pitjantjatjara.” He was asked a second time when had he first heard the word Antikirinya or, indeed, the word “Antikiri”. Again he repeated:

“No, I don’t know Antikirinya … I never heard Antikirinya.”

It was then put to him that someone must have used that word before it was put into his statement. He replied:

“Yes, I don’t know who did. They asked me about Antikirinya and I told them ‘I don’t know Antikirinya’.”

Mintuma identified the claimants’ instructing solicitor as the person who had brought him his witness statement to sign. In response to a question from Mr Whitington, he said that he had not told the solicitor to write down anything about Antikirinya. There was then an apparent change in the subject matter of the cross-examination because Mr Whitington asked:

“Before you signed the piece of paper had you spoken to Susan Woenne- Green?”

Mintuma’s reply was:

“Yes, I was talking to her, then I said, ‘I don’t know Antikirinya’.”

 

It was of interest that he volunteered a reference to Antikirinya in that answer. He was quite defensive in his appearance and presentation when the subject of Antikirinya and Antikiri was being pursued. However, having reflected on the matter, I do not intend to attribute anything sinister to this material change in his evidence. I am prepared to allow for the possibility that it could have been a case of a misunderstanding in the course of interpretation at the time of the preparation of his statement.

123               Other witnesses, such as Cissie Riley, Witjawara Curtis and Lilly Yupuna Baker also said that they had never heard the word “Antikirinya”. Maggie Ward initially said that she knew nothing about the word Antikirinya or the word Antikiri. Under persistent questioning however, she reluctantly made some minor concessions, saying:

“Little bit I heard, yes.”

Asked what had she heard about it she replied:

“No, I don’t know. I can’t think about that.”

Despite being pressed by counsel she would only say:

“Other people are talking about Antakirinya but I don’t know about Antakirinya.”

Asked what other people were saying about it she replied:

A “Other people, they were getting frightened about it.

Q Why were they getting frightened?

A I don’t know, other people are getting frightened.

Q What other people were getting frightened?

A I am going to talk about my father, where my father was born and where I was born but Antakarinya I don’t know.

Q I am just asking you at the moment what other people were getting frightened about it?

A Maybe those other people who are getting frightened, they come from the west and they getting frightened.

Q Can you give me some names?

A No, I can’t talk.”

Q Will you get into trouble if you tell me the names?

A No, I’m getting frightened. I don’t want to talk.”

That was all that she would say on the subject. The evidence did not reveal who were frightened or why they were frightened.

124               Sadie Singer did not differentiate between the Yankunytjatjara and the Antikirinya. She said that Antikiri is the same language as Yankunytjatjara: “We are the same mob and speak the same language”. She said that she did not know what Antikirinya was, but that she had heard the name from Bill Lennon in the course of the preparation of the application for the Yankunytjatjara/Antikirinya native title claim (of which she is one of the applicants).

125               The evidence of Peter Tjutatja was not helpful to the claimants’ case. He said that he did not know any Antikirinya, but he agreed that he knew an Aboriginal person of repute who was called Wintinna Mick and that Wintinna Mick called himself Antikirinya. Tjutatja agreed that Wintinna Mick was “a very big boss for this country” who spoke the Pitjantjatjara language. He also knew of the Coober Pedy mob who called themselves Antikirinya but, so he said, “They died years ago”. He said that he had been given that information by Tjaapan Tjaapan (the name Tjaapan Tjaapan was, at times, spelt Tjapany Tjapany but unless quoting from a source, I will use the spelling “Tjaapan Tjaapan” for consistency). Tjutatja also made the cryptic comment that the Antikirinya “speak separately”, suggesting that he believed that their language was not the same as Yankunytjatjara. That, initially, was the limit of the information that could be obtained from Tjutatja on the subject of the Antikirinya or the Antikiri people. However, with some prompting, he was able to add that his uncle or kamuru, Jimmy Piti Piti, had also told him some things about the Antikiri people, but when asked to repeat what he had been told by Jimmy Piti Piti, he merely answered “They died dead”. The subject of their deaths was followed up in cross-examination with unusual results. Mr Whitington asked:

“Do you know whether they died dead or whether they were killed dead?”

The answer was “mamuku puyunku”, mamuku meaning devil and puyunku meaning smoke. Tjutatja then used the expression “arunkulytja irati” which Mr Lester had difficulty in translating. Irati means “poison” but Mr Lester did not know the word arunkulytja at all. Tjutatja was asked whether there was another word for arunkulytja and it transpired that it also means irati or poison. According to Tjutatja the people died because of poison, adding “they didn’t have the medicine in those days”. When he was asked where had the poison come from he answered:

“… out west they were lot of explosion and that smoke travelled this way”

126               That sounded suspiciously like the Maralinga atomic bomb tests in the 1950s and, according to Tjutatja, the irati or the poison went all the way to Ernabella. It was, so Tjutatja said, mamuku irati from the “whitefellas” and, so he claimed, “I was in sickness with that irati too.” Tjutatja said that he was a man, a Wati, when he was sick from the poison smoke. At the time of his sickness he was living at Ernabella with his wife. Interesting though this passage in his evidence may have been, it was not of probative value. No findings could be made other than a finding that it was Tjutatja’s belief that the people known as Antikirinya, who formerly lived in the area of Coober Pedy, have died out.

127               Owen Kunmanara’s evidence also suggested that the Antikirinya people were different. When asked to tell the Court all he knew about the Antikirinya, Owen Kunmanara replied, somewhat testily – as was his wont:

“I don’t know. We don’t know them. I am a Yankunytjatjara man. Why don’t you ask Antikirinya people?”

128               He agreed that he had heard the name Antikirinya but his knowledge was very vague. “It came from somewhere” and “it might be Kokatha, that way country”. Owen said that the Kokatha people are “from that way” pointing in a direction which, as best I could establish, was to the south-west. He added that they were not related “to us” and he also added that they were “Wilyaru Dreamings”. He explained that:

“Wilyaru is man in Dreamtimes but I don’t know, that’s this wilyaru. I can’t tell you any more about that.”

Mr Whitington questioned Owen about a meeting that was said to have occurred in Coober Pedy sixteen years ago. He asked him if he went to a meeting of the Anangu Yankunytjatjara Society. The reply was:

“Yes, I got a book here.”

That non-responsive reply told nothing, but in response to later questions, it would appear that Owen did attend some meeting at some time, and he seemed to agree that it was at Coober Pedy. Mr Whitington said that he had a paper that suggested that the meeting comprised “a whole lot of tribes”. He said that the paper suggested that there were Yankunytjatjara, Arabanna and Antikirinya people present. Others who were present were said to be representatives of the Lirutja, Adnyakuyani (which may be Kuyani) and Adnyamathanha people. Owen agreed that he went to the meeting and that it was a meeting at which Antikirinya people were present. In response to propositions that were put to him by Mr Whitington, Owen agreed that, at the meeting, there were discussions about the Aboriginal people buying a cattle station because they were “sick and tired” of handouts and that they would like to buy a station property so that they could learn to work and support themselves. However, Owen was dismissive of all of these issues. They lacked importance to him. He agreed that those present at the meeting were talking about it but he added “I finished working. I am waiting around to die now”. Owen was asked whether the meeting addressed the subject of the Maralinga Tjarutja Land Rights Bill. However, he clearly did not know or understand what that meant. He simply said that the land belonged to Aboriginal people and it was Aboriginal land already. Owen agreed that a man called Bill Lennon was at that meeting and he agreed that he “is the boss today. He is on the council”.

129               Peter De Rose said that he had no knowledge of a discussion between his wife and Ms Woenne‑Green where they talked of people from Coober Pedy speaking more slowly, with a lower voice and different accent. In denying any knowledge of that subject, Peter volunteered that he knew some Coober Pedy people and that when they spoke, they spoke Yankunytjatjara. Peter said, at another stage in his evidence, that he had heard of people from Coober Pedy who called themselves Antikirinya, but, so he said, he had never spoken to any of them. It subsequently transpired, however, that he was talking about a corporation which he named the Antikirinya Mining Company. He said that he was not aware of a native title claim on behalf of the Antikirinya people and he was not aware of maps that had been prepared by Dr Norman Tindale which showed that De Rose Hill Station was in Antikirinya country.

130               It was put to Peter De Rose that he and his wife, Sylvia, had had discussions with Ms Susan Woenne-Green about the Tindale maps. He replied “Maybe I did, but I can’t remember”. It was put to him that the Tindale maps contained a reference to the Antikirinya people. He then conceded that he had heard “a little bit about” Antikirinya becoming interested in a native title claim but, he added, that he did not “really go in deep on that discussion”. It was next put to him that he had been shown documents which showed that De Rose Hill was within Antikirinya country and that Yankunytjatjara country was further to the west. Peter steadfastly refused to give a direct answer to these questions. He said that he had only just heard about the Antikirinya claim:

Q “You have heard the word Antikirinya or Antikiri before, haven’t you?

A I heard about Antikirinya before. Antikirinya company – when they put in to look in Apu Maru area.

Q Yes. But you’ve also heard of reference to the Antikirinya people.

A I’m not sure about Antikirinya. I heard about when people talking about. I don’t know Antikirinya. I never meet Antikirinya.”

Peter admitted that he had heard “a little bit about Tindale” but he claimed that he did not know anything about any maps that Tindale might have drawn. His answers were, however, far from satisfactory:

Q “Didn’t one of Mr Elliott or Susan Woenne-Green show you Tindale maps from 1940 and 1974, and also a Strehlow map?

A I can’t remember that. I suppose they did show to me but I can’t remember.

Q Yes. Were you, at about that time, shown some documents which showed that De Rose Hill was within a country known as Antikirinya, with Yankunytjatjara further to the west?

A Maybe they show to me and talk to me, but I remember talking to all the Anangu people, Aboriginal people, and they might have showed me the map and talked to me but I can’t remember.

…

Q In 1995 you were thinking hard as to why Mr Tindale showed De Rose Hill in Antikirinya territory.

A With the Tindale story, they never really explain properly about that to us. I only know from the Anangu people, from the Aboriginal people.

Q Who didn’t explain it properly?

A When we were having all our meetings nobody really explain deeply about Tindale’s map.

Q But you can remember discussing that matter with Mr Elliott and Susan Woenne-Green, or either of them?

A I can’t remember that part. Maybe they spoke to other Aboriginal people and I heard from other Aboriginal people about this.”

131               In re-examination his counsel asked him what he meant when he said:

“I only know from the Anangu people, from the Aboriginal people.”

His answer was:

“The people have told me in De Rose Hill people used to live there, they were Yankunytjatjara people, and they’re saying it’s a Yankunytjatjara place or country. When they mention about Antikirinya, I didn’t know what Antikirinya was.”

132               Peter’s evidence about Tindale and Tindale’s map was very difficult to accept. His answers suggested that, although he was aware of the existence of Tindale’s maps, he was claiming that nobody explained the detail of the maps to him. If, as is the case, Tindale’s maps show De Rose Hill Station as being in Antikirinya country and if, as is the case, Peter De Rose was one of the Yankunytjatjara leaders who were pursuing a claim for native title, it would be most surprising that he would not have known that there had been an assertion, through Tindale’s maps, that De Rose Hill was on Antikirinya country. It was put to Peter that he had had long discussions with Ms Woenne-Green and Mr Elliott about the Antikirinya people and whether De Rose Hill Station was on their land. Peter denied that in a qualified way, saying that they had not talked about Antikirinya “for [a] long time”. They had only talked “now and again about Antikirinya”. That passage in his evidence is very difficult to reconcile with his earlier answers when he denied any knowledge of the Antikirinya people. Peter was questioned during his cross-examination about his knowledge of other native title claims. He knew, for example, about “the Eringa claim” which included part of Tieyon Station. It was then that he was asked to tell the Court what he knew about a claim in the name of the Antikirinya people. What followed was a series of confusing answers which, following upon his disjointed evidence about the Tindale maps and after making every allowance for an Aboriginal person giving evidence through an interpreter, led me to conclude that Peter, for some unknown reason, was not answering truthfully.

133               When Johnny Wimitja De Rose was asked a question about Antikirinya or Antikiri people, he gave an interesting answer. The questions and answers were as follows:

Q “When you were a boy or a young man, did any of the old men tell you stories about Antikirinya or Antikiri people?

A No, all Yankunytjatjara. Coober Pedy Yankunytjatjara.

Q Why did you answer that way, Wimitja? I didn’t ask you about Coober Pedy or Yankunytjatjara.”

The interpreter answered that question in indirect speech:

A “Because he said ‘I am not Antikirinya, I am Yankunytjatjara.

Q Wimitja, I asked you whether, when you were a young man, any of the old men had told you about Antikiri or Antikarinya?

A No, they only spoke to me about Yankunytjatjara.

Q But you gave me an answer earlier where you said at Coober Pedy they’re all Yankunytjatjara?

134               The transcript records the interpreter as saying:

A “No, he said Mick Wintinna said they were that tribe or those people, but we are not. We are Yankunytjatjara.

Q Mick Wintinna said that some people are Antikarinya but you say ‘we are Yankunytjatjara’. Is that what you are telling us?

A Mick Wintinna is Yankunytjatjara; he has always been Yankunytjatjara.”

Wimitja denied that he and the other men who were witnesses in the case had been discussing the case and discussing Wintinna Mick and the Antikirinya story. However, I am satisfied that Wimitja knew of the Antikirinya or Antikiri people but that he was reluctant to admit to the knowledge. In my opinion, it is necessary to view his evidence very carefully.

135               The final witness on the question of Antikirinya to whom reference need be made, was Mrs Mona Tur, an Aboriginal person who has received an extensive European education. She said that she had been reared in the knowledge that she was an Antikirinya person. She has interpreted Antikirinya women’s speech and she has had extensive experience as an interpreter and as a teacher of both Pitjantjatjara and Antikirinya. She was adamant that there were no dialectical differences in the words, accents and rhythms of the Yankunytjatjara and the Antikirinya peoples. Mrs Tur said that she first became aware of the word “Yankunytjatjara” being used as a description of a language when she was teaching Pitjantjatjara in the 1980s. She said that a dictionary of the two languages had then been published. According to her evidence, when she read the dictionary, she found:

“… that all the words in there that were described as ‘Yankunytjatjara’ I knew as Antikirinya. I have continued to identify that language and myself as Antikirinya.”

136               Initially, Mrs Tur asserted that the Yankunytjatjara and the Antikirinya were one and the same people. She said that they were “wata kutju” (same root), “wangka kutju” (same language) and “Anangu kutju” (same people). Mrs Tur said that she had heard several people make those statements and she believed in the truth of those statements. Asked to state the basis of her beliefs she said:

A “The basis of my belief is because that is my birthright and that has been handed down to me by my family.

Q When you say that is my birthright, what are you referring to?

A That is the heritage that has been told to me as a child, that you are wangka kutju, Anangu kutju, wata kutju.”

137               Later, however, she shifted ground somewhat when she was asked whether she had attended some Anangu meetings to discuss native title claims:

Q “You had a long conversation, didn’t you, with Ms Susan Woenne-Green at that meeting about the subject of Antikirinya and Yankunytjatjara?

A Yes.

Q And whether they were different?

A I can’t recall saying they were different.

Q I’m not suggesting that you did. I just want to be clear that that was the topic of the conversation.

A No, it wasn’t.

Q Perhaps I will just rephrase the question for you. I’m not asking you about the content of the meeting at the moment, I just want to be clear that during the course of the meeting you discussed the issue of whether or not Antikirinya people were the same as Yankunytjatjara people?

A No, we did not.

She then recanted, apologised to the Court, and said that she did remember talking about the Antikirinya. She agreed that Nancy Kemp, who was present with her when she was interviewed by Ms Woenne-Green, regarded herself as Antikirinya and not as Yankunytjatjara.

138               Mrs Tur said that she knew of a man called Bill Lennon. He was an Antikirinya man and her Anangu cousin. She also knew Wintinna Mick at Alberga and later at Oodnadatta. He was her tjamu or her Anangu grandfather. She did not know his country but she said that she talked to him in Antikirinya. She accepted that the issue of who are Yankunytjatjara and who are Antikirinya has recently arisen at a number of native title claim meetings at which she has been present.

139               Mrs Tur was asked to explain what she meant when she used the word “Antikirinya”. She said “I am talking to the people, the language and the land.” She said, for example, that she was to be a claimant in three separate applications for determinations of native title, all of which, to some degree, involve an inter-mix of Yankunytjatjara and Antikirinya people. The first of them in chronological sequence, known as the “Antakirinja Native Title Claim”, is that which is contained in Action No SG 6007 of 1998 in the South Australian Registry of this Court. The second, which is called the “Eringa Native Title Claim”, is Action No SG 6010 of 1998. The last of the claims is called the “Yankunytjatjara/Antakirinja Native Title Claim” and is Action No SG 6022 of 1998. Whilst the information that is contained in the three Court proceedings is not admissible as proof of the truth of the contents, they are matters of public record and they are evidence of the existence of claims that have been made by various people about the existence and usage of the words “Yankunytjatjara” and “Antikirinya”. The brief summary of the three applications that follows commences with the Eringa claim.

140               The application for a determination of native title in the “Eringa Native Title Claim” was lodged with the National Native Title Tribunal on 13 March 1996. The area that is included in this application is to the east and south-east of De Rose Hill Station. It includes the whole, or substantial parts, of Tieyon, Eringa, Mount Sarah and Macumba Stations and a part of Witjira National Park (the northern boundary of which is the Northern Territory border). The native title claim group is identified by several different apical ancestors, two of whom are Upitja and his wife (who is said to be the mother of Wintinna Mick). Edie De Rose and her daughter, Carlene Thompson, are two other persons who have been identified as claimants; theirs are names that were often mentioned in these proceedings and Carlene Thompson gave evidence in this trial. It was stated in attachment “A” to the “Eringa Native Title Claim” that one of the identifiers to membership of the native title claim group was membership of:

“Luritja/Yankunytjatjara/Antakirinja descent.”

An explanatory note then followed:

“Members of the Eringa native title claim group acknowledge that the terms ‘Luritja’, ‘Yankunytjatjara’ and ‘Antakirinja’ are used interchangeably by them and constitute different means of identifying the same language and the same individuals from whom claim group members are descended or referred to by others.”

141               The application for a determination of native title in the “Yankunytjatjara/Antakirinja Native Title Claim” was said to have been made on behalf of:

“… all those Yankunytjatjara and Antakirinja and other Aboriginal people acknowledged and observed in accordance with our traditional laws and customs to hold native title over the claim area.”

The claim area covers the whole of Lambina, Welbourne Hill and Todmorden Stations and the northern portions of Wintinna West, Mt Willoughby, Evelyn Downs and Ankaringa Stations. The area that is the subject of this claim is to the south of and abuts the Eringa claim. The application for a determination of native title was lodged with the National Native Title Tribunal on 21 November 1997.

142               The “Antakirinja Native Title Claim” for a determination of native title was lodged with the National Native Title Tribunal on 17 November 1995. The applicant was Mr William Herbert Lennon Snr who claimed that he was acting for and on behalf of the Antakirinja Meetuntjarra Land Council. He said that the claimants were:

“Those other Antakirinja Meetuntjarra Land Council Aboriginal persons acknowledged in accordance with traditional laws and customs to be the owners of the claim area predominantly through historical, spiritual and ancestral relationships to the land.”

The original claim area overlapped most of – if not the whole of – the “Yankunytjatjara/Antakirinja Claim” but it also included a further substantial area to the south of that claim. On 29 May 1996, however, the applicant advised the Tribunal of a proposal to amend the claim area by deleting the northern section and, so it would seem, the area that overlapped the “Yankunytjatjara/Antakirinja Claim”. Unlike the other two claims, this claim did not make any reference to the Yankunytjatjara people or the Yankunytjatjara language.

143               For some reason, which I could not identify, Mrs Tur was reluctant to discuss the issue of an inter-relationship between the Yankunytjatjara and the Antikirinya people. Having agreed that she had attended many meetings and that the issue had been discussed at those meetings, she was asked to identify what people had said at those meetings. Her reply was:

“Well, at many of those meetings I was an interpreter, just interpreting the policies on what native title is. I only went once where I actually stayed there without being involved as an interpreter.”

She was pressed to answer the question and she answered by saying:

“Well, the only thing that I can recall – wata kutju, wangka kutju, and Anangu kutju.”

Counsel put to her, somewhat sardonically, that if what she had recounted was the totality of the conversation, it would have been “a very short conversation”. She said “But there were many things said, and I remember these very clearly.” Once more she was asked to recall what had been said at the meetings. On this occasion she said:

“Well, I recall meeting relatives from both sides at the meeting – as they called themselves, the Yankanytjatjara/Antikirinya”

Mrs Tur denied that there were people at any of those meetings who asserted that Antikirinya were a different people to Yankunytjatjara.

144               The evidence on the question whether there is a separate group of Anangu who should properly be referred to as Antikirinya was contradictory and confusing; I have no way of knowing whether it was complete. That is, and always will be, a weakness in the adversarial system: a decision has to be made on the evidence that counsel places before the Court without the Court knowing whether it is the totality of the evidence that is available on the subject. With that most important qualification, I have concluded that there was sufficient evidence adduced in this trial for me to conclude that there were (and maybe are) two closely related Aboriginal groups speaking the same language and dialect – the Antikirinya and the Yankunytjatjara. I am not, however, able to make a finding to the effect that the Antikirinya people once inhabited the claim area but were dispossessed by the Yankunytjatjara. The evidence that was adduced during the course of the trial does not permit me to make findings about the historical movements of the Antikirinya people. There are the Tindale maps and some evidence was led to the effect that the Antikirinya had been pushed south from the claim area towards Ooldea in a movement that began in the late nineteenth century. That may be correct but I do not feel that the evidence was sufficient to make a positive finding.

european development

145               The earliest European contact with the region of the claim area were the separate expeditions of William Gosse and Ernest Giles who in 1873 were competing for the honour of being first to cross the western half of the continent from the overland telegraph line to the west coast. Gosse entered the area via Ayres Rock, which he named in July after Sir Henry Ayres MLC, the former Premier of South Australia, and travelled west along the Mann and Tomkinson Ranges until turning back from the Townsend Range in Western Australia because of lack of water and the condition of his horses. Giles entered the Musgrave Ranges in September and continued much further west. He was forced back after an attempt to proceed west from the Rawlinson Ranges led to the disappearance of his companion, Gibson. It was John Forrest who, in 1874, led the first successful crossing, but he travelled from west to east. Although European explorers in the late nineteenth century had travelled through the claim area, it was not until the early 1920s that there was a permanent European presence in the claim area. That presence ultimately lead to the grant of permits to search for water and, later, to the grant of leases for pastoral purposes.

146               In an attempt to provide protection for the Aboriginal people in the region, an area in excess of 56,000 square kilometres was proclaimed by the South Australian government as the North-West Aboriginal Reserve in 1921. At the same time as the North-West Reserve was being established, white settlement of the land to the east of the Reserve was being encouraged by the granting of water permits and pastoral leases. A pastoral lease was granted to a Mr S Ferguson in 1933 for an area of 500 square miles around Ernabella which was described as “one of the principle Yankunytjatjara water holes in the eastern Musgraves”. Other blocks of the same size were granted as water permits in 1934 and these areas, in due course, became bases for dingo scalp trading. Groups of Aboriginal people also began to settle in proximity to recently established pastoral stations so that they might have access to rations and other goods.

147               In 1936 a mission was established by the South Australian State Assembly of the Presbyterian Church of Australia at Ernabella, mainly as a result of the efforts of Dr Charles Duguid. It is situated at the eastern extremity of the Musgrave Ranges and is about thirty kilometres south of the Northern Territory border and slightly in excess of 300 kilometres east of the Western Australian border. The Musgrave Ranges extend about 100 kilometres to the west. There is then a small break before the Mann Ranges spread westward. Beyond the Mann Ranges are the Tomkinson Ranges to the west and the Petermann Ranges to the north in the Northern Territory. In that break between the Musgrave Ranges and the Mann Ranges is located Amata, now the site of an Aboriginal community.

148               In a paper that he prepared on Ernabella entitled “Origin and the First Ten years: A short historical sketch”, Dr Duguid, writing in the third person, said:

“In 1934, Dr Duguid had made an investigation into the condition of the natives in the interior of Australia and … urged that a mission to the almost untouched Aborigines in the Musgrave Ranges in the far north-west of South Australia be instituted …”

In the following year, Dr Duguid, with two companions, visited the Musgrave Ranges, (which are approximately 1,000 miles or over 1,600 kilometres north-west of Adelaide) by motor car. He wrote:

“In the Musgraves he found a fine race of naked tribal people – the Pitjantjatjara tribe – in the first process of contact with white men.”

149               In July 1939, following upon the successful establishment of the Ernabella Mission, Dr Duguid was asked to join Mr TGH Strehlow, then a Federal Patrol Officer, and Pastor Albrecht, of the Hermannsburg Lutheran Mission in the Northern Territory, in an official Federal investigation of the area of the Petermann Ranges. The object of the investigation was to ascertain why “so many tribal natives” had migrated from the west to the cattle stations in the east. The party used two trucks to travel from Ernabella along the northern edge of the Musgraves. When they reached the Petermanns, they switched to camels and pushed their way through to the Western Australian border. In their travels throughout the Petermanns they saw only twenty-six Aboriginal men, women and children. They saw no kangaroos, no emus and only two rabbits. Dr Duguid reported that there had been little or no rain in the Petermanns since the summer of 1936 and that lack of rain, in his opinion, explained the recent movement eastward of both people and animals.

150               In April 1961, the Aborigines Protection Board established a bore and a station on the North-West Reserve at Amata. A Superintendent and a Cattle Manager were appointed and six Aboriginal families from Ernabella were chosen, from those who had volunteered, to become the nucleus of the Aboriginal population for the new settlement. A clinic was opened in 1962, cattle were introduced in 1964 but a school was not established until 1968. Control of the station passed from the Aborigines Protection Board to the Department of Aboriginal Affairs and from that Department to the Department of Community Welfare in 1970.

151               In 1961, shortly after the establishment of Amata, the Presbyterian Board of Missions, with financial assistance from the Government, developed an outstation at Fregon, some thirty kilometres south of Ernabella. Its aim was to provide a place of residence for people associated with the sand-hill country to the west and to train and employ them in cattle work. The Mission purchased its first cattle from Doug Fuller. The cattle numbers expanded from an original herd of one hundred calves to seven thousand head in the late 1970’s with regular sales to southern markets taking place in the intervening period.

152               In the mid 1960s, changing methods of handling cattle were introduced with a resulting decrease in employment opportunities for Aboriginal workers. As a consequence, people left the cattle stations in the east, moving back to Ernabella or Fregon. In addition, Indulkana was established by the South Australian Government in 1968 as an Aboriginal community and many people moved there; an area of thirty square kilometres had been excised from the Granite Downs Pastoral Lease to form the basis for the community. Not long after the establishment of the Indulkana Aboriginal Reserve, at the request of some local Aboriginal people who had taken up residence there, the Reverend Edwards commenced visiting monthly to conduct religious services. People had moved to Indulkana from nearby pastoral properties. His first baptisms took place on 24 October 1971; they included Snowy De Rose and his wife, Katjiwala. He named Snowy and Riley Tjayrany as two men who had played a leading role in the Church at Indulkana. A small clinic, a store and workshop had earlier been erected and a school was opened in 1971.

153               In 1971, a small group of Anangu established a settlement at a place called Puta Puta which is just to the east of Mt Davies. Mt Davies is on AP Lands and is very close to the Western Australian border. The settlement was established because there had been talk of mining taking place in the area and the Anangu were concerned about the safety of important Malu (Kangaroo) Tjukurpa places that were nearby. In 1975 a community was established at Pipalyatjara at the site of the Mt Davies mining exploration camp, some twenty-four kilometres west of Puta Puta. The Pipalyatjara centre grew with the appointment of a community adviser. A school teacher arrived in 1976 and the population continued to grow. An airstrip that had been constructed and used by the mining camp facilitated communication with Alice Springs for medical emergencies and mail. Some men were able to find employment in the mining activities and by 1991 there were seven houses for Education Department staff at Pipalyatjara. In 1978 a Health Service was established at Kalka, a few kilometres north of Pipalyatjara. It was named the “Pitjantjatjara Homelands Health Service”.

154               By the early 1970s there were a number of centres for Aboriginal people in the north-west, including Ernabella, Fregon, Amata, Indulkana and Mimili. Each of those locations had a substantial Aboriginal population. Added to that, there was a blossoming of additional outstations or homelands that had been established with the assistance of government grants. Ernabella had a population of approximately 350 and Fregon had a population of 200; both were under Mission administration. Amata and Indulkana were under government control with populations of approximately 330 and 200 respectively. The fifth and last of the settlements in the region was the European owned and controlled cattle station at Everard Park (Mimili) with an Aboriginal population of eighty. A movement for independence and autonomy for the Aboriginal people led to the first four mentioned settlements being incorporated as communities so that they could thereby take over administration of their own affairs. The Presbyterian Church handed over control of the communities at Ernabella and Fregon to the newly incorporated bodies with effect from 1 January 1974. In 1973 and 1974 the Indulkana and Amata communities were incorporated with Indulkana taking the name of the local site, Iwantja, as the name for its incorporated body. In 1973, the lease of Everard Park was purchased by the Aboriginal Land Fund Commission and transferred to the local Aboriginal people who renamed it Mimili.

155               In 1976, the Department of Aboriginal Affairs offered financial assistance to establish outstation communities at Cave Hill, Kunamata, Lake Wilson and Ilturnga, (otherwise known as Coffin Hill). The number of the residents at those communities varied and, so it would seem, three of the four have been unsuccessful. Cave Hill, which is quite close to Amata, has been most regularly occupied since its establishment. Kunamata failed because of the lack of adequate water supplies. Lake Wilson was only shortly occupied before being vacated. Ilturnga is remote and the isolation encouraged people to return to Fregon after short periods of residence there. Kenmore Park Station, east of Ernabella and adjoining De Rose Hill (which is to its east) was acquired for the benefit of the Anangu and the station was given the traditional name Yunyarinyi.

156               Following upon the incorporation of the community councils, the Pitjantjatjara Council was formed in 1976. Negotiations by that body with the South Australian Government led to the Pitjantjatjara Land Rights Act 1981 (SA). That Act gave to the Pitjantjatjara people the inalienable freehold tenure over the North-West and Indulkana Reserves as well as the Ernabella, Kenmore Park and Everard Park pastoral leases. The total area is in excess of 100,000 square kilometres. To that area has since been added the area of the Granite Downs lease; it was surrendered by the Crown lessee, thereby adding another 10,000 square kilometres or thereabouts to the AP freehold lands.

157               Much of the more recent history of the north-west of the State came from the evidence of the Reverend Edwards, a most impressive witness who had spent much of his time at Ernabella Mission where he eventually became Superintendent. He mastered the Pitjantjatjara language which, he explained, was the predominant language that was spoken at the Mission but, as he said in his witness statement:

“In my early years at Ernabella, I was aware that there was what I considered to be another dialect, Yankunytjatjara.”

158               The Mission staff were aware of the two languages and their differences and, over the years, a word list was compiled. Nevertheless, the Reverend Edwards conceded that his knowledge of the differences between Pitjantjatjara and Yankunytjatjara languages “remains limited because throughout my work my focus has been on the Pitjantjatjara language”. Nor does he regard himself as being sufficiently qualified to comment on the similarity or difference between Yankunytjatjara and Antikirinya people. He explained that he has not made any study of Antikirinya, nor indeed, has he made any formal study of the Yankunytjatjara people. He was also aware of (what he described as) “an emerging consciousness” that Ernabella was part of Yankunytjatjara land and that some Yankunytjatjara people were suggesting that the Pitjantjatjara people, who were then resident, should move back further to the west – to the country from which they or their ancestors had come. He said that the response was often to the effect that “these Pitjantjatjara people had been born around Ernabella and had, by then, lived there for a generation.” He said that he was able to observe those who began “to assert their separate identity”. This attitude coincided with the beginning of self-determination for Aboriginal communities in the early 1970s. As councils were established at Ernabella, Fregon and other settlements, people were heard to say that Ernabella and Fregon had been established on Yankunytjatjara country; they said that those who had come from further out in the west should move back to their country. There were claims that the councils should consist of Yankunytjatjara people only. According to the Reverend Edwards, these movements came from people who had been long-term residents at Ernabella, although some had lived at times on cattle stations to the east such as Kenmore Park and Mt Cavenagh.

159               The Reverend Edwards explained that, early in his career, the term “Pitjantjatjara” had been used widely to subsume those groups who were generally known as the “the Western Desert Groups”. He was of the opinion that Ernabella had been partially responsible for this generalised use of the word “ Pitjantjatjara”, because the Mission had concentrated on the Pitjantjatjara language in codifying dictionary publications and Bible translations. He was of the opinion that a Mr Wolf Douglas, a missionary and a skilled linguist, had coined the phrase “the Western Desert Group” to encompass the Pitjantjatjara, Yankunytjatjara, Ngaatjatjara and the Ngaanyatjara people. However, they were only four of a larger number of named dialects.

160               The Reverend Edwards said that it was generally recognised that the traditional land of the Ngaatjatjara was across the border from South Australia and the Northern Territory into Western Australia. According to him, the geographical area that is associated with the Ngaanyatjara language is also in Western Australia “Contiguous to the south and the south‑west of the Ngaatjatjara region”. The Reverend Edwards was asked whether he was in a position to identify the boundary between Pitjantjatjara and Yankunytjatjara lands. He answered by identifying a long term resident of Ernabella, the late Billy Kayipipi, who was known to have a close association with the Cave Hill area. Cave Hill, which is close to the road between Amata and Mulga Park in the Northern Territory, is to the north‑east of Amata in South Australia, near the Northern Territory border. Based on information that Billy Kayipipi gave him, the Reverend Edwards had formed the opinion that Cave Hill is “roughly the boundary of the two”. If the Reverend Edwards’ information is accurate, it would mean that Amata is in Pitjantjatjara country: a proposal that was contradicted by many of the Aboriginal witnesses in this case.

161               The Reverend Edwards was cross-examined about a passage from Tindale’s work Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits and Proper Names (Canberra, Australian National University Press, 1974) which included the following proposition at 69:

“The Pitjantjatjara men now claim the Ernabella end of the Musgrave Ranges as within their territory.”

Asked whether he agreed with that proposition, he said that he was not able to do so; he pointed out that, although the work had been published in 1974, Tindale had done his field work in the late 1960s; he had never been to Ernabella during the Reverend Edward’s time on the Mission. He said:

“I think that the Ernabella people would have recognised the traditional ties of people to the land and maintained that their primary ties were further west but that they had now long historic links with Ernabella. So I would wish to qualify the statement as it is presented…”

162               It was put to the Reverend Edwards that when he arrived at Ernabella in 1958, the Pitjantjatjara people had “more or less taken over Ernabella” – “they had more or less moved in to the exclusion of all others”. He replied saying:

“Not of all others. There were people there who would have claimed to be Yankunytjatjara people who were still there and were some people who had associations over Kenmore Park or Victory Downs Station who were Yankunytjatjara people but used Ernabella as their base.”

Even so, he agreed that the core group at Ernabella in 1958 was made up of Pitjantjatjara people.

163               The Reverend Edwards was questioned about him having had a meeting with Ms Susan Woenne-Green in 1995 when there were discussions about the native title claim over De Rose Hill station. It was put to him that he had said to Ms Woenne-Green:

“Yes, I can’t give anything definitive on the Yankunytjatjara, Antikirinya and so forth. Coming from Ernabella, when the Pitjantjatjara had more or less taken it over, my work has been in Pitjantjatjara, occasionally picking up a few Yankunytjatjara words.”

He conceded that:

“I could have said that. I don’t recall but I could have said that.”

164               In 1992, the Reverend Edwards published an article entitled “Patterns of Aboriginal Residence in the North West of South Australia” in the Journal of the Anthropological Society of South Australia Vol 30, No 1 (1992), pp 2-32 (“his 1992 paper”). At the time of its publication, he was a Senior Lecturer in Aboriginal Studies at the University of South Australia. As he so aptly pointed out in his article, at 2:

“Any attempt to outline the traditional patterns of residence in the region can be a reconstruction only, based on reports of early observers, oral histories and anthropological research.”

165               The Reverend Edwards, like Dr Duguid before him, also referred to the people in the north-west corner of the State and in the adjacent areas of Western Australia and the Northern Territory as the Pitjantjatjara people. However, and notwithstanding that Dr Duguid only referred to the Pitjantjatjara in his sketch – making no reference to the Yankunytjatjara people – the Reverend Edwards addressed the Yankunytjatjara people extensively in his article when discussing the Ernabella mission. He said that the Yankunytjatjara people occupied the country from the Western Musgrave Ranges to the east, thereby placing Ernabella in their territory.

166               The Reverend Edwards described Pitjantjatjara country as a chain of mountain ranges comprising the Musgraves, Mann and Tomkinsons, stretching from east to west on the southern side of the Northern Territory border but extending into the Northern Territory to the Petermann Ranges. He also said that their country included extensive sand hill plains so that a distinction was made between the Apu Murputja or the Hill people and the Pilatja – the plains people. He explained that whilst occasional heavy rains enabled larger groups of Anangu to gather for ritual, social and exchange purposes, the more normal pattern was for smaller groups to camp near a water supply and to utilise the nearby resources until they were forced to move on because of the depletion of resources, the death of a member of the group or an obligation to meet up with another group.

167               The Reverend Edwards said that Ernabella had a policy of preserving Aboriginal culture and language. He explained that every year, during late winter, the Mission would close down most of its activities, including the school and the craft-room, as the Anangu would return to their traditional sites. He added that these winter holidays had come to be known in the mission as the “dingo pupping walkabout”. Interestingly, he said in his statement:

“These trips centred around hunting for dingoes as a bounty was paid on dingo scalps …”

 

That did not immediately impress me as a matter of Aboriginal culture: it smacked more of western capitalism. However, the collection of dingo scalps was not the only pursuit, for the Reverend Edwards went on to add that late winter was:

“… a time of cultural activity when people returned to their traditional lands and became involved in ceremony, teaching and related matters.”

In his 1992 paper, he said that the establishment of Amata gradually lead to an abandonment of the winter holiday trips from Ernabella to the west. People then tended to visit relatives at Amata or to join them on ceremonial visits to Areyonga in the Northern Territory or Warburton in Western Australia.

168               In addition to these winter expeditions, the Reverend Edwards said that, during the summer holidays (after the Christmas period), Aboriginal people were encouraged to return to their traditional areas and they often did that. Another curious feature in his witness statement was his reference to the people from the east. He said:

“By the time I arrived at Ernabella it had become the practice for people from cattle stations to the east of Ernabella (including Mt Cavenagh, De Rose Hill, Granite Downs and Kenmore Park) to gather at Ernabella and to join in these expeditions. I remember that there were Aboriginal people from De Rose Hill but I do not remember their names, except for Snowy De Rose.”

Earlier, he had referred to the Anangu’s traditional sites as being “mainly out west”. The reference to people gathering at Ernabella from various places, including De Rose Hill, and joining in these expeditions (which were mainly out west) might be thought to minimise the occurrence of traditional activities on the cattle stations to the east of Ernabella. However, it is to be born in mind that the Reverend Edwards did not, at any stage throughout the course of his evidence, suggest that he was familiar with the activities of the Aboriginal people to the east of Ernabella. On the other hand, I have no doubt that traditional ceremonies were carried out at Ernabella quite frequently. There were initiation ceremonies and “red ochre” ceremonies. That was what the Reverend Edwards said and I accept what he said. The mission’s employment program and even the mission school would be varied to accommodate the absence of workers during these ceremonies. The school, which did not run to a normal Education Department calendar, ran its literacy program primarily in the Pitjantjatjara language but, as the children progressed to higher classes, they would move to both written and oral English. However, the Yankunytjatjara language was never used or taught at Ernabella to his knowledge.

169               During the Reverend Edwards’ time at Ernabella, young single men were encouraged to take work on the stations. This came about, in part, because of Aboriginal tradition; young unmarried men could not be close to the main settlement at Ernabella where they might come into contact with women. There was a cookhouse and a dining hall at Ernabella where meals were cooked by Aboriginal workers and provided to the school children and the mission workers. There was a handout of rations to old people once a week and, as there were no pensions at that time, people who were identified as being in need were also provided with rations. The Reverend Edwards implemented a change after his first three years at Ernabella. Under the new system, the people were supplied with their basic food requirements so that they could cook it on open fires. That had more appeal to them. Later, during the 1960s, when child endowment and pensions started to become available, the mission changed its policy so that workers were given monetary payments instead of rations. During the period when the mission was providing rations to the Aboriginal people, the Reverend Edwards said that “a lot of bush tucker was eaten”. He added that the mission maintained a policy which was widely enforced of “no work – no food”. As a result, the mission would not provide rations to non-workers who were capable of caring for themselves. That, in turn, encouraged the men to hunt for meat and the women to search for bush tucker.

170               The mission did not attempt to celebrate marriages between Aboriginal people in the conventional European sense and the Reverend Edwards explained that there was no set ritual in Aboriginal culture for a marriage ceremony. The term that was used, “iltinyi”, meant that a man, when he felt it was appropriate, would call a woman to come and accompany him. As the Reverend Edwards described it, it was almost a surreptitious exercise. He was asked whether he was aware of marriages between Pitjantjatjara and Yankunytjatjara. He answered as follows:

“Yes, because we were close to the boundaries – of course, it had become something of a mobile boundary – but there were occasions when people from Ernabella with a Pitjantjatjara background would be marrying somebody from Mimili, even before my time. I think of one couple where the young lady, whose homeland was Kunamata to the south-west of Amata – Pitjantjatjara country – was married to a man from Mimili, and he would have been a Yankunytjatjara and that would have been quite common.”

171               The Reverend Edwards was not able to say with certainty whether, in those circumstances, the woman would have been “a promised wife”, but he did say, talking generally, that “there would have been cases of people moving across those two boundaries and having been promised”. In addressing this problem of “mixed marriages”, he used the expression “a cultural bloc” which he said was wider than just one dialectical group in which those alliances were formed. He thought the cultural bloc in the 1950s and the early 1960s would have extended from Granite Downs (in the east), west into Western Australia to the Warburton Mission some 300 kilometres from the border; the area would have extended to Areyonga in the Northern Territory, some 350 kilometres to the north of Ernabella. In those days, when the Aboriginal people travelled by foot or on horse, donkey or camel, people from Ernabella would occasionally move north to Areyonga for ceremonial purposes or to visit relatives. At other times, they would go west to Warburton and Warburton people would come to Ernabella. Occasionally, there would be a meeting with people from the Everard Park and Granite Downs areas. These were vast distances when one considers the lack of motorised transport. Not unnaturally, the areas that are now traversed in more recent times have increased with the Aboriginal people having access to motor vehicles.

172               Commenting on the situation in the 1950s, the Reverend Edwards, in his 1992 paper, said that most Yankunytjatjara and some Pitjantjatjara people lived on cattle stations to the east. Some, such as Witjintitja (Granite Downs) and Mimili (Everard Park), had permanent populations of approximately 100 and 60 people respectively. Others, such as Kenmore Park, Wapirka (Victory Downs), De Rose Hill and Watju (Mt Cavenagh), had smaller permanent camps. Aboriginal men were employed as stockmen when required and younger women were employed in housework.

173               He added that the drought in the late 1950s and throughout the 1960s encouraged people to remain at Ernabella in the east, Areyonga in the north and Warburton Mission in the west as food and water were available at those centres. The late 1950s and until 1968 were generally years of drought. He could recall there being only two inches of rain in 1961 for example, but the drought broke in 1968 when Ernabella received sixteen inches.

174               The Reverend Edwards explained how the congregation of a large population living at Ernabella on a semi-permanent basis created problems. Members from various local groups were linked to their respective sites, stories and rituals and the residence of several groups together in the one place and away from their own sites caused tension. Thus, where people from other areas gained power and status through work or education or the church, people with traditional links to the Ernabella region felt threatened. In his time at Ernabella, he became aware that most of the pastoral stations in the area had a core group of Aboriginal people who related to a particular station. He was familiar with the use of the word “mob” and expressions such as “the De Rose Hill mob” or “the Granite Downs mob”. He added that, in addition to that core group of people at a particular station, there would be others who were more mobile and who worked there during peak periods of labour, such as the occasions of mustering.

175               The Reverend Edwards devoted some time in his witness statement to what he described as “the outstation movement”. This was a movement which commenced in about 1973 and which, according to him:

“… came about because of a number of factors which facilitated a desire by some people to return to the areas where they were born or their areas of traditional country. There was also a growing awareness of danger which may be posed by mining or other development and a desire by people to keep an eye on their traditional country.”

In making that statement, he did not suggest that it extended to De Rose Hill or to the people who claimed that De Rose Hill was their traditional country. What is more, I am unable to conclude that there was any evidence in this trial that would allow a finding that the evidence of the Reverend Edward about the outstation movement had any application to De Rose Hill or to any of the claimants in this case. He said that the word “homeland” came into vogue in the 1970s and 1980s and was used in preference to the word “outstation”. He felt that the word “outstation” might have been looked on as being a place of a secondary nature, indicating that the main settlements were the prime settlements and that the outstations were, therefore, inferior.

176               Since the 1980s there has been a growth of satellite communities. These have been formed by small family groups who have sought to escape the pressures of the larger communities. These started out of Ernabella, but the model for satellite communities has been followed at Fregon, Amata, Indulkana and Mimili. In some cases, houses have been erected at the satellite communities, solar power has been installed and attempts have been made to establish gardens and develop small sheep and cattle projects. In June 1988, nineteen such outstations or homelands, all based on Ernabella, were listed, but eight were, at that time, unoccupied.

177               In the course of concluding his 1992 paper, the Reverend Edwards commented that most of the Pitjantjatjara and Yankunytjatjara people had “left their traditional sites to reside on pastoral stations, missions and government settlements”. He said that this still remained his view. Changes in policy, and more independent access to resources in recent years, have enabled some to return to their homelands. Others have remained at the larger settlements because of their long residence and associations with the settlement. Others have sought to combine the advantages of settlement and outstation life by establishing satellite communities. The Reverend Edwards is of the view that the older people wish to return to their traditional sites, but that the children and younger people prefer to remain in the larger communities where they have spent most of their lives and where they have access to a wider range of benefits. He agreed that the establishment of the various settlements was in the nature of a “magnet” to the Aboriginal people, supplying them with a reliable source of water and the easy availability of food. This was particularly the case in times of scarcity.

178               It was submitted on behalf of the claimants that any evidence about a movement of Anangu people from the west to the east was a matter of no importance. The respondents, on the other hand, took an entirely different view; they submitted that the “mass migration” of Aboriginal people to the east was fatal to the issue of “connection” to the claim area as required by s 223 of the NTA.

179               Peter De Rose, the first-named of the applicants, said in his witness statement that his family had come from the west looking for food, but in his oral evidence he said that he had only heard that they came from the west: that they had never told him that they came for food. However, there was other evidence that food played a part in the easterly migration. Lilly Yupuna Baker said that she and her parents were all Pitjantjatjara people and that they came east “because there had been a big drought and there was no food”. Mabel Pearson agreed in cross-examination that her parents had moved east in search of “whitefella” food and work. Peter Tjutatja said that his family went to Kantja (site 29) “begging for food”. They had come from Iranytjirany because there had been no food at Iranytjirany. Tjutatja said that, in addition to receiving food at Kantja, the family also received rations at Indulkana. He said that when he came to Kantja, he came with his mother and his uncle, Jimmy. He said in his evidence in chief that he was then a tjitji tjiranka, a boy of about ten to twelve years of age. However, he contradicted himself in his cross-examination. Mr Whitington asked him “were you a little beard or something else?”. Tjutatja replied:

“No, I was a wati – a man.”

180               Cissie Riley told another story, but perhaps, she was talking of a different time. When Cissie was asked why had her parents walked all the way from Docker River she answered:

“They came away because they were fighting there.”

When asked who was fighting, she responded saying:

“The men from west.”

She talked of some fighting involving the Ngaatjatjara people whom she described as “other men from west”. That might have been the reason for their moving, but I would not be confident in making a formal finding to that effect. The uncertainty in Cissie’s evidence is evident from the following exchange:

Q “You say in your statement, Cissie, that your father was Pitjantjatjara. Was he Pitjantjatjara or Ngaatjatjara?

A Pitjantjatjara maybe – Ngaatjatjara.”

181               Riley Tjayrany believed that Pitjantjatjara people have always travelled to the De Rose Hill and Granite Downs areas. He also believed that it had been the practice for the Yankunytjatjara people to travel west into Pitjantjatjara country. Riley volunteered:

“I think they are looking for their wives, I suppose. You know, they always look for women.”

 

He also said that the Pitjantjatjara people come from the west to visit their relations. Riley said that Pitjantjatjara and Yankunytjatjara can converse together and he also said that they each know the Anangu law for the others’ country. He said that it was his understanding that in the old days:

“They follow together that Malu, Kanyala Tjurki Tjukurpa and the other Tjukurpas they know and understand.”

 

182               Witjawara Curtis was asked why her family had moved east from Amata to the Ernabella area. She offered no particular reason, other than to say:

“No, just like that. People used to walk around.”

183               When Tim De Rose was asked whether there were people in Yankunytjatjara country who spoke Pitjantjatjara he said:

“Yes, long time ago there were only Yankunytjatjara people in this area but now they are mixed up together now.”

 

He said that the Pitjantjatjara people came from the west; he offered this explanation:

“They were Pitjantjatjara man were following looking for Yankunytjatjara promised wives then they were married and they lived in this area.”

Tim went on to say that some of the children spoke their father’s language – Pitjantjatjara – whilst others took their mother’s language and spoke Yankunytjatjara. All this happened long ago, before Tim’s time.

184               According to the Reverend Edwards, the expeditions of the early explorers and the subsequent expeditions over the next thirty years or so did little to disturb the traditional residential patterns in the region but there was, nevertheless, an increasing presence by a variety of explorers, adventurers, prospectors and survey parties. These intrusions led to the introduction of rations for the Aboriginal people, such as flour, tea, sugar, lollies, axes and knives and an increasing desire of the Aboriginal people to have more access to those goods. The desire for those goods, together with a severe drought in 1913, probably encouraged Aboriginal people to move east to make contact with pastoralists who, in turn, encouraged men to work on their stations in return for a supply of goods. That` proposition seems to me to be both reasonable and logical and I accept it. Dr Foster, the historian who gave evidence for the claimants, commented upon a migratory movement from the west. In vol 2 of his report, Ex F29, he included information regarding the migration of Aborigines to the region from the west beginning as early as 1886. When combined with the evidence of Mr Vachon and the claimants themselves, it is very clear that there have been, since colonisation, migratory movements by Aboriginal people principally from the west to De Rose Hill and its surrounding region but with some contrary movements to the west.

185               Riley Tjayrany said that when he was young, he had been told by the old men about fights between the Pitjantjatjara people and the Yankunytjatjara people. In fact he said:

“We used to see it when they having a fight, with my own eyes.”

In part of his answer, Riley used the word “wanngintjara”, a word that referred to the event when a young man is looking for a woman to take as his wife. He also used the word wakalpayi which meant that the opposing sides would fight and attempt to spear the thigh of an opponent. Riley also said that the old men had told him that there was a time, when they were young, when many Yankunytjatjara people were killed in a war with the Pitjantjatjara. However, Riley knew nothing of the details. In contrast to this evidence, his biological brother, Whiskey Tjukanku, said that he had never been told by any of the older people that there had been fighting between the Pitjantjatjara people and the Yankunytjatjara people. Both Peter De Rose and Johnny Wimitja De Rose also said that they had no knowledge of fighting between Pitjantjatjara and Yankunytjatjara people. The Reverend Edwards had never heard of tribal war as a reason for the Pitjantjatjara people moving eastwards into Ernabella.

186               In answer to Mr Whitington in cross examination, Peter Tjutatja said that, when he was a young man, he had heard from the older men that there had been fighting between Pitjantjatjara people and Yankunytjatjara people. The fighting, so it would seem, had occurred because a young man wanted a wife but “the other people don’t want him to marrying her”. As a consequence, there was a spear fight. Not only was there a spear fight, but Tjutatja was involved in it. He was speared through the thigh – a fact that he announced with pride and as a badge of honour. He was asked whether he had ever heard about a fight “like a war” between the Pitjantjatjara and Yankunytjatjara people in which many people got “killed dead”. He agreed, saying that that was the occasion when he had been speared. In the spear fight, Old Panma, Tjutatja’s kamuru or uncle, fought with him and helped him. Jimmy Piti Piti, Johnny Wimitja De Rose’s father, also got speared in that fight. I do not regard his initial answer to Mr Whitington as hearsay evidence to the effect that he had been told by older men of earlier fighting between the Pitjantjatjara and the Yankunytjatjara. His evidence on this subject was dominated by his personal involvement.

187               Owen Kunmanara said that there had been fighting between the Pitjantjatjara people and the Yankunytjatjara people but, he added, even though he saw it with his own eyes it was “nothing to do with me”. He said that:

“… they hit them with wana, that digging stick, and they speared with the spear.”

Owen knew a Pitjantjatjara man called Billy Mangi. He said that he “grew him up” and he taught him about work; he concluded that observation with the comment “Okay, he is an old man but he is behind me” meaning that, despite his advanced years, Billy was still younger than Owen.

188               Mr Whitington asked Owen:

Q “Did that man Billy Mangi ever say to you, Owen Kunmanara, that the Pitjantjatjara people moved from the west and occupied Yankunytjatjara country and there was much fighting between those people?”

A Yes, they used to fight because they were bush people and they spear.

Q Did Billy Mangi ever say to you that the Pitjantjatjara people moved from the west?

A No, he came here, he was tjitji, you know, kid, Robbie’s kid – wiya wiya.

Q Did he ever say to you that the Pitjantjatjara people occupied lands of Yankunytjatjara people?

A No, he was a boy. He can’t talk to me, he was only a boy.”

However, Owen said that he had heard from the old men that, before he was born, Pitjantjatjara people had moved from the west. He said “they came from the west. They came here, then they travelled further south. Some way that way – might be Kalgoorlie”. It might well be that Owen’s sense of direction was astray when he mentioned Kalgoorlie. However, the dialogue became more interesting when Mr Whitington asked:

Q “If they came from the west and travelled here in olden times, did they come onto Yankunytjatjara country?

A Yes, they came and they get together – Pitjantjatjara, Yankunytjatjara, Matutjara, Katjilarantjara.”

As I understand this answer, it indicated that people from those four separate language speaking groups were in the course of merging. Owen agreed with Mr Whitington that, as a result of this confluence of peoples, some of the Yankunytjatjara people moved further away towards the east. In the course of his re-examination, Owen said that there was – what may be described as – two-way travel. Just as there were Pitjantjatjara people moving to the east into Yankunytjatjara country, so there were also Yankunytjatjara people moving to the west into Pitjantjatjara country. As he said:

“It is Anangu’s way; Aboriginal way. We travelled to visit relations.”

189               Mona Tur said that she had heard it said that Pitjantjatjara people had moved east onto Yankunytjatjara land because there had been a tribal war. She said that she had heard the story of the tribal warfare from her grandparents and “my mothers – when I say “mothers”, in our culture we have more than one mother – and grandmothers and grandfather.” Mrs Tur said that the story that she had heard was that the Pitjantjatjara was a warring tribe “and our people were placed at Amata, Ernabella, Fregon and all those places, and they pushed the other people east.”

190               The evidence is sketchy and much of it is hearsay, but it would seem that there was a migratory movement of the Pitjantjatjara people to the east. Drought was one reason; looking for wives was another. There was fighting but it is not possible to say when this occurred save that as Peter Tjutatja might be as old as ninety and if he was active in the fighting, it could have occurred sixty or seventy years ago. As the following summaries establish, it is clear, and I find that many of the Aboriginal witnesses in this litigation trace their origins to Pitjantjatjara country which is well to the west of the claim area. The personal histories of the claimants show that most of them are either Pitjantjatjara people of have a parent or grandparent who was a Pitjantjatjara person.

191               The parents of six of the claimants, Peter Tjutatja, Lilly Yupuna Baker, Minnie Nyanu, Edie Angkaliya, Jeannie Kampukuta Inpiti and Witjawara Curtis were all Pitjantjatjara people who migrated from the west to the claim area when the claimants were children. Sandy Panma Williams was born on Yankunytjatjara country but, through his father, Peter Tjutatja he has a strong Pitjantjatjara connection. Riley Tjayrany and Whiskey Tjukanku’s parents were Pitjantjatjara people.

192               Roley Mintuma and Michael Mitakiki were both born on Wapirka, which is probably Yankunytjatjara country but their parents were Pitjantjatjara people.

193               Cissie Riley’s mother was a Yankunytjatjara woman but her father was a Pitjantjatjara man from Docker River. Owen Kunmanara’s father was a Yankunytjatjara man but his mother was a Pitjantjatjara woman from Uluru. Johnny Wimitja De Rose and his sister Tillie Yaltjangki were both born on Yankunytjatjara country as were their parents. However, at least one grandparent, Kurta, was a Pitjantjatjara person.

194               Tim De Rose and his sister, Carlene Thompson, are Yankunytjatjara people. Peter De Rose was born on the claim area but his mother was a Pitjantjatjara woman.

195               Sadie Singer was born on Lambina Station, which is probably Yankunytjatjara country. Her mother was a Yankunytjatjara woman but her father, Billy Langka, was a Pitjantjatjara man. Her children, Bernard and Tanya, would also have a Pitjantjatjara background through their grandfather.

196               I have not included in this summary any reference to Maggie Ward, Alan Wilson, Mona Tur, Alec Baker or Mabel Pearson. They were either not advanced by the claimants as Nguraritja or conceded in their evidence that they were not Nguraritja for the claim area.

the claim area

197               In 1932, the first pastoral lease in respect of the area known as “Agnes Creek” was issued in favour of Thomas Gregory (Tom) O’Donoghue. There was evidence led during the course of the trial that enables me to find that he ran sheep. However, the areas of the leased land (save for references to Kantja) that he might have used for pasturage were not the subject of evidence. He later transferred his interest in the lease to his brother, Jeremiah Michael (“Mick”) O’Donoghue and Doug Fuller and, in 1945, following upon the death of Mick, Mick’s half interest in the lease was transferred to Doug. Although the Station was initially established as a sheep station, after some years cattle were introduced by Doug and by the late 1950s the Station had converted wholly to cattle. As has already been noted, the Station is now managed by Doug’s son Rex. Rex’s son, Alan, also works on the Station.

198               Although the claimants have limited their claim to the land and waters within the boundaries of De Rose Hill Station, they do not thereby acknowledge that the boundaries of the Station are the limits of their country. They have asserted that their country extends in all four directions from the Station. Some of the claimants have also asserted that their country also includes other, separate lands – some of which are far distant from De Rose Hill. Usually, they have made a claim to those other lands because either they, or one of their ancestors had been born there. I do not regard an arbitrary fixing of the boundaries for a claim area as an impediment to an application for a determination of native title: see the comments of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 at [78] (“Yarmirr”).

199               The claim area (as distinct from what is said to be the extent of the claimants’ country) is wholly within the boundaries of the State of South Australia, abutting parts of the eastern and northern boundaries of the lands that have been vested in the Anangu Pitjantjatjara pursuant to the Pitjantjatjara Land Rights Act 1981 (SA). The claim area is within the Out of Hundreds Alberga and Abminga and is the whole of the land and waters within the pastoral leases known as “Agnes Creek”, “Paxton Bluff North” and “Paxton Bluff South”. These are the three pastoral leases that are collectively known as De Rose Hill Station. The Station takes its name from a prominent nearby mesa which was probably named after William de Rose, an army sergeant who was a member of a survey party in the 1880s under the command of John Carruthers: Geoffrey H Manning, Manning’s Place Names of South Australia (Adelaide: GH Manning, 1990), whilst Agnes Creek was named by the explorer WG Gosse after his wife: (Manning op.cit). Neither Manning nor Rodney Cockburn, (South Australia: What’s in a name?, 3^rd Ed, (Ascion Publishing, 1990)) mentions the name “Paxton” but there is a suggestion that he was an Adelaide businessman who financed one of the survey parties that visited the area.

200               The Station is to the north of the small town of Marla, but is separated from it by the former Granite Downs Station (which is now part of the AP Lands). The AP Lands are predominantly to the west of the Stuart Highway (which links Adelaide to Alice Springs and Darwin) and the Tarcoola to Alice Springs railway line, but they extend to the east of those corridors to incorporate the eastern section of Granite Downs Station. De Rose Hill Station is bisected by the highway and railway line, both of which run approximately in a north/south direction. It is also bisected by a large creek that drains from the north-west to the south-east. In the map, Ex A2, that creek has been identified by no less than six names, the first of which, in the north-west, beyond the boundary of the Station, is Marryat Creek. It is then successively named, Waltanta Creek, Watarkatjara Creek, Alberga Creek, Malanatjara Creek and finally, as it leaves De Rose Hill Station, it is shown on the map as Yura Creek. For the most part during the trial, it was referred to as the Alberga Creek and I will use that name as a name of convenience.

201               Five areas of land within the outer boundaries of the claim area are not part of the Station and were excluded by the claimants from their application for a determination of native title. The first of those is the Stuart Highway. On 15 October 1981, a 100 metre wide strip of land, totalling approximately 3.97 square kilometres, was surrendered from the Agnes Creek lease (Partial Surrender No 4806713) and became, in due course, what is today the realigned Stuart Highway. The second parcel of land is the railway line. On 12 November 1998, Certificate of Alteration No 8583773 was issued (based upon a survey that had been completed sixteen years earlier in 1982) by which 9.62 square kilometres of land in the Agnes Creek lease was resumed for the purposes of the Tarcoola to Alice Springs railway line. It was an agreed fact that the railway corridor was 100 metres wide on each side of the line, and it was also an agreed fact that the service road on the eastern side of the railway line and adjacent to it was fully within the corridor. Although the claimants, in the course of the trial, suggested that the Western half of the Marryat Microwave Tower was not within the railway corridor, as I understand it, they subsequently conceded in their final submissions that the tower is fully within that corridor and is therefore excluded from the claim area. I need not therefore consider whether the microwave tower extinguished native title over that specific piece of land. However, I intimate that if I am wrong in my understanding that native title is not sought for the Western half of the Marryat Tower, I would be of the opinion that the microwave tower, complete with fencing preventing entry, is inconsistent with any native title that may have subsisted in that land and has therefore wholly extinguished it. The measurements for the fenced tower are to be found in the plan: Ex A86.

202               The next excluded piece of land was referred to as “Noel Coulthard’s Block”. On 8 May 1980, an area of 0.65 square kilometres was surrendered from the Agnes Creek lease (Partial Surrender No 4583674) and, by document dated 29 January 1981, Miscellaneous Lease No 17628 was issued for a period of twenty years as from 9 May 1980 over that area in favour of a Mr Noel Coulthard. The terms of the lease required that the demised land be used for a “bulk fuel agency transport depot and residential purposes”. On 20 January 1992 a grant in fee simple over this land was issued to Noel Coulthard (Certificate of Title Register Book Volume 4394 Folio 886). Clearly the grant of the parcel of land in fee simple fully and irrevocably extinguished native title: see Mabo (No 2) at 68 and 110; Western Australia v The Commonwealth (1995) 183 CLR 373 at 422 and Fejo at 126. Finally, the claimants conceded that such native title as may have existed over the Wayside Station, which is adjacent to the Stuart Highway, has been fully extinguished by operation of Divs 2 and 2B of Pt 2 of the NTA and Divs 2 and 5 of Pt 6 of the the NT (SA) Act. The land that constitutes the Wayside Station is the land that is described in Certificate of Alteration No 8250597 dated 20 February 1997.

203               One of the maps that was tendered by the claimants, Ex A1, displays the extent of the AP Lands and the claim area. The AP Lands are located in the north-west corner of South Australia; their northern boundary is, in part, the Northern Territory border and their western boundary is the border between Western Australia and South Australia. Their eastern boundary is somewhat irregular. Commencing at its northern most point on the Northern Territory border, it runs due south with Mt Cavenagh Station and then De Rose Hill Station abutting the AP Lands to the east. The boundary then turns to the east along the line of the southern boundary of De Rose Hill Station. It then turns to the south to envelop the former Granite Downs Station (now known as Witjintitja). The map does not extend far enough to disclose the southern boundary of the AP Lands but it runs generally in a westerly direction until it meets the South Australia/Western Australia border. As I have said, it was made clear in the course of the hearing, that the actual claim area was but part of a much larger area of which the claimants considered themselves to be the traditional owners. However, the exact area of the claimants’ land could not be the subject of a finding. The evidence of the Aboriginal witnesses was too confusing and too contradictory. It is however, possible to give some indication of its extent. Using De Rose Hill Station as a pivot, their country was said to extend south and south east to take in parts of Witjintitja; to the west it allegedly extends over the former Kenmore Park Station (which is now part the AP Lands) and beyond, whilst to the north it extends into the Northern Territory to include Mt Cavenagh Station and Kulgera. The claimants’ country is also said to extend to the north-east to take in the south-western section of Tieyon Station. It is understandable that the claimants have not included any of the AP Lands in their application – those lands have already been dedicated and set aside for Aboriginal use under the 1981 South Australian legislation. It is not so obvious why the claimants have limited their claim to De Rose Hill Station: why did they not include the relevant parts of Mt Cavenagh and Tieyon Stations in their application for a determination of native title? As both Mt Cavenagh Station and Tieyon Station are beyond the AP Lands, they would have been susceptible to a claim for a determination of native title, but no such claim was made.

204               The map, Ex A1, shows the location of De Rose Hill Station towards the eastern extremity of the map; it also showed, as a hatched area, a large area of land that was described in a legend to the map as “approximate area of applicants’ country”. That legend was, however, subsequently deleted by consent and it is now uncertain what it is that the claimants advance as the exact extent of their country. Many of the Aboriginal witnesses gave evidence about their place of birth and the place of birth of others by reference to Ex A1. Some of those places are outside the hatched areas. Originally, that would have invited a finding that the place of birth was not part of the claimants’ country. However, in light of the removal of the legend for the hatched area, it is not possible to say, with certainty, in some cases, whether some places of birth were inside or outside the claimants’ country. Some of the witnesses gave evidence about the extent of their country, but the detail of that evidence was, as I have already indicated, inadequate and inconsistent with what other witnesses said.

205               The claimants tendered a second map, Ex A2. It is a “Location Map” of De Rose Hill Station and of sixty-five sites which were said to be sites of significance to the claimants. Forty-six of those sites are on De Rose Hill Station; the rest are on other properties to the south, west and north of the Station. The Court visited and took evidence from a number of witnesses at thirteen of those sites. Three of them, Wantjapila (site 23), Intalka (site 24) and Kirara (site 26) are situated to the south of De Rose Hill on the former Granite Downs Station. Two of them, Wipa (site 5) and Maku (site 1) were to the north of the Station and were located, respectively, on Tieyon and Mt Cavenagh Stations. The remaining eight sites were located on De Rose Hill Station. The Court also visited and took evidence at an area immediately to the west of, and adjacent to, the Station homestead at the request of the claimants. Finally, the larger part of one day was spent, at the request of the Fullers, inspecting the improvements that have been made to the property by them over the years. A section of Ex A2, limited to the area of the Station, is annexed to and forms part of these reasons. The names of the various sites on that map are the names that have been given to the sites by the Aboriginal witnesses. They are not names that were necessarily familiar to, or used by, the Fullers. I will use the Aboriginal names in most cases when referring to a location.

206               It will be necessary to examine the evidence of each of the Aboriginal witnesses to test, inter alia, his or her connection to the claim area. As will become apparent when that exercise is carried out, the degree of connection varied from witness to witness. Many of them referred in their evidence to their observations during “the field trips” or “the native title trips”. These were references to the occasions when a particular witness visited De Rose Hill Station in the company of a legal adviser or an anthropologist (or both) to prepare the claimants’ case for trial. The evidence of their observations on those occasions is relevant and is to be taken into account, but it is to be remembered that those visits did not occur as part of their traditional culture but in the unusual atmosphere of preparing a native title claim for trial.

207               The particulars of the present pastoral leases with respect to the claim area are as follows:

·                   Block No 527 – which is Pastoral Lease No 2133 in respect of Agnes Creek. It is the land that is comprised in Crown Lease Register Book Volume 1133 Folio 26;

·                   Block No 1212 – which is Pastoral Lease No 2138A in respect of Paxton Bluff North. It is the land that is comprised in Crown Lease Register Book Volume 1404 Folio 31; and

·                   Block No 1213 – which is Pastoral Lease No 2190A in respect of Paxton Bluff South. It is the land that is comprised in Crown Lease Register Book Volume 1404 Folio 33.

Agnes Creek

208               Block 527, which is now the Agnes Creek Pastoral Lease, was initially offered for lease under the provisions of the South Australian Pastoral Act 1904 (“the 1904 Pastoral Act”) in 1912: see the South Australian Government Gazette of 4 April 1912. The 1904 Pastoral Act made particular provision for the protection of Aborigines. Its third schedule (which contained covenants to bind every lessee) included the following provision:

“Such leases shall also contain all such exceptions and reservations in favor of the Crown, the Commissioner, the Pastoral Board, Land Boards, Road Boards and other authorities, the aborigines of the State, and other persons, necessary or proper for giving effect to any act or regulation for the time being in force, or not inconsistent therewith, as may be prescribed, or as the Commissioner may require:”

The offer of the lease was not, however, taken up.

209               On 24 August 1923, Permit No 101 (being a permit to search for water) was issued in favour of Tom O’Donoghue of Granite Downs, via Oodnadatta. The permit stated that it was an authority to search for water for a period of twelve months ending on 19 July 1924 over “Crown Lands and being Block 527 Agnes Creek about 144 miles north-west from Oodnadatta comprising an area of 450 square miles”. Permit No 101 was renewed a number of times until 19 January 1927. In itself, this grant would have had a minimal impact on any native title rights existing in the land at that time. Block 527 was later offered, once again, for lease as “unoccupied pastoral lands” under the provisions of the 1904 Pastoral Act; see South Australian Government Gazette dated 22 October 1931.

210               Tom O’Donoghue, who was then living with an Anangu woman named Lily, had initially worked in the Kantja area sinking wells. Kantja is a location on the Agnes Creek in the south central section of De Rose Hill Station. It is site 29 on the map, Ex A2. Tom’s brother, Mick, was then running about 1500 sheep in the area of Kantja, using the Anangu as shepherds. It was Tom, however, who took up the original lease (“the first Agnes Creek lease”) for De Rose Hill in 1932. It was described as Crown Lease Pastoral No 1624 and it was granted to Tom for a period of twenty-one years from 20 July 1932. Section 5 of the 1904 Pastoral Act allowed the Governor to grant leases for “pastoral purposes” – a term that was not defined, but in light of the decision of the High Court in Wik, it is one that should be regarded as being inclusive of the raising of livestock and the undertaking of all activities incidental thereto in establishing an efficient pastoral station. The 1904 Pastoral Act provided for leases of up to forty-two years duration (s 49) and imposed a condition requiring a yearly expenditure of monies on improvements (s 61). The terms of the section were originally:

“61 Every pastoral lease hereafter granted shall, in addition to the covenants already provided for, contain a covenant binding the lessee, in such form as may be prescribed, to expend in improvements on the land such sum, not exceeding Ten Shillings per mile [sic] per annum, as shall be recommended by the Pastoral Board, approved by the Commissioner, and fixed by the lease: Provided that such covenant shall cease so soon as there shall be at least Three Pounds per mile [sic] value in improvements expended on the land.”

211               Section 61 was amended in 1929 so as to read as follows:

“61. Every pastoral lease hereafter granted shall in addition to the covenants otherwise provided for, contain a covenant binding the lessee to expend such amount (if any) of money as is necessary to ensure that –

(a) by the end of the fifth year of the term thereof the value of the improvements on the said land will be not less than Ten Pounds per square mile; and

(b) by the end of the thirteenth year of the term thereof the value of the improvements on the said land will be not less than Fifteen Pounds per square mile;

(c) by the end of the twenty-first year of the term thereof the value of the improvements on the said land will be not less than Twenty Pounds per square mile.”

In the first Agnes Creek lease the major covenant to improve the land reflected the terms of the 1929 amendment to the 1904 Pastoral Act:

“… the Lessee will expend in improvements on the said land by the end of the fifth year of the lease a sum of not less than ten pounds per square mile by the end of the thirteenth year a sum of not less than fifteen pounds per square mile and by the end of the twenty-first year of the term not less than twenty pound per square mile …”

212               A consolidation of the Pastoral Acts in 1936 left s 61 unaltered save that the provisions of the section were henceforth to apply only to those leases that were granted after 12 December 1929. The quantum required to be expended under s 61 was increased in 1939 with the insertion of s 61a but the original yearly rental of one peppercorn remained unaltered. There were, however, other covenants included in the lease relating to the upkeep of improvements and how the amount spent on improvements was to be calculated, but it is unnecessary for the purposes of these reasons to examine them further.

213               In 1943, Tom O’Donoghue transferred his interest in the first Agnes Creek lease to his brother, Mick, and to Douglas Clarence Fuller as tenants in common. A year later, Public Trustee, as the executor of Mick’s estate, he having died on 6 June 1944, transferred the deceased’s undivided moiety in the lease to Doug. The consideration was twenty five pounds sterling. That Crown Lease, from the time of its issue, included in its covenants a reservation of certain rights for the benefit of Aboriginal people. The relevant clause was in the following terms:

“And reserving to Aboriginal Inhabitants of the said State and their descendants during the continuance of this lease full and free right of egress and regress into upon and over the said lands and every part thereof and in and to the springs and surface waters thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made.”

214               It is of interest to note that the reservation appears to favour all Aboriginal inhabitants of the State. However, the use of the word “heretofore” might suggest some form of limitation so that the benefits are to be enjoyed only by those Aborigines who have had some earlier connection with the land.

215               On 13 August 1953, the Minister of Lands issued a fresh lease (“the second Agnes Creek lease”) to Douglas Clarence Fuller for Block Number 527. The lease, which was then described as Pastoral Lease Pastoral No 2133, Register Book Volume 1133 Folio 26, was originally for a period of forty two years, commencing on 10 February 1953 and expiring on 9 February 1995. Like the lease that it replaced, this lease also contained a covenant that reserved rights for Aboriginal inhabitants; there were some minimal changes in the language of the reservation but, save for one significant change, they are not material for present purposes. The one significant change dealt with the right of entry over the land that was reserved to Aboriginal people – they were now denied entry to “such parts as improvements have been erected”. The addition of that phrase was an obvious limitation on the rights that the Aboriginal people previously enjoyed to the claim area. The reservation was thus in the following terms:

“AND reserving to Aboriginal Inhabitants of the said State and their descendants during the continuance of this lease full and free right of access ingress egress and regress into upon and over the said lands and every part thereof except such parts as improvements have been erected upon and in and to the springs and surface waters thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made.”

216               The claimants submitted that this limitation on native title would apply only to such areas where improvements had been constructed prior to the date when the second Agnes Creek lease was granted. The basis of that submission was the use of the past tense “have been erected” in the reservation in favour of the Aboriginal people. I cannot accept that submission. It ignores a clear, if not dominant, object of all pastoral leases and the legislation governing them which was to facilitate the development of remote pastoral areas. Such an intention would be poorly served by the claimants’ suggested interpretation of the reservation. The ordinary meaning of the reservation was, in my opinion, to the effect that any right of access, ingress, egress or regress would be dependent or contingent on the state of the improvements at the time of the attempted access, ingress, egress or regress. Furthermore, pastoral leases, of which Agnes Creek is an example, are long-term affairs spanning decades. To freeze the operation of the reservations to the moment of grant would ignore the clear possibility that, over the term of a forty-two year lease, conditions on the property may change (and in the case of De Rose Hill Homestead have changed) radically. It would be contrary to the tenor of the reservation and the legislation that regulates pastoral leases in South Australia that, having invested large amounts of time, effort, money and resources (indeed being legally obliged to do so pursuant to various Pastoral Acts) the lessee would only have rights under that reservation in the lease at the time the lease was granted. I reject that interpretation.

217               The inclusion of the additional words “except such parts as improvements have been erected” in the second Agnes Creek lease, constituted a conscious decision by the relevant authorities to limit the scope of Aboriginal access to pastoral land. Nevertheless, it was the clear and plain intent and legal effect of the reservation to continue the preservation of certain Aboriginal rights in the claim areas, albeit in a somewhat diminished state compared to the reservation in the first Agnes Creek lease.

218               Such a reservation therefore poses what is, in my view, an insurmountable hurdle to any suggestion that “operational inconsistency” (which is discussed later in these reasons) has extinguished native title in the whole of the claim area. How can it be said that improvements, that are constructed pursuant to statute or pursuant to covenants in a lease, will fully extinguish native title over the whole of the land in the lease when other covenants, issued under the same auspices, preserve rights that are native title rights? In my opinion, the provisions of the Pastoral Acts and the pastoral leases have made it abundantly clear that some, at least, of the rights of the Aboriginal people in respect of the whole of the land in the leases were substantially preserved, despite the nature of the improvements that were required of the pastoral lessee.

219               In my opinion, the presence of the reservation in favour of Aboriginal people in the South Australian pastoral leases, as required by the various Pastoral Acts, meant that, save for the question of improvements, full extinguishment did not occur. On the other hand, it is clear that partial extinguishment has occurred in respect of the claim area, and that such extinguishment is defined in scope by having regard to the terms of the legislation that authorized the leases and to the terms of the leases themselves. They are matters that are central to a determination of the extent of any extinguishment.

220               In my opinion, the views that I have expressed are consistent with the provisions of the 1989 Pastoral Act. That Act, which was passed in 1989 and came into force on 7 March 1990, introduced significant changes to the previous regime. It revoked some of the reservations that had been contained in pastoral leases, replacing them with a statutory regime of access for Aborigines who are following “traditional pursuits”. Later I will explain why I have concluded that it cannot be argued that the abolition of the rights that were contained in the covenants in a pastoral lease and their replacement with statutory rights amounted to an extinguishment of common law native title rights and a replacement with statutory native title rights.

Paxton Bluff North

221               The history of the land tenure with respect to Paxton Bluff North commenced in 1911 when the Commissioner of Crown Lands granted Charles Bromley and Thomas Brady Permit No 99 to occupy, for pastoral purposes, an area of 120 square miles for a period of twelve months ending on 13 June 1912. Nothing seems to have happened after that until 20 July 1932 when a Pastoral Lease was issued in favour of James Alfred Smith. The land that was expressed to be the subject of the lease was described as Block 817 containing 151 square miles. That lease was for a period of twenty-one years, expiring in 1953 at a yearly rental of one peppercorn. It contained a reservation of rights for Aboriginal inhabitants in terms that were identical to those that were contained in the first Agnes Creek lease.

222               James Alfred Smith transferred his interest in this lease in December 1944 to Frank (sometimes called Francis) Robert Smith, Jessie Smith and Robert James Smith. On 7 August 1953, a fresh Pastoral Lease No 2138 Register Book Volume 1133 Folio 14, was issued was to the three lessees. It was for a period of forty-two years commencing on 10 February 1953 and expiring on 9 February 1995; it contained a covenant that reserved rights to Aboriginal inhabitants in terms that were identical to those in the second Agnes Creek lease. In October 1959, the Smiths transferred their interests in that Crown Lease and in three other Crown Leases to Tieyon Pastoral Company Pty Ltd. Frank Robert Smith, the first named Crown Lessee, also signed the relevant memorandum of transfer as a director of the acquiring company, thereby indicating that the transaction was probably not a disposal to an independent third party. In 1973, Tieyon Pastoral Company Pty Ltd surrendered its Crown Lease No 2138 so that part of it, consisting of 66 square miles, could be the subject of the grant of a pastoral lease to Doug Fuller, whilst the balance would be retained by the company under a new lease. The Minister of Lands gave his approval and on 27 February 1973, Crown Lease Pastoral No 2138A Register Book Volume 1404 Folio 31 issued in the name of Douglas Clarence Fuller. The land that was the subject of the lease was described as Block 1212 being approximately 85 miles west – south-westerly from Abminga Railway Siding and known as “Paxton Bluff North”. The term of the lease was from 3 October 1974 to 9 February 1995. A reservation for the benefit of Aboriginal inhabitants also appeared in this lease in the following terms:

“AND ALSO reserved to Aboriginal inhabitants of the said State and their descendants full and free rights of access into upon over and from the said land except such parts as improvements have been erected upon and in and to the springs and surface waters thereon and to make and erect wurlies and other native dwellings and to take and use for food birds and animals ferae naturae as if this lease had not been made …”

The language of the reservation closely followed that of the reservation that was contained in the second Agnes Creek lease.

Paxton Bluff South

223               The history of the land tenure with respect to Paxton Bluff South, like that of Agnes Creek, commenced with a permit to search for water. It was issued by the Commissioner of Crown Lands on 23 June 1932 in favour of Reginald Antliffe Alvey. The relevant land was described as Block 530 “adjacent to Mount Howe South and Agnes Creek Pastoral Runs”. The permit was for a period of twelve months ending on 11 May 1933. The first Pastoral Lease, No 2034, Register Book Volume 912 Folio 1 was issued on 15 January 1940, some eight years after the lease for Paxton Bluff North, in favour of James Alfred Smith; it was for a period of twenty-one years, commencing on 25 July 1939 and expiring on 24 July 1960. Like the other Pastoral Leases it contained a covenant that reserved rights for Aboriginal inhabitants. This Lease was one of the four Crown Leases that James Alfred Smith transferred to Frank Robert Smith, Jessie Smith and Robert James Smith in December 1944 and one of the four Crown Leases that they transferred to Tieyon Pastoral Company Limited in October 1959. At the same time as Tieyon Pastoral Company Pty Ltd surrendered its Pastoral Lease No 2138 in respect of Paxton Bluff North, it also surrendered this Pastoral Lease so that a portion of it could be the subject of a new lease in favour of Douglas Clarence Fuller; that new Lease issued on 7 February 1975 as Crown Lease Pastoral No 2190A. The land that was the subject of that lease consisted of 134 square miles and was described as Block 1213 known as “Paxton Bluff South”. The term of the lease was from 3 October 1974 to 24 July 2002. A reservation for the benefit of Aboriginal inhabitants also appeared in this lease in terms identical to that contained in the 1973 Paxton Bluff North lease.

224               On 31 August 1989, Doug Fuller transferred an undivided moiety in all three leases to Rex’s company, R D Fuller Pty Ltd and, four years later, on 30 August 1993, Doug and RD Fuller Pty Ltd transferred the three leases from themselves as tenants in common to themselves as joint tenants.

Improvements and developments

225               There are a number of improvements on De Rose Hill Station that have been added progressively over time. Evidence, in the form of reports from inspectors from the Pastoral Board, have satisfied me that it is one of the better developed pastoral properties in the far north-west of the State. The property is said to be “self-mustering”. As a result, it is capital intensive but labour efficient. It is operated around a number of watering points with cattle yards that are centred on those waters. The cattle yards have a series of one-way gates so cattle can get in but not out of a particular gate. The entrance gate is spring-loaded so that it opens easily as the beast pushes its way forward. The beast will leave the yards after watering through another gate (“the exit gate”) which is left open. When there is a need to muster the cattle, the exit gate is shut and the cattle, once they enter, are trapped in the yard. Another feature of the property is that there is a network of airstrips so that if the roads are cut off through rain, the property, the roads and the stock can be checked from the air.

226               In a report of October 1970 to the Pastoral Board, the reporting Inspector noted that the Station was well equipped with water improvements. Fencing was described as “good and well maintained” and yards were said to be “very well built”. The report concluded with the following summary:

“This is only a small lease, well-improved, and over the years the lessee has made a very good living from it…It is well watered…His improvements are well constructed and maintained.”

A report of May 1973 concluded that the “Station plant is very comprehensive, and maintained in excellent order”. A report of August 1976 stated that “The improvements on these leases are a credit to the lessee. They are well planned and regularly maintained”. The report of 1982 said that:

“This lease, along with Todmorden is the best improved lease in the Far North West…The improvements on the lease cannot be faulted…De Rose Hill is in as good condition as any lease in the North West”.

In the 1987 report, the author commented that “There is no doubt that this is one of the best developed properties in the cattle area of South Australia”. In 1988, a minute to the Chairman of the Pastoral Board regarding an inspection of the Station stated that, “without doubt, it is the best improved cattle station I have yet seen”. The comparison with the neighbouring properties was illuminating:

“It is impossible to compare De Rose Hill with any of its neighbours due to the fact that because of its smaller area, the improvements and management style have had to be upgraded.

 

Rex Fuller’s performance is far ahead of any other station in the area (including the performance of his father).

 

The difference between De Rose Hill and Ayers Range South in the fields of improvements and managements is vast and starkly contrasting.”

In a report of 4 December 1994, it was again said that “De Rose Hill is the most intensively improved and managed lease in the Marla-Oodnadatta district”. It is apparent that the Pastoral Board is of the view that the Station is well-improved and well-planned. The reports also indicate that it has been designed so that it can operate with a minimum of labour.

227               The endorsements on the three Crown Leases indicate that, from time to time, minor alterations have been made to the boundaries of the leased areas, such that the plans that are annexed to the Crown Leases do not now coincide with the fenced boundaries of the leases. Although detailed measurements were not adduced in evidence, I understand it to be common ground that the outer perimeter fences of De Rose Hill Station are not wholly constructed on the surveyed boundaries of the Station. Moves are therefore afoot to amend the areas that are the subject of the leases so that (new) surveyed boundaries will coincide with existing fences. It was the case for the claimants that the area that is marked with solid boundaries on the annexed map, Ex A2, represents the present outer fence lines of the three pastoral leases. That map also contains a series of dotted lines which, so it was said, represent the boundaries of the station as ascertained by reference to the leases. If those dotted lines are correct, and if the boundaries of the variously affected station properties are altered to coincide with existing fence lines, it would mean that De Rose Hill Station would lose land on its south eastern and eastern boundaries to Tieyon Station but gain land from Tieyon and Mt Cavenagh on its northern boundary.

228               Subject to the five parcels of land that were identified as not being part of the claim area, the claimants have sought, in their application, a determination of native title for “the whole of the land and waters within the pastoral leases known as Agnes Creek, Paxton Bluff North and Paxton Bluff South”. That can only be interpreted as referring to the official boundaries as distinct from the land and waters that are enclosed by the Station’s outer boundary fence lines. The claimants were concerned that a site of spiritual significance to them called Kulpitjara would, as a consequence, be lost to them. Kulpitjara is site 10 in the map, Ex A2, in the north-east corner of the Station. It is beyond the actual lease boundary of De Rose Hill but it is within the fence line of the Station; it appears to be situated on Tieyon Station. Kulpitjara would not be included in a determination in the event of the claimants being successful in these proceedings even though it appears as if it will become part of De Rose Hill Station as a result of the intended new survey.

229               I do not understand the claimants’ concern about the potential loss of Kulpitjara should their application be successful. As I have already noted, their assertion is that they are entitled to native title to a greater area, of which De Rose Hill Station is merely a part. Furthermore, as will become apparent in due course, evidence was led at – and in respect of – several sites which were beyond both the lease boundaries and the fence boundaries of De Rose Hill Station. They were also sites which were said to be of importance to the claimants. Even though Kulpitjara might become part of De Rose Hill Station when the changes to the boundaries are implemented, it is not presently part of De Rose Hill Station and, as the application for a determination of native title is limited to De Rose Hill Station, access to Kulpitjara under the NTA would be denied to the claimants.

230               It was not possible, because of the provisions of s 64 of the NTA, to amend the present application to include Kulpitjara as that would have involved the inclusion of land additional to the land that was covered by the original application. The fact that the realignment of the boundaries would mean that De Rose Hill Station would have excised from its boundaries a compensating parcel of land does not assist. Subsection 64(1) of the NTA states:

“An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.”

231               It is clear that the “original application” is the “Form 1” document that was filed on behalf of the claimants on 1 November 1996. I take subs 64(1) to mean that no parcel of land, outside the original application, can be included in any amendments to the area covered by the claim. This is so, notwithstanding the fact that a claim area may have earlier been amended to reduce the claim area in size from that in the original application (see s 64(1A) of the NTA).

232               In Kogolo v Western Australia (2000) 102 FCR 38, Lee J commented on s 64(1) at [8] in the following terms:

“Under s 64(1) and (2) an amendment must not result in the inclusion of land not covered by the ‘original application’ unless the amendment combines the application with another claimant application to include in the claim area land covered by the other application.”

233               Lee J considered that subs 64(1) facilitated certainty in that it identified the exact area that was claimed. Although land could be excised from the claim area, areas outside the original claim could not be added. To do so would hardly “facilitate certainty”. I respectfully agree with the reasoning of Lee J. I therefore find that the areas that are the subject of the application for a determination of native title are those lands that are presently within the boundaries as disclosed in the pastoral leases known as Agnes Creek, Paxton Bluff North and Paxton Bluff South.

LEGISLATION

234               It is common ground that the Crown acquired sovereignty over the Colony of South Australia and that, by right of the common law, the Crown acquired a radical or ultimate title to all the land and waters in the Colony. That, however, as Brennan J explained in Mabo (No 2), at p 17, did not mean that the Crown also acquired absolute beneficial ownership of the land and waters when it acquired sovereignty over them. What follows is a brief summary of the Imperial legislation that established the Colony and a reference to the various parcels of legislation that were subsequently enacted by the State.

235               In 1834, the Imperial Parliament passed an Act, 4 and 5 William IV, c. 95, entitled: “An Act to Empower His Majesty to erect South Australia into a British Province or Provinces, and to provide for the Colonisation and Government thereof” (“the 1834 Act”). That Act was subsequently repealed by The South Australia Act, 1842 (5 and 6 Vict c. 61) (“the 1842 Act”). In its recitals, the 1834 Act had referred to the land mass that is now recognisable as South Australia, as “waste and unoccupied lands”. It then recited that certain of His Majesty’s subjects, possessing amongst them considerable property, were desirous of embarking for that part of Australia and that it was considered highly expedient that His Majesty’s said subjects should be enabled “to carry their said laudable purpose into effect”. The 1834 Act then recited that His Majesty’s subjects were “desirous that in the said intended colony the uniform system in the mode of disposing of waste lands should be permanently established”. There followed the enactment entitling His Majesty to establish one or more Provinces in the designated area in respect of which all persons “shall be subject to and bound to obey such laws, orders, Statutes, and Constitutions as shall from time to time, in the manner hereinafter directed, be made, ordered, and enacted for the Government of His Majesty’s province or provinces of South Australia”. Section 3 of the 1834 Act allowed for the appointment of three or more Commissioners to carry certain parts of the Act into execution. They were to be styled “the Colonisation Commissioners for South Australia” (s 4). They were empowered to sit as a “Board of Commissioners” (s 4) and declare all the lands in the Province “to be public lands open to purchase by British subjects …” (s 6). However, the same section required that none of the public lands could be sold for a lower price than the sum of “twelve shillings stirling per English acre”. The whole of the funds that were received, as purchase money on the sale of public lands or as the rent of the common or pasturage of unsold portions, was to constitute an “Emigration Fund”. That fund was to be employed in conveying poor emigrants from Great Britain and Ireland to the province.

236               Section 8 allowed for the appointment of a Commissioner of Public Lands who was to be resident in the Colony and who was to act under the orders of the Board of Commissioners. The Board of Commissioners was also empowered to appoint a Treasurer, Assistant Surveyors, and other persons for carrying the Act into execution “respecting the disposal of the said public lands and the purchase-money thereof” (s 9). Section 17 of the 1834 Act empowered the Commissioners to borrow sums of money not exceeding £50,000 for the sole purpose of defraying the costs of the passage of poor emigrants from Great Britain or Ireland to the Province; that section also enabled security to be given for any such borrowings and those securities were to be known as “South Australia Public Land Securities”. It was further provided that any such monies that were borrowed for this purpose were to be borrowed “on the credit of and be deemed a charge upon the whole of the fund to be received as the purchase money of public lands, or as the rent of the common or pasturage of unsold portions thereof”. Section 18 contained another power to borrow money; this was a general power, unlike the specific power in s 17, that related to the payment of the expenses of the colony. The section permitted the Commissioners to borrow up to £200,000 by issuing securities to the lenders which were to be known as “South Australian Colonial Revenue Securities”. Section 20 offered the lands of the colony as a collateral security for the repayment of any monies borrowed pursuant to the South Australian Colonial Revenue Securities. In the event of the Commissioners being unable to raise the whole of the £200,000, or in the event that the ordinary revenue of the Province should be insufficient to discharge the obligations of all or any of the securities then, in such circumstances, “the public lands of the said Province or Provinces then remaining unsold, and the monies to be obtained by the sale thereof, shall be deemed collateral security for payment of the principal and interest of the said colonial debt”.

237               Initially, the State, supported by the Fullers, pleaded that the Imperial legislation had the effect of wholly extinguishing native title. The vesting of the land in the Commissioners and their ability to charge the land for the repayment of the securities was said to be incompatible with a retention of native title. However, during the course of the trial, counsel for the State announced that he had been instructed to inform the Court that the State would no longer pursue that argument. Shortly afterwards, counsel for the Fullers advised the Court that his clients would follow the State’s lead.

238               Further Imperial legislation was introduced in 1842. It repealed and replaced the 1834 Act and the responsibilities of the Colonization Commission were taken over by the Board of Colonization Commissioners for Land and Emigration. The 1842 Act received the Royal Assent on 30 July 1942 and provided for South Australia to be governed in the same manner as the other colonies. At about the same time an Act “for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies” (5 and 6 Vict c.36) (1842) (“the Crown Wastelands Act”) was introduced. It applied to all the then Australian Colonies as well as New Zealand and it introduced a common system for the disposition of crown land. It gave some recognition to the Aboriginal inhabitants of the Colonies and reserved to the Crown the right to set aside land for their use or benefit. After reciting that it was “expedient that a uniform system of disposing of the Waste Lands of the Crown in the Australian Colonies should be established”, it went on to provide that:

“… nothing in this Act contained shall extend or be construed to extend to prevent Her Majesty, or any Person or Persons acting on the Behalf or under the Authority of Her Majesty, from excepting from Sale, and either reserving to Her Majesty, Her Heirs and Successors, or disposing of in such other manner as for the Public Interests may seem best, such Lands as may be required for … [various nominated purposes including] … the Use or Benefit of the Aboriginal Inhabitants of the Country …”

239               The first South Australian legislative act that affected Aboriginal people in pastoral areas was an Order in Council that was proclaimed on 7 November 1850. It allowed the then Commissioner for Crown Lands of SA to draft a provision in pastoral leases for the reservation of rights for Aboriginal people in land. That theme – of a reservation of rights – was to continue in subsequent legislation. For example, Sch A to the Pastoral Act 1893 (SA) (“the 1893 Pastoral Act”) contained a requirement that all such leases were to contain a reservation in favour of Aborigines of the State. That requirement was continued in the 1904 Pastoral Act and the Pastoral Act 1936 (SA) (“the 1936 Pastoral Act”). Consequently, all pastoral leases that were issued by the State had reservations regarding the rights of Aboriginal people to have access to pastoral lands. As Dr Foster noted in his report, the policy of the Colonial Office toward Aboriginal people at the time of South Australia’s foundation was one of protection. In making that observation, he referred to the recommendations of the 1837 Report from the Select Committee on Aborigines (British Settlements) which stressed the importance of ensuring that officers in charge of Aboriginal welfare be independent of Colonial governments.

240               As has already been mentioned, the South Australian Parliament passed the 1989 Pastoral Act which repealed the 1936 Pastoral Act. Clause 5 of the transitional provisions of the 1989 Pastoral Act contained a general provision that extended, subject to cl 6, all existing pastoral leases for a period of forty-two years from 7 March 1990, the date of the commencement of the 1989 Pastoral Act. Sub-clause 5(1) is in the following terms:

“Subject to clause 6, a lease in force under the repealed Act immediately prior to this Act becomes, on that commencement, and continues in force as, a pastoral lease under this Act with a term of 42 years running from that commencement.”

241               The repealed Act was defined as meaning the 1936 Pastoral Act. Clause 6 of the transitional provisions has no application to these proceedings as it deals with those cases where the Governor has determined that the land that is the subject of the lease should be set aside or used for some other purpose or the Minister was satisfied that the relevant land was no longer suitable for pastoral purpose.

242               A “Certificate of Alteration” (No.7046627), having general application to all pastoral leases, was filed by the Minister of Lands in the Registrar-General’s Office on 22 January 1991. The operative section of that document was as follows:

“WHEREAS the Pastoral Act 1936 (referred to as the ‘repealed Act’) was repealed upon the enactment of the Pastoral Land Management and Conservation Act 1989 (referred to as the ‘new Act’); and

WHEREAS by operation of clause 4(1) of the transitional provisions of the new Act a Crown Lease in force under the repealed Act immediately prior to the commencement of the new Act became, on that commencement, and continues in force as, a Crown lease under the new Act, with a term of 42 years commencing on the day of operation of the new Act; and

WHEREAS the conditions (including covenants) and reservations of the Crown lease remain unaltered by the conversion to a lease under the new Act, save the exceptions stated in clause 4(2) of the transitional provisions; and

NOW the Registrar-General is requested to make the following endorsement pursuant to Section 65 of the new Act upon the Crown Pastoral leases stated in the schedule attached:

‘Pursuant to the provisions of the Pastoral Land Management and Conservation Act, the term of the Crown lease has been varied so as to commence on 7 March 1990 for a period of 42 years. The condition (including covenants) and reservations remain unaltered with the following exceptions:

1. the rent payable under the lease will be an amount determined annually by the Valuer-General subject to the provisions of Section 23 of that Act and payable annually in arrears each year on a date to be fixed by the Pastoral Board;

2. no species of animal other than sheep or beef cattle can be pastured on the land, as part of the commercial enterprise under the lease without the prior approval of the Pastoral Board; and

3. the reservations relating to aboriginal persons and access to the land are revoked.’”

243               As can be seen, certain terms in all pastoral leases were revoked: most notably, the reservations relating to Aboriginal persons’ rights of access to land and waters. Those provisions were replaced, however, with statutory rights that are now contained in s 47 of the 1989 Pastoral Act (the provisions of which are set out in par 48 of these reasons).

244               It was common ground that the three Crown leases, with which these proceedings are concerned, are pastoral leases for the purpose of s 47 of the 1989 Pastoral Act. “Pastoral land” is defined in that Act to mean “land comprised in a pastoral lease” and “pastoral lease” means a lease for pastoral purposes granted under the 1989 Pastoral Act over Crown land. It was also common ground that s 47 applies to all persons who may properly be described as an Aborigine who is “following the traditional pursuits of the Aboriginal people”. It would seem that s 47 is not limited to those Aboriginal persons who reside in the area or who claim native title over the area; it would extend to any Aboriginal person so long as he or she was “following the traditional pursuits of the Aboriginal people”. It is not necessary, for the purposes of these reasons, to define the identities of those Aboriginal people who might legitimately gain access to De Rose Hill under s 47. It is, in my opinion, sufficient to hold that all those who might be able to establish an entitlement to native title and all those who might properly be regarded as Nguraritja would be entitled to access to the Station so long as their purpose in accessing the land was to follow the traditional pursuits of the Aboriginal people.

the statutory lease?

245               The Fullers submitted that the legal effect of transitional clause 5(1) in the 1989 Pastoral Act was to grant a new lease (“the Statutory lease”) to each pastoral lessee for a term of forty-two years. Such a lease, having been granted after the Racial Discrimination Act 1975 (Cth) (“the RDA”) came into force, would, so it was argued, be prima facie invalid: the grant would have been inconsistent with either ss 9 or 10 of the RDA in that it adversely affected the rights of a particular group to the advantage of another group without compensation. However, the Fullers submitted that any such lease would then be validated by the provisions of s 32 of the NT (SA) Act. On the assumption that native title existed in the claim area, the “grant” of the Statutory lease would have been a Category “A” past act for the purposes of ss 228 and 229 of the NTA. This would be the case because the act consisted of the grant of a lease that was made before 1 January 1994. According to the Fullers, the grant of such a lease would have been invalidated by the provisions of the RDA, but only because of the existence of native title; but for that, it would have been valid. In those circumstances, according to the submissions that were advanced on behalf of the Fullers, the grant was validated by s 32 of the NT(SA) Act and permanently extinguished native title in the claim area by force of s 33 of the NT (SA) Act. The State, on the other hand, submitted that the 1989 Pastoral Act did not create new leases, that the leases are and remain valid and that s 32 of the NT (SA) Act does not come into operation. In fact, the State submitted that the leases escape the operation of the NT (SA) Act altogether as s 36F of that Act does not operate where a reservation in favour of Aborigines exists. The State faintly argued that the initial granting of the pastoral leases had extinguished native title, but that argument flies in the face of authority and the State conceded as much. As a result of the decision of the High Court in Ward, the State, in its supplementary submissions, made it clear that it does not now press its argument that the grant of the pastoral leases gave exclusive possession to the lessees.

246               The Fullers’ submission can be dealt with shortly; its underlying premise was that the 1989 Pastoral Act granted a new lease (that is, the Statutory lease). In my opinion, however, the transitional provisions contained in the 1989 Act did not create a new lease. The language simply does not support such a construction; in fact, it strongly supports the contrary conclusion – that the legislation intended that existing pastoral leases should be continued, albeit with some altered conditions. As a result of cl 5, a lease in force under the repealed Act immediately prior to the commencement of the 1989 Pastoral Act became, on that commencement, and continues thereafter in force as, a pastoral lease with a term of forty-two years as from that commencement. The matter is made clear by cl 5(2) of the transitional provisions:

“The conditions (including covenants) and reservations of such a lease are not affected by its conversion to a pastoral lease pursuant to subclause (1) …” (emphasis added)

The language of the clause is conversion. It is not replacement, nor is there anything that might indicate that the intention of the Parliament was to create a new lease; rather it indicates the modification of the existing leases so that they could be adapted to the new legislation. The De Rose Hill pastoral leases were all issued before the RDA came into operation. The grants of those leases were not, therefore, past acts within the meaning of s 228 of the NTA because they were, at the time of the issue, validly granted pastoral leases.

247               It is very difficult to see how it could be said that the 1989 Act has extinguished native title by clear legislative intent; rather, I am satisfied that it has preserved it, even though the contents of s 47 can be seen as having the effect of curtailing some native title rights. It seems inconceivable, in light of the history of the reservations that have been included in pastoral leases and various pieces of relevant legislation, including the provisions of the 1989 Pastoral Act, that it could be said that any native title existing in the claim area has been wholly extinguished by force of legislation or by the terms of pastoral leases that have been granted pursuant to that legislation. The 1989 Pastoral Act has, in my opinion, a greater regard for the rights of Aboriginal inhabitants than any of the legislation that has been considered in previous decisions of this Court and of the High Court. Its objects, which are set out in s 4, include the following:

“To recognise the right of Aborigines to follow traditional pursuits on pastoral land …”

Furthermore, the Minister and the Pastoral Board are directed by s 5 to “act consistently with and seek to further the objects of this Act”.

248               The 1989 Pastoral Act contains a number of provisions that are beneficial to Aboriginal people. They are provisions of a kind that have been held by the majority in Ward in the High Court to indicate that they were going further than merely preserving an existing native title right of access to seek sustenance. Both the Western Australian legislation that was considered in Ward and s 47 of the South Australian legislation have elevated that right to a statutory right. Moreover, the Western Australian provision (but not the South Australian provision) extended the scope of that right to all “Aboriginal natives”. However, the elevation of those rights to a statutory right did not carry the implication that the pre-existing native title rights were abolished. On the other hand, the 1989 Pastoral Act cannot restore native title rights that have been extinguished by previous legitimate acts of the Crown. Native title, once extinguished, cannot be revived: see s 237A of the NTA which provides as follows:

“The work extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that causes the extinguishment ceases to have effect.” (original emphasis)

 

See also Fejo, at 131, where it was held that a grant in fee simple extinguished native title and that a subsequent resumption of the land by the Crown did not revive any prior native title rights. However, if the 1989 Pastoral Act has granted rights that are more extensive than those that previously existed at common law, such additional rights do not derive from the NTA nor would they act to restore native title. They are statutory in origin and nature and cannot form part of any determination of native title.

allowance for aboriginal witnesses

249               The ability of an Aboriginal person, who was born in the Outback and who has lived and worked in the Outback all of his or her life, to comprehend questions that are presented in English has to be assessed with care. Even though a witness might speak English with an apparent degree of fluency there are competing factors which could affect the accuracy of the answer of a witness if he or she were required to answer in English. In the first place, there is the problem of comprehension: does the witness truly understand the questions that have been asked, particularly those that are couched in idiomatic English or those that are couched in terms that are not restricted to plain every day words? The second great area of concern is the witness’ ability to think in English in order to answer accurately in English. Then there is the nature of the occasion and the forum in which the questions are being asked: a formal or alien setting might inhibit the ability of the witness to answer fully and frankly in English. In this trial, every effort was made to avoid the formalism of a court of law, but the fact remained that it was a court that was in session and no Aboriginal witness would have been unaware of that fact. It was for these reasons that I permitted those Aboriginal witnesses, who wished to, to give their evidence through an interpreter.

250               Peter De Rose, for example, was cross-examined at length about his comprehension of the English language and his ability to communicate in English. It would seem, from his work background, that he has a degree of fluency in English, but I was not in a position to make any assessment of the extent of his fluency. He agreed that when he left De Rose Hill Station and went to Indulkana, a white man from the Department of Technical and Further Education taught him and others some aspects of motor mechanics; the man spoke what Peter described as “easy English” that he could understand. Peter later worked in the building trade and again his instructions were delivered in English. He agreed that Sylvia, his wife, spoke very good English and that she had previously worked for Telecom in a management position. Whilst he was at Indulkana, Peter was a member of the Pitjantjatjara Council; he attended council meetings but, although much of the proceedings were conducted in English, he said that an interpreter was always present.

251               Peter agreed that he had met the anthropologists, Ms Susan Woenne-Green and Mr Craig Elliott from time to time and that he, with others, had visited places of significance on De Rose Hill Station with them. Peter said that, when he went to these locations with Ms Woenne-Green or with Mr Elliott, he spoke to them through an interpreter. I found that I had no reason to express concern about his use of an interpreter. It was his preference to use his first language and there was no evidence to suggest that English was his first language or that he was sufficiently proficient in the use of English.

252               The interests of justice require that all parties to a dispute and their witnesses be given every reasonable opportunity to give their evidence in a manner that makes clear the information that the witness wishes to impart. It will also assist the administration of justice if the witness is able to give his or her evidence in circumstances that are most convenient and comfortable to the witness. In those cases where there may be doubts about the ability of a witness to express himself or herself in the English language, it is better to err on the side of caution and to permit witnesses to give their evidence in their first language.

253               Bernard Singer, his sister Tanya Singer-Ducasse, and his mother Sadie Singer, gave their evidence in English, as did Mona Tur, but the remainder of the Aboriginal witnesses relied, properly in my opinion, upon one of the three interpreters who were used during the trial.

254               All too frequently during the course of the trial, counsel would ask a question that included an option such as: “Did you go out or did you stay at home?” All too often the reply was “Uwa” (“Yes”). There would then follow a period of confusion whilst counsel and the witness sorted out whether the answer “yes” meant that the witness went out or whether it meant that the witness stayed at home. Although it might seem laborious, it is quite often much quicker to ask “Did you go out?” If the answer is “Yes”, there may be no need to go further. If the answer is “No” then counsel can follow up with the next question “Did you stay at home?” Witnesses cannot be blamed for evidence that is ambiguous or uncertain if they are required to answer questions that they find difficult to understand or analyse.

255               Even with the use of interpreters, difficulties can still arise. One of the Aboriginal witnesses, Whiskey Tjukanku was asked:

“When you finished working at Granite Downs, where did you go?”

A European person would know, from the nature of that question, that it involved the proposition that there was a physical leaving of Granite Downs. However, the Aboriginal witness did not recognise that inference. He answered literally:

“I finished work and I sit down in a camp.”

Another example of the care that must be taken when questioning Aboriginal witnesses occurred whilst Tim De Rose was under cross-examination. The question that was put was a simple question:

“Is the Uluru place that you refer to there what white persons call Ayers Rock?”

The answer was “Uwa” (“yes”). It transpired, from the several maps that were tendered in evidence, that there are at least two places known as Uluru. One, of course, was well known by its former name, Ayers Rock. The other is a locality near Mt Cavenagh, many, many kilometres to the east of Ayers Rock. Tim was questioned further:

Q “Mr De Rose, that place Uluru that you talked about, is it near Mount Cavenagh?

A Yes. There is another Uluru there.”

Each question was a direct, leading question and each question produced affirmative responses that gave opposite results.

256               There were also occasions when witnesses, by their answers, showed that they had no comprehension of the question that was asked of them. For example, in cross-examination, there were times when Owen Kunmanara showed himself to be quite alert and quite aware of the questions that were being asked of him. On other occasions however, he gave answers which were quite unresponsive and in some cases unintelligible. When he was being cross-examined about the various pastoral stations on which he had worked during his lifetime, Mr Besanko endeavoured to find out whether there were any secret or sacred places on those stations. Thus Mr Besanko asked:

“Were there special places on Macumba Station?”

The answer, as typed in the transcript and consistent with my notes, was to this effect:

“Yes, big place, old grass, Dalhousie. Big place like Adelaide. Adelaide is big place. That’s big place too, big place.”

257               Another area of caution was the literally accurate answer to a question which gave the wrong impression. At one stage during his cross-examination, Michael Mitakiki was asked:

“Where do you live now?”

A European would have answered by saying “Katji Kuta” which was Mitakiki’s usual place of residence. However, Mitakiki was, at the time when he was questioned, living in the Aboriginal camp at Ilintjitjara – a camp that had been set up especially for the Anangu who were attending the hearing of the native title case. Hence, when he was asked “where do you live”, he answered with literal accuracy:

“I’m at Ilintjitjara.”

Fortunately the cross-examiner was aware of the situation and, with further questioning, it became clear that his correct place of abode was Katji Kuta which is near Amata.

258               Most of the Aboriginal witnesses seemed not to have the European notion of time. For example, in the evidence of Alec Baker, the cross-examiner was seeking to establish the length of time that Owen Kunmanara had stayed at De Rose Hill which justified him becoming Nguraritja:

Q “Mr Baker, you have said in your paper that Owen Kunmanara is a number one Nguraritja for De Rose Hill? Do you remember that?

A Yes.

Q You said that he is Nguraritja because he has done some things for a long time.

A Yes.

Q You say that he has been there very early in his life, he has been looking after the land properly and he stayed there for a long time.

A Yes.

Q How long did Owen Kunmanara have to stay there before he became Nguraritja?

A Because he was there for a long time and he’s a Nguraritja.

Q Can you say how long he must be there before he becomes Nguraritja?

A He’s got to be there a long time and become an old person, then he be the Nguraritja”

259               Johnny Wimitja De Rose showed, on occasions, that he had some concept of time. However, there were other occasions when an apparent lack of comprehension materially lengthened the time needed to complete his cross-examination. In answer to a question from Mr Besanko:

Q “Have you been back to De Rose Hill as a part of this native title case?”

Wimitja replied in a totally unresponsive fashion:

A “I just heard about it now when I was a child.

Q Have you been back to De Rose Hill as part of the native title case?

A In between I went back to Amata just recently.”

Slowly thereafter, the position became clearer:

Q “But have you and the other old men and Susan Woenne-Green and Craig Elliott been out to De Rose Hill in the last four or five years?

A No, I didn’t go.

Q Just so that we have got this clear, the last time you were on De Rose Hill Station was the time you had the fight with Doug Fuller and you went back for a short time to get your money and to see your mother?

A I was a single man when I left. I travelled up to Alice Springs, Queensland for many, many years.

Q Wimitja, I need to get an answer to this question. You haven’t been back to De Rose Hill since the time you had the fight with Mr Fuller?

A After the argument I had I came back, picked up my money and I left, I haven’t returned.”

HEARSAY

260               In his witness statement, Bernard Singer had said, inter alia, that Snowy De Rose, a deceased Aborigine, had told him, when speaking of De Rose Hill, that “this is your grandmother’s country”. Objection was taken by Mr Besanko to the admission of that statement on the ground that it was impermissible hearsay. Mr Howie initially pressed for its inclusion without restriction. The resolution of that objection called for a consideration on the provisions of ss 62 and 63 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Those provisions are as follows:

“62. (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2)               A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

63. (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)               The hearsay rule does not apply to:

(a)                evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)                a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.”

In this case, the asserted fact was that the land that had been identified by Snowy to Bernard was Bernard’s “grandmother’s country”.

261               Applying the provisions of these two sections to the facts of this case, the first matter that had to be established was the identity of the maker of the previous representation and the non-availability of that person to give evidence. That did not present a problem. It was accepted by all parties that Snowy was the maker of the previous representation and that he is dead. The second matter that had to be addressed was Snowy’s knowledge; the sections are only concerned with a previous representation “that was made by a person [ie Snowy] who had knowledge of the asserted fact”. A person such as Snowy will have personal knowledge of the asserted fact if, in terms of subs 62(2), his knowledge of that fact was “or might reasonably be supposed to have been, based on something that the person [ie Snowy] saw, heard or otherwise perceived …”. What the person saw, heard or perceived does not, however, encapsulate another representation made by another person.

262               In its application to the facts of this case, the hearsay rule had the potential, therefore, to apply to the evidence of the representation about the grandmother’s country when that evidence was given by a person, such as Bernard Singer, who had heard the representation being made by the deceased Snowy. Mr Besanko, however, argued that it was still necessary for the claimants to prove that Snowy De Rose had personal knowledge of the asserted facts at the time when he made the representation; he did not accept that Snowy De Rose had that personal knowledge.

263               Ultimately, counsel for the claimants conceded that there was not then before the Court the requisite evidence about Snowy’s knowledge of the asserted facts. In my opinion, it would not be appropriate to receive into evidence, under ss 62 and 63 of the Evidence Act, Bernard’s claim that Snowy told him “this is your grandmother’s country” as the truth of fact that it was her country. However, the statement can be received as evidence that Snowy spoke those words to Bernard and that Bernard believed them: Subramaniam v Public Prosecutor [1956] 1 WLR 965.

264               It is timely, at this stage of these reasons, to mention some other evidentiary problems that are, probably, peculiar to native title claims. They also relate to the receipt into evidence of statements made by other Aboriginal people to a witness. Evidence as to a person’s place of birth is an example of the problems. Under the ordinary rules of evidence, it is not possible, in the majority of cases, to prove the place of birth of older generations by means only of oral evidence. An exception to that statement may occur occasionally when an elderly witness can be found who can depose to the fact that he or she was present at the birth of another. This difficulty is overcome, normally, by having recourse to documentary records such as duly certified birth certificates. However many Aboriginal persons, particularly those who are living in remote areas, have no such written records of their birth. They come from a paperless culture. Their entire history is oral.

265               Yet, despite this absence of documentary records, there is an onus on them to establish their entitlement to native title of the area of land and waters that is the subject of their claim. They must prove, inter alia, that their rights and interests “are possessed under the traditional laws acknowledged and the traditional customs observed”: see par 223(1)(a) of the NTA. What are their traditional laws and what are their traditional customs? Witnesses could give evidence about their present laws and their present customs, but how can they state the detail of the laws and customs of their ancestors? There has long been a common law exception to the hearsay rule that allows evidence of reputation, that might at first sight to be hearsay, to be received into evidence. Blackburn J, as long ago as 1971, applied that exception to receive Aboriginal evidence to the effect that deceased relatives regarded certain land as belonging to a particular clan: see Milirrpum v Nabalco (1971) 17 FLR 141. Some, but not all, of those problems are now addressed by subs 73(1) of the Evidence Act which provides as follows:

“73(1) The hearsay rule does not apply to evidence of reputation concerning:

(a) whether a person was, at a particular time or at any time, a married person; or

(b) whether a man and woman cohabiting at a particular time were married to each other at that time; or

(c) a person’s age; or

(d) family history or a family relationship.

266               Subsection 82(1) of the NTA is also of some assistance; it relates to the rules of evidence and their application to native title claims. The subsection provides that:

“The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.”

The effect of the subsection has been discussed by some members of the Court at first instance. RD Nicholson J in Daniel v Western Australia (2000) 178 ALR 542 at [39] (“Daniel”) said:

“By enacting s 82(1) of the Native Title Act in 1998 and abandoning the prior provision that the court was not bound by the rules of evidence, parliament evinced an intention that the rules of evidence should apply to native title applications except where the court orders otherwise. That requires some factor for the court to otherwise order.”

Daniel was a case where the Court had to consider certain opinions that had been expressed by an anthropologist who was intended to be presented as a witness for the claimants. In that case, the judge saw no reason why he should depart from the normal rules of evidence. The subsection was also considered by Cooper J in Lardill v Queensland [2000] FCA 1548 at [7]. He interpreted the subsection in the same manner as RD Nicholson J. His Honour was also considering, in that case, the contents of an anthropologist’s report.

267               The ability that subs 82(1) gives to the Court to depart from the rules of evidence is picked up in the Federal Court Rules. Order 78 r 31, which addresses evidentiary matters generally, permits the Court to “make any order it considers appropriate relating to evidentiary matters” and, without limiting the effect of that provision, one of several discrete subjects that is addressed by the rule is evidence:

“(3)(f)relating to the presentation of evidence about a cultural or customary subject.”

268               That particular provision is in harmony with subs 84(2) of the NTA which directs that the Court, in the conduct of its proceedings, “may take account” of cultural and customary concerns of Aboriginal people, so long as the Court does not, in so doing, unduly prejudice another party.

269               Olney J, at first instance, discussed this subject in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 544. His Honour said:

“Any proceeding in which the Court is required to make findings as to the traditional laws and customs practiced more than 150 years ago must necessarily rely upon evidence other than that of the personal observations of witnesses. Similarly, the proof of genealogical connections to ancestors living at or prior to European settlement cannot be proved by reference to official records. To a large extent some of the most important issues before the Court can only be resolved upon evidence which in other circumstances may be regarded as hearsay. However, apart from s 82 of the Native Title Act the provisions of ss 73(1)(d) and 74(1) of the Evidence Act 1995 (Cth) relating to evidence of reputation concerning history and family relationships and of reputation concerning the existence, nature or extent of a public or general right enable the Court to have regard both to the evidence of witnesses who have recounted details concerning relationships and traditional practices which have been passed down to them by way of oral history and to matters recorded by ethnographers and other observers.”

Relevant and practical as those comments are, it is important to bear in mind that they were made with respect to the provisions of s 82 before it was amended into its present form. At the time when Olney J was discussing the particular issue, s 82 was in reverse terms: it provided that the Court was not bound by technicalities, legal forms or the rules of evidence.

270               Order 78 r 34 of the Federal Court Rules also constitutes, in my opinion, another inroad into the traditional rules of evidence by allowing, in certain circumstances, evidence to be given in consultation with other parties. When one considers that much of the evidence concerning the existence or non-existence of native title is dependent upon events that occurred in the past and the actions of earlier generations, there is a compelling justification, in appropriate cases, to allow Aboriginal witnesses to give evidence of their beliefs that are based on what they have been told by members of the older generations who are now dead or are otherwise unable to give direct evidence. The present litigation, in my opinion, is one such case and I propose to receive the evidence of the beliefs of Aboriginal witnesses. Such evidence is received under the exception that is provided for in subs 82(1), but in this, and in every like case, the weight that might properly be given to that evidence will be a factor that must be independently assessed.

271               Peter De Rose named several men who, so he said, had come to the claim area from areas in the far north-west corner of South Australia close to the Western Australian border. He said that some of them came to Kantja (site 29) and married Yankunytjatjara women from the De Rose Hill and Granite Downs areas. This evidence was clearly hearsay and, at the time when Peter was giving his evidence, I received it de bene esse. That was the first of many like challenges to aspects of the evidence of Aboriginal witnesses; much of the evidence about prior generations and what the members of those generations may have said or done was quite clearly hearsay and most of it would probably be regarded as either inadmissible or of little or no weight in conventional proceedings. However, in my opinion, native title proceedings are not conventional civil proceedings and for the reasons that I have endeavoured to explain, I have resolved to receive this passage of Peter’s evidence and several other hearsay passages in the evidence of other witnesses, not merely as evidence of the truth of what the witness was told, but also, as a matter of probability, as evidence of the truth of the asserted fact. During the course of the trial, when objection was taken to an Aboriginal witness relaying what he or she had been told by a third party, I ruled, at the time, that such evidence could be received, not as to the truth of the challenged statement, but for the limited purpose of establishing the witnesses’ belief as to a particular subject. Having reflected on the matter, I have come to the opinion that it is not always necessary to take such a restrictive approach. In the case, say, of an Aboriginal witness stating that he or she was told by a parent where the witness had been born, why should not the court proceed upon the premise that, as a matter of probability, the place of birth has been proved? There is, in my opinion, no general rule of law that, in all circumstances, only the best evidence of a fact is admissible: Semple v Noble (1988) 49 SASR 356 at 357 – 359.

stages of manhood

272               Some evidence on this subject was given throughout the course of the trial. It was not, however, evidence that was gathered for the purpose of a dissertation on Aboriginal native title rights. It was more general and, so I would think, far from complete. What follows is no more than a summary of the evidence that was given – mostly by Peter De Rose. I have included it so that certain passages in the evidence that I have chosen to reproduce may be more readily understood.

273               The stages through which a male Anangu pass start with a reference to the tjitji. Tjitji is the word for a young child who is permitted to be in the company of women. The next stage is a tjiranka, who is a child of either sex in early teenage years. In his witness statement, Peter De Rose said that, when he was a boy of fourteen or fifteen, he was known as a kungkatja, a word that describes a boy who is still in the company of women in the time preceding the seclusion that is undergone prior to becoming a Nyiinka (a “bush boy”). Peter told the Court, so far as he felt that he was able to in open court, that this was the age when he and Tim De Rose were put through the “first ceremony” which made each of them a Nyiinka. He would not discuss any details of the ceremony as the information was a sacred secret that was not to be spoken of in the presence of women. He did, however, confirm that the ceremony was held at Wapirka (Victory Downs) and that it was called the Kipara (Wild Turkey) ceremony. Peter believed that, if he had spoken of these matters in detail with women present, he might have been punished severely by the older men. Victory Downs (Wapirka) and its immediate neighbour, Mt Cavenagh (Watju) are cattle stations in the Northern Territory immediately to the north of De Rose Hill Station. They were repeatedly referred to throughout the trial.

274               Peter explained that once he was a Nyiinka, he was segregated from the main camp. It was clear from his evidence, and the evidence of other witnesses, that it was an important traditional law that a Nyiinka be segregated from females and all but a few adult men. Dr Goddard’s definition of Nyiinka, in his Pitjantjatjara/Yankunytjatjara to English Dictionary (Revised Second Edition), (Ex A51), is entirely consistent with the evidence given by the claimants in this trial. He defined Nyiinka as:

“… ‘bush boy’, a boy in the stage of seclusion that precedes the ceremony which will make him a wati. Nyiinkasmust avoid contact with women and girls and all but a small set of adult men. Traditionally the nyiinkastage could last several years until a boy proved his hunting skills, self-reliance and discipline.”

Peter then told of the next phase in his life. He and Tim De Rose were staying in the Nyiinkas’ camp when an Ulpuru (a special boy) came from Areyonga. His arrival was part of the Tjilkatja cycle of ceremonies. An Ulpuru is a messenger who travels with others to call people from various locations to attend the man-making ceremonies. Many of the witnesses referred to this event as “the business”. Peter and Tim joined the Ulpuru and they set out for Areyonga where Peter and Tim “were made men”. Areyonga is in the Northern Territory, many kilometres to the north north-west of the claim area. There was no evidence that the man-making ceremonies were ever held on De Rose Hill, although Riley Tjayrany suggested that he had been made a man somewhere near De Rose Hill. However, alternative places to Areyonga that were mentioned included Iwantja and Indulkana; they were also places where the young males travelled to become Wati (an initiated man). Although it was not specifically stated, I infer that these were important sites where Nyiinkas could be made into men at a Tjilkatja ceremony under traditional law.

275               Peter said that he could not give a better explanation of the man-making ceremony in the presence of women. He said that the Nyiinkas were looked after for :

“…about two weeks, then bring us into the community and I finish that Nyiinka. We finish the Nyiinka and I was living with the pukuti.”

Peter explained that the Wati Pukuti wore their hair tied at the back with a string made of human hair. By this distinctive hairstyle, other Anangu would know that a person was a Wati Pukuti. Peter said that he was made a Wati a long time before he got his driver’s licence. As he obtained his driver’s licence in 1970 when he was about twenty-one, he was probably in his late teens when he became a Wati. After being a Wati Pukuti for a time, something else happened to Peter (which he was not prepared to discuss in front of women). He said “I finished that Pukuti and then change and call me Katarara”. The last stage in the life of a male Anangu would appear to be that of Tjilpi (old men). The Tjilpi pass on to the younger Wati the sacred stories that they have learnt in their lifetime. It was apparent that the Tjilpi are accorded very considerable respect and treated as having much authority. For example, in his evidence, Bernard Singer, who is now thirty-five, said that the Tjilpis were teaching him the Tjukurpa but he had much yet to learn. Peter De Rose said that when he became a Wati Katarara he began to learn from the old men the stories for the sites that he had seen as a boy.

276               Peter Tjutatja offered some evidence about the classification of a Katarara. In cross-examination, he referred to a time when he returned to work at De Rose Hill, saying that his sons, Panma and Kelly, were then Wati Pulka and Wati Katarara respectively. Since Panma was the elder of his sons, this meant that Wati Pulka was more senior in Anangu society than Wati Katarara. Mr Yami Lester translated the word Pulka as meaning “big”. In other words, a Katarara would appear to be a transitory classification in the hierarchical structure that leads to complete manhood.

snowy’s accident

277               As I have earlier indicated, most of the Aboriginal witnesses had no conception of Western time. They were however, often able to give evidence about the occurrence of an event by relating it to a historical incident of some significance to them. The initial matter of significance, in point of time, was the first permanent presence of Europeans in the claim area. Although Tom O’Donoghue first obtained a permit to search for water in 1923, he did not obtain a pastoral lease for Agnes Creek until 1932. There was a substantial amount of evidence from Anangu witnesses about the presence of a white man or white men at Kantja in the early days, long before Doug Fuller acquired the lease of De Rose Hill Station. That would therefore suggest that the evidence about events at Kantja during the time of the white man and his sheep would have been in the early to mid 1930s. Two other events that were very significant were Snowy De Rose’s accident and the death of his son, Bobby, the half brother of Peter De Rose. Snowy, who was the step-father of Peter De Rose, died on an unspecified date but long before the commencement of this trial. The evidence established that he was an important person in the history of the claimants’ case. Many of the Aboriginal witnesses were able to relate the occurrence of various events by connecting them either to Snowy’s accident or Bobby’s death.

278               On 18 June 1977, an incident occurred involving Snowy and Doug Fuller; it resulted in Snowy suffering a broken ankle. Rex Fuller took Snowy to Kulgera where an ambulance met them and took Snowy to hospital in Alice Springs. Peter De Rose went in the car with Rex. Peter, who did not witness the incident, was asked what Snowy had told him; he replied that Snowy had said that Doug had told Snowy that he was not to camp on De Rose Hill Station. That had led to an argument and Snowy’s leg was broken. No further explanation was given by Peter in his evidence. He was then asked whether Doug had said anything to him about the incident; his reply was to the effect that Doug had only said that Snowy had a broken leg. Peter was asked whether Doug had told him, at that time, that he (Doug) had been looking for Bobby and had happened across Snowy and had told Snowy that Bobby had to leave the property because he was causing trouble. Peter replied:

“Yes, maybe. That’s a long time ago.”

Peter agreed that he had heard that Bobby had been causing trouble, but he did not know what the trouble had been. It was put to Peter that Doug, who was driving a motor vehicle, had approached Snowy and complained about Bobby and that Snowy had grabbed Doug through the window of the car and had said “I’ll kill you, you old bastard”. Peter said he had never heard that story before, nor did Doug Fuller ever tell him that he, (Doug), had driven off while Snowy had hold of him – and that was how Snowy came to fall under the car and break his ankle.

279               Cissie Riley said that she saw “the big fight between Doug and Snowy”; that was the occasion when Snowy’s leg was broken. According to Cissie, it was the reason why “most people moved out”. She claimed that the argument had occurred as a result of Bobby fighting with his “brother” Sandy Brumby. She agreed that Bobby appeared to be drunk but she did not know anything about women complaining about Bobby’s behaviour.

280               Doug, when giving his evidence, agreed that there had been an accident which had resulted in Snowy De Rose’s ankle being broken. There had been a verbal altercation between Snowy and Doug regarding Snowy’s son, Bobby. Doug’s evidence was that as he was about to drive off, “Snowy’s leg got caught under the rear wheel of the vehicle”. Doug said that when he realised that Snowy was injured, he returned to the homestead for help and arranged for Rex to collect Snowy and take him to Kulgera for transfer to the Alice Springs Hospital. Doug maintained that it was an accident, but he also acknowledged that Snowy instituted civil proceedings against him and that the case was ultimately settled on the basis of a payment to Snowy in the order of $17,000 plus costs. There were some allegations that Snowy’s accident resulted in some of the Aborigines leaving De Rose Hill Station. Doug said that, so far as he could recall, nobody left the station as a result of the incident. In particular, he said that Snowy’s wife, Katjiwala, remained at the station and continued with her work.

281               The oral evidence of Tim De Rose about the circumstances under which Snowy De Rose broke his leg was in conflict with what was contained his witness statement. In his statement he had said that when Snowy was hit by the motor car, he left De Rose Hill, thereby indicating that he was present at De Rose Hill at the time of the accident. He did not say who was responsible for the accident, nor did he say who was driving the car; he did not describe the circumstances of the accident. In his oral evidence however, he said that he was living at Docker River (in the Northern Territory near the Western Australian border) when the accident occurred and that he had heard of it whilst he was at Docker River.

282               Mabel Pearson gave evidence about the incident between Snowy and Doug. Although she was not personally present, she believed that Doug Fuller had told Bobby to leave De Rose Hill. She said:

“Bobby and other drunks were fighting. Doug told them to leave. That’s why Doug and Snowy had a fight. Snowy was also told to get off.”

Her version of the incident between Snowy and Doug – and Bobby being the cause of it – was generally consistent with what Doug said in his supplementary witness statement. He did not say that Bobby was drunk, but he did refer to him as a troublemaker.

283               Rex did not agree that the incident involving his father and Snowy led to Aboriginal people walking off De Rose Hill Station. He said that there had been an altercation and that, as a result of that altercation, Snowy ended up with a badly broken ankle after his leg got caught under the rear wheel of Doug’s jeep. Rex however, did not witness the accident; he was only involved in the aftermath. He said that Aboriginal people continued to camp and work on De Rose Hill for quite a while after that incident; it did not spark a “walk-off” of any kind. However, the Station’s records, which were annexed to Rex’s witness statement, hardly support his claim. They show that at some stage in 1977, there were seventeen Aboriginal persons on the Station, whereas there were only four in 1978, two of whom were Peter and Tim De Rose. Whilst I cannot accept Rex’s bold statement that there was no “walk-off”, I cannot positively find that there was a “walk-off”, as many of the seventeen names are not identified as claimants.

the death of bobby

284               In 1978, when he would have been about twenty-nine years of age, Peter De Rose left his work at De Rose Hill, not long after the death of his young half-brother, Bobby. Peter’s version of the incident was to the effect that Doug, having learnt of Bobby’s death, delayed telling Peter.

285               Doug Fuller accepted that Bobby’s death, as a result of a car accident, marked the time when the remaining Aborigines on De Rose Hill decided to leave. Peter De Rose believed that Doug had deliberately withheld news of Bobby’s death so that the Aboriginal workers on the Station would complete the job in hand of loading some cattle on to a truck. Records indicate that Bobby’s death occurred on 15 February 1978 and that authority was given for his burial on the following day, 16 February. A telegram had been forwarded to De Rose Hill Station advising of Bobby’s death. In those days, telegrams were transmitted through the services of the Royal Flying Doctor Service (“the RFDS”). An affidavit in the name of Barbara Yvonne Starr was received into evidence. She had been, at one time, an employee of the RFDS and she deposed to the practice of relaying telegrams to outback stations. In particular, she explained that if a telegram was received by the RFDS after 4.00 pm (and this telegram was received by the RFDS at 4:21 pm on 15 February 1978), it might not be relayed to the addressee until the following day. Doug said that he showed the telegram to Peter and read it to him on the day that he received it. He denied that he waited until the next day to tell him about the contents of the telegram. He also denied that Peter returned to De Rose Hill after the funeral and argued with him about his alleged failure to tell Peter earlier of the accident and the funeral arrangements.

286               When Doug did tell him, Peter left De Rose Hill immediately but he arrived too late for his brother’s funeral. It was Peter’s belief that if Doug had told him earlier, he would have arrived in time for the funeral. Thus, so it would seem, Peter left De Rose Hill Station because he believed that Doug Fuller had failed to tell him of his brother’s death at the first available opportunity. In cross-examination however, the incident did not appear to be so stressful. He said:

“Yes, I was sad at that time, when he give me the news but after that I come back to work for him and when the other people left – Tim De Rose and others, they left then – at that time I stopped working and I left.”

There is an implication in this passage of the evidence that Peter left because Tim De Rose and the others had left. That was hardly conducive to the suggestion of a close and continuing connection to the land.

287               Mr Whitington put to Peter that when Doug told him that Bobby had been killed, Peter responded by saying “he had it coming to him”. Peter answered, saying that he could not remember saying that. That was a strange answer, considering the fact that he claimed to have left De Rose Hill Station because of Doug’s delay in telling him about the death of his brother. One would have expected him to have vigorously denied such an allegation. I fall short of making a finding that Peter used the words “he had it coming to him”. Too much time has passed to be confident that memories remain accurate. Where I am critical of Peter is the manner in which he gave his evidence. His lack of a vigorous denial was inconsistent with his evidence that the conduct of Doug with respect to Bobby’s death was instrumental in Peter leaving De Rose Hill.

288               Peter was prepared to concede that if Doug Fuller had only received news of Bobby’s death on the morning of 16 February and had told Peter within a short time after receiving the message, Peter would not have had any cause to be upset with Doug. However, Peter had assumed that Doug had received the advice on the previous day and had delayed giving him advice about Bobby’s death and funeral because the Aboriginal people at Indulkana had told him “you should have been here yesterday”. Whether Doug did, or did not, delay in telling Peter about his brother’s death is not critical to the major question that must be resolved in this case: that is, whether the claimants are entitled to a determination of Native Title. Nevertheless, I feel that I should make it clear that I accept that Peter may have well thought, albeit incorrectly, that there had been some delay on Doug’s part.

289               Doug recalled that one of the Aborigines who left at the time of Bobby’s death was Tim De Rose. He said that Tim had grown up and worked with Owen Kunmanara and he described him as “a very good boy”. Doug said that he assumed that the Aboriginal people would be attending “some sort of funeral” and he expected them to return within a matter of days as they had left their belongings. However, as he acknowledged, this did not occur. Doug concluded by saying:

“This was essentially the last time when the Aboriginals worked or camped on De Rose Hill for any length of time.”

290               According to Rex, there were matters other than his father’s fight with Snowy and the death of Snowy’s son that would explain why the Aboriginal people left De Rose Hill Station. In the first place, he pointed to the growth of the Aboriginal community at Indulkana and the proclamation of the AP Lands adjoining the southern and western boundary of De Rose Hill. According to Rex, the advent of the Pitjantjatjara Land Rights Bill in 1978, the ready availability of “the dole” and the facilities at Indulkana meant that the need to work became much less attractive to the Aboriginal people. It was his opinion that these may have been important factors in the Aborigines leaving De Rose Hill.

291               The claimants have not asked the Court to make findings of fact as to what actually occurred with respect to either Snowy’s accident or Bobby’s death. What they have said is that the interpretation of the events by Peter and Tim De Rose has provided an explanation as to why they did not return to De Rose Hill Station after Bobby’s funeral. Similarly, the claimants did not suggest that the Court should make findings as to who was the aggressor in the incident involving Snowy. It was enough, said the applicants, that Snowy and Katjiwala, his wife, perceived Doug Fuller’s behaviour to be an act of hostility. I cannot agree. If the Aboriginal people left De Rose Hill Station for an unreasonable or illogical reason (even though subjectively they may have thought their departure was necessary) they cannot now turn their lack of reasonableness and lack of logic to their advantage. Sadly, there are, in our Colonial history, numerous accounts of Aborigines having been driven off their land against their will. One can easily imagine, in such circumstances, how an Aboriginal person would retain a yearning for his or her country; and that yearning could easily translate into a retention of a spiritual connection with the country. But, as will become apparent when I discuss the evidence of the Aboriginal witnesses, there was no suggestion that the conduct of the Fullers was so extreme that it forced the Aboriginal people to leave De Rose Hill Station against their will.

The ethnographers

292               I turn next to consider briefly some of the writings of the better known ethnographers who have worked in the Western Desert area. I will then discuss the evidence of the expert witnesses for the claimants, followed by some observations on a few of the sites at which evidence was taken. I will then consider the evidence of Doug and Rex Fuller, and the relevant law, leaving until last, a detailed examination of the evidence of the twenty-six Aboriginal witnesses.

293               The claimants submitted that there was a significant body of ethnographic material that had been gathered by the anthropologists, Elkin, Tindale, Berndt and Strehlow since the 1930s, which, so they said, “positively demonstrated the observance at that time by the Aboriginal people of the region of laws and customs similar to the laws and customs acknowledged and observed by the applicants”. In my opinion, the evidence in the trial does not bear out that assertion, but before I gave my reasons for coming to that conclusion, it might be helpful to note briefly the background of the early ethnographers.

294               Mr Elliott accepted, as do I, that Elkin, Tindale, the Berndts, and Strehlow were all leading scholars in Australian anthropology with recognised specialities in the Central Australian region.

295               Professor AP Elkin was appointed in 1933 to the newly established Chair of Anthropology at Sydney University. During the 1920s, he had studied Aboriginal cultures in the north, west, central and southern parts of the continent. He had lectured patrol officers and had acted as an adviser to Governments and other bodies on Aboriginal welfare matters. He died in 1979. He was the author of several publications on Aboriginal society, art and culture.

296               Elkin travelled through the north-west of South Australia as early as 1930. He recorded the results of his travels in “The Social Organization of South Australian Tribes”, in Oceania Vol II, No 1 (1931), pp 44-73 (“Elkin 1931.”) He listed particulars of the Aboriginal people whom he came across, noting that there were approximately 150 Aboriginal people living along the Alberga and Hamilton Creeks and approximately 500 others living in the ranges in the north-west of South Australia and south-west of Central Australia (Elkin 1931; p 63). As the claimants noted in their principal submissions, Elkin observed ceremonies and recorded details of social organisation, kinship system and beliefs (Elkin 1931; p 46 and pp 64-73). That observation was turned by the State to its advantage in its principal submissions. It submitted, and the totality of the evidence supported its submission, that there was minimal detail from the Aboriginal witnesses about their contemporary observance – as distinct from their recognition – of traditional laws and customs.

297               Norman Barnett Tindale joined the staff of the South Australian Museum in 1917. He began his career as an entomologist in which role he continued until 1933. From 1928 to 1965 he was also an ethnologist at the Museum. Dr Tindale gained his B.Sc at the University of Adelaide and a DSc from the University of Colorado. His field work having gravitated to anthropology, he led expeditions to the far north-west of South Australia in 1935. He later organised and led the 1938-1939 joint Harvard and Adelaide Universities’ anthropological expedition into several inland regions. He published widely on Aboriginal culture as a result of his extensive fieldwork, including many important works on archaeology and prehistory. Four articles were tendered as Vol 2 of Exhibit A63. Included in his 1940 article, “Results of the Harvard–Adelaide Universities Anthropological Expedition, 1938 – 1939: Distribution of Australian Aboriginal Tribes: A Field Study” in Transactions of the Royal Society of South Australia, Vol 64, No 1 (1990), pp 140-231, is a map setting out the areas for various named Aboriginal groups. “Antakarinja” (ie Antikirinya) is immediately to the east of the “Jadkundjara” (ie Yankunytjatjara). It is quite clear, given the positions on the map of Mount Cavenagh and Mount Chandler (both of which are near the claim area) that De Rose Hill Station was, according to Tindale, squarely in the middle of Antikirinya lands. The Pitjantjatjara (spelt Pitjandjara) were shown as adjoining Yankunytjatjara to the north-west. There is also a map included in Tindale’s 1974 book Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution. Limits and Proper Names (Canberra: Australian National University Press, 1974) which again places De Rose Hill in Antikirinya territory. Tindale stated that his objective was to demonstrate that Aboriginal people were not “free wanderers” but were “linked by culture, kinship and language and were bound to the land ecologically and geographically”.

298               Professor Ronald Murray Berndt was appointed in 1963 the foundation Professor of Anthropology and departmental head at the University of Western Australia; prior to that he had been a Senior Lecturer and Reader since 1956. His publications included “The World of the First Australians” (1964) and “Aboriginal Man in Australia” (1965) both of which he co‑authored with his wife, Dr Catherine Helen Berndt – also a noted anthropologist.

299               When the office of Chief Protector of Aborigines in the Northern Territory was abolished in 1939 and replaced by the establishment of the statutory office of Director of Native Affairs, the first members of the staff of the newly established Native Affairs Branch of that office included Patrol Officer TGH Strehlow; he, in later life, achieved fame as Professor Strehlow, noted as a linguist and anthropologist and for his contribution to the debate on whether the Australian legal system should recognise and enforce Aboriginal customary laws. He was one of the few white men who has been permitted to witness and film secret ceremonial cycles and record sacred songs in Central Australia. He died in 1978. In his article “Kinship in South Australia” in Oceania, Vol VIII, No 4 (1938), pp 419-452, Elkin identified the Antikirinya as the Aboriginal people on the Alberga and west to the Everard Ranges, the Yankunytjatjara as the people further to the west and the Pitjantjatjara as the people to the north-west of the Pitjantjatjara. Strehlow also placed the three names in the same order with De Rose Hill Station in Antikirinya country.

300               Exhibit A63 comprised three volumes of articles and writings by Elkin, Tindale, Berndt and Strehlow. Drawing on the information that is contained in those volumes, and comparing that information with the evidence that was given by the Aboriginal witnesses, the State listed areas of Western Desert laws and customs about which the Court has heard no evidence; they were as follows:

• the practice of cicatrization on the backs of men as part of the final ceremony after subincision;
• the practice of piercing the nasal septum as an initial stage of initiation;
• the practice of cicatrization of women on their arms and upper chest, and the custom of “initiating” women;
• the use of fire in hunting game;
• the custom that people will not eat their totem and feel grieved when another man kills it. [Sadie Singer possibly referred to this custom when she stated that her daughter would “feel funny” if an emu was killed “because I think she have the emu dreaming.” However, there was no evidence that anyone born on the malu track, for example, did not eat kangaroo];
• magical practices associated with rain making;
• the practice of teaching children tracking at the earliest age;
• the belief that if a person dies outside his or her territory, his or her spirit, in its totemic form, will wander around his or her gravesite unable to find the way to its spirit centre; and
• the practice of infant betrothal.

The State accepted that laws and customs can be modified and adapted to changed circumstances. However, there is a marked difference between the “adaptation” and the “cessation” of a custom or practice. The absence of evidence from the Aboriginal witnesses on these subjects, so it was submitted, leads one to ask whether the laws and customs that were identified by the State have ceased, or, if they have not ceased, have the claimants ceased to observe them? Then again, it might be that they remain and are observed, but if that is the case, the claimants failed to give evidence about their existence and observance. Whichever way one looks at it, the only conclusion that can be drawn, so the State submitted, is that the claimants failed to establish the continuity of the acknowledgment and observance of certain laws and customs which must be regarded as highly significant in Aboriginal culture. Alternatively, the claimants have failed to explain, in a manner that is relevant and acceptable, why those laws and customs are no longer traditional laws and customs.

301               Tindale’s boundaries have not been universally accepted. The Berndts were of the opinion that the groups of people who inhabited the Western Desert were not “tribes” at all. In RM Berndt’s work “The concept of ‘The Tribe’ in the Western Desert of Australia” in Oceania, Vol XXX, No 2 (1959), pp 81-107, he said:

“‘Tribal’ boundaries apparently counted for little; they fluctuated, although within a certain range. Tindale speaks of these ‘tribal’ groups as occupying ‘discrete’ areas, and says ‘that the distributions are based on physiographic realities’. He has treated them as tribes with well-defined boundaries, admitting however that tribal movements have taken place. In an indigenous situation, he adds, ‘in ordinary dry times, the tribal limits are rigidly defined, and it is only when unusual droughts occur that these limits are transgressed by other than native travellers’. Our contention on the contrary, in which we are in basic agreement with Elkin, is that these groups are not ‘tribes’, that there are no strict boundaries, that movements were relatively frequent, and that what we are faced with is, rather, a cultural and social bloc.”

 

302               There was evidence that the claimants were familiar with practices concerning some aspects of traditional life. It was submitted that the evidence that was given on those subjects was not impressive when compared with the information that has been collected by the early ethnographers. For example, the Berndts have provided a detailed description of the traditional customs associated with birth. When the child was born, the umbilical cord was twisted and severed, but with a small piece remaining attached to the child. The cord was formed into a ring and is then worn around the child’s neck to keep it from crying. The afterbirth was buried and the child was cleaned with warm ashes. After a day or two, the mother lit three fires. She squatted over the first one to heal herself; she held her breasts over the second to ensure a plentiful supply of milk, and held the child over the third fire “to make him quiet”. When the remnant of the umbilical cord dropped from the child, during which time the mother and her child remained away from the main camp, the mother singed her pubic hair. Although there was evidence of adherence to the practice of smoking the child and the mother’s breasts during the course of this trial, and of placing part of the umbilical cord on a string and tying it around a child’s neck, there was no evidence given about the severing of the umbilical cord, the burying of the afterbirth, the practice of singeing the mother’s pubic hair or of the practice of segregating the mother and child from the men. I do not regard the absence of evidence of those practices, assuming always that they are still performed in some communities, to be overly important. Although there is no onus on the respondents, they had the opportunity to lead evidence that such practices still exist, which would have given them the right to argue that the claimants in these proceedings were no longer adhering to traditional customs.

303               The Berndts also gave an account of the complex rules and practices associated with burial. They included the two-stage burial process during which the deceased was first placed in a shallow grave that was lined with leaves. The body was then covered with leaves, boughs and logs. Between three months and two years later the body was uncovered. If only the bones were left, they were used to divine the cause of death. If the body was still in a state of decomposition, the people, at one time, rubbed the decomposing matter over their own bodies, although as the Berndts noted, that latter practice was falling into disuse at the time they were writing. There was no evidence adduced in the trial to suggest that the claimants knew of or practised any traditional customs in relation to the burial of the deceased. On the contrary, Rex Fuller said that he often attended to burials as the Anangu would not involve themselves.

304               The evidence also suggested that the custom of promised spouses is no longer universally practised. Some of the witnesses gave evidence that they were married in this way and although Tim De Rose said that it can still happen today, he acknowledged that young people are not readily marrying those who have been promised to them. Sadie Singer accepted that neither she nor any of her three married daughters had been promised in the Anangu way.

305               None of the Anangu witnesses offered detailed evidence – either in open or closed session – on the subject of circumcision. On the one hand, it is easy to accept that a particular individual might be embarrassed about discussing such a subject in open Court in the presence of women. On the other hand the claimants had every opportunity to approach the Court to arrange for such evidence to be given in closed session. In any event, the Berndts did not seem to think that circumcision was such a restricted subject. In The World of the First Australians (Canberra: Aboriginal Studies Press, 1999) at pp 173-174, they wrote:

“Circumcision procedures are described in some detail by a number of writers: Howitt, Roth, Spencer and Gillen, Basedow, Warner, Elkin and others.”

the expert witnesses

Associate Professor Cliff Goddard

306               Associate Professor Goddard wrote two reports and provided oral testimony on linguistic matters relating to this application. The reports were tendered as exhibits A48 and A49. From 1987 to 1990, Professor Goddard was Senior Linguist in the South Australian Education Department at Ernabella. He now works at the School of Languages, Cultures and Linguistics at the University of New England, where he has been employed since 1990. He completed his PhD thesis, entitled “A Semantically-Oriented Grammar of the Yankunytjatjara Dialect of the Western Desert Language” in 1993. That thesis was based on three years of linguistic fieldwork at Mimili and nearby areas. He has taught and written several articles on the Yankunytjatjara dialect. I consider that he has considerable expertise in the Yankunytjatjara language (and linguistic matters in general) and that he has an extensive knowledge of Yankunytjatjara culture.

307               Professor Goddard came to three major conclusions in his first report. They were as follows:

(i)                  from the available evidence, the Western Desert speech varieties in and around De Rose Hill are dialects of a single, mutually-intelligible language;

(ii)                the records that he examined showed only minor differences between Antikirinya and Yankunytjatjara dialects – much less than the differences between Yankunytjatjara and Pitjantjatjara dialects;

(iii)               it was his view that Antikirinya is a general term for Western Desert speech varieties on the eastern fringe of the Western Desert language area and the adjacent areas further east. He then added:

“As such, the term certainly can and does take in Yankunytjatjara (in the narrow sense as described in the P/Y [Pitjantjatjara/Yankunytjatjara] Dictionary). It can probably be applied also to other varieties and Yankunytjatjara (in the broad sense), such as Martutjara Luritja.”

It is of minor interest that in the revised second edition of Professor Goddard’s Dictionary, the following definition of “Antikirinya” appears:

“Name for the people who traditionally lived east of the Yankunytjatjara, and for their dialect, which is similar to Yankunytjatjara.”

That definition, which was quite inconsistent with the views contained in Professor Goddard’s report of 23 November 2000, was contained in a dictionary that was published in 2001 – well after the date of his reports. Professor Goddard stated that he did not know why he did not correct the current definition of Antikirinya for the most recent print run of the Dictionary in light of his changed opinion. Given his research and his change of opinion, it does seem a little strange that Professor Goddard did not update the definition. However, I am prepared to accept his explanation that it was a simple oversight.

308               Professor Goddard was of the opinion, when giving his evidence, that the differences between the Yankunytjatjara and Antikirinya languages were so minor that it was questionable whether the terms should be regarded as designating different dialects at all. To him, there was no real difference between the terms Antikirinya and Yankunytjatjara. It would be a reasonable summary of Professor Goddard’s evidence to say that the Western Desert Language is the language that is used (with minor variations) by the various Aboriginal inhabitants of the Western Desert area. That area is substantially centred upon the meeting point of the South Australian, Western Australian and Northern Territory borders and radiates out from that point in all directions. There are different people in the area who use different names for identification and the three names that were most commonly referred to in this trial were the Pitjantjatjara, Yankunytjatjara and Antikirinya. In my opinion, it is appropriate to say of them that the variations in their dialects are of an inconsequential nature. A person from one group is able to communicate with persons from the other two groups without difficulty.

309               The claimants submitted that Professor Goddard’s findings rebutted the State’s contentions that the Antikirinya had, at some early stage, been displaced from or otherwise left their traditional lands (which included De Rose Hill) and had been replaced by new arrivals from the west; they argued that, as the terms Antikirinya and Yankunytjatjara refer to the same groups, the maps of the early ethnographers (which display separate areas for the Yankunytjatjara and Antikirinya) did not, in fact, connote separate tribes with separate languages and territories. Mr Besanko put to Professor Goddard that the language or dialect that was spoken by people was “not necessarily descriptive of them as a collective social unit”. Thus, it could not be concluded, in all cases, that people who spoke the same language were therefore members the same social unit. That point was accepted by Professor Goddard. He also acknowledged, correctly in my opinion, that communities can be distinguished by many factors other than language. In light of these concessions, I find it difficult to accede to the claimants’ submission that Professor Goddard’s evidence can be used to rebut the suggestion that the Antikirinya were a separate and distinct people who occupied the claim area at sovereignty, rather than the Yankunytjatjara or the Pitjantjatjara people.

310               There were other aspects of Professor Goddard’s evidence, however, that have led me to the conclusion that his evidence, though interesting, does little to aid the claimants’ case. For example, he acknowledged that, as a result of the concentration of populations since European contact, there had been “dialect mixing” which had resulted in there being less differentiation between dialects today than previously existed. This, in turn, made it difficult to get a clear picture of the linguistic differences (if any) of the Yankunytjatjara and Antikirinya dialects before European contact. The end result is that it is not possible to decide whether the two dialects are today so similar because the people who speak the two dialects are the same people and it is their one language, or because they were once two related (but separate) groups of people whose speech patterns have become virtually the same due to their frequent mixing at concentrated population points.

311               Professor Goddard’s first report did not consider pronunciation or accent, which he conceded could be used to distinguish dialects. Mrs Mona Tur, on the other hand, was most emphatic in her assertion that people who identified as Antikirinya did not use a different accent or rhythm in their speech to those who identified as Yankunytjatjara.

312               I have difficulty accepting Professor Goddard’s contention that Aboriginal people might refer to themselves as Yankunytjatjara at one location (to contrast themselves with the nearby Pitjantjatjara for example) but as Antikirinya at another (if closer to the Arrente people). Professor Goddard said:

“…what’s logical to assume is that if you’re interested in contrasting yourself with people on your western side – I mean making a differentiation within the Western Desert – then it’s more sensible to call yourself Yankunytjatjara because in doing so you invite comparison with the Pitjantjatjara. If you’re interested in viewing yourself or contrasting yourself with the Arandic and other language speaking area to the east, then Antikirinya would be a more appropriate term.”

There are, in my view, a number of difficulties with this hypothesis. First, it is not clear why the term ‘Yankunytjatjara’ would not be appropriate, just as much as the term ‘Antikirinya’, in contrasting oneself with the Arandic or other language speaking groups from the east. More importantly however, the majority of the claimants’ evidence did not support his contention. The claimant witnesses either displayed an ignorance of the word “Antikirinya” and its use, or understood it in a way that was contrary to that which Professor Goddard advocated. For example, both Owen Kunmanara and Peter Tjutatja had worked on a number of pastoral stations in their life, some of which were either north or east of De Rose Hill. Those stations were on the eastern fringe of the Western Desert or beyond it and, as a result, both Owen and Tjutatja came into contact with non-Western Desert Anangu. By Professor Goddard’s theory, one would expect that, at those locations, such witnesses might have identified themselves as “Antikirinya” – yet it is abundantly clear from the evidence of both of them that they did not do so. Tjutatja made it obvious that he believed Yankunytjatjara and Antikirinya were separate and distinct groups of people who “speak separately”. It did not help the applicants’ position that he continued on, saying that the Antikirinya died from “poison smoke”, a probable reference to the atomic bomb-tests at Maralinga. Under cross-examination by Mr Whitington, Owen Kunmanara was typically forthright when asked to tell the Court all he knew of the Antikirinya:

“I don’t know. We don’t know them. I am a Yankunytjatjara man. Why don’t you ask Antikirinya people?”

Thus, the two oldest and most senior claimants believed that the Antikirinya were separate from the Yankunytjatjara. That is why it is difficult to imagine that they might ever refer to themselves as Antikirinya as Professor Goddard suggested.

313               Although there was some evidence to support Professor Goddard’s contention (most notably the evidence of Mona Tur and that relating to Wintinna Mick referring to himself as both Antikirinya and Yankunytjatjara) the weight of the claimants’ evidence does not support it. I am of the view that Antikirinya and Yankunytjatjara are separate (though closely related) peoples and I am therefore unable, on the evidence that was before me in this trial, to accept Professor Goddard’s evidence where he suggests otherwise. However, those conclusions do not address the primary argument of both respondents: did the Yankunytjatjara people, in a migration from the west, push the Antikirinya out of the claim area? The evidence in the trial did not give the answer to that question. There was a great deal of evidence that Pitjantjatjara people came from the west, but there was no evidence that the Yankunytjatjara came from that direction.

Associate Professor Peter Veth

314               Associate Professor Veth is currently Professor of Archaeology and Sociology at the School of Anthropology at James Cook University. He is the Head of the Maritime Archaeology Programme and sits on the Academic Board and Board of Postgraduate Studies at that University. Professor Veth holds a Bachelor’s degree in Arts with First-Class Honours from the University of Western Australia and a PhD, also from the University of Western Australia. He has held a number of professional positions in academia, government and commercial spheres. His list of archaeological writings is both extensive and impressive, and includes works relating to the Western Desert area (of which the claim area is part). I found Professor Veth to be an articulate and impressive witness when giving his evidence. Combined with his impressive curriculum vitae (Ex A53), I am prepared to accept his evidence.

315               Professor Veth’s evidence established that the claim area had been occupied by Aboriginal people prior to the acquisition of the land by the Crown – and that was accepted by both respondents in their closing submissions. His evidence did not, however, identify who the Aboriginal occupants of the land were at the time of sovereignty. Whether they were Yankunytjatjara, Pitjantjatjara, Antikirinya or some other group, cannot be ascertained by reference to his evidence – nor, indeed, by reference to any evidence in the trial. I accept Mr Craig Elliot’s summary of the archaeological evidence; he made this point:

“We know from the archaeological record that the claimed land was occupied prior to that time [the 1930s] but we don’t have a specific way of knowing from that record whether it was Yankunytjatjara, Pitjantjatjara or Antikirinya people. We just know it was Aboriginal people.”

316               Migratory movements from the west occurred at different times for different reasons. There was evidence, for example, that on occasions this led to fighting between the Pitjantjatjara people and the Yankunytjatjara people. On other occasions, it would seem that it was a peaceful exercise that was brought about because of drought or the search for brides. I do not see why these events should not be treated as part of the social and cultural history of the Aboriginal people. Since wars (perhaps better described as tribal disputes), droughts and the search for brides were part of their lives, it is permissible, in my opinion, to accept such migratory movements as traditional. There is no need for native title claimants to establish strict biological descent back to the time of sovereignty.

Dr Robert Foster

317               Dr Robert Foster gave expert evidence on behalf of the applicants on a variety of historical documents that he had been asked to examine. He also wrote two reports, the first of which was tendered by the claimants and is Ex A68, but the second was tendered by the Fullers and is Ex F29. Dr Foster has worked as a scholar in the field of Aboriginal history for twenty years. He obtained his Bachelor of Arts with Honours in History in 1979 and he completed his Masters thesis in 1983, both at the University of Adelaide. From 1983 until 1990, he worked as a consultant historian on various projects that involved, in whole or in part, South Australian Aboriginal History. He returned to the University of Adelaide in 1990 and completed his PhD in 1993. Dr Foster has taught the subject “South Australian Aboriginal History” and has written extensively on Aboriginal history with an emphasis on the manner in which European authors have represented the Aboriginal people. Since 1994, he has been employed at the University of Adelaide as a lecturer in History. Given his eminent qualifications and research background, I am happy to accept his evidence. He was asked to examine, index and comment upon historical and archival material relating to the De Rose area. He was also invited to comment generally as he felt appropriate, and to address specifically, the question of government policy concerning Aboriginal people and their relationship to the pastoral industry from the time of colonisation to the mid 1960s. That exercise included a consideration of the role that the distribution of rations had played in the relationship throughout that period; he was also asked whether the relationship had varied or changed over time. According to Dr Foster, a rations depot was first established at De Rose Hill in 1947 as a result of a request from Doug Fuller. Other entries in his report showed that rations were still being supplied as late as 1967. However, the exact date on which De Rose Hill ceased to be a ration depot was not the subject of evidence.

318               Dr Foster examined the material relating to the initial reservation of rights for the benefit of Aboriginal people in the first pastoral leases that were granted in South Australia. He noted that the policy of the day preserved access rights to pastoral leases for Aborigines. That was, in my opinion, an appropriate conclusion to draw. The reservation clauses that were contained in the early leases certainly reflected that policy. Given that the reservation clauses in the De Rose leases were similarly worded, it was clearly a policy that had been continued by the South Australian authorities. Dr Foster examined how closely those reservations were obeyed by the pastoralists, and concluded:

“… Aboriginal access rights were generally respected because, in combination with other factors, the presence of Aboriginal people on pastoral lands served the interests of both the pastoralists and the government.”

In coming to that conclusion, he pointed out, however, that Aborigines in the north-west regions of the State were a source of cheap labour; they were subject to little or no protection by government regulation and they were also vulnerable to exploitation by pastoralists. They were given rations and, perhaps, some received a very small wage for the intermittent work that was available on the properties in the region. He also pointed out that:

“The government effectively made the employers of Aboriginal labour their guardians. From an Aboriginal perspective the consequences were mixed. In contrast to their southern brethren, who were increasingly concentrated on missions, Aboriginal people in pastoral districts were able to maintain traditional associations with their country, and traditional practices without, for instances, the censorial control of missionaries.”

319               I accept that, in earlier times, the Aboriginal people of the north-west region of the State retained a greater access to their lands and a greater adherence to traditional laws and traditional customs than “their southern brethren”. Whether the claimants in these proceedings have, however, retained a sufficient connection by the acknowledgement and observances of traditional laws and customs to be entitled to the determination that they are seeking is an issue that is to be determined by examining the history of the claim area and those who have inhabited it. In my view, I cannot make a finding in favour of the claimants based solely on evidence of the wider region, or because, by comparison to “their southern brethren”, the north-west Aboriginal people retained greater access to their land and greater observances of their traditional laws and customs. There must be specific evidence relating to the claimants, to those who preceded them and to the claim area. As their Honours Gleeson CJ, Gaudron, Gummow and Hayne JJ said in Commonwealth of Australia v Yarmirr (2001) 184 ALR 113 (“Yarmirr”), at [15]:

“The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?”

At [7] their Honours said:

“It is of the first importance, however, to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection. The relevant starting point for determining the controversies in the present matter is the Act.”

320               The rights and interests with which the NTA deals may be communal, group or individual rights and interests. The evidence in these proceedings has established that there are Aboriginal people whose connection with the claim area differs from one to the other. However, it was not suggested that there was a claim for any individual rights or interests. As the claimants have disavowed any claim that is based on communal interests, I am left to consider the application for a determination of native title upon the premise that the claimants are seeking some form of group rights and interests.

321               Unfortunately, there was very little documentary evidence, specifically relating to De Rose Hill, that could confirm that Dr Foster’s conclusions with respect to the north-west region had equal application to De Rose Hill. Such evidence as does exist suggested that Doug Fuller may have treated his workers more kindly than was typical of the region: the former Constable Bruce Evans said that Doug Fuller was the only person in the north-west “who has never had any trouble in his stock camps since I have been stationed here”. Whilst it is clear that there was a ration station at De Rose Hill and that the leases for the Station contained the reservations in favour of the Aborigines, the degree to which the requisite connection to the land has been retained (if at all) cannot be ascertained by reference to the evidence of Dr Foster. It will be necessary to have regard to other sources of evidence, most notably the evidence of the claimants themselves.

Mr Daniel Vachon

322               Mr Vachon composed a report that was based on field work in which he engaged for his doctoral thesis during October 1977 to May 1979. A great source of his information during that period was Snowy De Rose. Mr Vachon’s report, Ex A9, contained restricted cultural information that is to be read by men only. In discussing his report at this stage, I have taken care to refer only to those sections of the report that were not identified as culturally sensitive.

323               Although the word “Nguraritja” appeared in Mr Vachon’s report, it was significant that it did not appear in his journals; they, of course, were compiled contemporaneously with his inquiries and interviews. I could not accept that Mr Vachon would have accidentally omitted to make reference to “Nguraritja” in his journals; he was far too experienced to make such a mistake. As I discount any possibility of contrivance on the part of the Aboriginal witnesses, his use of the word “Nguru”, as a description of an Anangu’s country by virtue of the Tjukurpa, in contradistinction to “Ngura”, as a description of an Anangu’s country by virtue of their birth (Ngura being a word that was used, on occasions, by some of the Aboriginal witnesses), strongly points to the word “Nguraritja” being one of recent evolution and usage.

324               Mr Vachon also said in his report that it was generally accepted by his informants at Indulkana that Snowy De Rose’s Ngura included places on De Rose Hill Station and Tieyon Station; he was told that Snowy had to be consulted on various matters that concerned those areas. Mr Vachon also observed, during site visits, that Snowy had no difficulty locating indigenous sites, naming them and explaining their spiritual significance.

325               Snowy told Mr Vachon that he was mayatja (the boss) for De Rose Hill “from my father”, thereby claiming his ancestral connection to the claim area. Mr Vachon was of the opinion, based on Snowy’s claims and his acknowledged connections, that he was regarded as Nguraritja for the claim area, and that Snowy’s country was circumscribed by the drainage system of the Alberga Creek – from the Musgrave Ranges in the west and Victory Downs in the north to Lambina homestead in the south-east.

326               Part of Mr Vachon’s report was either gender sensitive or gender restricted. I will say no more than that it was directed to Snowy’s, his father’s and his father’s father’s identification with certain Dreamings. Mr Vachon said that Snowy’s identification of those Dreamings, his knowledge of them and his involvement in the associated rituals was consistent with his assertions (which were acknowledged by others) of his close connection to the country of the upper Alberga Creek.

327               Mr Vachon said that he was satisfied, from the detail that Snowy supplied about the secret places and the Dreamings, that he had a considerable physical and spiritual association with them and the surrounding area.

328               Mr Vachon’s evidence lent support to the proposition that specific sites and tracks, rather than large blocks of country, are the areas in respect of which a person might be Nguraritja. He said that:

“… a person’s country can be seen as a number of places along a series of interconnected tracks. The precise boundaries of that were difficult for me to work out, but they sometimes varied from person to person …”

 

329               Mr Vachon also said in his report Ex A9, that during his research in the 1977-79 period, there was consistent reference by his informants at Indulkana to men and women from the west, generally referred to as Pitjantjatjara, marrying people in the east, generally referred to as Yankunytjatjara. There was no reference, at that stage in his report to Antikirinya people.

330               These Dreamings or Tjukurpa are not limited to the De Rose Hill area nor are they limited to the people who claim to be Nguraritja for the claim area. On the contrary, they have a much larger geographical range and affect a much larger population. This, in part, explains why an Aboriginal man might say that his story starts at a particular place and finishes at another. That does not mean that the story starts and finishes at those locations. The Dreaming would have started long before and will continue on long after. Even though it is basically the same story, it will also “belong” to others.

331               The evidence of Mr Vachon was of limited value. It supported the case for the claimants that Snowy De Rose was properly described as Nguraritja. But whether he was Nguraritja for the whole of De Rose Hill Station or for only for parcels and tracks of land that followed the paths of the Tjukurpa was open to some doubt. The restricted section of his evidence was not particularly noteworthy for it mostly echoed what many of the Aboriginal witnesses had said about the locations, origins and destinations of the Tjukurpa in open evidence. In summary, Mr Vachon was able to speak on Aboriginal occupation and cultural activities in and about the claim area in the late 1970s but he had no knowledge of those matters in the following two decades.

Dr John Willis

332               Dr Willis wrote a Doctoral thesis entitled “Ritual, Romance and Risk: Pitjantjatjara Masculinity in the AIDS”. He considered that his doctoral thesis analysed the “social construction of Pitjantjatjara and Yankunytjatjara masculinity and sexuality through an inma and the tjilkatja cycle of ceremonies”. The Inma was named by Dr Willis but its name is restricted and for that reason it has not been identified in these reasons.

333               Dr Willis has had extensive involvement in the Western Desert area. From 1985 to 1988 he was employed by the Pitjantjatjara Council as an anthropologist under the supervision of Ms Susan Woenne-Green. In 1988 and 1989 he worked as a consultant for the Commonwealth Department of Health, examining community based services in such locations as Tennant Creek, Mutitjulu, Kintore, Papunya, Haast’s Bluff, Yuendumu, Alekarenge and Elliott. This work involved interviewing over two hundred senior Aboriginal people who, between them, spoke sixteen different languages. I accept, as he states, that the work allowed him to “explore the cultural similarities between a number of Western Desert groups”. From 1989 to 1997 Dr Willis worked as a Community Park Liaison Officer at the Uluru-Kata Tjuta National Park living in the Mutitjulu community for the great majority of that period of employment. During this period, he became well-acquainted with Witjawara Curtis (who gave evidence in this trial), her sons Bob, Wayne, Jeffrey, Sandy and Rupert and Witjawara’s grand-daughter Theresa. Dr Willis was credited with saving the life of Rupert after he was accidentally stabbed in the leg. Bob, Sandy, Rupert, and “Lucky” Curtis are included on the list of Nguraritja in the claimants’ closing submissions.

334               Dr Willis is a Wati Pulka, a senior man who was initiated into Pitjantjatjara/Yankunytjatjara restricted men’s ceremonial Law near the Docker River community in 1991. He has, since initiation, participated in several significant Anangu ceremonies. He therefore has a rather unique perspective; he is an initiated Anangu who has risen to become a Wati Pulka, and he is also a highly qualified anthropologist. I accept Dr Willis as an anthropological expert uniquely qualified to comment on the traditional laws and customs of the Western Desert region.

335               Professor Maddock, in his second report, commented upon Dr Willis’ somewhat unique position:

“The information in the applicants’ expert reports seem to come mainly from interviews and with little systematic use of observation to ascertain the customs in force and the patterns of land use. Dr Willis may be a partial exception, since he is being naturalized, as it were, into the Western Desert society, and has learned from participating in its activities … Such as experience is not an unmixed blessing, however, for the person who undergoes it is likely to feel constrained to keep certain information to himself …”

336               With respect to Professor Maddock, I do not share his reservation about Dr Willis. No doubt Dr Willis felt it necessary, at times, to satisfy himself that the Court was aware of the extreme sensitivity of parts of his evidence and of the need to make appropriate orders to protect it. But there was no evidence that he was subjected to degrees of confidentiality that were any stricter than those that applied to other anthropologists or other witnesses. In addition, it must be said that Dr Willis’ report gave the most detailed insight into Western Desert traditional laws and customs, and, in particular, into those secret laws and customs relating to the initiation of males. Even allowing for the many difficulties that confronted them about the disclosure of secret or sacred information, it was a pity that some of the Anangu witnesses did not provide similarly detailed evidence to support their claims that they still acknowledged and observed their traditional laws and customs. In my view, Dr Willis walked, with considerable skill, the path between an initiated Anangu man and an anthropologist who gave evidence to the Court as neutral expert witness.

337               A great deal of Dr Willis’ report was either gender-sensitive or gender-restricted and cannot be discussed in these reasons. However, some general comments can be included even though Dr Willis was restricted as to the depth of the information that he could give in many matters. He was very careful to establish exactly what matters he could discuss in his report and in his oral evidence. He had consulted senior men on the matters that he could disclose before he gave his evidence to the Court. As Dr Willis pointed out, the “layering of secret information is a common feature of the economy in restricted information across the Western Desert”. He concluded that maintaining information restrictions “has a direct bearing, in Yankunytjatjara belief, to the ongoing existence of the universe”. Dr Willis’ evidence was the most detailed and most acceptable evidence of any witness (Anangu or expert) on matters of traditional laws and customs of the Western Desert Pitjantjatjara and Yankunytjatjara people.

338               One question of considerable importance that arises in this trial is the use that I can make of Dr Willis’ evidence. Whilst his qualifications, training, fieldwork and experience are excellent and highly relevant to the Western Desert generally, his experience of the claim area is, at best, minimal. He acknowledged that he had never visited any sites on the claim area. His evidence on several topics filled some gaps that had been left in the claimants’ case, whilst in other instances it provided, in much greater detail, insight and explanation into traditional laws and customs of the Western Desert region.

339               For example, there was disagreement between the claimants and the respondents as to how one became Nguraritja through long-term association with the land. Dr Willis provided an account which constituted very strong support for the claimants’ position – a position that I am prepared to accept.

340               Dr Willis also provided more detail and explanations of traditional laws and customs. The most obvious example was that which related to the laws and customs surrounding the initiation of males. The testimony of the Aboriginal witnesses was to the effect that the traditional laws and customs were still followed, but their evidence lacked detail. Dr Willis, on the other hand, provided a great deal of that information to the Court.

341               Dr Willis, during the course of his evidence in closed session, explained in some detail the important concept of Kurunitja (which he described as “a spirit or essence which inheres in the landscape”.) Counsel for the claimants described it in open Court as “this phenomenon of the ingestion of the essence of the land” and Dr Goddard, in his dictionary defines it as “of/from the spirit”.

342               It was submitted on behalf of the claimants that the evidence of Dr Willis “provided the explanation which then enables someone to recognise and understand the evidence from the other witnesses”. For example, Peter Tjutatja had said in his witness statement:

“Tjukurpa has been passed on from generation to generation. It came from the ground and all things associated with it.”

 

But that is not good enough. The onus is upon the claimants, if they wish to establish their right to a determination of native title, to give the evidence that will establish that right. They had the opportunity to do that in closed session but they failed to do so. Dr Willis was the only witness in the trial to refer to andexplain the kurunitja. Oblique references, such as that found in Peter Tjutatja’s statement serve no useful purpose. Dr Willis, although an initiated man, was not a claimant nor was he Nguraritja for the claim area. His evidence was of value in its application, generally, to the Western Desert. What was needed from the claimants was evidence that applied Dr Willis’ evidence to the claim area. That was not forthcoming.

343               The State submitted that the information that was provided by Dr Willis “whilst having general application, did not specifically advance the case that the claimant group or any particular member or members of it are acknowledging and observing traditional laws and customs”. There is force in that submission. Dr Willis was not able to give evidence that the claimants acknowledged and observed traditional laws and customs. That is not a satisfactory basis from which to impute a level of knowledge to the claimants that is equivalent to that displayed by Dr Willis. It would seem, then, to be drawing a long bow to suggest that statements made by Dr Willis, who has never been on the claim land and has no significant personal knowledge of the claimants themselves, could be used to establish or support a level of observance and acknowledgement of traditional laws and customs by the claimants. That was, essentially, for the claimants themselves to establish on the basis of their evidence.

344               However, Dr Willis’ evidence remains relevant in establishing the laws and customs of the Western Desert region, of which the claim area is part. The claimants submitted that what they are required by the NTA to prove is:

“… that the claimants are the descendants of the people who inhabited the land – that is, the land being part of the region – and who acknowledged traditional laws and customs in relation to the claimed land and that it is not part of the law that they are required to prove that they are the descendants of the people who at the time of sovereignty possessed native title rights and interests in the land.”

 

345               In short, the claimants submitted that they need only establish that they are descended from people who are from the wider region (ie the Western Desert) and that those people followed the traditional laws and customs. Since acquisition of land in this region is not solely from transmission through descendants, it is not necessary that the claimants be the biological descendants of those inhabiting the claim land at sovereignty. The claimants have submitted that their forebears lived in the wider region, and followed the traditional laws and customs of the wider region, and that the laws and customs of the wider region are essentially the same as those that are followed within the claim area. As to that, there was little dispute that the traditional laws and customs that once applied to the claim area were essentially the same as those of the Western Desert region. Furthermore, Dr Willis’ evidence tended to suggest that the traditional laws and customs that had been identified by the claimant witnesses were basically the same as those outlined by him as a result of his experiences in the wider Western Desert region. I am not prepared, however, to make such a broad-based finding as that sought by the claimants. Although it is not necessary for the claimants to prove biological descent from those who occupied the land at the time of sovereignty, I do feel that there has to be some continuity – even though it might be through migration, marriage or even tribal dispute – between those who formerly occupied the land at sovereignty and the present claimants.

346               The evidence in this case has disclosed that many of the claimants or their parents or grandparents had migrated to the claim area from the west. It would be reasonable to conclude that the archaeological remains within the claim area which were identified by Professor Veth are those of Western Desert Bloc Aboriginals. The next and more difficult question is whether those Anangu followed the same traditional laws and customs as the claimants’ ancestors and as the claimants do today? Even though the evidence has not disclosed a biological connection between the claimants and those who inhabited the area pre-sovereignty, there was evidence that, in my opinion, was sufficient to establish a form of connection between the claimants and those Aboriginal people who occupied the land pre‑sovereignty. It was a connection that was achieved through a process of incorporation that reflected the pattern of migratory movements.

Mr Craig Norman Elliott

347               The applicants relied upon the anthropological evidence of Mr Craig Elliott. He holds a Bachelor of Arts Degree (Anthropology) from Macquarie University and a Master of Arts Degree (Anthropology) from the Australian National University (“the ANU”). He was a tutor in Anthropology and Aboriginal Studies at the ANU and at the University of Canberra between 1990-1995. He has conducted anthropological field research with Aboriginal people since 1989 and since 1991 he has worked in Central Australia as a consulting anthropologist to the Central Land Council. He has also conducted research in land claim proceedings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) since 1993 and in native title claims under the NTA since 1994.

348               In light of his academic and practical experience, I am satisfied that Mr Elliot is qualified to give evidence as an anthropological expert. The submission by the State of South Australia that he was “clearly inexperienced” is not appropriate. However, I have found myself unable to accept some of the opinions of Mr Elliot. Where he is in conflict with the views of Professor Maddock, I prefer the views of Professor Maddock.

349               Two reports that had been written by Mr Elliott were tendered in evidence as exhibits A11 (“the first report”) and A60 (“the second report”). In addition, Mr Elliott’s oral testimony was spread over nearly ten days of the hearing. The first report was essentially the results of Mr Elliott’s field work with the claimants together with the results of his investigations during his native title field trips to the claim area and its surrounds. He had been asked to report on the relevant sites or areas (including those in Professor Veth’s report), the ancestral tracks of the Tjukurpa, any religious and spiritual matters in the claim area and the claimants’ relationship to religious and spiritual sites and to the Tjukurpa. Part of the first report was restricted and could only be read by certain males. However, it will not be necessary, in these reasons, for me to refer to those restricted sections. The second report had a somewhat different focus. After detailing the traditional laws and customs and detailing the people who have had a connection with the claim area by virtue of those laws and customs and the nature of that connection, Mr Elliot was asked to address whether, since the acquisition of sovereignty, there had been a cessation of acknowledgement of traditional laws and customs or a loss of connection to the claim area by the community “of the traditional laws and customs upon which the native title had been founded”. It was evident that those questions had been framed with close regard to the NTA, and in particular to the provisions of subs 223(1). He was also asked to provide an account of the early ethnographic sources, being those of Professor AP Elkin, the Berndts, Norman Tindale and Professor TGH Strehlow. Mr Elliott also appended to his report a list of sixty names: individuals whom he described as “The Principal Individuals who are Nguraritja for the Claimed Land”. Mr Elliott explained, however, during the course of his evidence, that the list was not necessarily complete; it was not said to be exhaustive of all those who might be Nguraritja for the claim area. In the compilation of his list, Mr Elliott named each person alphabetically, stated that person’s gender and then identified his or her basis for inclusion as Nguraritja. He offered four bases; a person could be Nguraritja for the claim area because:

(a) it was his or her country of birth;

(b) he or she had a long-term physical association with the claim area;

(c) he or she possessed ancestral connections to the claim area; or

(d) he or she possessed geographical and religious knowledge of the claim area.

Where reliance was placed on ancestral connections, the degree of that connection was shown by reference to paternal or maternal or (in a few cases) both paternal and maternal ancestors. One example of ancestral connection concerned Christine and Elizabeth, the children of Peter De Rose. Although neither was born on the claim area, each was presented as Nguraritja through ancestral connections tracing back through their father, Peter, his step-father, Snowy and Snowy’s father and grandfather, Jimmy Piti Piti and Kurta. Another example was that of Bernard Singer and his siblings. They were advanced as Nguraritja because of ancestral connections through their mother, Sadie, her mother, Nora and Nora’s father, Billy Langka

350               It was urged upon me by the State that the appropriate way to assess the report of Mr Elliott was to treat it as a pleading. The State relied, in part, on comments that had been made by Olney J in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 562-3, where his Honour said:

“My approach to the anthropologists’ report can be summarised in this way:

(i) to the extent that it sets out the basis upon which the applicants’ claim to native title is formulated, it is in the nature of a pleading;

(ii) it contains, to some extent, expert opinion evidence of persons qualified in the relevant field of learning;

(iii) to the extent that it contains assertions of fact in the nature of hearsay, based upon information supplied by informants who later gave evidence, regard must be had to the evidence of the informants rather than to the contents of the report;

(iv) inconsistencies between facts asserted in the report and the evidence of the witnesses may reflect upon the credit of the witnesses, but this would not necessarily be so if the weight of the report suggests that the report is inaccurate;

(v) the weight to be accorded to assertions of fact not in the nature of expert evidence which are not supported by the evidence of witnesses will depend upon the particular circumstances including whether or not the respondents have had a real opportunity to test the accuracy of the matters asserted in the report.”

The characterisation of Olney J’s comments by the State was not, in my view, entirely accurate. It would appear that his Honour was inclined to treat the anthropological evidence according to the nature of the evidence that was contained within the report. He went on to say at the next paragraph of his judgement:

“In the present case the anthropologists’ report serves the very useful purpose of providing the contextual background against which the oral testimony of the applicants’ witnesses can be better understood.”

That statement indicated that his Honour was prepared to treat the evidence of the anthropologists at a somewhat higher level than mere pleadings. In my opinion, anthropologists are entitled to give expert evidence and the court is entitled to treat that evidence as the evidence of an expert witness. Some good reason may suggest that it is appropriate to do otherwise; that would depend upon a variety of factors. The views expressed by the witness may lack a proper factual base; they may be beyond the expertise of the witness; it might be apparent that the witness had become an advocate for a party rather than a neutral observer who would be expected to give impartial evidence to aid the Court in its deliberations. These and other subjective factors must always be considered. But there is no reason why the views and opinions of Mr Elliott or any other anthropologist or any other expert witness should be relegated to the category of pleadings.

351               It is important to note, however, that “what really matters is the evidence of the Aboriginal claimants…” (an observation of counsel that was quoted with approval by Deane J in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 492). The evidence of the claimants and their Aboriginal witnesses will provide the most compelling evidence in any native title case. Even the evidence of Dr Willis, a fully-initiated Western Desert man, who is also an eminently qualified anthropologist, could not be more important than the claimants’ evidence when it comes to establishing whether the claimants are entitled to a determination of native title over the claim area.

352               Unfortunately, I have come to the opinion that Mr Elliot became too close to the claimants and their cause; he failed to exhibit the objectivity and neutrality that is required of a expert who is giving evidence before the court. Rather, he seemed – too often – to be an advocate for the applicants. I will outline a few examples that led me to conclude that I could not safely rely on his evidence where it was controversial, challenged or uncorroborated by clear evidence from another reliable source.

353               In cross-examination, Mr Besanko QC questioned Mr Elliot about his notes of his conversation with Peter De Rose at Papa Itari (site 48) on 30 March 1995. The conversation concerned those people who were entitled to Nguraritja status over the claim area. The relevant passage was as follows:

Q “Did you ever speak to your informants about how one would obtain Nguraritja status?

A Yes, I did.

Q Did you speak to Peter De Rose about this?

A Yes, I did.

Q Do you have your field books here?

A Yes, I do.

Q Do you have book number 2? Mr Elliot, do you have book number 2?

A Yes, I’ve got it.

Q Thank you. Do you have an entry for 30 March 1995? I think it might be page 62?

A Yes, I’ve got that.

Q Does that record a meeting involving, among others, Peter De Rose, or is it only Peter De Rose?

A No, there were others there on that occasion.

Q There’s a passage at the bottom of your field notes commencing, “Carlene Thompson”. Do you see that?

A Yes.

Q Does that record there something that Peter De Rose told you?

A Yes.

Q Can you just read out there what you’ve recorded Peter De Rose as saying to you?

A ‘Peter De Rose said not to put …’

Q Just slowly, Mr Elliott, please?

A Am I reading the right passage?

Q Yes

A ‘Peter De Rose said not to put on above list.’ I’ll start from the beginning.

Q Yes?

A ‘Carlene Thompson born Finke, therefore Peter De Rose said not to put on above list. Peter also said not to add Michael Mitakiki, Sandy Williams, Kelly Williams, Yuminiya Ken, because they weren’t born there at De Rose Hill but only lived there. Note there are exceptions – eg, OP.’ [the letters OP were a reference to is Owen Kunmanara]

Q That’s something that Peter De Rose said to you on 30 March 1995?

A That’s correct.

Q We see Carlene Thompson on your list of Nguraritja?

A That’s correct, through long-term physical association, and she lived at De Rose Hill homestead and her son was born at De Rose Hill.”

It would appear from this passage of the evidence, that Peter De Rose, the main witness for the claimants, had told Mr Elliott, in clear and unmistakable terms, that a number of people were not Nguraritja because “they weren’t born there but only lived there”. On the other hand, Peter had told Mr Elliott that Owen Kunmanara wasNguraritja because he was generally acknowledged by the claimants as having the longest physical association with the claim area. But the clear assertion was that the physical occupation of the claim area by the other claimants did not, in Peter’s mind, qualify them as Nguraritja. Such a statement was totally contradictory, not only to the oral evidence of Peter De Rose (which is elsewhere referred to in these reasons) but, more importantly for these purposes, to the conclusions that Mr Elliott reached as contained in his “List of Nguraritja for the Claimed Land”. The cross-examination continued in the following manner:

Q “In 1995 Peter De Rose was telling you not to put Carlene Thompson on the list of Nguraritja because she was born at Finke, not at De Rose Hill. That’s right, isn’t it?

A I think that’s a reasonable interpretation, yes.

Q He was also telling you not to put on the list of NguraritjaMichael Mitakiki because he wasn’t born at De Rose Hill either. That’s right, isn’t it?

A That’s right.

Q The same can be said about Sandy Williams?

A Yes, that’s Sandy Panma Williams.

…

Q But you understand – and it’s clear from your note, I suggest, that Peter De Rose is speaking more generally than Papa Itari because he talks of people not being put on the list because they were not born at De Rose Hill?

A Yes, I agree that that’s a reasonable interpretation.”

354               Again, it is the clear that Peter De Rose was telling Mr Elliott that a number of claimants were not Nguraritja because they had not been born on the land. The implication from Peter De Rose’s comments was that becoming Nguraritja to an area through long-term physical association will be exceptional and rare – according to Peter, only Owen Kunmanara was Nguraritja in that fashion. It is very difficult to reconcile the information that was contained in those notes with the conclusions that Mr Elliott reached in his reports – in particular, his second report. In that report, he expressed the firm view that the Nguraritja for the claim land included those people “who are understood to have a long-term physical association with the area, such as through ‘growing up’ there”. Peter De Rose’s comments, as recorded by Mr Elliott suggested, in my view, that becoming Nguraritja in that fashion required a much longer period of time than was implied by Mr Elliott.

355               The comments of Peter were not mentioned anywhere in Mr Elliott’s reports, nor was there any indication in them that Peter had expressed a view that differed from Mr Elliot’s conclusion. It was a matter of concern that the information that was contained in those notes was not mentioned; nor did Mr Elliott adequately explain (either in his reports or in his evidence-in-chief) why Peter’s comments should be ignored in favour of Mr Elliott’s conclusions.

356               Carlene Thompson, Michael Mitakiki and Sandy Panma Williams were included by Mr Elliott in his list as Nguraritja because of their long term physical association with the claim area. Furthermore, Mitakiki and Panma were also included because of their possession of geographical and religious knowledge. Finally, Panma was included because it was said that his mother, Imuna, had been born on the claim area and that he thereby had an ancestral connection to the claim area. (Panma, however, said in his witness statement that his mother had been born at Kunamata which is in Pitjantjatjara country). In the case of Carlene Thompson (and in the case of twelve others on Mr Elliott’s list) her and their only connection with the claim area was said to be their long-term physical association.

357               There is an ironic twist to this problem. Because of the oral testimony of other Aboriginal witnesses, I am prepared to accept that it is not necessary that a person be born on the land before he or she can become Nguraritja for that land. Location of birth is of great importance: it immediately gives Nguraritja status. But it is not the only means of being accepted. The status can be earned by other means, such as those that were shown in Mr Elliott’s list. My concern with Mr Elliott was two-fold. In the first place, he failed to report a significant piece of information that he had obtained from Peter De Rose; secondly, he failed to explain why he was able to disregard what Peter had told him when the time came to compile his report. The contents of his report point to him having lost his neutrality and having become an advocate for the claimants. Peter De Rose’s statement about Carlene not being Nguraritja did not fit into the pattern that Mr Elliott was composing: therefore he considered that it was better to ignore it and leave it out of the report.

358               There were further aspects of Mr Elliott’s evidence that gave me cause for concern. Exhibit F8 was a section of a transcript of Mr Elliott’s taped interview of Riley Tjayrany and Norman Yanima. On page 6 of the transcript the following exchange was recorded:

“CE: Are you Nguraritja over this way, that DRH [De Rose Hill] country here too?

RT: No.

CE: No. Right, you don’t come in for that one. But you go hunting on that country a lot but you are not Nguraritja for that country.

RT: Nguraritja wiya! [not Nguraritja]

359               Riley made it quite clear to Mr Elliott in that interview that he did not consider himself to be Nguraritja for De Rose Hill. He did, however, list a number of other places for which he said he was Nguraritja. There was little indication in the transcript of the interview, as tendered, of Riley being confused. He asserted that he was not Nguraritja for De Rose Hill twice in clear terms. Riley’s statement to Craig Elliott that he was not Nguraritja was not mentioned in Mr Elliott’s report. On the contrary, Mr Elliott listed Riley as Nguraritja for the claim area because of his long-term physical association and his possession of geographical and religious knowledge. It may be that Riley’s statement could have been explained; but, rather than doing so, Mr Elliott omitted any reference to it in his reports. I have concluded that I cannot accept that his reports presented an accurate picture of the information that the claimants gave to Mr Elliott.

360               In his second report, Mr Elliot expressed the view that the “Yankunytjatjara, Pitjantjatjara and Antikirinya speaking peoples are a community of people within the broader Western Desert region”. He defined the Western Desert region as encompassing a vast area of “western and north-west South Australia, south-west and central-west Northern Territory and east-central and north-eastern Western Australia”. This description of the area covered by the Western Desert region seems to be generally consistent with the ethnographic material and the opinions of anthropological experts in this trial. It is generally accepted within the literature that, within the Western Desert, there is a marked similarity of language, laws, customs, religious and spiritual matters that are used, applied or followed by the various “groups”, “tribes” or “hordes” (as they have been variously labelled) that have been identified by ethnographers and anthropologists. These groups have been identified in a number of the writings that were tendered by the claimants and also in the maps that were tendered by the State. They include the Yankunytjatjara, Pitjantjatjara, Antikirinya, Ngaatjatjarra and Ngaanyatjarra. However, Mr Elliott’s depiction of a Yankunytjatjara, Pitjantjatjara and Antikirinya as a composite community (which I will call “the YPA community”) within the wider Western Desert area was both controversial and unique in the relevant literature and subject to heavy criticism from both respondents.

361               Mr Elliott said that there were ten “indicators” that supported the existence of his YPA community. They were:

(1)               they (that is, the Yankunytjatjara, Pitjantjatjara and Antikirinya people) speak and identify with dialects of a common language;

(2)               they have the same system of kinship and are linked by kinship ties;

(3)               they share a common system of origin beliefs, spirit world beliefs and laws and customs flowing from those beliefs;

(4)               they participate in religious ceremonies based on shared traditional beliefs;

(5)               they acknowledge and observe a system of principles of affiliation to, and entitlements in, land;

(6)               they share beliefs and practices concerning the use and care of land and its resources;

(7)               they share a system of authority that recognizes the seniority of senior men and women;

(8)               they reside in areas of geographical proximity;

(9)               they have broadly shared histories; and

(10)           they do not have some aspects of social organization that are found in other parts of the Western Desert Region.

Thus, it is Mr Elliott’s view that the claimants are part of a YPA community. That community, according to Mr Elliott, contains fewer people than the Western Desert Region, but it is greater in number than the Nguraritja for De Rose Hill. In my view, Mr Elliott’s concept of a YPA community did not gain any real support from the evidence of the claimants. Peter Tjutatja and Owen Kunmanara, the two most senior claimants, both gave evidence to the effect that the Antikirinya were a separate group of people of whom they knew little; Tjutatja was of the view that they had died as a result of the Maralinga tests. Quite a few witnesses professed little or no knowledge of the term “Antikirinya” and other witnesses were adamant that people who self-identified as Antikirinya were, in fact, Yankunytjatjara and not Antikirinya. None of those responses, in my view, supported the contention that Antikirinya are so closely related, or similar to, the Pitjantjatjara and Yankunytjatjara that they would be a constituent part of a separate community that existed within the Western Desert region.

362               Mr Elliott’s conception of the Yankunytjatjara, Pitjantjatjara and Antikirinya as ‘one community within the broader Western Desert region’ was at odds with the views of Professor Maddock. The following exchange between Mr Besanko and Mr Elliot illustrated the artificiality of Mr Elliott’s views on this issue:

Q “Well, is it your opinion that they are one community?

A It is, although I concede that there is more than one way to slice the pie, as it were. You could construe the community based on different criteria more broadly.”

 

363               Professor Maddock was quite critical of the concept of the YPA community as advanced by Mr Elliott. In particular, he was critical of Mr Elliott’s methodology in using the ten “indicators”. In his supplementary report, Professor Maddock pointed out that Mr Elliott “does not suggest that this entity has a name and he does not discuss its history. Whether YPA is of long standing or has emerged only recently is not explained”. He also pointed out that if the YPA community did exist, that “one would now expect it to be documented in the now extensive literature on the Western Desert”. He continued:

“This raises the question whether the YPA community is part of ethnographic reality or is a construct of Mr Elliott’s making in which, for purposes of his own and using a set of criteria of his own choosing, he is pigeonholing people. Another anthropologist, using different criteria and having different aims, would very possibly achieve a different grouping – or, as Mr Elliott put it in his evidence, ‘slice the pie’ differently.”

364               Professor Maddock set out in his supplementary report reasons why each indicator was of little or no value in proving the existence of a YPA community. It is, ultimately, unnecessary to recite Professor Maddock’s criticisms of Mr Elliott’s ten “indicators” in detail save to state that I generally accept and agree with his reasoning, because the claimants, in their closing submissions, do not appear to rely upon Mr Elliott’s YPA community. However, it is perhaps necessary to set out the general tenor of Professor Maddock’s criticisms:

“Some of Mr Elliott’s indicators are vaguely stated or extremely general. They are not all of the same kind. It is by no means obvious that their application enables one to distinguish a YPA community within the wider Western Desert region or other communities of that sort within that region. To be useable for such a purpose the indicators would need to be stated with a degree of precision allowing different investigators to apply them to the Western Desert region and arrive at the same or broadly similar conclusions about the way it is divided up.”

I accept Professor Maddock’s criticisms of the notion that such a community actually exists; I conclude that one does not.

365               It is true that, due to the illness of Ms Woenne-Green, Mr Elliott was suddenly thrust forward as the applicants’ main anthropological expert witness. His second report was therefore written, because of Ms Woenne-Green’s illness, in an extremely short space of time. That must have placed considerable pressure on Mr Elliott; it was hardly the ideal environment in which to write a comprehensive report on the issues that the claimants wished him to address. But, while I am sympathetic to Mr Elliott’s plight, the difficulties inherent in his conception of a YPA community remain. I cannot accept this section of his evidence.

366               Under cross-examination, Mr Elliott also seemed loathe to accept the idea of permanent post-contact migration by Aboriginal people from the western parts of the AP Lands to areas around De Rose Hill. The Fullers, in their closing submissions at [98.2] described his refusal to accept this as “perverse”. I must say that Mr Elliot seemed very reluctant to accept, either that such migrations were permanent, or that they were in any way due to the attractions of white settlement. There was ample evidence to warrant a finding that these migrations did occur (most notably as a result of the claimants’ own evidence), and his refusal to concede as much indicated, in my view, an obdurate refusal to give ground where appropriate. There was some evidence from a few of the Aboriginal witnesses that there was, at one stage, a practice of returning to a father’s country for the birth of a child. As to that, Mr Elliott asserted that the “contention of physically ‘returning’ to the father’s country to give birth – in order to be ‘associated’ with it – has no basis”. He did, however, withdraw from that assertion somewhat, in his oral evidence. He conceded that what he had said on the subject was an “overstatement of the situation”.

367               Mr Elliott has done a substantial amount of work in assisting the claimants in the preparation of their case. There is a wealth of factual information in his reports, much of which is either uncontentious or is supported by the independent evidence of the Aboriginal witnesses. Where his research into the traditional laws and customs and the Tjukurpa, for example, is supported by direct evidence from the claimants, I would be prepared to accept it as corroborative and as providing a “contextual background”. However, his partisanship has been his undoing and, as a result, where he has expressed an unsupported opinion that is at odds with Professor Maddock, I rely on the evidence and opinions of the Professor.

professor kenneth maddock

368               Although Professor Maddock was present for the greater part of the trial as a consultant to the State, he had not undertaken any fieldwork in the claim area nor in its surrounds. In this respect, he differed from Mr Elliott, who had spent some considerable time engaging in fieldwork with the claimants. Dr Willis and Mr Vachon have also had considerable experience with the Western Desert culture but they have had little or no experience in the claim area. Professor Maddock’s reports were therefore limited first, to reviewing and examining the relevant literature with respect to the claim area and, secondly, to commenting upon the methodology, reliability and conclusions in the reports of the claimants’ experts.

369               Professor Maddock gave his evidence in a forthright and neutral manner. I have had no difficulty in accepting him as an expert, well-qualified to comment on anthropological matters. In general, the most relevant parts of his reports concentrated upon the methodology and the conclusions of the claimants’ experts and I am, for the most part, of the opinion that his comments were valid and that they should be taken into account when assessing the weight that is to be attached to the contents of the various reports. There is, however, one important area in his discourse that I cannot accept. I consider that he has placed an undue emphasis on the need to establish, as a starting point, the circumstances of the Aboriginal people as they existed at the time of sovereignty.

370               Professor Maddock suggested that a useful anthropological strategy in native title applications would be to have:

“… a series of clearly focussed snapshots, each of them dated, the first having been taken at sovereignty and the last at the present day. In reality, of course, one is unlikely anywhere to be able to approximate to this ideal. Some snapshots have been lost, others are badly blurred, some show only the edge of the scene in which one is now interested and it cannot be taken for granted that the photographers were trying to record the same subject.”

 

As a matter of fact, however, the historical writings and documents that specifically relate to the claim area lack descriptive detail of activities on the claim area, a point acknowledged by Dr Foster in Vol 1 of his report dated 24 November 2000. Professor Maddock shared that view. He agreed that the ethnographic material in respect of De Rose Hill is not as extensive as that which exists for other areas of the Western Desert. As a result, the series of “snapshots” that Professor Maddock would like to have available does not exist. He was, of course, was well aware of that fact for he acknowledged that, in reality, the ideal never occurs. The Court is well aware of the difficulties facing claimants who seek to gather the historical and anthropological material that would support their application for a determination of native title. It attempts to be as sympathetic as possible without causing undue prejudice to any other parties to the application. In particular, s 82 of the NTA, O 78 of the Federal Court Rules and the approach outlined by Kirby P (as he then was) in Mason v Tritton (1994) 34 NSWLR 572 at 588 may be utilized, where appropriate, to ensure that applicants are not required to meet an evidentiary burden that is, in the circumstances that are unique to every native title application, impossible to meet.

371               It would appear that the view held by Professor Maddock is that the claimants are required under the NTA to show that “their relation to the land under claim is continuous with that of their forebears at the time of acquisition of sovereignty”. That view is very similar to the submissions of the respondents: namely, that ancestral connection is required between the claimants and those who occupied the claim land at sovereignty. For reasons that are set out elsewhere in these reasons, I have concluded that such a strict test is not required. However, my disagreement with the Professor on this issue has little, if any, bearing on my overall assessment of the value of his evidence.

372               Professor Maddock was of the opinion that Professor Veth’s report did not have “much bearing on native title”. I do not agree. Professor Veth’s report confirmed that Anangu were present on the claim land in pre-sovereignty times, although he was unable to identify which group or groups of Anangu they might have been. Given Professor Maddock’s view that biological connection to the group occupying the land at sovereignty was required, one can see why he would therefore concluded that the archaeological report did little to progress the claimants’ case. However, historical, archaeological and anthropological materials have also placed Anangu in the De Rose Hill area post-sovereignty. Anthropologists, operating subsequent to the acquisition of sovereignty, have clearly considered the Station to be part of the Western Desert Bloc (albeit generally, in the opinion of the early ethnographers, in Antikirinya territory). Now there can be added to those opinions, the archaeological evidence that places Aboriginal people on the claim area prior to sovereignty. There is no reason why it should not be accepted that the occupants at sovereignty followed the same traditional laws and customs as those that the claimants’ forebears did, even though there was no clear evidence that the current claimants and those who were present at the time of sovereignty have any direct biological connection. I see no reason why the migratory movements of the Pitjantjatjara to the east – whether as a result of drought or war or marriage – should not be accepted as part of the history and social structure of the Aboriginal people of the Western Desert Bloc. This conclusion, which is no more than an inference that is based more on the evidence of Anangu witnesses than it is on the opinions of the experts, gains some support from the frequency of intermarriage and the consequential movement between the Pitjantjatjara and Yankunytjatjara people. In my opinion, the conclusion reached by Professor Maddock in his first report is an appropriate assessment of the anthropological evidence:

“Although the applicants, like Western Desert people generally, are well removed from the baseline of sovereignty, the available evidence does not suggest a total rupture of continuity with the pre-contact culture, in spite of territorial shifts, population movements and probable changes in law and custom. Accordingly, Aboriginal evidence in the case will be important. It will, on one hand, throw light on the time depth of the applicants’ association with the claim area (ie on their continuity with previous occupants); on whether there is much more than spiritual affiliations to their association with the land; and on their laws and customs.”

 

373               Professor Maddock highlighted a number of difficulties with the reports of the anthropologists. He suggested that Mr Elliott’s first report contained observations of behaviour and statements that did little to forward the claimants’ case because, so he said, the information was lacking in precision. He said:

“… when Mr Elliott goes on to list instances of ritual or other traditional observances recollected by his informants as having taken place in or near the claim area …, it is not clear who took part. Thus one claimant saw ‘men and women performing inma’ and another saw ‘spear fights between men’. As it happens, observations of the kind could be and have been made in many parts of Aboriginal Australia. Where documentation is available it often turns out that the performers or actors belonged to areas other than that in which the ceremony or fight occurred. Accordingly, the ‘conclusions and inferences’ which Mr Elliott draws from his list of instances do not, on the face of it, support the applicants. Nor do they undermine the applicants. The point is that we need more information than Mr Elliott provides (or perhaps was able to obtain).” (references omitted)

That commentary was, in my opinion, reasonable. The material upon which Mr Elliott relied needed more precision. Some of the observations, that were contained in Mr Elliott’s report and which were based on the memories of people whom he had interviewed, lack the level of detail that is required to sustain the conclusions that he reached. Furthermore, there were occasions when Mr Elliott’s observations of witnesses were not borne out by the evidence at trial. For example, Mr Elliott talked of Kampukuta “seeing Inma on De Rose Hill”. There was no such evidence from Kampukuta. Where claimants have made statements to an anthropologist and those statements have not been reflected in the evidence of the claimants, such statements to the anthropologist have very little, if any, weight attached to them. Any conclusions that might be based on them would be subject to the same criticism. This is not to say that all of Mr Elliott’s first report suffers from this difficulty. For example, his site sequences for the Malu, Kanyala and Tjurki and Kalaya Tjukurpa were substantially corroborated by the evidence of the Aboriginal witnesses.

374               Perhaps Professor Maddock’s most relevant observation in his supplementary report was that the anthropological reports of the claimants’ experts relied on interview rather than “the systematic use of observation to ascertain the customs in force and the patterns of land use”. I accept this as a valid criticism of Mr Elliott because many of Mr Elliott’s observations were as a result of witnesses recounting past events (rather than Mr Elliott’s observations of Anangu behaviour).

375               At the end of his principal report, Professor Maddock indicated that he considered that, after reading the claimants’ experts reports, there were “three areas of doubt” that remained to be addressed by the claimants’ evidence. Very broadly, these were:

(a) the time depth of the association of the claimants to the land;

(b) whether there is more to the claimants’ association to the land than spiritual affiliation; and

(c) the degree to which traditional laws and customs are acknowledged and observed.

376               The first of these matters, “the time depth”, asked whether the claimants were recent migrants to the land (succession having being disavowed by the claimants). Given my view that “recent” migration is not a bar to native title, I need not further consider this matter in any detail. It is clear that a large majority of the claimants are either recent migrants from the west to the claim area or are descendants of migrants from the west. Interestingly, there was some mention of a process of reverse migration in the evidence of the Reverend Edwards, which appears, at least anecdotally, to have begun since the AP Lands were declared. Tim and Peter De Rose are examples of this reverse migration; they were both born in the claim area, but now live far to the west in Pitjantjatjara country at Docker River and Blackstone respectively. A number of other witnesses, who were born in the west but spent varying lengths of time on the claim area, now live at places such as Ernabella and Amata, which are well inside the AP Lands and well to the west of the claim area. On the other hand, these movements may be due to European socio-legal factors which have nothing to do with traditional laws and customs, such as the creation of the AP Lands and Anangu authority in those areas.

377               The second matter of “association” or “affiliation” is a more important matter. Although it has been held by the High Court in Ward at [64] per Gleeson CJ, Gaudron, Gummow and Hayne JJ that a physical connection to the land is not a requirement for a grant of native title, it remains a relevant matter in assessing whether the claimants have retained a connection sufficient to satisfy the requirements of the NTA. As Professor Maddock noted, there had been only sporadic contact with the claim land for some time – a view that he did not alter after he had heard the Aboriginal evidence. I will return to the claimants’ lack of physical connection to the claim area in due course, but it suffices to say at this point that I agree with Professor Maddock’s comment that for some time there has been only “occasional physical connection with the country for food gathering purposes”.

378               The third of the matters that concerned Professor Maddock related to the degree to which traditional laws and customs are acknowledged and observed. In his principal report, he commented that the:

“The expert reports have not given the kind of exposition of the laws acknowledged and the customs observed by the applicants that would enable continuity between past and present to be assessed.”

 

His opinion about the insufficiency of the applicants’ experts was not markedly changed after hearing the claimants’ evidence:

“So there were various areas of what you might call tradition about which we had evidence: some of that evidence of what goes on at present and what’s believed at present; some of it you might wonder just what its current status is, as for example, references I think to having to marry a person from a long way away. Is that still really the case now? If it’s not, what sort of effect does it have on other aspects of life. Then there were areas about which really one received no evidence or virtually no evidence at all …”

 

These concerns were repeated by Professor Maddock in his supplementary report, where he said:

“Here, it may be noted that Bernard Singer spoke of problems at Indulkana with alcohol and petrol sniffing. It is unlikely that these occur only at that place. To the extent that they are symptoms of social breakdown, it is likely that the transmission of traditional laws and customs with the applicants’ community has been disrupted to some extent. How far the disruption may have gone is difficulty to say since little Aboriginal or expert evidence has been given about the actual observance of customs.” (Transcript references omitted)

site visits

379               As I have earlier said, the Court visited and took evidence at thirteen sites of significance to the claimants. The purpose in attending at those sites and giving evidence in respect of them was to establish that the claimants had, and continued to have, rights and interests in relation to the claim area where, in terms of s 223 of the NTA, the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the claimants and the claimants, by those laws and customs, have a connection with the claim area. For the purposes of these reasons, it is not necessary to summarise the evidence that was taken at each site, nor is it necessary to describe the features of each site. The selection that I have made is, in my opinion, indicative of what the Court saw and heard at the remaining sites.

380               I accept the claimants’ submissions that significant aspects of certain rituals and ceremonies were revealed in this evidence. Most of that evidence was, however, given at particular sites during the course of restricted evidence. It established, to my satisfaction, that the witnesses who gave the evidence and the people who participated in the ceremonies, stories, dances and songs once had a religious or spiritual connection with the site at which the particular activity was performed. One such site was Kulpitjara where the spiritual significance of the physical features of the site was explained in evidence. The unusual rock formation at Wipa was another example: and to those places may be added Wantjapila, Intalka, Alalyitja, Kirara, Kumpalyitja and Maku. There are a number of sites on the claim area and on lands that surround the claim area that are associated with one or another Tjukurpa. I accept the submission of counsel for the claimants that a considerable body of evidence was given concerning those sites.

381               Whilst I am not able to give a detailed description of the ceremonies, stories, dances and songs that were revealed at those sites, that has not affected what I would wish to state in these reasons, for I consider that I can make a finding that what I saw and observed satisfied me that the witnesses and participants showed that they possessed knowledge of the particular sites and knowledge of the activities in which they engaged at those sites. That knowledge would have, in turn, gone a long way towards satisfying me that there was a relevant connection between those people and the claim area were it not for the fact that there has been a virtual absence of all Aboriginal people from the claim area for twenty years or so.

382               There was sufficient evidence given – particularly during the restricted sessions – to justify a finding (which I make) that relevant witnesses knew the ceremonies, stories, dances and songs associated with one or more of the Tjukurpa. Different witnesses were able to give evidence about sections of the narratives concerning the Dreamings; others performed significant dances and sang significant songs. I am satisfied and I find that the evidence on these subjects was sufficient to establish that those witnesses still retain a knowledge of those activities, many of which are site specific. Nevertheless, the question still remains: can it be said that the claimants’ knowledge of those activities means that the claimants have retained a connection to the claim area?

383               What follows are brief summaries of the evidence that was given at six of the sites that the Court visited – Wantjapila, Intalka, Ilpalka, Wipa, Kantja and Apu Maru. To those I have added a note of some of the evidence that was given with respect to the unusual features at Tiilkatjara, a location that the Court did not visit. In choosing these locations I do not suggest that they were more or less important than the rest. With the exception of Ilpalka and, to a lesser extent, Apu Maru, they are presented merely as examples of the tangible evidence of Aboriginal culture and legend that was disclosed during the course of the trial. Ilpalka has been included because it has the additional factor of showing how lack of knowledge and understanding can create a clash between competing cultures. Apu Maru, whilst not so dramatic, is an example of how the pastoralist and the Anangu differ about the way in which the land can be used.

Wantjapila And Intalka

384               The first two sites that were visited, Wantjapila (site 23) and Intalka (site 24), were both to the south of De Rose Hill Station. As the evidence that was given at both places was received in closed session, what follows is a neutral summary of what the Court saw and heard without resorting to detail or identifying the witnesses. Wantjapila, which was only about a kilometre or so to the east of the Stuart Highway, is a large, dry claypan that is partially surrounded by a grove of coolibah trees. Intalka, to the south-west of the Aboriginal community of Indulkana, was the original source of water for that community. It is a rocky gorge of spectacular beauty, spoilt by the presence of three large rusted water tanks. A witness, who said that he was Nguraritja for Intalka, said that the water-tanks and pipes had damaged the place; he claimed that Intalka was miil-miilpa, meaning a secret sacred place.

385               At Wantjapila one of the witnesses explained the significance of the area, describing it as “strong law” and that, even today, death might occur if a woman were to hear the sacred songs. In evidence that had earlier been given in open Court, witnesses had discussed their belief and acceptance of the Malu, Kanyala and Tjurki Tjukurpa. Some of the witnesses had also said that the Tjukurpa travelled through the Wantjapila location. On site, however, more detailed evidence was given about that Dreaming and the inter-relationship between Malu, Kanyala and Tjurki. For example, a particular location to the west was identified as a point from which Malu, Kanyala and Tjurki travelled. The name of that place and its significance, as believed by the witness, was disclosed. There was an ominous note to its name, as is evident from the English translation, which concerns death and supernatural powers.

386               According to the witnesses for the claimants, the ability of an individual to discuss a Tjukurpa is limited by territorial constraints. Thus the witness at Wantjapila was able to give evidence about the Tjukurpa’s activities as far as Iwantja but no further, even though the witness was well aware that the Tjukurpa travelled beyond Iwantja to other locations. The witness proceeded to name the person (another witness) who was able to take up the story of the Tjukurpa after Iwantja.

387               Malu, Kanyala and Tjurki were said to be present (or, at least, represented) at Wantjapila by three identified natural objects. The association of Tjukurpa with natural features was a feature of this trial that was repeated at other locations (Alalyitja for example).

388               The restrictions that are imposed in this and other secret sacred places are not always total. For example, women are permitted to visit Wantjapila – they are not barred from entering the location. The prohibition is directed principally to the songs (“the Inma”). There is a total prohibition of women, children and uninitiated men hearing the Inma.

389               From Wantjapila, the Court moved to Intalka, which is also on the track of the Malu, Kanyala and Tjurki Dreaming. The story was much the same as that for Wantjapila: the Tjukurpa stopped at this site and created songs that only initiated men can sing and hear. Women and children can visit but they cannot listen to the Inma under pain of death. As was the case at Wantjapila, there were natural features in the location that were separately identified with Malu, Kanyala and Tjurki.

390               In addition to the songs, there was a dance at Intalka that was only for men. The witness who gave this evidence (he also gave evidence at Wantjapila) said that his song line and story ended at Iwantja. He knew that Malu, Kanyala and Tjurki continued on to Yura (site 19) but it was someone else’s story.

Ilpalka

391               The Court visited Ilpalka (site 40), a location that is situated near the northern boundary of De Rose Hill Station, towards the eastern edge of the Agnes Creek lease. Ilpalka is a rock hole and a semi-permanent source of water. It is quite unexpectedly located in the midst of flat sandy grassland. It was, at the time of the site visit, perhaps, twenty metres long and five metres wide holding water of some depth following recent heavy rains. Close to the rock hole there were a number of rocks and boulders of varying sizes; they were of central importance to the claimants.

392               Archaeological evidence suggested that a charcoal specimen from Ilpalka could be dated from the period 1650-1960. That time frame is a rather broad one within which to work, but it allows me, in conjunction with the oral evidence that was adduced from some of the Aboriginal witnesses, to conclude that Ilpalka has been, at some stage, a site of importance to the former inhabitants of this region.

393               Owen Kunmanara, Peter De Rose and Cissie Riley gave evidence at Ilpalka. In addition, there were several written statements and some off-site oral testimony concerning the site. Owen and Peter complained that the rocks that surrounded the hole had been moved by the Fullers, and that this had damaged the Tjukurpa, to the sorrow of those associated with the site. The applicants were also concerned about the presence of some fence posts around the rockhole, because they felt that if a fence were to be erected that might result in cattle being kept inside the fence near the rockhole for long periods of time, causing further damage. From the on-site evidence of the Aboriginal witnesses, it was clear that they considered Ilpalka to be an important site on the Kalaya (Emu) Dreaming track; I accept this evidence. According to Owen, the Kalaya (a father and some little chicks) travelled by foot from Kirara. After stopping at Kantja, they came to Ilpalka, where they created songs and the rockhole, before moving on. Both Owen and Peter De Rose said the rocks that were in and around the rockhole were Kalaya.

394               Peter Tjutatja said that Ilpalka is a site for the Kalaya Tjukurpa and that the Kalaya left secret, sacred rocks at the site. In his witness statement, Tjutatja had accused Rex Fuller of disturbing the boulders and stones at Ilpalka that are important for the Inma. He said:

“Doug’s son has cut up and thrown around the things for the Kalaya Inma at Ilpalka. Boulders and stones.”

In his oral evidence, however, he said that it was Doug Fuller (not Rex) who “… chucked it out all over the place” and he said that he saw him to that. Nevertheless, it became clear during his cross-examination that he had not seen Doug or Rex moving the rocks. What he had seen were tyre tracks from a Toyota motor vehicle: “No, we seen the tracks – the Toyota tracks pushing it with the front part”. He claimed that this had occurred “just recently – not long ago”.

395               Tjutatja said that he had told Doug Fuller that Ilpalka was a special rock hole and that it was part of the Kalaya Tjukurpa. He also claimed that he told Doug that it was Inma Kalaya Miilmiilpa, meaning songs of the emu Dreaming and a sacred place. He said he felt “very saddened” by the movement of the rocks because of the Inma (the song). Tjutatja was opposed to the cattle drinking from the rockhole. He said that he never took cattle there when he was working for Doug Fuller, although he had seen cattle watering at the point. He claimed that he said to Doug Fuller that the cattle should not drink at the rock hole because “they make the water foul”. I observed these rocks whilst the Court was sitting at Ilpalka. Many of them were big and one man could not have lifted or moved them without substantial assistance.

396               After the application for a determination of native title had been filed, but before the hearing of this case had commenced, a dispute about Ilpalka flared up between the Aboriginal claimants and the Fullers. It was a dispute that typifies how cultures can clash when people fail to understand each other’s values. The Fullers, at some time that was not made clear in the evidence, had decided to construct a fence around the rockhole as a means of keeping the cattle away from that water. The paddock in which the rockhole is situated contained another source of water – Kay’s bore – which was located within a set of stockyards. The cattle preferred the water in the rockhole to that of the Bore so, if the rockhole was carrying water and was not fenced off, this would make mustering in that paddock more difficult. If it were necessary to muster the cattle, that could more easily be achieved by trapping them when they watered in the stockyards at Kay’s bore. If, on the other hand, there was no need to muster, the proposed fence around the rockhole could be opened and the cattle would then have two sources of water available. I accept Rex Fuller’s evidence on this issue. I see no reason to doubt it; it is consistent with the thinking of a European.

397               I am satisfied that no Aboriginal witness had ever told either Doug or Rex Fuller about the spiritual significance of the site – and it is most unlikely that any other Aborigine would have done so. I accept the statement of Rex Fuller in of his statement (Ex F34) that:

“I cannot recall any of our former aboriginal workers suggesting to me that the sites now denoted in the report by Mr Veth were of any special significance or importance to them. Trough Rock Hole, for example, was never mentioned by old Pannikan or anyone as being special to the Aboriginals.”

(“Trough Rock Hole” was the name that the Fullers used for Ilpalka and “old Pannikan” was a reference to Owen Kunmanara.)

398               Professor Veth, at p 99 of his report (Ex A55) dated March 1998, gave the name, description and GPS Reading of Ilpalka, followed by a number of photos. Although neither Doug nor Rex Fuller was cross-examined about the subject, it is a fair inference that the report, having been served on their solicitor would have been read by one or other of them and perhaps both of them. In fact, as I have noted, Rex made reference to it in his witness statement. The report stated that the claimants were concerned over the “breakage and removal” of the boulders in the rockhole, which, according to Professor Veth, had been described by Owen Kunmanara and Peter Tjutatja as the “eggs of the emu”. It is therefore possible that the Fullers were aware of the significance of the site, and in particular the boulders associated with the site, at a time somewhat earlier than 21 June 1999 – the date of a particular letter from Mr Wooley of the Aboriginal Legal Rights Movement to Mrs Craddock, the solicitor for the Fullers. When some of the claimants visited Ilpalka with their solicitor, Mr Wooley, in early June 1999, they noted that some of the boulders had been moved. That concerned to them. It would appear, given the content of Professor Veth’s Report of March 1998, that those concerns had been present amongst the claimants for some time. Mr Wooley, in his letter of 21 June 1999, said that the “breakage and removal of material has been of concern to my clients for some time having been first recorded during earlier field work in 1995”. I do not believe that it is necessary to make a specific finding about the occasion when the Fullers first learnt that there was a spiritual significance about the site to the Aboriginal people. The finding of significance that I make is that the Fullers commenced to erect the fence around the rockhole in good faith. Even if they had been alerted, through a reading of Professor Veth’s report – or otherwise – to the spiritual significance of the site, it is quite reasonable to understand that people with a European background and with little, if any, knowledge of or interest in Aboriginal culture, would not have realised that the construction of a fence around the outer perimeter of the site might cause offence or hurt.

399               If the Fullers had not learnt from Professor Veth’s report, they most certainly knew that Ilpalka was a site of significance to the applicants when their solicitor, Mrs Craddock, was told of that by Mr Wooley in his letter dated 21 June 1999. In that letter, Mr Wooley wrote:

“Given the placement of the strainer posts and the possibility of even further damage being caused to the site my clients have now given me instructions to disclose further information about the significance of the rock hole, in addition to that revealed in Dr Veth’s report, namely that this is the same site referred to in paragraph 112 of the applicants’ Further and Better Particulars (at page 32) as Ilpalka.

It would seem that the claimants had misunderstood the manner in which the Fullers intended to make use of the fence. As is apparent from Mr Wooley’s letter, they thought that the fence would be used to concentrate large numbers of cattle around the rock hole, thereby causing further damage to the site. Mrs Craddock replied by letter dated 8 July 1999 to Mr Wooley explaining that the “purpose of the proposed enclosure is to exclude cattle from the area as and when required for mustering purposes”. However, the applicants were not satisfied with Mrs Craddock’s response, and in a letter of 15 November 1999, Mr Wooley wrote to the Minister for Aboriginal Affairs. He asked the Minister to exercise her powers under sections 24 and 25 of the Aboriginal Heritage Act 1988 (SA) (“the Heritage Act”) to protect the site from further damage. Those sections give broad powers to the Minister, as can be seen:

Directions by Minister restricting access to sites, objects or remains

 

24(1) Subject to this section, where the Minister is satisfied that it is necessary for the protection or preservation of-

 

(a) an Aboriginal site, object or remains; or

 

(b) a site, object or remains that the Minister has reason to believe may be an Aboriginal site, object or remains,

the Minister may give directions prohibiting or restricting-

 

(c) access to the site or an area surrounding the site or to the object or remains;

 

(d) activities on or in relation to the site or an area surrounding the site or in relation to the object or remains.

 

(2) The Minister must not give directions under subsection (1)(c) except with the approval of the Governor.

(3) Directions may be given under this section:

(a) if limited in their application to a particular person or persons- by notice in writing to that person or those persons; or

(b) if of general application-

(i) by notice published in the Gazette; or

(ii) by notice published in a newspaper circulating generally throughout the State; or

(iii) by the erection of signs in the vicinity of the site, area, object or remains; or

(iv) by a combination of methods referred to in this paragraph,

as the Minister considers appropriate in the circumstances.

(4) Subject to subsection (5), the Minister must, before giving any directions under this section, take reasonable steps to give not less than eight weeks notice of the proposed directions to-

(a) the owner and occupier (if any) of private land in relation to which the directions apply; and

(b) the Committee; and

(c) any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and

(d) a representative of-

(i) any traditional owners; and

(ii) any other Aboriginal persons,

who, in the opinion of the Minister, have a particular interest in the matter.

(5) The Minister may, if satisfied that urgent action is necessary, give directions under this section without the notice required by subsection (4), but must, in that event, take reasonable steps to give the notice as soon as practicable after giving the directions.

(6) A notice must-

(a) set out the directions; and

(b) give the reasons for the directions; and

(c) state that any interested person or body may make representations to the Minister with respect to the directions; and

(d) if given under subsection (3)(a), set out the penalty for contravening or failing to comply with a direction.

(7) Where directions are given under this section in relation to a site or object that is not entered in the Register of Aboriginal Sites and Objects, the Minister must, as soon as practicable-

(a) determine whether the site or object should be entered in the Register; and

(b) if the Minister determines that the site or object should not be entered in the Register – revoke the directions.

(8) Where directions are given under this section in relation to remains not known to be Aboriginal remains, the Minister must, as soon as practicable-

(a) determine whether the remains are Aboriginal remains; and

(b) if the Minister determines that the remains are not Aboriginal remains – revoke the directions.

(9) The Minister must-

(a) give due consideration to any representations made with respect to the directions; and

(b) if satisfied (whether on the basis of such representations or otherwise) that the directions should be revoked or modified, revoke or modify the directions accordingly.

(10) Within 30 days after the sale of land in relation to which directions under this section apply, the vendor must provide the Minister with the following information in writing-

(a) the date of the sale; and

(b) the name and address of the purchaser.

Penalty: $2,000.

(11) This section does not apply to Aboriginal objects or remains that are in a public or private collection.

Directions by inspector restricting access to sites, objects or remains

25(1)Where an inspector is satisfied that urgent action is necessary for the protection or preservation of-

(a) an Aboriginal site, object or remains; or

(b) a site, object or remains that the inspector has reason to believe may be an Aboriginal site, object or remains,

the inspector may give directions prohibiting or restricting:

(c) access to the site, or an area surrounding the site, or to the object or remains;

(d) activities on or in relation to the site or an area surrounding the site or in relation to the object or remains.

(2) Directions may be given under this section-

(a) if limited in their application to a particular person or persons-by notice in writing to that person or those persons; or

(b) if of general application – by the erection of signs in the vicinity of the site, area, object or remains to which the directions relate.

(3) A notice under subsection (2)(a) must set out the penalty for contravening or failing to comply with a direction.

(4) Where an inspector gives any directions under this section, the inspector must forthwith report the matter to the Minister.

(5) Any directions given under this section cease to have effect on revocation by the Minister, or, in any event, on the expiration of 10 working days after the day on which they were given.

(6) This section does not apply to Aboriginal objects or remains that are in a public or private collection.”

The claimants’ concerns, as conveyed by Mr Wooley in his letter of 15 November 1999 to the State Minister, were that:

“Even though the enclosure surrounding the Ilpalka rockhole may not be primarily intended as a yard for the purposes of keeping cattle within it, the small area of the enclosure and the fact that the only ingress and egress appears to be by way of a six metre gateway, will concentrate cattle damage at the rock hole itself. The cattle will be restricted to a small area, and will congregate for a longer period of time on the site due to the limited ability to egress from the rock hole area.”

Mr Wooley also wrote in his letter that his clients were also concerned about the damage that had already been caused, most notably by the removal by the Fullers of rocks and boulders from around the rockhole, by the placement of six strainer posts surrounding the rockhole and by the prior damage that the cattle had caused.

400               The claimants sought orders pursuant to s24 of the Heritage Act, protecting the site by the erection of a cattle-proof fence (without a gate) at a distance of 400m from the rock hole. They also sought interim orders, pursuant to s25 of the Heritage Act, that there be no further work on the fence that the Fullers were intending to construct and that the Fullers not “disturb, damage or interfere” with the rockhole until a final determination in this matter was made. The Minister caused two inspectors to visit the site; they duly presented their recommendations that the State meet the cost of an appropriate fence, but to date, so far as I am aware, that work has not been completed.

401               Rex Fuller gave written and oral evidence about the removal of rocks, boulders and conglomerate from the rockhole site. In his witness statement he said:

“Trough Rock Hole [Ilpalka] was cleared every few years to stop it being sanded over for at least the last 50 years.”

He explained in greater detail, in examination-in-chief, why he had to clean out the rockhole:

“…it’s on a sand ridge, where it is, and the wind will keep blowing sand back into it, and if you get heavy rain the sand would wash in there as well. Even though it’s a sandhill, you get heavy rain on it, it will erode with the rain, plus a lot of rabbits in that area. They used to keep everything pretty bare.”

Rex also said that the process of cleaning out the rockhole had occurred for as long as he could remember; he could recall his father using a shovel to clean out the rockhole, using the spoil in the garden around the Homestead. Rex denied cutting up the rockhole and he denied moving or relocating boulders from Ilpalka. He said that he was merely cleaning out the rockhole, using a front-end loader and depositing the spoil material on the side of the sandhill. He claimed that he was carrying out a proper pastoral pursuit. Owen Kunmanara, in cross-examination, generally confirmed what Rex had said. I accept that Rex’s actions were devoid of any malicious intent. I find that he acted in pursuance of what he considered to be “best practice” to ensure the optimum efficiency of the site for his pastoral activities. Just as he saw a need to clear the rockhole for pastoral purposes, so also the claimants saw a need to clear it for their spiritual purposes. However, it remained quite possible that in doing the necessary work, Rex may have unwittingly displaced some of the rocks. Such an incident would not have been a matter of concern or interest to him and it is understandable that he may not have any memory of doing so.

402               The Law governing the responsibilities of the Anangu at Ilpalka was outlined in an anthropological report of Mr Ray Wood. His report was annexure 15 to Ex F35 [the supplementary witness statement of Rex Fuller]:

“Initiated men only are permitted to clean the bottom of the rockhole…handle any material from the bottom, or be present when it is being cleaned…this is the only rockhole, at least in the country of the traditional owners, to which such a restriction applies.”

Mr Wood mentioned that, not only would the disturbance of the rocks be distressful in itself, but the Nguraritja, whoare accountable to the wider groups of the Western Desert Bloc for the protection and maintenance of the site, would be open to censure should they not vigorously act to protect it. Whilst this explanation might be said to provide an insight into the reasons why the claimants sought the Minister’s aid in protecting the site by seeking, inter alia, to limit the rights of the pastoralist in the area, it equally brings into sharp relief the inactivity of the claimants in the many years prior to their decision to make their native title claim. That caveat does not, however, prevent me from accepting that some of the claimants have or did have genuine spiritual beliefs concerning the rock hole and its surrounds. Indeed, it is clear from the evidence that Ilpalka is a site of importance on the Kalaya Dreaming track. What I must determine is whether those spiritual beliefs are now things of the past or whether they remain as evidence of a continuing connection with the claim area.

Wipa

403               Restricted and unrestricted evidence was led from the applicants at Wipa (site 5). The unrestricted evidence comprised that of four women: Edie Angkaliya, Witjawara Curtis, Mabel Pearson and Tillie Yaltjangki. Angkaliya was the first to give evidence. She said she came to Wipa first as a big child. She said that the reason for going to Wipa was to look for dingo scalps but they had been unsuccessful. She had come with a group of Aboriginal people and the white man, Ernie Baker, riding on his camels. The party had come, so she said, from De Rose Hill and it included Mampi, Angelina Wongka and Minnie Nyanu.

404               Angkaliya said that when they arrived at Wipa, they camped nearby. They used their ferrets to catch rabbits for meat and they got their water from the rock hole at the base of a rock face. They also used that rock hole for water for the camels. In addition to catching rabbits, they got other food in the area including kangaroo, wallaby, perentie and echidna. That was in addition to bush tucker, which included grass seed and mistletoe.

405               The group stayed, in all, a total of two nights and two days in the area and after that they went to Ngatiri (site 4). The group returned to Wipa, camped again, and then returned to Ngatiri before going on to Ilpalka (site 40). There were people living at Ilpalka and they stayed there for some time before moving to De Rose Hill, at which point of time – so she said – Tom O’Donoghue was living in the homestead. I do not accept that passage of her evidence. Her memory has let her down. There was no evidence that suggested that Tom O’Donoghue ever lived in any homestead. The only homestead in the immediate area was built by Doug Fuller for his family in about 1944.

406               That would seem to be the only occasion when Angkaliya visited Wipa. She said that she was not told the Tjukurpafor the locality.

407               Witjawara Curtis said that she came to Wipa as a small child with a group who were looking for mingkulpa (wild tobacco). She said that a woman named Kurnatitja brought them there. Witjawara said that she was a tjitji (a child) and that others in her group were young girls (kungkawara). Kurnatitja was the only adult in the group and, according to Witjawara, Kurnatitja was “Mabel’s mother” (she did not say, however, whether Mabel was the witness, Mabel Pearson). According to Witjawara, they did not camp; they merely came for the mingkulpa and then returned to Ilpalka, staying with the many people who were camped there. She did not go back to Wipa again.

408               Mabel Pearson went to Wipa on a holiday as a young mother with her child and husband. They travelled on a camel from Kulgera where her husband worked as a tracker for the police. They camped nearby and used the rock-hole for water. While they were in the area they lived on bush tucker and kuka (meat). It was kangaroo meat which her husband shot. In answer to questions from Mr Besanko, Mabel explained that, at the time of her visit to Wipa, she was doing housework for a “whitefella” called Roy Coulthard and that she and her husband were living in a homestead at Kulgera.

409               Tillie Yaltjangki travelled to Wipa with Snowy De Rose and her mother. Snowy’s wife and Wapala (Peter De Rose) were also in the group. She was a small child at that time. They only camped the one night and got bush tucker while they were there.

410               In summary, four women were called to give evidence at Wipa as part of the claimants’ case. None of them had visited the place on more than one occasion and three of them were only children when they visited. The fourth, Mabel Pearson, was on holidays with her husband, a police tracker from Kulgera. The value of their evidence to the claimants’ case was limited as none of them knew the Tjukurpafor the location. However, their evidence did disclose that Wipa was a location of some importance to the Anangu; its unique geological structure and the restricted evidence that was based upon that structure was most impressive.

Kantja

411               The site known as Kantja (site 29) was a particular section of the bed of Kantja Creek (otherwise known as Agnes Creek). Evidence was given on behalf of the claimants by Peter Tjutatja. He said that he knew the location and that he had come there first with his family from Iranytjirany when he was a big boy.

412               Tjutatja said that the activities of the Anangu at Kantja included songs (Inma) which, so he said, were “Inma Kalaya, Emu songs”. The Inma Kalaya required many men to dance. He said that the people who were living at Kantja had, as a water point, a soakage in the creek. At that stage in his evidence, he pointed to its location in the creek bed. The Anangu used a mimpu, a wooden bowl, to get the water as they did not then have a billy can. Tjutatja then described how the Anangu made a fire by rubbing the rungkara (the rubbing stick) against the miru (the woomera) until a spark ignited dry grass.

413               Tjutatja said that he learnt the Tjukurpa for the area of Kantja from his uncles, Tjaapan Tjaapan, Old Panma and Jimmy. He described the Tjukurpa as Miilmiilpa Tjukurpa, which means a very secret and sacred Tjukurpa; he also called it the Kalaya Tjukurpa or the emu Dreaming. He said that it was permissible for him to tell the Kalaya story:

“This Inma, Kalaya. Inma is songs, Kalaya the emu. Women can hear this when man singing.”

414               Riley Tjayrany also gave evidence at Kantja. Riley said that he had lived at Kantja for a long time as a big boy. He said that he knows the Law for the place because the old people taught him; the old people had said that other Kalaya arrived and that they met up with the local Kalaya. They also taught him to sing too. He identified the old people as Kitjamitja, Andy Pampula, Tjangarrang-Tjanga and Paltatjiratja. Riley said that he was Nguraritja for Kantja because he knew the Kalaya Tjukurpa. He also said that he was entitled Nguraritja for Kantja because he had been there for a long time as a boy and had grown up there.

415               Edie Angkaliya, who gave evidence on site at Kantja, said that, when she was young, she had lived at Kantja with her mother, father and Minnie Nyanu, her sister; there were also other families living in the area at that time. She said of Kantja “this is where I grew up”. Her mother Ilypulya built a wiltja out of sticks and branches for shelter for the family. They lived on bush tucker whilst they were at Kantja. During the course of the day, Angkaliya and some of the other women gathered some bush tucker, including some seeds and some bush onions. These were exhibited and identified by Angkaliya during the course of her evidence. She explained that the seeds that she identified, wangunu, were ground to a powder, mixed with water and put into a fire to make a damper. To grind it the women used a tjungari on a tjiwa. The tjiwa is a flat hard surface and the tjungari is a round stone. Angkaliya said that her mother had taught her how to find and cook bush tucker; she went on to say that she still looks for that same bush tucker and still prepares it and cooks it. In answer to questions in cross-examination from Mr Whitington, Angkaliya agreed that the women at Kantja were given rations, including flour, when she was living there and that it was much easier to use flour to make damper than it was to grind seeds.

416               Peter De Rose was the witness next at Kantja. He said that when he was a small boy, he was brought to Kantja by his mother on many occasions. He also came to the area whilst he was working on De Rose Hill Station. He said that he first came to the location as a tjitji kungkatja, then when he was a Nyiinka and finally when he was a Wati. A tjitji kungkatja is a young boy – one who is younger than a Nyiinka – but, being a kungkatja, he can stay in the main community with the women and the children so that he can take food supplies to the older Nyiinka. Peter learnt about the Tjukurpafor Kantja whilst he was working on De Rose Hill Station; the men used to tell him the Tjukurpa stories; he named Owen Kunmanara and Yangki as men who told him the Kalaya Tjukurpa, that is, the story of the Kalaya (the Emu). Through them, he learnt where that Kalaya had travelled.

Apu Maru

417               On 4 July 2001, the Court sat at several sites in close proximity to each other. I will call them, collectively, “Apu Maru”. All evidence taken at those sites was protected by a Court order preventing its dissemination to all but those male persons who were nominated in the order. The respondents subsequently pointed out that a great deal of evidence that had been heard at the first site was of a kind that did not appear to require a confidentiality order; in fact a great deal of it had been heard in open evidence earlier at Ilintjitjara. Although I agree with the respondents’ observations, as no application was made to remove the confidentiality order – or any part of it – the evidence taken at Apu Maru must be treated as evidence that was taken in closed session. What follows is limited to geographical and environmental observations and comments on the people who gave evidence. The summary of the evidence is limited to that which was also heard by the Court on other occasions in open session.

418               The Court initially convened near a large claypan. It was fenced and filled to capacity from recent rains. The claypan was surrounded by groves of eucalypts, mulgas and other trees. As well as the Court, the parties, their advisers and the transcript providers, twenty Aboriginal men were in attendance at Apu Maru. Three witnesses, Whiskey Tjukanku, Peter De Rose and Peter Tjutatja, were called to give evidence.

419               Tjukanku told the Court that this site was part of the Malu, Kanyala, and Tjurki Tjukurpa. He said that Malu, Kanyala and Tjurki travelled to Apu Maru from Yura and, when they arrived there, they created a sacred and secret song (Inma). Unlike the song that had been performed at Wantjapila on the previous day, the song for Apu Maru was for singing only – no dancing was involved. Tjukanku’s story finished at Kulpitjara and he would say no more of the journey of Malu, Kanyala and Tjurki.

420               Tjukanku first came to Apu Maru when he was a man doing stockwork; he was accompanied by older Aboriginal men who taught him about the songs. Those old men had also told Tjukanku that he had to care for the site and that it was his responsibility to prevent damage to the site. To that end, Tjukanku was concerned that trees had been removed from around the claypan at Apu Maru and replaced with fencing. He wanted to have the fencing removed, although, arguably, this protected the site from the damage that would be caused as a result of cattle drinking and milling in the area. Tjukanku asserted that he had both looked after the site and that he had taught the younger generation of the site and of its stories and responsibilities. However, his evidence in that regard was not raised beyond a mere assertion. It was devoid of any detail.

421               Peter Tjutatja told the Court that he first came to Apu Maru as a man with his uncle, Old Panma, and many others. They had walked from Iranytjirany. That is a considerable distance to the west, but Tjutatja said that he had travelled between Apu Maru and Iranytjirany by foot many times. When he arrived at Apu Maru, there was already a group of Aboriginal people living there. They included Tjaapan Tjaapan and Andy Pampula. He said that the Aborigines were eating bush tucker and were not wearing any clothes. The language that they spoke was Yankunytjatjara. Tjutatja knew the Tjukurpa for Apu Maru and, so he said, he was Nguraritja for the site.

422               Peter De Rose was the third and final witness to give evidence at Apu Maru. He confirmed that he took over the Tjukurpa at Yura from Alec Baker, who held it at sites to the south of that site. However, he emphasised that he was still learning from the old people such as Tjukanku, Tjutatja and Alec Baker. Peter said that if he was to push himself forward, the old men would not be happy; he had to wait until they told him he was ready to take over.

423               The Court then moved to a second site in the Apu Maru area; it was on the northern side of a flat rocky hill that was, in fact, Apu Maru itself. (Apu Maru translates as dark or black rock). Peter De Rose was recalled to give further evidence at this site. He identified features in the landscape that represented Malu, Kanyala and Tjurki. He also explained how the path taken by Malu, Kanyala and Tjurki could be seen.

424               Peter directed the Court’s attention to a conspicuous rise of dark stones on the top of Apu Maru itself. That was said to be Tjurki, placed on the shoulders of Malu and Kanyala, so that he could look towards Pilpiriny. Peter said that women were permitted to know that the features that he had pointed out to the Court represented Malu, Kanyala and Tjurki. Women could also know that Malu, Kanyala and Tjurki travelled from Pilpiriny and went north from Apu Maru; but they cannot hear the secret and sacred songs that are associated with the Tjukurpa.

425               The Court then convened at a third site to the north-west of the hill. It was a low sandy hollow set in some dunes. The area had obviously been an Aboriginal camp at some time in the past as there were numerous rock tools of several varieties in plain view. Peter identified a number of the tools, including a tjiwa (a flat rock) and tjungari (a round rock). The round rock was used in conjunction with the flat one to grind seeds; Peter had seen his mother doing this but not at that location. There were also red ochre that had presumably been obtained in trade from some other location. Peter showed the Court a kanti, which is the stone knife that is used on the end of a woomera. Peter said that it could also be used for other tasks such as cutting meat. As I have said, the site had clearly been used by Aboriginal people in the past but Peter De Rose was not asked to identify the people who had used the site nor was he asked whether he knew when the site had been used. He merely described it as an old camping ground. On the one hand, the site was tangible evidence of prior occupation by Aboriginal people; on the other hand, it was clear from Peter’s evidence that he was unable to establish the identity of the prior occupants and he was unable to prove any continuity of connection to the location to his generation.

Tiilkatjara

426               Johnny Wimitja De Rose recognised the three photographs Ex F3, as photographs of the area known as Tiilkatjara (site 43) on De Rose Hill Station. He recognised the geometrical pattern of the stones saying that they were all “level” when he first saw them, but that the cattle had “shifted some of the lines – the rocks”. Asked whether he knew who had put the stones that were depicted in the photographs there, he replied that there is a story of an emu; nobody put them there “that’s just how the story is”. He said that the rocks that were lined up were “small emus”. Mr Whitington asked:

Q “Did the people on the station ever have a ceremony there?

A No maybe they done that along time ago, many, many years ago. Those people have passed away now.”

427               Nevertheless, Wimitja said that there was “common knowledge among us” about the ceremony that used to be held at that location. He knew this because the stories had been handed down to his generation by the old people. He was told by the old people that people used to go to that location and that they used to dance a corroboree there. The men would do the corroboree but the women would also attend. Wimitja said that the old men who had spoken to him about the corroborees had been active in dancing the corroborees in the area and so had the people before them; they had danced the Kalaya Tjukurpa stories on the Tiilkatjara site. Wimitja agreed that he himself had not danced at Tiilkatjara; he said “No, I just see that. I just used to watch”. The subject was revisited with Mr Whitington emphasising that he was only concerned with the Tiilkatjara site. He said:

Q “But I want to know whether you ever saw any old men do the Emu dance at that very place?

A Yes, I used to watch it when I was a child. I used to watch the old people get up and dance there and when I became a man I understood.”

He identified the old men as including Andy Pampula, old Panma, Tjaapan Tjaapan, Peter Tjutatja and Kurku. He said that Snowy used to go to those dances with him; Owen Kunmanara did not however: “He was a worker. He used to sit down and watch”.

428               When Wimitja was asked whether Peter De Rose had watched the dances at Tiilkatjara, he replied: “No, that is before he was born”. Peter confirmed that statement. Mr Whitington then asked Wimitja:

“Have you visited that place as part of the native title site visits?”

In view of earlier responses to Mr Besanko that he had never returned to De Rose Hill Station, it was surprising to hear Wimitja say that he had been there about four years ago in a motor car. He was asked whether the car drove to the top of the Tiilkatjara hill and he replied:

A “No, not in the car. We didn’t go right up to the top of the hill in the car. We walked up the hill.

Q Did you tell this lawyer next to me, Mr Besanko, that you hadn’t been back to De Rose Hill on site visits?

A No he doesn’t know.

Q Sorry could you say that again?

A [The interpreter] He said he didn’t say anything like that.”

Obviously Wimitja was either confused, lying, suffering a bad lapse of memory or, for some reason, he had failed to understand either Mr Besanko’s questions or Mr Whitington’s questions. I discount the possibility that he was lying because there was nothing in the subject matter of the questions which would have given him cause for concern. Yet, on the other hand, the questions that counsel had asked were simple and straightforward; it is difficult to see how they might have confused him. Nevertheless, it is probable that the most likely explanation was that the strange environment of the trial might have confused him. In any event, it places a question mark over the reliability of Wimitja’s evidence.

429               To remove any doubt about his visit to Tiilkatjara, Wimitja agreed that the photographs which were shown to him (but not tendered), being part of the report of Professor Veth dated March 1998, contained a photograph of him with Mitakiki. He agreed that the photograph was taken on the hill with the stones at Tiilkatjara. Wimitja’s evidence about the holding of corrobories or ceremonies at Tiilkatjara in his youth, and the total absence of those activities since then, is a strong indication that the former traditional customs of the resident Anangu were starting to slip away even before the last of the Anangu left De Rose Hill station in about 1978.

douglas clarence fuller

430               Douglas Clarence (“Doug”) Fuller was aged ninety-two when he gave his evidence in these proceedings. He is a widower with three children – two daughters, Pauline and Kaye, and a son, Rex. Rex, who was aged fifty-nine at the time of the trial, presently resides on De Rose Hill Station but Doug lives in the seaside town of Beachport in the south-east of South Australia. Doug said that he went to the far north-west of the State in 1933, during the depression, looking for work. He sheared sheep, cleaned wells, learned well-sinking and helped in building the homestead at Tieyon Station – the Station that adjoins De Rose Hill Station to the north-east. In particular, he said that he sheared sheep for Mick O’Donoghue for two years at Agnes Creek. He also knew Tom O’Donoghue. Doug said that when he first visited the area that is now De Rose Hill Station, there were small numbers of Aboriginal people, most of whom were working for Mick O’Donoghue as shepherds.

431               Doug described how he established De Rose Hill Station. Having acquired, with Mick O’Donoghue, the Agnes Creek lease from Tom, Doug, his wife and the three children initially lived in a tent. His first task was to find a permanent source of acceptable drinking water; he achieved that on his second attempt. His next step was to buy Mick O’Donoghue’s flock of sheep. He said that when that happened, some of the Aboriginal workers, who had acted as shepherds for Mick, re-located with their families to the site of the De Rose Hill homestead. He said that he could not recall the numbers of Aboriginal people in the area at the time but, he added, “it was only a relatively small number”. In his witness statement, Doug said that the Aboriginal workers whom he took over from Mick’s camp “came up from Granite Downs”. That piece of evidence does not fit with the evidence of the Aboriginal people, most of whom told of a migration from the west to Kantja. As I accept that there was such a migration from the west, it would seem to me that the Aboriginal workers had come – not from Granite Downs – but from Kantja. At another stage of his evidence, Doug claimed that the Aboriginal people who worked for him on De Rose Hill Station came from different areas. He understood that some came from Ernabella and that others came from Tieyon or Granite Downs. According to him, most of them identified themselves with the Arrente or Luritja tribes. That is totally at odds with the evidence of most of the Aboriginal witnesses who either claimed a direct link with De Rose Hill or a Pitjantjatjara connection from the west. There was no evidence, apart from what Doug said, that would allow me to accept that there was any connection with the Arrente or Luritja people; I reject that proposition.

432               Doug recalled some of the Aboriginal persons whose names appear in journals and diaries that were written up either by his wife, Mavis, or himself in the 1940s. Some worked as shepherds; others worked on the wells. He added that the advent of permanent water and, later, the introduction of government rations, made De Rose Hill “attractive for any Aboriginal person who may have been looking for a feed”. He said that Aboriginal people “took a liking” to government rations such as flour, tea and sugar and that it became necessary to ensure “that rations provided to my workers were not unfairly utilised by other Aboriginal people having no connection with my activities at De Rose Hill”. That may be understandable to a person with a European background, but it made no allowance for Aboriginal culture and its custom of sharing resources with family and visitors.

433               Doug said that when he first arrived at De Rose Hill there were still a few Aborigines using spears when they hunted for kangaroos and rabbits. However, he claimed that those who lived around De Rose Hill survived on what he provided. He went so far as to say that the younger ones, the ones who were born on De Rose Hill, “never used to get any bush tucker at all”. He said that he never saw them with “seeds or digging implements or stones or anything”. He said that he used to provide his workers with steel axes; he never saw any of them using a home-made stone axe. He also said that he could not recall the Aboriginal people using boomerangs on De Rose Hill. In the early days, they used spears and throwing sticks and they also had their woomeras. In fact, he could remember using his medical chests, which he obtained from the Royal Flying Doctor Service, to look after their spear wounds. As he said, “these would be inflicted if somebody did the wrong thing”.

434               Doug said that he had been shown a list of Aboriginal persons whom he understood to be claimants in this case. He was able to recognise thirteen names, some of whom, such as Peter De Rose, Whiskey Tjukanku and Owen Kunmanara can clearly be identified as witnesses in the case. Indeed, he remembered Owen Kunmanara as his head stockman and said that he had relied on him to organise sufficient Aboriginal workers to do whatever task was at hand.

435               Doug said that in the late 1950s he switched from sheep to cattle. Mustering of cattle, using stockmen on horseback, was undertaken until about twenty years ago. However, as Rex explained in his evidence, that is no longer necessary as cattle movement is now controlled by using a system of “one-way” spring gates. By this means, cattle can be cut off from one water source and forced to use another. According to Doug, temporary employment of Aboriginal people on De Rose Hill Station ceased in the late 1970’s. He claimed that “[a]fter that, they moved elsewhere, even though we had work which was periodically available”. “Sitting down money”, the term that is used by Aboriginal people for social security payments, became available and, according to Doug, very few sought work.

436               Doug denied that he had a practice of limiting the number of Aboriginal people on the Station and that he had a particular practice of excluding any Aboriginal people who were not workers or members of the immediate family of workers. He maintained that Aboriginal people, including those who worked on the Station and their relations, could “come and go as they pleased”. He said that the only occasion when he intervened (and that would, quite often, be at the request of the Aboriginal people) was when troublemakers entered the camp. This evidence is in conflict with the evidence of several Aboriginal witnesses and, having had the benefit of assessing them and Doug as they gave their evidence, I prefer the evidence of the Aboriginal witnesses. I do not accept that Doug adopted an attitude of benevolence towards all Aboriginal people in general. I believe his attitude was to drive away those who were not workers or members of the immediate family of workers. Doug did not appreciate that he had an aggressive bullying demeanour. He told the story of “the wine flagon incident”, an incident that had not been referred to by any of the Aboriginal witnesses, in the following terms:

“I recall one occasion when some aboriginal people who were strangers to De Rose Hill brought flagons of wine near to the aboriginal camp around the homestead. I was asked by the local aboriginals to sort it out. They were worried that they would cause trouble with their women folk and start fights. I went out and shot their flagons. They didn’t hang around. It was as simple as that.”

Such conduct can only be described as high-handed in the extreme. He made no attempt to engage in a conciliatory exercise. By what right did he consider himself able to use firearms and destroy the property of strangers? The incident is indicative of the demeaning attitude that he had towards Aboriginal people. I find that Doug did not hesitate to intimidate the Aboriginal people by the use of firearms.

437               Doug denied that he ever disrupted an initiation ceremony, a subject about which many Aboriginal witnesses gave evidence. He was not aware of any ceremonies held at a creek near the homestead and he did not recall a person named Jimmy Bannington or any incident or shooting associated with a person of that name. He also denied that he ever sent people away other than for a good reason. He said that he never shot at billy cans when people were camping and that he never shot any donkeys. Doug would not accept that he was responsible for the fact that there has been no Aboriginal presence on De Rose Hill for the last twenty years or so.

438               Doug said that he provided his Aboriginal employees with tucker and clothing. He would also pay them a small wage. He had a system whereby each worker had a glass jar with his or her name on it. It was Doug’s practice to deposit the money in the jars so that the workers could see it accumulating. By this method they could keep track of their money and use it if they wished to purchase something, such as a new pair of boots or a saddle.

439               Despite the circumstances under which he left De Rose Hill Station, Peter De Rose said that he continued to return there to visit Doug Fuller and to hunt on the Station. He also said that there was an occasion when he went with Snowy to hunt on De Rose Hill and that, on those occasions, Snowy told him more about the Dreamings. Peter was asked, during the course of his examination in chief, why he would want to visit Doug, bearing in mind the circumstances which had caused him to leave De Rose Hill. Peter answered:

“I used to still [want] to go and visit him, wanted to talk to him and at other times for meat.”

There is another aspect to this piece of evidence that is important. The reference to Peter returning to De Rose Hill Station with Snowy, showed that the return (or returns) occurred after the incident when Snowy broke his ankle in 1977. Obviously, and notwithstanding the circumstances under which he was injured, Snowy felt that it was safe for him to return to De Rose Hill and if, after what had happened to him, Snowy was not scared to return to the Station, it is hard to see why any other Aboriginal person could justifiably claim, as some of them have, to be scared of Doug Fuller. Asked whether he considered that he had a good relationship with Doug, Peter replied “yes”. However, later, when that question was pursued, Peter said that his relationship with Doug had changed. He said:

“I was feeling then he don’t want me coming back here because I left this place.”

Nevertheless, Peter continued to visit De Rose Hill from time to time, hunting mainly for kangaroos. He named the various locations where he would hunt and where he would look for bush tobacco.

440               Peter Tjutatja’s assessment of Doug Fuller’s treatment of the Anangu people is quite positive; it did little to aid the claimants’ contentions that he was a cause of fear:

“Q You have told the other lawyer here, Mr Besanko, you can remember talking with Mr Craig Elliott. Can you remember telling Mr Craig Elliott that Mr Fuller – Mr Doug Fuller – was a good old bloke?

A Yes.

Q Did you mean that? Was that true?

A Yes. I am saying truly he was a good man.

Q Did you also tell Mr Craig Elliott that Mr Doug Fuller didn’t kick Aboriginal people off but got cranky when drunk Aboriginals came in?

A Yes.

Q Did you mean that and was that true?

A Yes, I am saying true.

Q And did you tell Mr Craig Elliott that Doug Fuller looked after the good people?

A Yes, us”

 

It was a matter of interest that Owen Kunmanara had his own cattle on the Station with his own brand. He agreed that Doug Fuller organised his brand and had helped him get his cattle from “that whitefella from Dalgety’s”. No evidence was led about the size of his herd or the duration of time over which he ran the herd, save to say that his cattle were mixed with the Fullers’ cattle and that when they were sold, Owen would get a cheque for the proceeds of the sale of his cattle. Owen agreed that he told Mr Craig Elliott that he got on well with Doug Fuller and that he could go to De Rose Hill at any time.

441               Speaking of Doug Fuller, Michael Mitakiki said:

“Doug Fuller looked after the people that lived there at De Rose Hill but would not allow other people there. He would growl at them. He only allowed the workers and their families to live there.”

442               Mr Whitington put to Riley Tjayrany:

“Have you told people for this case that Doug Fuller was a good boss?”

Riley replied

“No, sometimes he’s a good boss and other times he go cranky.”

That response tallied with what was written in his witness statement:

“Sometimes Doug Fuller was good and sometimes not good. He was mostly good to workers.”

Riley agreed that he had told people that he “Got on well with Rex Fuller”. However he would not agree with Mr Whitington that he felt able to go onto De Rose Hill Station and shoot kangaroos. Nevertheless, he agreed that he had taken his “son”, Ronny, onto De Rose Hill to shoot kangaroos a number of times since he stopped working at De Rose Hill. Rex Fuller recalled an occasion when Snowy De Rose, Riley Tjayrany and Owen Kunmanara came back to the Station asking for salted meat. He also added that Riley and others had come back to the Station from time to time looking for work.

443               Johnny Wimitja De Rose volunteered that when people, who did not live permanently on the Station, came to the Station and wanted to eat the rations of the permanent residents, Doug Fuller “used to tell them off”. He, like others, agreed that Doug Fuller would get angry when visiting Aboriginals looked to share the rations that were intended for the workers and their families. He also claimed that he saw Doug Fuller, on two occasions, shoot dogs that belonged to Aboriginal people. Wimitja said that he was frightened of Doug Fuller; he referred to him as “pikati” – one who is violent. It was put to Wimitja in cross-examination that Doug Fuller would allow Anangu to take water from the well at the homestead and he agreed. He also agreed that Doug would hand out rations. However, he did not agree that Doug would kill a bullock and give it to the Anangu. Wimitja said that Doug would only give them the bones and the head and the feet of the beast.

444               Tim De Rose agreed with Mr Whitington that he had spoken to Mr Craig Elliott about Doug Fuller. He agreed that he told Mr Elliott that Doug Fuller was usually a good boss but that he sometimes got “cranky” because he did not like strangers coming onto the Station for rations; he was only prepared to look after Anangu people who lived on De Rose Hill. Lily Yupuna Baker agreed with Mr Whitington that, when she was living at De Rose Hill Station, many Aboriginal people came to the Station to get rations from the people who lived there permanently.

445               Sandy Panma Williams’ childhood memories of Doug Fuller were that he was “a good man then”. Later however, when he was Nyiinka, there was an occasion when he was with a group of people and Doug Fuller approached them. He said that Snowy De Rose had earlier in the day taken him, Clem Toby and another boy to Mount Cavenagh to get dingo scalps. (It would appear that the other boy was Michael Mitakiki for he gave evidence about the same incident in terms that substantially corroborated what Panma had said). On route to De Rose Hill Station, the three boys were riding a horse and Snowy and some others were on a camel some distance behind the boys. Because they were Nyiinkas, they were about thirty yards ahead of the adults who were in the main party. Panma said that Doug, who was driving a motor car, “tried to push us off the road”. He then said that Doug stopped the car and asked the boys from where had they come. When they told him that they had come from Mount Cavenagh, Doug allegedly said that they should go back there. Panma then said in his statement that Doug drove to where Snowy and the others were. Both Panma and Mitakiki said that they heard explosions and they heard dogs yelping. They did not say, however, that they saw dead or wounded dogs. Panma said that he was frightened as a result of this incident and that, thereafter, he only came secretly to the camp that was situated to the north-west of the homestead.

446               Carlene Thompson spoke kindly of Doug Fuller, saying that she had “happy memories” of him. He gave them food and often took the children with him when he did “bore runs” and other work that took him away from the homestead. As she said:

“He was just like a grandfather to us. We grew up eating rations and meat from him. He also got kangaroo for us which he shot with his gun.”

447               Jeannie Kampukuta Inpiti agreed that Doug Fuller was a “good whitefella”; he treated his Aboriginal workers well. She agreed that there was an occasion when she had spoken with Ms Susan Woenne-Green at Amata in the presence of Angkaliya and many other ladies. On that occasion, somebody at the meeting had said that Doug Fuller looked after the women who were his shepherds – he would make sure that they had lunch and he would care for them. She was quite fulsome in her praise for the way in which Doug looked after his people. On the other hand, she claimed that she had seen him poison dogs by using “bullock meat”. That conduct and the availability of health services were, so she said, the main reasons why she left De Rose Hill and went to live at Ernabella.

448               The evidence in the trial, in my opinion, established that, by and large, the Aboriginal people and Doug Fuller got on well initially but that, unfortunately, their relationship became strained and the claimants developed an apprehension that the Fullers had an attitude of hostility towards them.

449               Doug never used any Aboriginal names for places of De Rose Hill and never mentioned any Dreaming trails in his evidence. He said that no Aborigine had ever shown him or taken him to any area on De Rose Hill which was said to be special. I do not find this surprising. Nothing in his evidence suggested that he had any interest in the cultural aspects of Aboriginal life and his disinterest would have dissuaded the Aborigines from showing him their secret or sacred sites. He said that there was a stone arrangement on a hillside in the “Fish Tank paddock”. He thought that it may have been significant, but when he asked Owen Kunmanara about it, he was told that the Aboriginal people did not know about it. He then mentioned a place called the “trough rock hole” which was known to the Aboriginal people as Ilpalka. However, he said that there was apparently nothing important about the area to his knowledge as the Aboriginal people did not seem to know or care about it. As Ilpalka has been a registered Aboriginal Heritage site since 1978, I find it difficult to believe that Doug Fuller would not have known of this registration. More recently, when Rex Fuller commenced to fence of Ilpalka, the claimants (or, at least, some of them) quickly complained to the authorities about this apparent interference with a site of significance. The matter was taken up on their behalf by the Aboriginal Legal Rights Movement.

450               Doug next referred to an area to the north of Kulgera where he and Noel Coulthard had dug stone to build a homestead at Kulgera. Finally Doug referred to the claypans at Oven Hill to the east of the station and south of Mary’s well. As I understand it, that was the site of a large body of water to which the Court’s attention was directed during the course of taking evidence on site; it was known to the Aboriginal witnesses as Apu Maru. A fence has been erected around the Oven Hill claypan. It was erected as a matter of cattle management because, if there was a need to round up cattle, the gate in the claypan fence could be closed and that closure would then force the cattle to go to another water source at which there are holding yards. That fencing was said to be a cause of concern for the claimants, presumably because it was considered to be some for of restriction to access to the site. Rex Fuller said that he had no knowledge of Aboriginal persons camping near the Oven Hill claypan nor of them holding ceremonies in that area.

451               Many of the Aboriginal witnesses complained about Doug Fuller shooting their dogs. Some said it was that conduct which made them fearful and was the cause of them leaving De Rose Hill. Doug admitted that he did shoot “some of the dogs which they didn’t want” but he said that his conduct was not an act of intimidation. It was, so he claimed, only done after some form of consultation with the Aboriginal people and it did not result in any complaints or in any Aboriginal person leaving the camp. His version of events does not coincide with the evidence of several of the Aboriginal witnesses whose evidence I prefer.

452               That is not to say that Doug’s actions were, in every case, unjustified. Johnny Wimitja De Rose, for example, agreed that he had heard stories about camp dogs attacking the sheep. Wimitja agreed that dingoes used to attack the sheep and that “an old man that used to go around the fences” would shoot the dingoes. He had also heard stories about the camp dogs attacking the sheep as well and about the old man shooting those dogs. On the other hand, however, Wimitja also accused Doug Fuller of shooting the camp dogs “when people used to go on ceremonies”. Wimitja said that he did not know that the police sometimes came to the camps and shot the camp dogs. Although he had heard stories of the Aboriginal people using poison to kill dingoes, he had no first hand knowledge on the subject.

453               During the course of his evidence, Owen Kunmanara confirmed that there were occasions when the Aborigines’ dogs scavenged station rations. He knew that caused Doug Fuller to get very angry. He also confirmed that there were occasions when the camp dogs killed sheep. It was Owen’s evidence that Doug Fuller would, on occasions, lay out poison baits for the dogs because “he didn’t want the dogs attacking the sheep”. As Owen said of Doug:

“… he used to put them there because he was the boss, he’s a whitefella and he do it.”

 

454               Witjawara Curtis claimed that she saw Doug Fuller shoot people’s dogs; she said that it was “because of his sheep”. There was an implication that this might have happened on more than one occasion, but in cross-examination it became clear that she only saw him actually shooting dogs once. She also agreed that there were occasions when the dogs would eat the rations which had been handed out to the Aboriginal people. Cissie Riley agreed that there were times when the Anangu’s dogs ate rations and that there were times when Doug would shoot the Anangu’s dogs. Edie Angkaliya claimed that one of the reasons for her and her family leaving De Rose Hill was because Doug Fuller shot and poisoned the dogs that belonged to the Anangu. Whiskey Tjukanku did not see or hear Doug Fuller shoot dogs or billy cans (an allegation made by Bernard Singer) but he, like many witnesses, was told that such events occurred and I am satisfied that he believed what he had heard.

455               Mr Whitington attempted to extract from Tjutatja a concession that the camp dogs sometimes raided the Aborigines’ rations, but he would not agree. He did agree that the dingoes sometimes attacked the sheep but he would not agree that the camp dogs did so. He responded to that proposition by saying:

“No, only the wild dogs.”

However, he related an incident about a policeman from Oodnadatta who came to a camp at De Rose Hill and shot a number of dogs. Tjutatja first said that he was at Sundown Well at the time. He then appeared to contradict himself, saying:

“Yes, I heard the shooting, the dogs, and Doug Fuller was with him too and shooting the dogs.”

Asked why the policeman had shot the dogs, he said “to do with the sheep and they come to shoot them and they were shooting at the men, two people.” His evidence about the subject deteriorated when he was asked: “What did killing the dogs have to do with the sheep?” And he replied “not the policeman, but Doug Fuller was shooting at the dogs.”

456               According to Roley Mintuma, Doug Fuller was “happy with us most of the time”. However, he deposed to an occasion when his father’s dog killed a sheep. He said that Doug was angry and hit his mother and father over the head with a stick. Later that day, however, Doug came to the camp with flour and sugar – presumably as an act of apology or contrition. Mintuma said that Doug would not allow the workers’ relatives to visit; he would frighten them off with a rifle. Furthermore, he would shoot strangers’ dogs. On another occasion, he said that he believed that Doug had hit Mitakiki’s father with a hose. Mitakiki also gave evidence about such an incident. Mintuma said that he and Mitakiki had gone to the ration store to get some flour. As they could not find any, they spoke to Doug who complained that Mitakiki’s father had already taken it. Mitakiki admitted that he told Doug that his father was eating his and the other working boys’ rations. He agreed that it was this information that was the cause of the fight; Doug Fuller was cross with his father for taking the boys’ rations. Doug called Mitakiki’s father up to the store and went into the store with him. At that point of time Doug was carrying a piece of hose in his hand. Neither Mintuma nor Mitakiki saw what happened but they heard Mitakiki’s father call out in pain. I have no difficulty in concluding that Doug did strike Mitakiki’s father. It would seem that Doug might have had some misgivings about his conduct because Mitakiki continued in his statement:

“In the end Doug Fuller gave my father quite a lot of food.”

457               Mintuma claimed that Doug poisoned his parents’ dogs. It was put to him that he never saw that happen and his reply was:

“Yes, my mother and father knew and understood, because the dogs used to come back to the camp half drunk, then drop dead at our camp. But I was only a boy and I didn’t know.”

Mintuma agreed that his mother and his father had a number of fights with Doug Fuller over the dogs attacking the sheep. It was then put to him in cross-examination that, after some of those fights, his father would sometimes spear a bullock “as a square up”. At first he said that he did not know anything about that, but then he agreed that he had given that information to Ms Susan Woenne-Green. However, he only admitted to his father spearing one bullock. Mintuma told of an occasion when there was an altercation involving Doug Fuller and some people who had arrived from Ernabella. They had a boy about Mintuma’s age; his name was Pintjantja. Doug found out about the arrival of the people and approached them and told them “to get out”. Mintuma said that he and Pintjantja and some other children ran away and when they came back “my mother told me he shot all the dogs”. He agreed that he was only a boy at that time - “maybe tjitji tjiranka”. Mintuma said that Doug used to take rations out to the people who lived around Ilpalka, but he would only supply those who were working for him and their immediate family. He would also supply rations for the old people who lived permanently in the camps around the De Rose Hill homestead but he would not allow relatives to visit and he would not supply rations to visiting relatives. Mintuma said that when the Anangu visited the station to see their relatives, Doug would tell them “to get out and then he’ll shoot their dogs at the same time”. Mintuma also agreed that Doug would send the visitors away because he knew that they would eat the rations of his workers.

458               According to Lilly Yupuna Baker, there was a time when trouble flared up between the Anangu and Doug Fuller. As she understood the position, Doug complained that there were too many Anangu around the homestead. Yupuna said:

“He told some people to leave and started shooting their dogs.”

459               Like his father Doug, Rex Fuller denied that he had ever engaged in any act of intimidatory behaviour towards Aboriginal people. In answer to the allegation that donkeys had been shot, he said that there were no donkeys on De Rose Hill. As for the shooting of dogs, he said that the police insisted on one dog per Aboriginal family in an attempt to keep dog numbers under control. He said that he could recall police, as well as Aboriginal persons and his father, shooting dogs. Rex denied that he had acted irresponsibly in connection with the use of baits to kill dogs in and around Aboriginal camps. He claimed that the dogs had been a problem and that the local policeman had often come by and shot a few to thin them out; there were less arguments if the police did it rather than the Fullers. Nevertheless, Rex admitted to shooting a few and poisoning a few dogs. He said that old Paddy would ask for baits so that the Aborigines could get rid of unwanted dogs; dogs would pinch the Anangu tucker by picking at the bags of flour and dried milk and then licking the contents through the holes that they had made.

460               Overall, I prefer the evidence of the Aboriginal witnesses to that of Doug and Rex Fuller. I find that there were occasions when dogs belonging to the Aborigines were shot and killed without their consent. The shooting of the dogs was an example of the clash between the Aboriginal and European cultures. The Aborigines liked their dogs; it was a case of “the more the merrier”. From the pastoralist’s point of view, they were a nuisance. They raided the rations; they occasionally killed or maimed livestock. I do not, however, believe that the conduct of the Fullers in shooting dogs that belonged to the Aboriginal people was a material reason for most of the Anangu leaving De Rose Hill. Many of the incidents that were referred to in evidence occurred at a time when sheep were still on the property. In other words, the witnesses were recounting events in the 1950s and that was, in some cases, well before the Anangu left the Station.

461               The best evidence on this subject came from Mr Bruce Evans. Mr Evans, the former police officer and pastoral inspector, whose evidence I accept without reservation, said that there were a number of occasions when he recorded in the Police journal at Oodnadatta problems with respect to Aborigines’ dogs. He said for example:

“… but the trouble was that the dog populations used to build, so much so that they used to have to hand their rations in trees to keep them away from the dogs, and the dogs in some cases were diseased, mangy, and very very thin, and in the interests of health in a lot of cases, the police used to shoot those dogs which they felt were not appropriate dogs for hunting. I never ever shot a hunting dog.”

 

462               He said that the number of diseased dogs was a matter of continuing concern to him whilst he was stationed at Oodnadatta. He added that the police, at the request of the Station owners, would often attend at a Station and shoot the Aborigines’ dogs to keep the number down. There was a record in his journal of his having attended De Rose Hill station in 1955 for that purpose. Under cross-examination, Mr Evans explained that the Aborigines were very protective of their good hunting dogs “but anything that was a bit scruffy and mangy and that they didn’t mind that because it kept their tucker safe”. The evidence of Mr Evans satisfies me that the shooting of dogs was not a practice that was limited to the Fullers. The Aboriginal people would have known of police involvement in shooting dogs. The fact that the police did this, whilst still a matter of distress to the Aboriginal owners, would have slightly diminished the conduct of Doug in the eyes of the Aborigines; he would have been seen to have had the backing of the authorities when he shot the dogs. Their evidence does not warrant a finding that the conduct of the Fullers was malicious, unnecessary or abnormal.

rex fuller

463               After schooling in Alice Springs and Adelaide, Rex Fuller returned to his home at De Rose Hill Station when he was about sixteen years of age. He said that throughout his life he has worked in and around De Rose Hill traversing it, initially on horseback, but more recently by motorbike, quad bike and four wheel drive. He also has a pilot’s licence and views the property from the air to survey cattle, waters, fences and roadways. In the course of his travels he has encountered various sites which, he thought, might represent sites of previous Aboriginal use or occupation. He has examined and considered a report prepared by Professor Veth, on behalf of the claimants, and he is aware of the existence of the sites that were identified by Professor Veth in his report. In fact, he is aware of additional sites over and above those mentioned by Professor Veth, which may evidence prior Aboriginal use or occupation. Nevertheless, he maintained that they are sites that have never been mentioned to him by Aboriginal persons on De Rose Hill; he cannot recall any of the Station’s former Aboriginal workers suggesting that the sites that are now identified in Professor Veth’s report were of special significance or importance to them. Trough Rock Hole (Ilpalka), for example, was never mentioned by Owen Kunmanara or by any other Aboriginal person as being special to the Anangu.

464               I have no difficulty in accepting that both Doug and Rex Fuller lack appreciation of Aboriginal culture. They showed no interest in the practices and beliefs of the Aboriginal people and, as a result, the Aboriginal people had no inclination to volunteer any information to them. That was why the Fullers had no knowledge of any place of special interest to Aboriginal people. Rex’s recollection is that his father started running cattle on the Station in the late 1940s. Cattle numbers gradually grew and, eventually, his father sold the last of the sheep in about 1959 or 1960. With the switch from sheep to cattle, the need for Aboriginal workers diminished. There was no longer a need for full-time shepherds and, although there was an initial need for Aboriginal stockmen for cattle mustering, even that work dried up with the implementation of internal fencing and holding yards around watering points.

465               Rex gave extensive evidence about the manner in which cattle management practices on the Station have changed over the years. He explained that in the early 1980s, the then South Australian Department of Agriculture implemented and conducted a Brucellosis and Tuberculosis Eradication Campaign (“the BTEC program”). Prior to the implementation of the program, De Rose Hill Station had only about five fenced paddocks. However, the BTEC program offered financial incentives to install additional fencing and the Station now has about twenty-four or twenty-five paddocks, not including the smaller holding paddocks, and more than 100 gates. Rex explained that the development of fencing and gates has “virtually revolutionised the way in which this property is managed”. An essential element in the development of the Station is that all cattle now graze within eight kilometres of a watering point.

466               Holding yards are strategically placed around watering points and roads and tracks have been constructed so that a prime mover and trailer can be brought on to the Station at numerous locations to load the cattle and truck them away. The network of tracks and roads has meant a heavy investment in earth moving and road making equipment. That equipment has also been successfully used to set up dams. Rex considers that the quality of his tracks and roads adds to the efficiency of the property. There is now no need to conduct musters. The watering points are used as the primary means by which cattle are trapped or held for loading on to trucks or for moving them from a yard to another paddock. Most fences have a graded road on each side. This makes it easier for fence maintenance and the double tracks also serve as fire breaks. Rex said that, over the years, the Station has probably “spent hundreds of thousands of dollars building these roads”. He said that, as a result, he is therefore “highly sensitive to the risk of damage to Station roads in wet weather and to the difficulties posed by persons who access the Station without leaving gates as they find them”. Rex complained that access by visitors has become a major problem in recent years and the lodgement of the native title claim “has only triggered an increase in the amount of access over my property”. Rex highlighted this problem by claiming that difficulties can occur:

“… if the chain is not put back on correctly cattle can nudge the gate and easily unhook the chain and then escape. To try and reduce the problem I have even welded a triangle section on many gates to make the system idiot proof, but I continue to have problems.”

He did not explain what the continuing problems were, but I infer that it related to gates being left open. He spoke of one occasion when some unknown person came onto De Rose Hill Station from the north and travelled down the Station’s western (or Kenmore Park) boundary, exiting the Station on the Granite Downs boundary. That person or those persons left every gate open – a total of thirteen gates, all of which should have been closed – allowing agistment cattle to escape. Rex did not know the identity of the culprits and did not suggest that any of the claimants were to blame. It served, however, as an indication of his concern to protect the management structure of the Station. Rex said that with his small workforce, he could not afford “to be running around checking gates all the time [and] repairing damage to roads caused by the thoughtless actions of others”. He explained that the Station is a registered Angus Stud “with stud females costing in excess of $28,000”. The Station also has many bulls, one of which was said to be worth $11,000. He advanced a further reason for his preferred state of isolation, saying that there was a problem “of mixing of different breeds of cattle if gates are not correctly relatched. It has already cost me thousands of man hours of down time”.

467               Rex said that there had been, at one stage, a ration depot at De Rose Hill. Rations were issued weekly and, according to Rex, the Aboriginal recipients would receive meat, flour, sugar, tea, treacle or jam, and tobacco. The Station would supply the meat but the rations would come by rail to Finke. The rations were distributed upon the theory that they were only for the pensioners and workers; able-bodied people who chose not to work were supposed to look after themselves. Rex said that a few of the older Aboriginals hunted with spears but his memory was that, for the greater part, the young Aboriginal men did not use them.

468               He said that “every now and again” the Aboriginals would leave the homestead area. It was his understanding that they would, for the most part, go to Granite Downs because he believed that was where the initiation of the young men took place. He said that he could not recall any Aboriginal ceremony being conducted on De Rose Hill save for one corroboree when his father had supplied the Aboriginals with a bag of flour so that they would perform the ceremony for the benefit of his father’s friends from the south.

469               Rex remembered Owen Kunmanara whom he described as “fairly reliable” and as one who seemed to be “fairly well respected by the Aboriginal people”. Rex also confirmed that Peter De Rose took over as head stockman when Owen Kunmanara retired; he described Peter as “about the brightest of the young ones”.

470               Rex said that there were “a few deaths” on the property and that he and his father had the responsibility for arranging of the burial. He said that deaths occurred usually as a result of old age or during childbirth. According to Rex, anyone who was a blood relation was not allowed to be involved in the burial and none of the graves were marked. He would not be able to locate those graves any more.

471               Rex said that he could recall small groups of Aboriginal workers being employed by his father on De Rose Hill Station. In the first place, in the 1950s, there were a few Aborigines camped near the homestead, shepherding sheep. He said of them “they would always come and go”. He found it difficult to estimate the numbers, saying that it varied from as few as two or three up to as many as twenty or thirty. He referred to them as semi-nomadic adding, however, that a few of the older Aboriginal people were “here a fair bit more than the others”.

472               Rex attached to his witness statement a list of names of Aboriginal persons. He said that the people named were recorded in De Rose Hill Station documents as having either worked or lived on De Rose Hill at some stage. The first of the records was in respect of the 1944 year and the last of them was for the 1978 year. The largest number of names recorded was in respect of the period 1970-1973 when thirty-one names were listed. In earlier years the numbers ranged from as low as seven in 1964 to a maximum of twenty-two in 1961. After 1973 the numbers seemed to drop away, there being only four persons named in 1978. Rex accepted that “probably” all of the people who were named in the Station records were present on the Station at one stage or another. However, he said that he was of the opinion that some of them were there for a relatively short period only. Others, such as Owen Kunmanara, Riley Tjayrany and Tim De Rose were names that he could remember as being there for reasonable periods of time. He remembered the occasion when, as he said, the Government decided that all Aboriginals should have surnames. Thus, Edie became known as Edie De Rose and her children Tim and Carlene became known as Tim De Rose and Carlene De Rose. In a separate exercise, he referred to Peter De Rose, commenting that he was initially known as Peter Snow and then again as Peter Dean before taking his stepfather’s surname.

473               According to Rex, the Aboriginal camps were relatively peaceful. Alcohol was rarely a problem with those camping around De Rose Hill. He said that the main problem was with Aboriginals passing through from Indulkana and Kulgera. They would, according to Rex:

“… come to De Rose Hill, apparently affected by alcohol with a car load of black fellas and demand petrol in the middle of the night.”

474               Rex claimed that it got to the point where Peter De Rose asked him to build a ten foot high netting fence around their camp enclosure with barbed wire on top to keep the drunken ones out. Peter complained that the drunken ones would make advances to their women and that they were generally unwelcome. Rex refused to do so. He said that he explained to Peter:

“That’d look bloody good, if a reporter got hold of that. Here you are, caging the black fellas up at night and locking them up.”

According to Rex there was a period of about twelve months or so when it was not safe to leave the homestead “because of these Aboriginals from south going up to Kulgera and then coming back down”. He said it was necessary for one member of the family to be at the homestead at all times. He complained to the police in Adelaide and, eventually, a police officer from Oodnadatta was sent out every weekend to take up a position on the main road in an attempt to control any disturbances. According to Rex:

“We certainly made it clear that trouble makers were not welcome, but we didn’t mind if people just wanted to go passing through.”

475               Peter De Rose would not admit to there being “trouble” in the camp around the De Rose Hill homestead when he was living there. He claimed that he never saw drunk people in the camp; he claimed that he never saw a fight in the camp. When pushed, he said that he saw only one fight – that was between Tim De Rose’s mother and father. It was put to him that there were problems at the Station with drunken Aboriginal people passing through from Indulkana to Kulgera. He would only answer:

“Maybe. I wasn’t in the fight.”

He denied that he complained to Rex that drunken men had made advances to the women in the camp; he denied that he had asked Rex to erect a high fence around the camp enclosure so that drunken Aboriginal men could be kept out. Mr Whitington put to him during the course of his cross-examination:

“You have got very upset in the past, haven’t you, when you have thought men were making advances to your wife?”

Peter’s reply was:

“I never heard about that story. She never told me about it.”

He was asked whether he had been charged with hitting a man at Mintabie in the face with a clenched fist three times and then pushing a lighted cigarette into his eye. He denied that he burnt the man with a cigarette and said that he could not remember hitting him. Ultimately, however, he was forced to admit that he had been arrested at the races at Marla Bore for fighting with a man called Reggie Goodwin. He eventually admitted that he punched Reggie because Reggie had made advances to his (Peter’s) wife. Peter was most unimpressive when giving this passage of his evidence. His answers were evasive and his demeanour indicated that he was very uncomfortable. I do not believe that he answered truthfully. I accept that the Station had trouble with drunken Aborigines; I also accept that Peter asked Rex to erect a fence but that Rex, for the reasons that he gave, declined to do so.

476               Rex claimed that he is dedicated to land management; in 1996 he won the Commonwealth Bank’s Ibis Award for Excellence in Commercial Primary Production and Nature Conservation. It is his practice to regularly clear up dead trees and to clear off undergrowth from around the homestead. Dead trees and undergrowth constitute a fire hazard; they also create a haven for rabbits. Rex explained that rabbits have, in the past, caused substantial damage to the land. Presently, rabbit numbers are low following the release of the calici virus, but in earlier times, it was most important to destroy the habitat of the rabbits. That was invariably done by ripping the rabbit warrens with earth moving equipment.

477               Rex was aware that Peter De Rose had alleged, prior to the commencement of the trial, that he, Rex, had deliberately caused damage to the ironwood tree near the homestead under which Peter had been born. According to Rex, the tree in question was a beefwood tree (not an ironwood tree as alleged) and he added that neither ironwood trees nor beefwood trees are rare on De Rose Hill – some are still standing about 100 metres north of the area in question. Rex maintained that the tree that he removed was one of a number of trees, all of which were in poor condition. He cleared them from an area to the north of the homestead on the basis that they were half-dead and no longer viable. Rex claimed that he never knew, at the time, that Peter claimed the tree as his “birthing” tree; he said that there was no malicious intent on his behalf. Furthermore, he had always understood, from discussions with his father and with Paddy, that Peter had been born somewhere out near the Kenmore Park boundary – not close to the homestead as Peter now asserted. The allegation that had been made on behalf of the claimants to the effect that the ironwood tree may have been deliberately destroyed was ultimately withdrawn. In any event, I accept Rex’s explanation. He, like his father, showed no interest in Aboriginal culture. He would not have been interested to know Peter’s birthplace. Everything about him pointed to a lack of interest in those matters that were of importance to Aboriginal people. He is that type of man who would proceed about his work of his Station oblivious to matters of concern to the Anangu.

locked gates

478               Many of the Aboriginal witnesses asserted that they had been deterred from returning go De Rose Hill because the Fullers had adopted the practice of locking the gates to the Station. Although Riley Tjayrany referred to locked gates in his witness statement, he did not offer them as his reason for leaving De Rose Hill. Referring to other people, he said in his witness statement:

“[i]n my view, people left De Rose Hill because Doug became unfriendly and locked the gates, plus Indulkana opened up.”

His reference to the locked gates being a reason for people leaving the Station has to be rejected as all available evidence pointed to the gates not being locked until some time in the 1990s. In fact, in his witness statement, he seemed to indicate that a major reason for him leaving was that Indulkana opened up.

479               Riley has been back to De Rose Hill Station with Ms Susan Woenne‑Greene and Mr Craig Elliott to assist in the preparation of the native title claim. Before those trips, however, he said that he seen locked gates on De Rose Hill Station “this side of Kantja”. According to Riley, it was a gate from the main road and he saw it when he went looking for kangaroos. However, he said that when he saw the locked gate, he turned around and went back to Indulkana. He also said that there were:

“… a few more locks along the road that goes along the railway line.”

 

480               Riley said that he stopped the car at the gates, but when he saw the locks he did not try to enter; he kept on driving. Asked how many gates he could remember along the fence, he answered:

“Ten gates got locks on.”

When he was asked to specify when he had seen the ten locked gates, he related the period of time to Christmas, saying that the gates had been locked for twenty Christmases. I am satisfied that there was a measure of confusion and gross exaggeration in this section of his evidence.

481               Riley said that when the native title field trips began, as part of the preparation for this case, there were locks on all the gates on the highway. He said that this frightened the Anangu, even though they could obtain access to the Station in those areas where grids had been built as entry points. He said “we might get shot”.

482               In his witness statement Owen Kunmanara addressed the subject of locked gates in these terms:

“Rex Fuller locked up all the fence. We got to keep away. That’s no good. With the locks there it was different. The man who locked the gates is a proper hard man. Now we can’t go there. He is hard altogether for us. If we were up on the east side at Apu Maru he’d be up there in an aeroplane looking. He is provoking a fight or argument by locking the gates. We can go around the fence but we can’t go in. When they locked the fence up people wouldn’t go in for kangaroos.”

As one person’s view about the attitudes and attributes of another person, it is a rather telling story. Owen said, speaking of De Rose Hill Station, that the sky and the land “are ours” and if “Rex got out of the way”, he (Owen) and his people could go there. But he concluded:

“… we are frightened. He might shoot us.”

There has been nothing in the evidence to suggest that Rex Fuller would ever shoot an Aboriginal person and I find it difficult to accept that Owen or any other Aboriginal witness is too frightened to enter De Rose Hill Station for fear that such an event might occur. The question of Owen going on to the Station was put to him in cross-examination and it might be that he agreed that he was free to visit. The relevant passage of his evidence was as follows:

Q “Did you tell Craig Elliott, when you spoke with him, that you got on well with Doug and you can go to De Rose Hill any time?

A Yes, it is our place and the one job for me and for Doug.”

The question suffered from the fact that it contained two propositions: getting on well with Doug and going on to the Station. It could also be that Owen’s answer “Yes” was limited to getting on well with Doug as distinct from Rex. The most that can be said, and I so find, is that Owen would be uncomfortable about visiting De Rose Hill Station because of his subjective perception that Rex Fuller is a most disagreeable person.

483               The evidence of Bernard Singer about the date when locks first appeared on the gates at De Rose Hill Station was not clear. He was, however, clear that there were no locks in 1986 before he went to Brisbane to attend studies in a drug and alcohol course. It was Bernard’s evidence that the locks appeared “just after the claim was put in”. Proceedings with respect to the applicants’ claim commenced in the National Native Title Tribunal (“the Tribunal”) in 1994 and as a matter of probability, that would have been the event to which Bernard was referring. However, it can be assumed that preliminary work with respect to the making of the claim, including site visits to De Rose Hill by the claimants and their advisers, would have taken place to the knowledge of the Fullers some time before the commencement of proceedings in the Tribunal. Even if one allows up to a year for this preparatory work, it would suggest that the effect of Bernard’s evidence would be that locks first appeared in, say, early 1993.

484               Tillie Yaltjangki discussed the subject of locked gates on De Rose Hill Station in terms that were inconsistent with what other witnesses had said. It was her evidence that the gates were first locked when her son, Tiger, was born. Although the date of his birth was not established Tillie said of him that he now has some grey hair. In any event, she said that the locking of the gates was the occasion when she and other Anangu left De Rose Hill and moved to Indulkana. Tillie went on to say:

“I was living at Indulkana when Snowy my brother got run over by a car that Doug Fuller was driving.”

485               As it has been established by other evidence that Snowy’s accident occurred in 1977, when Tillie would have been aged about twenty-eight, it would mean that gates were locked, if Tillie’s evidence is correct, sometime prior to 1977. That is clearly incorrect.

486               The complaints about locked gates have, in my opinion, been unreasonably pursued by the claimants. In the first place, many of the Aboriginal witnesses asserted, incorrectly, that gates had been locked prior to 1994. Whiskey Tjukanku, for example, claimed, as I have noted, that the gates had been locked for twenty Christmases. Tillie Yaltjangki was the most extreme in her evidence claiming that she left De Rose Hill with her family because of locked gates sometime prior to 1977. Mabel Pearson claimed that she is scared to go on to De Rose Hill because of Rex Fuller. She also referred to the locks that had been placed on the property. However, she left the Station in 1968 or 1969 when her husband was dismissed because of his drinking. Locked gates were, in my opinion, a wholly immaterial matter in the history of Mabel Pearson.

487               Mr Vachon was particularly asked to address the subject of locked gates in the compilation of his report, Ex A9. He had carried out field work in the north-west of the state in the course of his preparation of his doctoral thesis from October 1977 to May 1979. His field work included the inspection of sites of significance on De Rose Hill Station. He said that in the course of that field work, he did not encounter any difficulty in accessing sites or areas of land due to locked gates.

488               In his witness statement, Rex Fuller discussed the locking of gates on De Rose Hill Station. It was his evidence that there are about 100 gates throughout the Station and, of those, only thirteen are locked. His estimate was that locking commenced “in the last ten years”. As he signed his witness statement in 2001, it would mean that he has pushed the date of the first locks back to 1991 or thereabouts. In fact, the case for the claimants, as presented in the final submissions of counsel, was that gates on De Rose Hill station were first padlocked in 1994. Rex Fuller claimed that some Aboriginal persons who left De Rose Hill Station subsequently asked him if they could return and shoot kangaroos. He said that he replied that they could do so, so long as they shut the gates that they found shut. He said that, for a while, they would comply but, not long after, he would find that the gates had been left open.

489               Rex maintained that it remained possible to access all parts of the property notwithstanding the existence of those locked gates. He claimed that he has never prevented access to De Rose Hill for hunting purposes. On the other hand, he complained that gates have been left open, roads have been chopped up after rains, cattle have galloped over fences and rocks were put down Kay’s Bore Column, wrecking the pump. There was no evidence, however, that could possibly justify a finding that one or more of the claimants were responsible for those events.

490               In their final submissions, counsel for the claimants addressed the subject of the locked gates. It was not contended that all gates had been locked but, so it was claimed, sufficient had been locked to create a perception on the part of the claimants that De Rose Hill Station had become “locked country”. Such a perception is obviously relevant to the question whether the claimants, who in many cases had previously been in an employee relationship with the Fullers, felt able to exercise their right of access to the property. The claimants did not, for example, contend that their only reason for leaving the claim area was the behaviour of Doug or Rex Fuller. Their contention was that there was, ultimately, a strained relationship and a sense of hostility which made it difficult for them to have access to the land and to be present on it.

491               I find, on the basis of this evidence, that some gates on De Rose Hill Station were first locked somewhere between 1991 and 1994. Even then, not all gates were locked. Indeed there was ample access to the eastern areas of De Rose Hill Station via the railway access road. Elsewhere there were grids which permitted access. The significance of these findings is that the presence of locked gates could only have served as some form of deterrent to entry to the Station since the early 1990s. Those witnesses who left De Rose Hill in earlier times cannot use locked gates as their excuse or explanation for not returning to De Rose Hill to care for their country prior to the early 1990s. In some cases, bearing in mind Snowy’s accident in 1977 and Bobby’s death in 1978, more than thirteen years had elapsed since people chose to leave the Station and the earliest possible appearance of the first locks. The presence of locked gates has not been either a legal or a practical bar to those Aboriginal people who wish to follow their traditional pursuits on De Rose Hill Station. As a matter of law, s 47 of the 1989 Pastoral Act entitles them to have access and, as a matter of fact, there are ample points of entry where the gates are not locked. The evidence of Bernard Singer satisfies me that the claimants could, if they wished to do so, enter De Rose Hill Station to follow their traditional pursuits.

section 223 of the nta

492               The expression “native title” and the expression “native title rights and interests” are treated as interchangeable terms by the NTA. They are defined in s 223 in their relationship to both Aboriginal people and Torres Strait Islanders. In setting out hereunder a summary of the relevant parts of s 223, I have omitted any reference to Torres Strait Islanders as these proceedings are only concerned with Aboriginal people. The two expressions mean:

“… the communal, group or individual rights and interests of Aboriginal peoples … 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 …; and

b.                the Aboriginal peoples …, 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.”

493               In Mabo (No 2), six members of the High Court (Dawson J dissenting) agreed that the common law of Australia recognises a form of native title. Mason CJ and McHugh J at 15, said that the title recognised:

“… in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands …”

494               As was pointed out in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr at [9], the rights and interests to which subs 223(1) relate must have three characteristics. First, they are possessed under the traditional laws acknowledged and the traditional customs observed, by the people concerned. Secondly, those people, by those laws and customs, must have a “connection” with the land. Finally, the rights and interests must be recognised by the common law of Australia.

495               This use of the word “traditional” in subs 223(1) is not to be understood as meaning that there can be no change in the laws and customs. As in any society, these are matters that can be affected by evolutionary processes. Brennan J discussed that subject in Mabo (No 2). He said at 59-60:

“Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with that land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence…However, when the tide of history has washed away any acknowledgement of traditional law and any real observance of traditional custom, the foundation of native title has disappeared.”

 

His Honour continued at 61, saying that:

“Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too.”

Later again, at 70, he said:

“It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains.”

Thus, change to the traditional laws and customs is, according to Brennan J, permissible, so long as the community remains identifiable and lives according to those recognizable traditional laws and customs.

496               Deane and Gaudron JJ in Mabo (No 2) were of the same opinion. They said at 110:

“Since the title preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality, the contents of the rights and the identity of those entitled to enjoy them must be ascertained by reference to the traditional law or custom. This traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.”

 

 

Toohey J was of the same view but addressed the subject in more detail. He said at 192:

“An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise ‘traditional’ rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing.

But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life.” (references omitted)

 

497               In Yanner v Eaton (1999) 201 CLR 351, Gummow J commented that the appellant, hunting estuarine crocodiles in a motor powered dinghy and using a traditional harpoon, was using “an evolved, or altered, form of traditional behaviour” [68]. The Court did not find any reason to disturb the Magistrate’s finding that this method of hunting was consistent with the traditional custom of the appellant’s indigenous community. Gummow J explained at [68]:

“At trial, the Magistrate held that this method of hunting was consistent with the traditional customs of the applicant’s indigenous community. This finding is not challenged.”

 

Branson and Katz JJ in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2000) 110 FCR 244 (“Yorta Yorta”) considered that the meaning of “traditional” in s 223(1) of the Act was “an issue of difficulty” [110]. They referred at [111], to Pt B of the Explanatory Memorandum to the Native Title Bill 1993, which said at 77:

“In accordance with the High Court’s decision, the use of the word ‘traditional’ in reference to laws and customs in the definition [that is, s223(1)(a)], is not to be interpreted as meaning that the laws and customs must be the same as those that were in existence at the time of European settlement.”

498               They also referred to comments of the then Prime Minister, the Honourable Paul Keating MP, that the government’s position was to accept the decision in Mabo (No 2) and therefore the Native Title Bill “protects native title to the maximum extent practicable” [112]. Branson and Katz JJ concluded at [122-123] that:

“…it is plain that at common law native title can survive modification of the traditionally-based laws and customs…However, the laws and customs must remain properly characterised as traditional. The changed laws and customs will not be traditional in character if they reflect a breaking with the past rather than a maintenance of the ways of the past in changed circumstances.”

 

499               It is therefore quite appropriate for Aboriginal people to involve themselves in western work practices; the fact that the men worked as stockmen and the women as domestics on De Rose Hill Station, would not mean, without much more, that they had thereby abandoned their traditional laws and customs. Western style occupations could still be wholly compatible with their retention and adherence to their traditional activities.

500               For example, hunting in a certain area will not cease to be traditional because the identity of the game has changed or because the weapons have changed. Branson and Katz JJ were further of the view in Yorta Yorta, at [127], that “the purchasing by members of an indigenous community of food from a supermarket does not, of itself, demonstrate a loss by that community of traditional connection with land or waters”. Whilst I respectfully agree with the principle that is embodied in this statement, it must nevertheless be remembered that, in every case, it will be necessary to make a detailed study of all relevant facts. Hence, there is always the possibility that usage of a supermarket might be one of several indicia, which, when added together, might lead to the conclusion that such developments could be part of a number of instances of “modernization” that would, collectively, indicate a break with traditional laws and customs.

501               Having established that traditional laws and customs may evolve over time, it is still necessary to consider, in the particular circumstances of this case, whether the claimants still acknowledge and observe traditional laws and customs. Gummow J in Yanner v Eaton at [69] said that the appellant’s behaviour in hunting a juvenile rather than a mature crocodile was “traditional” because it “complied with a traditional code of conduct … and involved tribal totemic significance and spiritual belief”. Thus it retained its traditional character, notwithstanding the appellant’s use of a modern boat and motor. What was involved was the manifestation by the appellant of the beliefs, customs and laws of his community.

502               The interpretation of subs 223(1) has cause some disagreement within the Federal Court. There are two competing interpretations of the section – that of Beaumont and von Doussa JJ in Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 (“Yarmirr”) and that of Branson and Katz JJ in Yorta Yorta. These two views can be summarized briefly as follows:

(a) Beaumont and von Doussa JJ saw s223(1) as simplifying issues of proof; they considered that the “traditional” laws and customs that are acknowledged and observed need only be traditional as currently acknowledged and observed.

(b) Branson and Katz JJ, on the other hand, saw subs 223(1)(c) as a codification, almost word for word, of the judgment of Brennan J in Mabo (No 2) and therefore as a statutory definition that imported into it the common law requirements that had been identified by Brennan J. They included a continual connection with the claim area since sovereignty and (subject to certain exceptions) the establishment of biological descent. That was a view for which support could be found in the decision of a differently constituted Full Court in Kanak v National Native Title Tribunal (1995) 61 FCR 103 (“Kanak”). In that case, Lockhart, Lee and Sackville JJ said at 131:

“But it is essential that there be an identifiable community, which has retained the requisite connection with the land claimed since the time the Crown acquired the radical title to the land.”

503               In Yarmirr, Beaumont and von Doussa JJ said at [65] that:

“The fundamental requirement is not that the rights and interests were acknowledged and observed at a particular date, but that they follow from the acknowledgement of traditional laws and the observance of traditional customs. The meaning of ‘traditional’ is that which is ‘handed down by tradition’ and tradition is ‘the handing down of statements, beliefs, legends, customs, etc from generation to generation, especially by word of mouth or by practice’: The Macquarie Dictionary, 3^rd ed.” (original emphasis)

 

This statement better explains the position than that of McLachlin J in R v Van Der Peet (1986) 137 DLR (4^th) 289 at 372, who said that traditional laws and customs “must be rooted in the historical and ancestral practices of the Aboriginal people in question”, and at 373, that “there must also be continuity between the historic practice and the right asserted”. According to Beaumont and von Doussa JJ, the proof of a law or custom being traditional is not that it was acknowledged at a particular date (ie sovereignty), but that it has evolved over time as practices have been handed down from generation to generation. That is a much less stringent requirement than having to show that the particular laws or customs existed at a specific date in the past. Given the difficulties facing native title applicants in matters of proof, such a relaxation is appropriate: see Mason v Tritton where Kirby P (as he then was) said at 588:

“In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his Aboriginal forebears from the 1880’s back to the time before 1788, I would have been willing to draw the inference asked. In more traditional Aboriginal communities the inference will be quite easily drawn.”

504               Beaumont and von Doussa JJ continued in Yarmirr as follows, at [66]:

“In most cases where the date of acquisition of sovereignty was coincidental with, or preceded, first European contact in a particular area, there will be no reason to doubt that the rights and interests of the indigenous inhabitants, so long as they reflect the laws acknowledged and customs observed, were rights and interests possessed under traditional laws and customs.” (original emphasis)

 

But the real crux of the views held by their Honours (with which Branson and Katz JJ specifically disagreed in Yorta Yorta) is to be found at [67]:

“The definition of native title in s 223(1) does not direct attention to whether the rights and interests in question were possessed at any particular time in the past. The definition requires only that rights and interests are (presently) possessed under the traditional laws acknowledged and the traditional laws observed. This simplification overcomes complications of proof that would exist if the definition made it necessary to ascertain the date of the acquisition of sovereignty of the area of land or water in question, and the situation prevailing in the community at that time, as well as ascertaining the present situation. The point is sufficiently dealt with in the definition by the requirements that the laws and customs be ‘traditional’. In claims for determination of native title, that requirement will usually be met by showing that the laws acknowledged by, and customs observed by, the claimants predated first European contact – regardless of the precise date of the acquisition of sovereignty.” (original emphasis)

505               In Yarmirr, in the Full Court of the Federal Court, Beaumont and von Doussa JJ continued their attempts to simplify the process of proving native title under subs 223(1). They said at [64]:

“As a matter of theory, native title as it existed at the date of the acquisition of sovereignty burdened the radical title of the Crown, and the nature and extent of that burden would fall to be ascertained according to the nature and content of the rights and interests at that date. Thus it can be argued that the date of acquisition of sovereignty remains central to the determination of native title. However, from a practical viewpoint, the particular date is not of importance. Mabo [No 2] at 70, 110 and 192 recognises that laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty, and the means of enjoyment of native title rights and interests can change with the times (for example, to permit the hunting of estuarine crocodiles with the use of an outboard motor: Yanner at 277).”

These remarks are in harmony with the views that had earlier been expressed by Kirby P in Mason v Tritton at 588. In Yorta Yorta, that harmony was broken somewhat. Branson and Katz JJ were of the view that the test whether the practices of a community or group were traditional was not a subjective one, even though it was necessary (but not, in itself, sufficient) that the claimants believe that their laws and customs are traditional; the test was instead, primarily, an objective one, asking whether “the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community” [127].

506               This is not to say that conduct such as dingo scalping and working on pastoral stations complies with a traditional code of conduct, nor do those activities involve a manifestation of the beliefs, customs and laws of the relevant community. They are activities that have evolved as a result of Aboriginal contact with money and with European work practices. However, taken in isolation, they will not interfere with the acknowledgment and observance of traditional laws and customs. On the other hand, when an examination of all the facts is completed, those activities may combine with other activities to satisfy the impartial observer that there has been an abandonment of those traditional ways.

507               In Yarmirr, Beaumont and von Doussa JJ discussed the scope of par 223(1)(c) at [58‑61]. In a lengthy passage, their Honours said:

“The content of the required characteristic of native title described by s 223 (1)(c) is not apparent from reading the section, or indeed the NTA. In Mabo (No 2), steps in the reasoning by which it was held that the common law in Australia recognised the native title of the Meriam people, included the following, appearing in the summary of Brennan J at 69-70, namely: (a) that on the acquisition of sovereignty, the Crown acquired a radical title to the land in that part of Australia; (b) that native title to the land survived the Crown’s acquisition of sovereignty and radical title; and (c) that the native title was exposed to extinguishment; but, in the case of the Murray Islands, extinguishment had not occurred. In addition to these major steps, other considerations important to the recognition of particular rights and interests that might be revealed in a case by evidence as to the traditional laws acknowledged by, and customs observed by, the indigenous people were identified by Brennan J. In particular, his Honour (at 43) said:

‘However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.’

Furthermore (at 61) his Honour said that native title will not be protected by legal remedies where the rights and interests disclosed by the evidence are founded on laws and customs of the indigenous people that are:

‘so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.’

Recognition by the common law will be withheld in respect of rights and interests of a kind that offend these principles.

If s 223(1)(c) is considered in isolation, it might be thought to comprehend the need to satisfy both the major steps and the other considerations for recognition identified by Brennan J. However, we think that the better construction of s 223(1)(c) is that it only comprehends the other considerations, and not the major steps in the reasoning of the Mabo decision. Of the major steps, the fact of the enactment of the NTA gives recognition and protection to native title. The NTA is an expression of legislative intent to recognise and confirm that native title survived the acquisition of sovereignty and constitutes a burden on the radical title of the Crown. Those points no longer remain matters that call for consideration in the definition of native title and native title rights and interests. The requirement that the rights and interests not be extinguished is already encompassed in the opening lines of s 223(1). (In expressing this view of the construction of s 223(1) we respectfully disagree with Moynihan J in Eaton v Yanner; Ex parte Eaton (unreported, Court of Appeal, Qld, Full Court, No 10389 of 1996, 27 February 1998) who held that non-extinguishment was a threshold requirement imposed by s 223(1)(a) and (c) of the NTA.”

508               Thus, the native title rights and interests will only be recognised by the common law of Australia so long as they are compatible with the general principles of the common law. For example, tribal “pay-back” killings would not be acceptable and would not be recognised.

509               In Yorta Yorta,Branson and Katz JJ took a different view to that of Beaumont and von Doussa JJ in Yarmirr. They said at [108]:

“The preferable view, in our opinion, is that s 223(1)(c) is not concerned only with the kinds of rights and interests which may found a determination of native title under s 225 of the NTA. Rather, it seems to us, s 223(1)(c) incorporates into the statutory definition of native title the requirement that, in the case of a clamed communal title, the holders of the native title are members of an identifiable community “the members of whom are identified by one another as members of that community living under its laws and customs” (Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61 per Brennan J) and that that community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land.”

510               The judgments of the Full Court of the Federal Court in Yarmirr and Yorta Yorta were delivered on 3 December 1999 and 8 February 2001 respectively. Both matters went on appeal to the High Court. The appeal in Yarmirr was heard on 6-9 February 2001 and the Court’s judgment was published in October of that year. The appeal in Yorta Yorta has been heard but judgment has not yet been delivered. The High Court in Yarmirr did not refer to the decision of the Full Court in Yorta Yorta and therefore did not directly resolve the differing views on the interpretation of par 223(1)(c). Gleeson CJ, Gaudron, Gummow and Hayne JJ did, however, discuss the paragraph. They thought it useful to approach the question by asking when will the common law not recognise native title rights and interests and then by asking when will the common law recognise them [403]. In other words:

“… the fundamental question which lies behind both of these approaches is a question about inconsistency between the asserted rights and the common law.” [40]

 

Commenting on the views expressed by the members of the Court in Mabo (No 2), their Honours went on to say at [41], that:

“‘… the common law which the settlers brought with them was, as Deane and Gaudron JJ said, [at 79] “only so much of it … as was ‘reasonably applicable to the circumstances of the Colony’”. That rule was itself a common law rule and the Crown had no prerogative right to override the common law by executive act.’”

511               They saw the question about the continued recognition of native title rights as requiring a consideration of whether, and how, the common law and the relevant native title rights and interests could coexist. If the two are inconsistent, the common law will prevail, but if there is no inconsistency, the native title rights and interests will continue. Although the majority, in addressing the effect of par 223(1)(c) did not discuss the interpretation that Beaumont and von Doussa JJ had given to the paragraph, McHugh J, in his dissenting judgment considered it in detail and rejected it [160-170]. Kirby J, in a separate judgment, arrived at the same conclusion as the majority with respect to the Commonwealth’s claim (but differed from them as to the outcome of the claimants’ appeal). Like the majority, he considered the effect of par 223(1)(c) without referring to the views expressed by Beaumont and von Doussa JJ in the Full Court. However, he did say that he was unable to agree with the manner in which McHugh J had interpreted the paragraph [258]. The remaining member of the Court, Callinan J, did not address the subject.

512               There is not, in my opinion, any inconsistency between the common law and the continued existence of the rights and interests that are presently sought by the claimants and which owe their origin to Aboriginal law and custom; there is not, for example, any activity or subject matter that might be thought to be repugnant to the precepts of the common law. That being so, the common law would recognise rights and interests which are of the kind that are sought by the claimants in these proceedings: see the remarks of Gleeson CJ and Gaudron, Gummow and Hayne JJ in the High Court in Yarmirr at [76].

extinguishment

513               In its written submissions, the State submitted that, as the De Rose Hill pastoral leases were granted before the enactment of the Racial Discrimination Act 1975 (Cth), no issue of invalidity arose. The State also submitted that, since the leases in question contain a reservation in favour of Aboriginal people, the leases are exempted from the operation of s 36F of the NT (SA) Act. Thus, it was submitted that whether the leases fully extinguish native title was therefore a question to be decided by the common law. That is not, however, the correct question in any event. As the majority in Ward explained at [468]:

“Because what is claimed in the present matters are claims made under the NTA, for rights defined in the NTA, it is that statute which governs.” (original emphases)

 

514               The State, in order to preserve its position at the appellate level, argued that the leases had fully extinguished native title rights and had converted or replaced them with the rights that were conferred by the Crown under the reservations that were contained in the leases. They are therefore, so the argument proceeded, statutory rights that are derived from the Crown through legislation and not common law native title rights.

515               That argument can be disposed of summarily. At trial, it was submitted by the claimants that the argument of the State was untenable because of the decision of the Full Federal Court in Ward, by which I am bound. Beaumont and von Doussa JJ, in their majority judgment, found that the reservations that were contained in leases in favour of Aborigines were not rights that were derived from a statute, but rather, from a reservation by the Crown from the pastoral lessee of acknowledged native title rights. At the time when those submissions were made; before the High Court’s decision in Ward, counsel for the State rightly conceded that, on the authority that bound this Court, the State’s argument would not succeed. In view of the High Court’s decision, which upheld that aspect of the joint judgment of Beaumont and von Doussa JJ, that concession was correctly made. I need not further discuss the State’s contentions on extinguishment, save to say that the State also conceded that, should the Court find against its argument on total extinguishment, the question of partial extinguishment would then arise. The claimants, for their part, rightly conceded that partial extinguishment had occurred.

516               It was established by the High Court in Wik, by a majority of four to three, that the grant of pastoral leases pursuant to various Queensland statutes had not necessarily fully extinguish native title in the area of those leases. The extent of any extinguishment is a question of law to be determined by considering the evidence relating to the instrument of lease, the statute under which the lease was granted (Toohey J at 108; Gaudron J at 166-7; Gummow J at 168-169; and Kirby J at 243) and any other relevant considerations; for example the historical circumstances surrounding the legislation and the instrument (Toohey J at 110, 119 – 120; Gaudron J at 140 – 141; and Kirby J at 216 - 218) and the level of the improvements on the property (Gaudron J at 166; Gummow J at 203; but see also Kirby J at 238). Kirby J added that native title would not be extinguished unless it could be demonstrated that there was a clear and plain intent to do so (249).

517               The land in question in Wik was the subject of the Holroyd River Lease (“Holroyd lease”) and the Michellton Pastoral Lease (“Michellton lease”). The leases had been granted under either the Lands Act 1910 (Qld)(“the 1910 Act”) or the Lands Act 1962 (Qld) (“the 1962 Act”), but the differences between the two Acts are not relevant for the purpose of this discussion. Toohey J set out the history and nature of the leases at 103-108 of his judgment. The Holroyd lease was granted in 1945 over an area of 1119 square miles for a term of thirty years at a yearly rent. It was described in the Instrument of Lease as being for “pastoral purposes only”. It contained, inter alia, the following reservations:

“… declaring the said land open for Pastoral Lease, and to all other rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, reservations, and provisoes referred to, contained, or prescribed in and by the said Acts, ‘The Mining on Private Lands Acts, 1909 to 1929’ and ‘The Petroleum Acts, 1923 to 1939,’ or any Regulations made or which may hereafter be made under aforesaid Acts or any of them.” [105]

The lease also gave access rights to people in certain circumstances where they were duly authorised by the Governor:

“AND WE DO FURTHER RESERVE the right of any person authorised in that behalf by the Governor of Our said State in Council at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same.” [105]

There was not, however, any reservation of any rights in favour of Aboriginal people.

518               In 1972, the then lessees successfully applied for the grant of a new lease. That new lease was issued in 1975 (“the 1975 lease”) under the 1962 Act and was described as a “Lease of Pastoral Holding” as opposed to being a lease for “pastoral purposes only”, but nothing turned on that change in terminology. It was also for a term of thirty years at a yearly rent. However, the 1975 lease contained additional clauses requiring the lessee to construct a number of improvements within a five-year period. Those improvements included an airstrip, certain buildings, internal and boundary fencing, a set of main yards and a dip. The lessees were also required to sow 100 acres at least as a seed production area. At the time when Wik was before the High Court, those requirements, by and large, had not been fulfilled. Such non-compliance could have led to the forfeiture of the lease, although the Minister had a discretion under the Act not to enforce its covenants. As was the case with the first Holroyd lease, there was no reservation in the 1975 lease of any rights in favour of Aboriginal people [103-104].

519               The Michellton lease was granted in 1915 under the 1910 Act over an area of 535 square miles for a term of thirty years at a yearly rent. Like the first Holroyd lease, it was described in the Instrument of Lease as being for “pastoral purposes only” and its terms were similar to those that were contained in the first Holroyd lease. The lessees never took possession of the Michellton property and, in 1918, the lease was forfeited for failure to pay the annual rent. A further lease was granted over the property in 1919 in very similar terms to the first lease. In 1921 that lease was surrendered and, in 1922, the land was reserved for the use of the Aboriginal inhabitants of Queensland. That reservation may have been as a result of a letter from the Chief Protector of Aborigines for Queensland, who wrote in the following terms:

“… ‘there are about 300 natives roaming on this country, and when the company starts operations the natives will doubtless be hunted off … I would strongly urge that, before allowing anyone else to obtain possession, this Department be first consulted as regards the need for reserving the area for native purposes’.” [107]

Neither of the Michellton leases contained any reservations in favour of Aboriginal people.

520               The majority of the members of the Court in Wik found that the use of the term “lease” to describe the Instruments that were granted pursuant to the statutes, did not automatically mean that a pastoral lease had the same qualities as a lease that is granted at common law; in particular, the majority held that pastoral leases that were granted under the various Lands Act did not necessarily grant a right of exclusive possession to the lessee.

521               Toohey J’s examination of historical records satisfied him that it was not the intention of the legislature to deprive the Aboriginal inhabitants of the right to hunt on their traditional grounds. He said at 120:

“Against this background, it is unlikely that the intention of the legislature in authorising the grant of pastoral leases was to confer possession on the lessees to the exclusion of Aboriginal people even for their traditional rights of hunting and gathering. Nevertheless, ‘intention’ in this context is not a reference to the state of mind of the Crown or of the Crown’s officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the ‘intention’ to be discerned from it.” (references omitted)

 

His Honour was of the opinion that the determination of rights under a pastoral lease should not be determined “by nomenclature” and that “a closer examination” of the terminology was required (117). That required an examination of the language in the Instrument of Lease and in the legislation through which it was granted.

522               Section 203 of the 1910 Act allowed for the removal and fining of “Any person” not lawfully present on land which was the subject of a pastoral lease. However, Toohey J was of the view that the term “any person” did not apply to Aboriginal people (120-121). To hold otherwise would be, in the language of Brennan J in Mabo (No 2) at 450, “truly barbarian”. Speaking of other legislation which contained similar provisions, Brennan J said at 450:

“Such provisions should be construed as being directed to those who were or are in occupation under colour of a Crown grant or without colour of right; they are not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title.”

523               Gaudron J said that it was clear that the Michellton leases were derived entirely from the 1910 Act and that they conferred, and only conferred, the estate or interest which that Act authorized (150). Her Honour went on to say at 150, that the method for ascertaining what the statute authorised was to be achieved by the:

“…application of those principles of statutory construction which have been devised to determine what it was that the legislature intended but failed to say in plain words.”

The use of the word “lease” in the 1910 and 1962 Acts was not sufficient to convince Gaudron J that the Queensland legislation intended that pastoral leases should convey the right of exclusive possession as common law leases do (151-152). Her Honour was of the opinion that “there is no very secure basis” for believing that pastoral leases were derived from common law leases: they were statutory devices created for very specific conditions in the colonies. She said that “there is nothing to suggest that a right of exclusive possession was either a necessary or convenient feature of pastoral leases…” (153). For various reasons, Gaudron J concluded that a pastoral lease was a very different creature to a common law lease. In particular, she noted that the 1910 Act allowed for leases in perpetuity: “an expression which is unknown to the common law and which cannot possibly take its meaning from it” (153).

524               Kirby J was also of the view that the rights that had been granted pursuant to the Instruments of Lease and the legislation did not include a right to exclusive possession. He concluded that the rights that had been granted pursuant to the leases were not necessarily inconsistent with any existing native title rights that existed in the claim area. His Honour said at 232-233:

“But from the conditions which are described in the pastoral lease documents and from the successive inspectors’ reports, it seems a reasonable inference that traditional Aboriginal life would have been little disturbed by the grant of the pastoral lease in that instance. The number of persons entering the land was small and mostly seasonal. The physical improvements were virtually non-existent. In such a large remote terrain, for most of the year, the Wik could go about their lives with virtually no contact with the lessee or the tiny number of stockmen, wood gatherers and occasional inspectors who entered their domain or, more recently, in the case of helicopter pilots engaged in mustering, who flew over it … Aboriginal law and tradition could readily survive in such an environment because of the very limited contact which was inherent in these pastoral leases, between Aboriginals and those connected with the lessee.”

In concluding that native title had not necessarily been extinguished, his Honour said at 242-243:

“Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian Statutes, their character and incidents must be derived from that Statute. Neither of the Acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for ‘grazing purposes only”, as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. Only if there is an inconsistency between the legal interests of the lessee (as defined by the instrument of lease and legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.”

 

525               In a postscript to his judgment at 132-133, Toohey J advanced the following proposition with the concurrence of Gaudron, Gummow and Kirby JJ, they being the other justices who, with Toohey J, constituted the majority:

“To say that the pastoral rights in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognize that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.

 

So far as extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.”

 

526               The principles that were declared by the majority in Wik have been the subject of comment and development in subsequent decisions of the Federal Court and the High Court in, most relevantly so far as this litigation is concerned, the judgment of Olney J in Hayes v Northern Territory (1999) 97 FCR 32 (“Hayes”), the judgments of differently constituted Full Courts of the Federal Court in Ward and Anderson v Wilson (2000) 97 FCR 453 and the judgments of the High Court in Ward and Wilson v Anderson (2002) 190 ALR 313. The High Court decisions in Ward and Wilson v Anderson were handed down on the same day, 8 August 2002, at which time judgment had been reserved in this matter. However, counsel have since presented their further submissions after having had the opportunity to consider what the High Court has had to say in those two appeals. It will be helpful to summarize briefly the facts and the findings of these cases before turning to consider their application to the circumstances in this case.

527               The approach and reasoning of Olney J in assessing the pastoral leases in Hayes is relevant, most notably because the terms of the leases that were considered in that case were very similar to those in these proceedings. Olney J, at [88], approached the impact of the leases on native title in this manner:

“In order to determine whether leasehold or other interests granted by the Crown are inconsistent with the rights and interests of native title holders it is necessary to analyse both the statute authorising the grant and the particular instrument of grant to determine first the nature of the rights granted and then to compare those rights with the pre-existing native title rights. If the continued exercise of the native title rights would be entirely inconsistent with those of the grantee, then the native title will be extinguished; if however, the two sets of rights are not entirely inconsistent, the native title rights must yield to those of the grantee to the extent of any inconsistency.”

In my opinion, his Honour’s approach is consistent with High Court authority. Although no pastoral leases were current at the time of the hearing in Hayes, his Honour set out at [95] the terms of the reservation in favour of Aboriginal persons that had been included in an earlier lease:

“RESERVING NEVERTHELESS AND EXCEPTING out of the said demise to Her Majesty, Her Heirs and Successors for and on account of the present Aboriginal inhabitants of the Province and their descendants during the continuance of this demise full and free right of ingress, egress and regress into and upon and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such a manner as they would have been entitled to do if this demise had not been made …”

Other leases in the claim area that had been granted between 1898 and 1908 contained reservations in substantially the same terms. Thereservation in Hayes that has been set out above is very similar to those that must be considered by the Court in these proceedings. The findings of the trial judge in Hayes are therefore helpful in the determination of these proceedings. Olney J, at [96], stated his opinion in the following terms:

“The right to make and erect wurlies and other dwellings was in each case qualified by the words “as the said Aboriginal natives have been heretofore accustomed to make and erect” and the right to take and use for food birds and other animals ferae nature was to be exercised ‘in such a manner as they would be entitled to do if this demise (lease) had not been made’. The Crown obviously recognised at the time that the Aboriginals in question had an existing entitlement to erect wurlies and other dwellings on the land (and thus occupy the land in the sense of living on it) and to take and use birds and wild animals for food …”

His Honour continued at [96]:

“While neither form of reservation makes express reference to the gathering of food (other than birds and wild animals) or to the actual use of the waters, it may fairly be said that the South Australian leases contemplated the continued existence of native title rights of the same character as those rights which have been referred to by the applicants’ witnesses in this proceeding as the rights which they have inherited from the original inhabitants of their respective countries. In a practical sense, the granting of PLs 1 and 2 would not have affected the exercise of the existing native title rights and interests of the inhabitants of the leased land. It must necessarily follow that the leases do not disclose an intention to extinguish those rights and interests. On one view, the leases may be said to have extended a right of access to Aboriginal inhabitants of the Province who did not traditionally enjoy, or at least did not exercise, such a right but even if that be so, the existing rights which the ancestors of the present applicants enjoyed in relation to the demised land would not have been affected.”

 

Olney J concluded that, on the basis of the decision in Wik, the leases in question would not have given a right to exclusive possession even without the reservation in favour of Aboriginals, but the reservation made it clear that the leases did not extinguish native title [98-100]. This was so even though the Ordinances that related to pastoral leases had left out the requirement for a reservation for approximately fifteen years. By referring to historical material, Olney J concluded that there was not a clear and plain intention to grant lessees a right of exclusive possession [103].

528               In their majority judgment in Ward in the Federal Court, Beaumont and von Doussa JJ examined the issue of pastoral leases in depth. Their Honours made it clear from the outset that they did not think it particularly helpful to ask whether a pastoral lease was strictly to be treated as a lease in accordance with common law principles, because, as they pointed out, they “are creatures of statute” [287]. The conclusion of Gaudron J in Wik that the legislation was drafted as it was, due to the “peculiar conditions of the Australian colonies” (152), was adopted by Beaumont and von Doussa JJ, who saw pastoral legislation as having been enacted to enable the “early settlement of remote areas of Australia”. They therefore concluded at 287, that:

“… the first duty of the Court is to examine the statute and to see whether, consistently with its terms, other rights and obligations that would apply by the general law attach to the statutory entitlements and duties of the parties or are modified …” (references omitted)

529               The legislation and the leases that affected properties in Western Australia and the Northern Territory and which were considered in Ward, were more akin to those in these present proceedings than were the leases in Wik in that there was a strong legislative history of reservations included in the legislation and the leases in favour of Aboriginal people. Beaumont and von Doussa JJ were of the opinion that the reservations in the leases expressed a clear intention that those native title rights that were contained in the reservations were held back from the grant of the lease and that they remained “Aboriginal rights for the enjoyment of Aboriginal people” [339]. Their Honours said at [286]:

“… the terms of the early pastoral leases, and more recently the provisions of the legislation under which pastoral leases have been granted, contain reservations in favour of Aboriginal people which, in our opinion, make it clear that as a matter of law the pastoral leases in the claim area did not authorise the total extinguishment of all native title rights and interests.”

 

Their Honours alsonoted that there was a strong theme for the protection of Aboriginal interests in land in the early years of the Colony of Western Australia which could be seen in official directives that were issued by the Colonial administration. For example, an Order in Council, which was made on 22 March 1850 and which was published in the Western Australian Government Gazette of 17 December 1850, contained the following official directive, which their Honours set out at [294]:

“Nothing contained in any pastoral lease shall prevent aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner …”

530               Prior to 1933, pastoral leases in Western Australia had been granted pursuant to the provisions of the Land Regulations (WA) of 1882 and 1887, which incorporated the 22 March 1850 Order in Council set out above as an exception and reservation. That exception and reservation was amended by the Land Regulations (WA) 1878 so as to apply to “any unenclosed or enclosed but otherwise unimproved part of the premises” [295]. Consistent with the requirement of the regulations, the reservations that were originally contained in the leases over the claim area in Ward were in the following terms, as set out by Beaumont and von Doussa JJ at [297]:

“Except and always reserved to Us, Our Heirs and Successors…full right to the Aboriginal natives of the said Colony at all times to enter upon any unenclosed or enclosed but otherwise unimproved part of the said demised Premises for the purpose of seeking their subsistence therefrom in their accustomed manner.”

Section 106 (as originally enacted) of the Land Act 1933 (WA) set out a number of reservations that were to be included in pastoral leases. In 1934, a new provision was inserted as a result of which s 106 became subs 106(1); that new provision was numbered subs 106(2). It was set out at [300] as follows:

“The aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner.”

With the advent of the amendment, the earlier right to enter upon “enclosed but otherwise unimproved” land was removed and the prior right to enter upon “unenclosed” land was restricted to land that was both unenclosed and unimproved.

531               In discussing the effect of subs 106(2), Beaumont and von Doussa JJ rejected a proposition that had been advanced by the State of Western Australia to the effect that the subsection had the effect of confirming a total extinguishment of native title and the creation of a new statutory right of Aboriginal access [306]. The other major finding of the majority in Ward in the Federal Court, which was at variance with the trial judge, was that native title rights could be partially extinguished. Their Honours said at [316]:

“The immediate consequence of the grant of these coexisting rights, in the areas where coexisting rights existed, was to destroy the exclusive nature of the native title right to possess, occupy, use and enjoy the land. Henceforth the right was one to be shared …”

 

Neither of those important findings was disturbed by the High Court.

532               By a majority of five to two, the High Court allowed, in part, the appeals against the several decisions of the Full Court of the Federal Court in Ward. However, the majority, comprising Gleeson CJ, Gaudron, Gummow and Hayne JJ, held that there could be partial extinguishment of native title [9], [26]-[29] and [76]. In particular, their Honours held that, in the circumstances of that case, a grant of a pastoral lease, although not giving exclusive possession to the lessee, extinguished any native title right to control access to land, even though it may be accepted that a core concept of traditional law and custom is the right to be asked permission to enter upon and to speak for country [88, 90] – see also Kirby J at [590‑594]. On the other hand, their Honours found that many other native title rights and interests would have continued unaffected by the grant.

533               The Northern Territory leases that were the subject of consideration in Ward contained the following reservation (which were set out by the majority at [402]):

“… EXCEPTING out of this lease to Aboriginal Inhabitants of the Province and their descendants during the continuance of this lease full and free right of ingress egress and regress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made.”

Later leases that were issued over the Northern Territory claim area, although differently worded, were substantially to the same effect. There had also been statutory developments in the Northern Territory with amendments to the Lands Ordinance 1931 (NT) by the Crown Lands Ordinance 1971 (NT). Those developments led to subs 24(2) being enacted; it was set out at [412] in Ward:

“… in any lease under this Ordinance a reservation in favour of the Aboriginal inhabitants of the Northern Territory shall be read as a reservation permitting the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who in accordance with Aboriginal tradition are entitled to inhabit the leased land-

(a) to enter and be on the leased land;

(b) to take and use the natural waters and springs on the leased land;

(c) subject to any other law in force in the Northern Territory, to take or kill for food or for ceremonial purposes animals ferae naturae on the leased land; and

(d) subject to any other law in force in the Northern Territory, to take for food or for ceremonial purposes any vegetable matter growing naturally on the leased land.”

Whilst the language of this section is somewhat different to that contained in s47 of the 1989 Pastoral Act, the general objective is nevertheless the same: to ensure that certain rights of Aborigines were preserved. The majority in Ward in the High Court, when discussing the nature of the reservations in favour of the Aborigines that were to be found in the pastoral leases, said at [417] that they:

“… did not define or confine the rights that native title holders could exercise …”

 

However, their Honours went on to add at [417]:

“However, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land. Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes.”

 

534               Although the legislation and the reservations in the leases that were considered by the High Court in Ward did not act to define and limit the extent of Aboriginal native title rights and interests in the claim areas, the granting of a pastoral lease created co-existing rights between the lessee and the native title holders and, in those circumstances, any prior native title rights to exclusive possession, occupation, use and enjoyment of the land were lost. That meant that the claimants for native title also lost the exclusive native title right to control access to the land and to control the use to be made of the land. On the other hand, the grants of the pastoral leases did not give the lessees rights of exclusive possession. Other, lesser native title rights and interests continued. They included rights of ingress, rights to traverse the land (subject to what has to be said about improvements including watering points) and rights to forage and hunt – to name a few. The reservations, for which provision was made in the leases, constituted an acknowledgement by the Crown of the continuance of rights of the type that had attached to subsisting native title; it indicated that the Crown, in granting the pastoral leases, had no intention of wholly extinguishing native title but of requiring a sharing of interests with the lessee [417]. However, the native title right to make decisions about the land was subservient to the extent that it was inconsistent with a lessee’s right to make decisions about the use of the land for pastoral purposes.

535               The decision of the Full Court of the Federal Court in Anderson v Wilson was handed down on 5 April 2000, a month or so after the Full Court decision in Ward. Anderson v Wilson, like Wik, was a case where the pastoral lease did not contain any reservation of any rights for the benefit of Aboriginal people. Three questions were referred to the Full Court of the Federal Court for consideration. Black CJ and Sackville J set them out at [2] of their joint judgment:

“(a) By virtue only of:

(i) the Western Lands Act 1901 (NSW); and

(ii) the regulations thereunder, as in force at the time of the grant of the lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(b) If the answer to the question (a) is ‘No’, by virtue of:

(i) the Western Lands Act 1901 (NSW);

(ii) the regulations thereunder, as in force at the time of the grant of the Lease; and

(iii) one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

 

(c) If the answer to question (a) or question (b) is ‘Yes’, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the Lease?”

Black CJ and Sackville J in their joint judgment concluded that, in the circumstances of the case, it was not necessary to answer questions (a) and (b). They also thought that it was unnecessary to answer question (c) but they added, at [150], that:

“… on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involve a presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease.”

536               In his separate judgment, Beaumont J was prepared to offer a limited answer to question (b). He said at [265]:

“The lease confers upon the Lessee a right to the possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings.”

 

Because of that answer, his Honour did not answer question (a). In addressing question (c) his Honour referred to the remarks of Toohey J in Wik and, in particular, to the postscript to Toohey J’s reasons. Beaumont J noted that the postscript called for an inquiry to ascertain whether inconsistency existed between the rights and interests that are conferred by native title and the rights and interests that are conferred by the statutory grants of the leases. If there is inconsistency there must be an identification of its extent because, if inconsistency is held to exist, the native title rights and interests will be extinguished to that extent. As such an inquiry had not taken place, Beaumont J did not consider that it was appropriate to answer question (c) either in respect of extinguishment or suspension of native title [270].

537               There were no findings made by the Full Court in Anderson v Wilson with respect to the state of the improvements on the relevant property; nor were there any findings as to the nature or the extent of native title. The Court was clearly of the view that evidence would need to be before the Court so that it could fully assess whether the leases that had been granted pursuant to the Western Lands Act 1901 (NSW) (“the WLA”) fully or partially extinguished native title. Pursuant to s 23 of the WLA, as it existed at the time of the grant, the Minister was permitted to grant leases of Crown land and such leases could be issued “in perpetuity”. Section 18 of the WLA provided that all leases should contain the conditions that were set out in Schedule A of that statute. It is unnecessary to set out Schedule A in full; it is sufficient to note that the conditions were typical of the reservations, conditions and covenants that are usually found in pastoral leases. The matter of significance was that there was no reservation of any rights for the benefit of Aboriginal people. Notwithstanding the absence of such a reservation, the Full Court was unable to conclude that the lease fully extinguished native title. The findings of Black CJ and Sackville J in Anderson v Wilson indicated that, in their view, the legislation (and the history surrounding it) was not directed towards the extinguishment native title rights in pastoral leases. They said at [108]:

“That leases under the WLA are not necessarily to be construed as having the same characteristics as common law leases receives support from the history of Crown leases legislation in New South Wales, especially after 1855. The legislation emerged as a response to the uniquely harsh physical and climatic conditions of the Western Division and to the difficulties experienced (and created) by European settlement. These difficulties included disputes between different classes of settlers, although the conflict between lessees and selectors was not as acute in what ultimately became the Western Division as it had been in other settled areas of the Colony. The various statutory interests created by the legislation, including grazing leases under the WLA, were designed to address the specific problems identified, particularly, by the Public Lands Report of 1883 and the Royal Commission report of 1901. Neither of these reports referred to the relationship between lessees and indigenous inhabitants. Whatever the historical reasons for this omission, it is difficult to view the 1884 Act or the WLA itself as directed to the extinguishment of such native title rights as might have existed over the sparsely settled areas of Western New South Wales.”

 

That analysis was intended to mirror the reasoning of Toohey and Gaudron JJ in Wik, who had also had recourse to historical material in establishing the ‘intent’ of the relevant legislation. The majority in Anderson v Wilson in the Full Court pointed out that, to determine whether the lessee’s rights extinguished the native title rights, it was necessary to have regard to the legislation and the terms and conditions of the lease itself [87-88, 95]. Those remarks accorded with the subsequent views of the majority in Ward in the High Court where their Honours at [78], emphasised that it was the NTA which governed the situation. Black CJ and Sackville J endorsed the view of Beaumont and von Doussa JJ in Yarmirr, at 435, that native title is “highly fact specific” and that the “existence and content of native title are questions of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis”. That also accorded with the view of the majority in Ward in the High Court, for their Honours said that questions of extinguishment require identification of the native title rights and interests that are alleged to exist in order for an objective comparison to be made between the two sets of competing rights [78].

538               The appeal by the Crown lessee to the High Court in Wilson v Anderson was successful. Gaudron, Gummow and Hayne JJ (with whom Gleeson CJ agreed) came to the conclusion that the lease in perpetuity, which was there under consideration, had the effect of conferring a right of exclusive possession: (per Gleeson CJ at [17]; per Gaudron, Gummow and Hayne JJ at [112] to [118]). Gaudron, Gummow and Hayne JJ explained at [115] that the various conditions and obligations that were attached to the grant of the lease “were not inconsistent with the incidents of a grant of a determinable fee simple”. At [116], they adopted the language of the second reading speech in relation to the New South Wales 1912 legislation and its treatment of perpetual leases by acknowledging that it had “all the advantages and essence of a freehold”.

539               Their Honours concluded their analysis of the terms of the lease and the legislation with the observation, at [117], that:

“The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik. The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple.”

 

540               Contrary to the views expressed by Black CJ and Sackville J in their joint reasons at [25] and by Beaumont J in his separate judgment at [278], the view of the majority in the High Court, at [47] was that it was incorrect to have concluded that, if native title were extinguished, it was extinguished by the general law and not by force of the NTA. Kirby J agreed with that view at [144], but otherwise concluded, at [158-163], that a lease in perpetuity did not carry the consequence of complete extinguishment. He would have dismissed the appeal.

541               I am satisfied, from this review of the relevant authorities, that native title in respect of De Rose Hill Station has not been extinguished. On the other hand, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title rights to control access to, and make decisions about, the claim area. Those rights were inconsistent with the rights of the Fullers to use the land for pastoral purposes: see Ward in the High Court at [417].

operational inconsistency

542               Conditions in pastoral leases requiring the future construction of dams, airstrips, fences and other improvements may not of themselves extinguish native title, but the subsequent construction of those improvements may do so. This is “operational inconsistency” and “presents factual issues for resolution”: see Black CJ and Sackville J in Anderson v Wilson at [93]. Certainly, given the level of development on De Rose Hill Station, there will need to be a finding of law, based on factual findings, whether operational inconsistency has partially or fully extinguished native title in the claim area, or in locations within the claim area. No such evidence was presented in Anderson v Wilson, no doubt because the issue of operational inconsistency was not addressed in the questions that were posed to the Court.

543               Gaudron and Gummow JJ both discussed the issue of “operational inconsistency” in Wik. Gaudron J said at 166:

“Certainly, improvement and developmental conditions for the construction of buildings and improvements such as the manager’s residence and airstrip required by the Holroyd pastoral lease might suggest a right of exclusive possession. And as there is no basis for distinguishing as to the estate or interest granted with respect to that part of the land to be improved and that to be left unimproved, conditions of that kind might suggest a right of exclusive possession over the whole land. Similarly, as there is no statutory basis for distinguishing between pastoral holdings made subject to improvement or developmental conditions and those not subject to conditions of that kind, the possibility that such conditions might be imposed is capable of suggesting that all pastoral leases conferred a right of exclusive possession.”

Later, on the same page, her Honour went on to say

“… to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment.”

544               Gummow J, in Wik, said at 203:

“The qualification is that the later but not the earlier grants were subject to conditions requiring improvements to the land. It may be that the enjoyment of some or all native title rights with respect to particular portions of the 2830 km² of the Holroyd River Pastoral Lease would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.”

In Yanner v Eaton, Gummow J continued in a similar vein at [110]:

“Further, the subsistence of native title rights was not abrogated by the mere existence of unperformed conditions in the grant of a pastoral lease. These conditions had no immediate legal effect, in terms of inconsistency, whilst unperformed. If performance had occurred, questions would have arisen respecting operational inconsistency between the performed condition and the continued exercise of native title rights.” (references omitted)

545               Beaumont and von Doussa JJ referred to “operational inconsistency” in Ward, when they said at [327]:

“ … improvements effected by a pastoral lessee, depending on their nature, may bring about an operational inconsistency which has the effect of wholly or partially extinguishing the native title rights which survived the grant of the pastoral lease.”

 

Earlier in their reasons, at [81], their Honours had explained the consequence of any such inconsistency when they said:

“The inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests.”

Those remarks were specifically approved in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, at [79], when Ward went on appeal to the High Court.

546               Black CJ and Sackville J in Anderson v Wilson, at [93], referred to the “inconsistency of incidents test” and to the joint judgment of Beaumont and von Doussa JJ in Ward to determine “whether inconsistency (and therefore extinguishment) occurs at the time of the grant of an interest”. The test had been described by Beaumont and von Doussa JJ in the following terms at [71]:

“The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised …” (references omitted)

Thus, this test, which does not appear to conform with what Gummow J said in Wik and in Yanner v Eaton was used to assess whether, at the time of the grant, there was inconsistency and, if there was, what effect that had on the native title rights and interests in the lease area. Black CJ and Sackville J accepted that statement subject to one qualification. The one qualification, which is quite important and which brings the matter back into line with the remarks of Gummow J, was set out at [93]:

“… where a statute or grant confers a power or condition to be exercised or performed in the future, the power or condition may have no immediate legal effect in terms of inconsistency. In such a case, extinguishment of native title will not occur unless and until the power is exercised or the condition satisfied.”

547               There was, in Ward, a clear implication that some native title rights were extinguished on improved land. The mere presence of a fencing improvement was not, however, in the opinion of Black CJ and Sackville J in Anderson v Wilson enough to establish, in favour of the lessee, exclusive possession for every lease granted under the WLA [128]. On the other hand, their Honours allowed for the fact that the satisfying of conditions that required improvements to be effected might exclude certain portions of the leased land [127]. But that would be due to actions subsequent to the grant of the lease (and pursuant to its terms) rather than due to the imposition of the terms per se. Black CJ and Sackville J in discussing the question of improvements in Anderson v Wilson said at [145]:

“If the area around the homestead has in fact been enclosed, it may be that the act of enclosure would be sufficient to destroy any native title rights in respect of the enclosed area. But as Ward illustrates, operational inconsistency to this extent would not necessarily extinguish all native title rights over other areas of the Leased Land. The extent of the extinguishment by operational inconsistency will depend on the evidence ultimately adduced in the proceedings.”

 

548               In Ward in the High Court, the majority was at pains to explain that the concept of “operational inconsistency” had its limitations. Their Honours said at [149] that the term “may provide some assistance by way of analogy” but “the analogy cannot be carried too far”. They explained at [149]:

“Generally, it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee once the legal content of both sets of rights said to conflict has been established.”

 

Later, at [151], they said:

“… the bare fact that there is statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title rights will not suffice to extinguish native title.”

 

549               Thus, even though Gleeson CJ, Gaudron, Gummow and Hayne JJ supported what Beaumont and von Doussa J had said about the concept of operational inconsistency, they disagreed with the manner in which their Honours had applied it to the Ord River Project, observing, at [148], that:

“… the notion of administrative management and control of the activities engaged in to further the Project does not engage the notion of ‘operational inconsistency’ for the extinguishment of native title.”

That criticism does not, however, apply to the circumstances of this case.

550               Whether or not native title rights will be fully or partially extinguished by operational inconsistency is to be ascertained by having regard to the evidence in each particular case: see Gaudron J in Wik at 167; Gummow J in Wik at 203; and Black CJ and Sackville J in Anderson v Wilson at [93]. However, in Wik, Gaudron and Gummow JJ differed in their formulation of extinguishment by operational inconsistency. Gaudron J’s comments suggested at 166 that if a property is sufficiently developed, then native title may be extinguished and there is no basis in the grant of the lease or in the legislation to distinguish between particular parts of a lease (or indeed between different leases). In such a case, the entire leasehold would be the subject of exclusive possession in favour of the lessee. Gummow J, on the other hand, at 203, talked of the abrogation of some or all of the native title rights in ‘portions’ of the property. The majority decisions of the Federal Court in Ward and Anderson v Wilson appear to have preferred the view of Gummow J.

551               There is not, however, universal acceptance of the implementation of the principle in the High Court. Kirby J was of the view in Wik, at 238, that ‘the answer is to be found in the character of the legal rights, not in the manner of their exercise”. He was more specific when he said at 238:

“To suggest that the actual conduct of a pastoralist, under a pastoral lease, could alter the rights which the pastoralist and others enjoyed under the lease, would be tantamount to conferring on the pastoralist a kind of unenacted delegated power to alter rights granted under the Lands Acts. This cannot be. It would introduce a dangerous uncertainty in the entitlements to land of all people in Australia to adopt such a principle. The search must therefore be one which is first directed at the legal rights which are conferred on a landholder by the Australian legal system. This is because legal title and its incidents should be ascertainable before the rights conferred are actually exercised and indeed whether they are exercised or not.”

552               The claimants in this litigation submitted that it is not the activities of the pastoral lessees, or the use to which such lessees may put the land, which may effect extinguishment of native title. Rather they interpreted the remarks of the majority in Ward in the High Court as justification for a submission that what is required is an objective inquiry that identifies and compares the native title rights and interests that have been claimed with those that have been granted to the relevant third party: in this case, the pastoral lessees. I do not think that this submission accurately reflects the entirety of their Honours’ remarks on this subject. The majority in Ward in the High Court made it clear that it was the creation of rights, as distinct from the manner in which those rights might be exercised, that was of prime importance. Their Honours said, at 234, that:

“… looking to the use that has actually been made of land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time.”

 

Nevertheless, although “operational inconsistency” means that “… the basic inquiry is about inconsistency of rights, not inconsistency of use” (original emphasis), the use to which the land may be put might demonstrate “that such rights have been created or asserted” [215]. As an example of that proposition, their Honours noted at [308] that:

“… the erection by a pastoral leaseholder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place …”

Thus, the manner in which the pastoral lessees use the land can remain a matter of importance.

553               The State, relying upon these extracts from the judgment of the majority, submitted that, where the Crown has exercised its power to say how particular land could be used (for example, by granting pastoral leases over the claim area), any native title right to control access or to decide how that land is to be used is extinguished, although native title holders may, nonetheless, be able to continue to use the land in accordance with traditional laws and customs providing there is no inconsistency. I do not see that the former part of that proposition necessarily follows; undoubtedly, the rights and obligations that are contained in the pastoral leases give superior rights to the pastoral lessees with respect to matters of access and use but that does not lead to the conclusion that all native title rights of access and control are thereby extinguished. The majority in Ward in the High Court did say, at [417], that:

“… the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land.”

 

But I take that to constitute a statement of the position between the native title claimants on the one hand and the pastoralist on the other. I do not see that it necessarily takes away the residual rights of control of access and use as between the holders of native title themselves and any other Aboriginal people who seek access to or use of the claim area in accordance with the traditional laws and customs.

554               The judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward indicates that their Honours have not discarded the theory of operational inconsistency. For example, at [151], the majority said:

“Just as the change in sovereignty at settlement worked no extinguishment of native title, the bare fact that there is a statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title rights will not suffice to extinguish native title. So much follows from Mabo (No 2) and Wik. Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title.”

555               Despite the views of Kirby J, at [238], the end result is that there is significant authority, which is binding at the trial judge level, for the proposition that the construction of improvements, in satisfaction of the conditions that are contained in a pastoral lease, may partially or fully extinguish native title over the lease or, at least, portions of the land that are within the lease. It is a matter to be decided on the facts. At this stage in the development of the law, it is reasonable to point out that the principle of operational inconsistency is, at best, a general proposition which is yet to be developed by its application to specific fact situations. In particular, there appears to be little guidance as to what will constitute an improvement, whether there is a “buffer zone” around improvements and, if so, the size of any such buffer zone. As the majority in the High Court explained in Ward, at [78], an objective inquiry will be required in each case:

“As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, state or territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issue with which we must deal in these matters.”

556               The Fullers submitted, and I agree, that the process for determining the extent of operational inconsistency is to compare and contrast the particular native title rights that have been claimed on the one hand with the pastoral legislation under which the grants were made, the terms and conditions of the grants in question and the evidence as to the nature and the scope of improvements that have been undertaken by the Fullers on the claim area on the other hand. In light of the extensive improvements that had been made to De Rose Hill Station, the Fullers submitted that operational inconsistency must affect adversely the interests of the claimants. They submitted that it would be fundamentally inconsistent with their rights as the Crown lessees to allow the claimants to use or have access to those improvements. They argued that some of the improvements, such as waters, sheds and, in particular, the homestead, must, by their very nature, wholly extinguish native title as they are totally incompatible with the exercise of native title rights in the physical space that they occupy and the use to which they are put by the lessees. This was especially the case, given the extensive rights that the claimants originally sought, such as a general right of occupation, albeit jointly with the lessees, to the whole of the claim area and the joint right to control the access, use and enjoyment of all others – not just Aboriginal people – to the claim area.

557               The submission that was made on behalf of the Fullers is not, in my opinion, affected by the provisions of the 1989 Pastoral Act. Its objective, bearing in mind that it was enacted before the decision of the High Court in Mabo (No 2), may be taken to mean that it intended to preserve and protect Aboriginal rights and interests in a manner that was compatible, so far as was possible, with the common law rights with respect to native title. Although the language and the detail differed, the provisions of s 47 of the 1989 Pastoral Act continued the Crown’s intention to preserve and protect (with modifications) the rights that had earlier been reserved in the pastoral leases in favour of the Aboriginal people. Native title will only be extinguished as a consequence of the legislative or administrative act of the Crown if the Crown has displayed a clear and plain intention to extinguish it. Whether the Crown has extinguished it is to be ascertained by evaluating the inconsistency between the retention of native title rights and interests on the one hand and the extent of the grant by the Crown, or the implementation of the terms of the grant (as the case may be) on the other. It is only when the inconsistency is clearly apparent that it will become necessary to conclude that native title has been extinguished.

558               The process that I have just described would, in my opinion, permit some conclusions to be reached with relative ease; others would be more difficult. For example, it would seem clear to me that improvements in the nature of the homestead and all sheds and outbuildings would be the subject of exclusive possession in favour of the Fullers. In addition, I am of the opinion that it would also be reasonable to recognise that the Fullers would enjoy exclusive possession to a “buffer” zone around such improvements; that buffer zone around the homestead would be a radius of one kilometre so as to accord with the provisions of par 47(2)(a) of the 1989 Pastoral Act. That is not a conclusion at which I have arrived by force of law: rather, it is a pragmatic conclusion so that there is no conflict with the provisions of s 47. The legislature obviously thought that a kilometre was a reasonable radius and I see no reason why I should not arrive at the same decision. The Fullers would, likewise, be entitled to recognition that they enjoy exclusive possession of all man-made dams, bores and stock watering points and the land within a radius of 500 metres: the distance referred to in par 47(2)(b) of the 1989 Pastoral Act. In respect of these improvements and their buffer zones, native title has been extinguished. On the other hand, I do not see how improvements such as fences and roads would wholly, or even partially, extinguish native title; they are clear examples of improvements which are capable of joint use. Airstrips represent a particular problem because of issues of safety. Because of that factor, I would deny the claimants all rights of access with a buffer zone of 500 metres. In respect of airstrips and their buffer zones, native title has been extinguished. Control of access by third parties to the claim area is no longer a matter of difficulty. In view of the decision of the High Court in Ward, the native title holders could not exercise any control over any person who was present on the claim area as a lawful invitee or licencee of the lessee; no question of competing decisions will arise. If the lessee were to refuse entry to an Aboriginal person who had been invited onto the claim area by the native title holders, the decision of the lessee would prevail. As to the balance of the claim area, the pastoral leases, whilst not extinguishing native title, nevertheless constitute an interest that, in the case of conflict with native title rights, is the dominant interest.

CONNECTION

559               The respondents submitted that the claimants in these proceedings could not succeed because they had failed to establish a substantial biological connection between them and those Aboriginal persons who occupied the claim area at the time of sovereignty; they argued that native title to an area was not “portable” between groups. There is a reference to biological descent in the judgment of Brennan J in Mabo (No 2), at 70, where his Honour said:

“Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.”

That statement, taken in isolation, could point to the need to establish strict biological descent. However, the passage should be read as part of the entire judgment – and elsewhere, at 61, his Honour had said:

“The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants … But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.”

That passage does not suggest that a strict test of “biological descent” is to be applied. Beaumont and von Doussa JJ discussed the question of “biological descent” at length in Ward. After considering what Brennan J had said on the subject, they concluded, at [232], that they did not think that his Honour was intending to lay down, as an invariable requirement, that there be strict “biological descent”. Rather, they saw Brennan J as:

“… expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs.”

Later, at [235], they said that it was:

“…plainly correct as a matter of fact to observe that the genealogies admitted into evidence showed ‘a broad spread of links with ancestors’ among the representative claimants and other witnesses who had given evidence in support of the claim.”

 

Even though Beaumont and von Doussa JJ steered away from a strict or literal biological test, they nevertheless still said, at [232], that:

“A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty.”

 

The subject of biological descent was not discussed in any of the judgments of the High Court in Ward.

560               The claimants have put forward the proposition that those people who are Nguraritja for the claim area are entitled to a determination of native title in their favour. The case for the claimants was that those claimants who are, today, Nguraritja for the claim area are following traditional laws and customs which, despite the physical absence of the claimants from the land, still connect them to the claim area. They argued that there was sufficient evidence in the trial to satisfy the Court that, at all relevant times those traditional laws and customs have been acknowledged and observed by the claimants. They are not, however, saying that their ancestors acknowledged and observed those same traditional laws and customs in connection with the claim area, for, according to their submission, such a connection is not required. They argued that it was not necessary for the claimants to prove a continuing connection with the claim area since sovereignty as it was sufficient to prove the acknowledgment and observance of traditional laws and customs over a larger area of which the claim area is part.

561               Before considering that submission, I should make it clear, at the outset, that I am of the opinion that a finding that a person is Nguraritja for the claim area will not necessarily lead to that person satisfying subs 223(1) of the NTA and thereby being entitled to a determination of native title. Some of the claimants may well be Nguraritja under their traditional laws acknowledged and traditional customs observed, and may thereby satisfy the requirements of par 223(1)(a) of the Act. However, par 223(1)(b) requires that, by those laws and customs acknowledged and observed, those claimants must have a connection with the claim area. Whether or not a particular claimant has a connection with the claim area sufficient to justify a finding of native title is, inevitably, a question of fact that must be determined in each case. Given that native title can give rise to significant rights and interests in land, there should be, in my opinion, more than a mere trifling connection to the claim area for an individual, group or community to be entitled to a determination of native title in his, her or their favour.

562               In this case, I have satisfied myself that the evidence has disclosed a number of methods by which a person may be both Nguraritja for the land and have a connection to the land through traditional laws and customs. The criteria, as relied upon by the claimants in their closing submissions, which I accept, were the following four-fold propositions: that a claimant had been born of the claim area; that the claimant had a long-term physical association with the claim area; that his or her ancestors had been born on the claim area; or that the claimants had a geographical and religious knowledge of the claim area. To these must then be added the additional requirement that the claimant is recognised as Nguraritja for the claim area by the other Nguraritja.

563               It became clear during the course of the trial that, although some of the claimants may be Nguraritja (or, at least may have at one stage been Nguraritja) some of them had a much stronger claim to a connection to the claim area than others. Thus, in my opinion, it is incumbent upon me to assess the degree of connection to the claim area of each witness who has been put forward as Nguraritja so that the Court can establish whether that person or those persons have the requisite connection that the NTA requires. Only then will the Court be in a position to assess the connection of the claimants as a whole.

564               Brennan J’s oft-quoted comments in Mabo (No 2), at 59-60, are of relevance:

“Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practical) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.” (emphasis added)

That statement by Brennan J was referred to by Lamer CJ in Delgamuukuw v British Columbia (1997) 153 DLR (4^th) 193 at 257-8, with specific approval of the requirement of substantial maintenance of connection. In addition however, Lamer CJ also spoke of the rejection of the strict requirement of proof of continuity as that difficult test might prove impossible to satisfy and thus perpetuate the injustices that the Aboriginal people have suffered at the hands of those colonisers who failed to respect their rights to the land. Brennan J went on to add at [61]:

“Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community, living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.”

565               The genesis of s 223(1)(b) of the NTA can clearly be seen in Brennan J’s formulation of the requirements to prove native title. The use by his Honour of the word “whereby” in the passage just quoted, linked the connection to the land by the claimants with the continued existence of traditional laws and customs and par 223(1)(b) still requires that link. In Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] FCA 1606 Olney J, the trial judge, at [4], put the requirement under par 223(1)(b) this way:

“…it must be demonstrated that the traditional connexion with the land of the ancestors of the claim group has been substantially maintained since the time sovereignty was asserted …”

566               In Ward, Lee J, the trial judge, also talked of a connection being “substantially maintained” in the following terms at 501:

“Native title that has not been extinguished by action of the Crown, or by extinction of the society that possessed it, will continue where connection with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors …”

On appeal, the majority in the Federal Court evinced a similar view to that of Lee J on this topic, but they were quite specific in their finding that physical presence on the land was not a necessary requirement to establish a “connection” for the purposes of the Act. They said at [241]:

“The evidence paints a picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.”

567               Both the Full Court, at [245] and at [682], and the High Court in Ward, at [63], rejected the proposition that there must be on-going or continual physical occupation of the land by the Aboriginal claimants. Indeed it is important to bear in mind that Gleeson CJ, Gaudron, Gummow and Hayne JJ emphasised at [64], that:

“… the absence of evidence of some recent use of the land or waters, does not, of itself require the conclusion that there can be no relevant connection.”

However, their Honours refrained from expressing a view on what is the nature of the “connection” that must be shown to exist.

568               The importance of the spiritual connection that an Aboriginal person has to his or her land must be borne in mind at all times. In Milirrpum v Nabalco, at 167, Blackburn J said that:

“… the fundamental truth about the Aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.”

That passage was quoted with approval by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward, at [14], in a passage where their Honours said:

“As is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual. [their Honours then cited the passage from Blackburn J in Milirrpum v Nabalco cited above]. It is a relationship which sometimes is spoken of as having to care for, and being able to ‘speak for’, country. ‘Speaking for’ country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interest is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal.” (references omitted)

569               An actual physical presence of the claimants on the claim area and the performance and observance by them of their traditional practices, ceremonies and customs would have provided “clear evidence of the maintenance of a connection with the land”: see Ward per Beaumont and von Doussa JJ at [243]). But, as their Honours pointed out at [243]:

“…the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased…”

 

Although a spiritual or cultural connection only may suffice for the purposes of subs 223(1)(b), the assessment of whether the requirement has been met will always be a question of fact, involving matters of degree to be assessed in all the circumstances of the particular case. The question of the nature and requirements of par 223(1)(b) was considered by Branson and Katz JJ in Yorta Yorta where they said at [142]:

“Section 223(1)(b) is similarly drawn in the present tense. It is concerned with a current connection with land or waters. The reference in the paragraph to ‘those laws and customs’ is a reference to ‘the traditional laws acknowledged, and the traditional customs observed’ of which s 223(1)(a) speaks. That is, to currently acknowledged laws and customs.”

Their Honours further emphasized the point at [149]:

“…it is necessary that the Aboriginal peoples…who claim native title have a connection, whether as a community, a group, or as individuals, with the land or waters in respect of which they claim native title by their currently acknowledged and observed traditional laws and customs.”

It seems to me that it is clear from the authorities to which I have referred that, in assessing connection for the purposes of subs 223(1)(b), what is important is the connection that currently exists.

570               Branson and Katz JJ in Yorta Yorta rejected an assertion by the Aboriginal appellants that the NTA “does not require proof that the connection has been substantially maintained by the appellants and their ancestors from 1788 to the present” [169]. Their Honours were quite clear that, if the connection is not maintained from sovereignty to the date of application for a determination, native title will be extinguished at common law. The proposition that a connection must be maintained from sovereignty to the present day, was said to be a logical extension of the “non-revival of native title” principle that was laid down by the High Court in Fejo. The majority in Yorta Yorta appeared to place a positive duty upon the claimants to prove “substantial maintenance” from sovereignty to the present day in order to be entitled to native title. That will be a heavy burden, even if a Court is prepared to make reasonable assumptions in the favour of the claimants. Although I am bound by the decision of the Full Court on this issue of proving substantial maintenance of continuity of connection, I am of the view that, having regard to the nature of evidence that is prevalent in native title cases (being only oral histories of cultures supplemented to a very limited degree by occasional rock art and artefacts) I would be entitled to draw the necessary inferences in favour of the claimants, provided there was a proper foundation for me to do so: see the remarks of Kirby P (as he then was) in Mason v Tritton at 588. That is, if I were to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the best evidence available provides some support for the presence of that connection in the past (traceable by various means such as ancestors, marriage, migration and incorporation and even tribal disputes and wars), it might be open to me to make a finding of substantial maintenance of continuity of connection from sovereignty to the date of the application for a determination of native title; this might even be so notwithstanding significant gaps in the chronology in the historical timeline for the claim area. To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.

571               I turn now to consider and assess the evidence of each of the twenty-six Aboriginal witnesses for the purpose of determining whether the necessary connection exists.

peter de rose

572               The first of the claimants to give evidence in these proceedings was Peter De Rose. Peter’s Aboriginal name is Wapala and he acknowledged that some Anangu people still use that name. Sadie Singer said that the word “Wapala” means “white man”, indicating that Peter’s biological father was probably a European. A close derivative of the word “Wapala” appears in Mr Goddard’s dictionary. It is “Walypala”, meaning “white man”; it is also sometimes spelt “Waipala”. Throughout the trial, however, he was addressed and mostly referred to as Peter and I will continue the practice of referring to him as Peter. It was Peter’s understanding that he was given the Christian name “Peter” by the respondent, Doug Fuller, a small factor which, if correct, would constitute a measure of association between Peter and the land at De Rose Hill. Doug, however, denied that he had named Peter as a baby. He said it was not his habit to name Aboriginal children. His recollection was that Peter was initially known simply as Snowy’s wijai. According to Doug, it was not until Peter returned to the Station from school that he became known as “Peter”. For a time, Peter was known as Peter Snow; as Peter said, “the whitefella was calling me that at Finke, at school”. People only started to use the name Peter De Rose after he left De Rose Hill Station and went to live at Indulkana. Peter was approximately fifty-two years of age at the time when he gave his evidence. His date of birth has been recorded as 1 January 1949 (Ex A15). That recording occurred in about 1970 as a result of him seeking a driver’s licence when he was aged about twenty-one.

573               Peter’s step-father, Snowy De Rose, and Katjiwala, Peter’s biological mother, were living and working on De Rose Hill when he was born. His biological father was never identified. It was Peter’s belief that he was born under an ironwood tree. He said that his mother showed him where he was born when he was about five or six years of age. He said that he was told, and that he believes, that the ironwood tree was on the track of the Kalaya Tjukurpa. Peter explained that, by virtue of his birth, the Kalaya Tjukurpa had become his Dreaming. It was put to him, during the course of his examination in chief, that Doug Fuller had said in his witness statement that he had been told that Peter had been born at Currie’s Claypan. Peter said that he did not know that name and that he had never heard of that suggestion before. Elsewhere in his witness statement, Doug Fuller had said that Peter had been born near Kenmore Park. Peter said that he had no knowledge of that allegation. Peter’s claim with respect to his place of birth was supported by other Aboriginal witnesses, including Minnie Nyanu, who said that she was present at Peter’s birth. As Doug had no direct knowledge on the subject but was only recounting what others had told him, I accept Nyanu’s evidence in preference to what Doug said on this subject.

574               In his witness statement, Peter said that the custom of the day was that both a new-born baby and the baby’s mother were “put in the smoke”. He was reluctant to expand upon this practice, claiming that the Aboriginal women would not want him to talk about it. Subsequently however, several female Aboriginal witnesses spoke freely on the subject. As I understand it, it is a reference to the smoke from a “green” wood fire. It is believed that permitting the mother and the baby to be enveloped with smoke will make the baby strong and will be good for the mother’s milk. In his witness statement, Peter added that he believed that his smoking took place to the north of the ironwood tree where he had been born.

575               Peter believes that his mother, Katjiwala, was born at Apanala, which is in Pitjantjatjara country in the far north-western corner of South Australia. He acknowledged that she was a Pitjantjatjara woman and that she spoke Pitjantjatjara. Katjiwala’s biological father was Peter Paltatjiratja. He was a Pitjantjatjara man and had come from Pipalyatjara. Peter did not know the name of his maternal grandmother; she had passed away when Katjiwala was a small girl, but she also came from the Pipalyatjara area. Pipalyatjara, which is one of many places that was regularly mentioned in the evidence throughout the trial, and which is also known as Mount Davies, is in the far north-west corner of the State. It is about fifteen kilometres from the Western Australian border and not much further from the Northern Territory border. Peter’s maternal grandfather, Paltatjiratja’ married a second time; his second wife’s name was Ilypulya, also known as Rosie. Ilpulya, who was a Pitjantjatjara woman, was the mother of the witnesses Minnie Nyanu and her sister, Edie Angkaliya.

576               It was Peter’s understanding that Snowy, his step-father, was born at Lambina, which is a station to the east of De Rose Hill. Peter believed that Snowy was a Yankunytjatjara man; he asserted a connection between Snowy and De Rose Hill when he said that Snowy had told him that “his cord dropped off De Rose Hill way”. Peter explained that that was “similar to being born at a place” and that it made Snowy Nguraritja for the De Rose Hill area. Although Snowy never showed Peter the place where his umbilical cord “dropped off”, Peter named three sites, Alalyitja (site 11), Malu Kapi (site 12) and Inyata (site 13) – all of which are in the north-eastern section of De Rose Hill Station – as the area where Snowy told Peter that the event had occurred. Peter asserted a further basis for his claim that Snowy was Nguraritja for the De Rose Hill area; he said that it was Snowy’s father’s and grandfather’s country. Snowy had told him that he (Snowy) had been taught about the country by his father. Peter said that he (Peter) grew up with Snowy’s family, including Snowy’s brother and sister, Johnny Wimitja De Rose and Tillie Yaltjangki, both of whom subsequently gave evidence in the trial. Peter agreed that when his grandfather, Paltatjiratja, came with his family to the De Rose Hill area from the west, Minnie Nyanu, Edie Angkaliya and Jeannie Kampukuta Inpiti came with him. Those three women also gave evidence.

577               Katjiwala worked in the homestead at De Rose Hill and the family lived in a wiltja which Peter elsewhere described in his evidence as a “humpy”. Peter lived there with his mother and with Snowy, who worked with the horses and the cattle on the Station. Peter’s sister, Lorna, was born on De Rose Hill; she is about four or five years younger than Peter. Peter said that Katjiwala now lives in a retirement home in Port Augusta. He was not able to state her age but he said that she is very old. He last saw her about Christmas 1999. From the manner in which he described her reaction to him, it would seem as if she may have become a victim of dementia.

578               When Peter was a child, there was a small camp of Aborigines on the station, all of whom were then living in wiltjas. Peter said that there were both Pitjantjatjara and Yankunytjatjara people in the camp. He agreed that the people closest to him were all Pitjantjatjara speaking people: his mother, her father, Paltatjiratja and his tribal father Ilypilyitja. However, he claimed that the Yankunytjatjara people outnumbered the Pitjantjatjara. Peter used both languages but was more inclined to Pitjantjatjara because he spent more time with his mother. Peter said that his mother spoke no other language than Pitjantjatjara. Snowy spoke Yankunytjatjara, yet, so he claimed, they could understand each other. Peter said it was common place for Pitjantjatjara and Yankunytjatjara people to inter-marry.

579               Although he had been told that his mother came with her father “from the west”, Peter said that his mother had told him that, as a young girl, she grew up at Kantja (site 29) and Witjintitja (Granite Downs). Kantja is located on the creek of the same name (but which is also known as Agnes Creek) in the south central section of De Rose Hill Station.

580               In his witness statement and in his oral evidence, Peter said that his cousins and brothers (as those terms are used in Aboriginal society) came from places in the west such as Kanpi and Pipalyatjara. Kanpi, as well as Pipalyatjara, is far to the west of De Rose Hill Station and both are in Pitjantjatjara country. Peter went on to say that some people also came to De Rose Hill from Ernabella, which is also to the west but much closer to the claim area. He said that the men who had come from the west married young Yankunyjatjara women. The men whom he named included Billy Langka, Tiger Baker, Kutatji, Minyungu, Mangi, Paltatjiratja, Lirutja and Mantjukulpi. As he said in his witness statement, “they were from the same living group of Pitjantjatjara men”. Peter said that Minyungu was Mangi’s brother; they had the same mother and father. Lirutja and Mantjukulpi were also biological brothers. Peter rejected the proposition that Jimmy Piti Piti was also a brother of Lirutja and Mantjukulpi saying that he, Piti Piti, had come from the east. That contradicted the evidence of Peter Tjutatja who said that his uncle, Jimmy Piti Piti and his other uncles, Tjaapan Tjaapan and Old Panma, all came from Iranytjirany which is in the west. Because Tjutatja was closer in age to Piti Piti than Peter, it is more likely than not that Tjutatja was correct. In addition, Ms Woenne-Green, in the preparation of her genealogies, has recorded Piti Piti as a brother of Lirutja and Mantjukulpi. Tim De Rose, whose Anangu name was Minyungu had been named after the older man who was Mangi’s brother.

581               Peter said that he believed that Jimmy Piti Piti was Snowy’s father, although he never knew him. He had either died before Peter was born or when Peter was a small boy. Ms Woenne-Green supported Peter; her genealogical charts showed Jimmy Piti Piti as Snowy’s father. Peter said that Snowy’s mother was Nellie Tjirpawa. He knew her. She had looked after him when he was a small boy.

582               If Jimmy Piti Piti was born in the west but his son Snowy was born in the east, it means that Jimmy Piti Piti moved east a very long time ago – perhaps as long as 100 years ago. That could quite possibly be a pre-contact migration – a migration with no consideration for white man’s work or white man’s rations but, rather, a migration within a traditional environment and movement that was effected for social or cultural reasons. Based on some speculative ethnographic writings, Mr Elliott argued that a migratory movement occurred in those terms, for he advocated a broader account of a migration from the west that minimised the role that European contact played in the migration.

583               Peter’s tribal father, Ilypilyitja, polygamously married both Minnie Nyanu and her sister, Edie Angkaliya, but before they married, Nyanu and Angkaliya became sisters to Peter’s mother, Katjiwala, according to Aboriginal custom. It was because of that connection through his mother to Nyanu and Angkaliya and from them to Ilypilyitja that Ilypilyitja came to be Peter’s tribal father. He added that he had a second tribal father, Wally Curtis, but the reason for that connection was not proffered. Peter agreed that Ilypilyitja was born at Angatja, a place to the west of Amata (Musgrave Park). The weight of the evidence points to Angatja being on or near the border of Pitjantjatjara country.

584               As a small boy, aged between five and seven, Peter lived in the young men’s camp at De Rose Hill. This camp was separate and apart from the main camp but Peter, because of his tender years, was able to travel between the two camps. His task was to supply the young men with food and water; they were either Nyiinkas or Watis. A few years later, because Snowy had an argument with Doug Fuller, the family moved to Finke where Peter remained for about eighteen months. During that time, he had some schooling for about a year. Snowy and Katjiwala moved from Finke to Mount Cavenagh but Peter remained at school at Finke before going to Kulgera and, ultimately, to Mount Cavenagh to join his parents. Peter believed that he was about ten years of age when he left Finke. This would suggest that he left in about 1959. A short time later, the family moved back to De Rose Hill to live.

585               Peter said that he recalled his family going away on holidays each year before they left for Finke. He named the many places that they visited within the claim area. When asked at what time of the year the family went on holidays, he said that it was when the dingo pups were born – when it was becoming warm. That suggested that it was in the spring time. He said that the family would be away for about four weeks at a time and during those visits he learnt the names of places, the signs for water, where to hunt and where to collect bush tucker. He said that both Katjiwala and Snowy taught him. Peter said that when he visited various places with his parents, Snowy would tell him stories about the different locations. However, his mother was never present when those stories were told for they were stories that were only for men; he also said that the locations that were the subject of the stories were secret and sacred places. Peter was asked whether any songs were sung at those sites but he said he could not answer that question in front of women. Peter explained that he was not told any of the Dreaming stories during these holidays because he was too young. However, he said that Snowy would say to him “this is my country and my father’s country and your country”.

586               When he was a tjiranka, Peter started work in the stock camps; he was still a tjiranka when Bobby, the son of Snowy and Katjiwala was born. On occasions, Peter would help the camp cook; on other occasions, he would bring in the horses with the horse tailer; but, as he grew older, he did more work with the stock. When he was fourteen or fifteen years of age, he worked as a horse tailer and, sometimes, he would be part of the camp that was in the bush mustering the cattle back to the bores. In his witness statement, he told of the young boys going out with the men to hunt and cook malu (the red kangaroo). As they grew older, the boys were introduced to the intricacies of the hunt and were taught what to do and what not to do. When Peter first worked at De Rose Hill Station, he was working with Owen Kunmanara, Wally Curtis, Yangki and Riley Tjayrany. He and the other men lived in a camp near the homestead.

587               Peter said that he worked on De Rose Hill Station with Owen Kunmanara who was then the head stockman. He worked on the bores and with the cattle. Owen taught him how to work the cattle but also taught him about the country, including where to find the rock holes and the soakages. While Peter was working with Owen, Owen taught him a little about the Tjukurpa as well as about cattle work. However, as Peter explained, he was “a kid” and Owen did not therefore tell him any of the details about the Nguraritja. Peter said that, at that stage in his life, certain of the Malu, Kanyala and Tjurki sites, which are now on De Rose Hill Station, were then on Tieyon Station. As Doug Fuller acquired Paxton Bluff North and Paxton Bluff South from Tieyon Pastoral Company Pty Ltd in 1974, it meant that Peter was talking of events that occurred prior to that point in time.

588               Peter knew Ilpalka (site 40) as a small boy. Later, Owen told him the story of the emu Dreaming at Ilpalka. Later again, after he had been made a man, he went to Ilpalka with Owen and Yangki. On that occasion, they were bringing in cattle to the homestead and the men told him the Tjukurpa for the site. It was put to Peter during the course of his cross-examination, that Owen had said that he, Owen, had never been to Ilpalka with Peter when Peter was a Wati. Peter’s evidence was to the contrary. He explained:

“Yes, they didn’t specially take me to that place to tell me the Tjukurpa, the story. Only when we were working, mustering in that area, then when we came across they will tell me the stories, not only to me but other young men too. Tim De Rose was one.”

Peter made it clear that Owen never took him to Ilpalka as an independent exercise. It only occurred when they were mustering cattle in the area and when they came across the water point; it was then that Owen explained the Tjukurpa to Peter. I think that the two stories are reconcilable; Owen is now a very old man and the event of telling one of probably several young Watis about the details of a Dreaming might not be as important to him as it was to Peter, the young Wati in question.

589               Peter said that he visited Wipa (site 5) with Snowy, his mother and some other people after he had been made a man and when he was living at De Rose Hill. He added that, when he was a Wati, he used to go to Wipa “many times” hunting for perentie. He also said that he had visited Wipa after he left De Rose Hill and had moved to Indulkana. In the meantime, Peter had continued to work as a stockman when he was a Wati at De Rose Hill. Thereafter, he began to learn the stories about the places from some of the elders. As a young man, it was time to learn the Tjukurpa.

590               Peter eventually took over from Owen Kunmanara as the head stockman at De Rose Hill Station. There were only a few Aboriginal people living on the station at that time. Although Peter was unable to say in what year he became head stockman he could remember that he was married with one child. Rita was his eldest child and she was born in 1969; that would suggest that he became head stockman in about 1970 when he was about twenty-one years of age. When he first worked on De Rose Hill, Peter’s work did not take him into Paxton Bluff North and South as they were then part of Tieyon Station. However, he maintained that he and others, such as Owen and Yangki, would still visit the Dreaming tracks which were then on Tieyon Station out of working hours. That passage of his evidence contradicted other evidence that he gave to the effect that he would have been at risk of being sacked if he had taken time to attend the sacred sites. Peter stated that, when he was head stockman, Snowy’s main camp was on Mount Cavenagh Station (Watju) but that later he lived at Indulkana. Peter told the Court that Snowy would visit him at De Rose Hill Station and, when asked why Snowy would do that, Peter replied that it was to visit him and because it was “his country”. On those occasions when Snowy visited him, Snowy would also hunt on the Station.

591               Work was not always constant at De Rose Hill Station. There were periods of time when the stockmen were laid off because there was no work to do. On such occasions, Peter would often go to Yuta (site 32) where Owen Kunmanara had a shed in which he lived. From Yuta they would go to Urtjantjara (site 16) where a particular wood grew from which spears could be made. They would also go to Malu Kapi (site 12). On other occasions they visited Kulpitjara (site 10) to get mingkulpa (wild tobacco). Peter’s evidence on this subject can be summed up in the answers he gave in cross-examination:

“When we finished the cattle work and we go and live that place called Yuta, then these other places, we go to them – we wasn’t working. We just living in the area and moving around …”

592               Peter explained that some of the Aboriginal people who had lived at De Rose Hill had moved from there to live at Indulkana. However, he said that some of them, including Snowy, subsequently came back to De Rose Hill to visit. When asked, during his examination in chief, why the people were visiting De Rose Hill, Peter replied that it was because they used to work there and they were still friendly with Doug and Rex Fuller. He also said that when they went to De Rose Hill they would get kangaroo meat but there was not much bush tucker because the cattle had eaten it. Save for the reference to the kangaroos, that answer lacked any reference to social, cultural or religious causes as their reason for returning.

593               The food in an Anangu camp was described by Peter De Rose during the course of his evidence. He referred to damper, kangaroo and goanna; he also mentioned bush tucker, including bush tomatoes, grass seeds and honey ants that were collected by the women. In his younger days, the men hunted mostly with spears but a few had rifles. He did not suggest that the members of the community were in any way dependent on station rations. Instead, it seemed that many of them looked to the country to supply their needs. Peter said that he could recall his mother using grinding stones to grind seeds and, as a little boy, he could remember the old men using spears and spear throwers. He also recalled the old men using stones to make knives. In his preparation for this case, he was able to take the claimants’ archaeologist, Professor Veth, to various archaeological sites of interest about which he had learnt during his childhood.

594               After Peter left De Rose Hill Station, he moved to Indulkana where he obtained work as a builder’s labourer. Later – about ten to twelve years on my calculations – he was involved in establishing a homeland at Railway Bore, a location that is a few kilometres to the south of De Rose Hill Station. This was his idea, as he wanted a homeland that was close to De Rose Hill country. Railway Bore is situated on AP Lands on what was formerly Granite Downs Station. Peter said of De Rose Hill, that it was his country and that he felt happy living close to his country. Peter said that he lived at Railway Bore from about 1990 until 1996 when he was forced to leave as the quality of the water was poor. However, during that period of six years, he continued to hunt on De Rose Hill Station. Sometimes he would visit alone, sometimes with his wife and sometimes with the young people – the petrol sniffers from Indulkana who he was trying to help. He explained that he eventually became uneasy about visiting De Rose Hill; he was worried that he might frighten the cattle. That was a paltry excuse from a man who had been sufficiently competent to be the head stockman of the station. On another occasion, a grader, presumably belonging to the Fullers, was damaged. Although Peter knew nothing of the incident or who caused it, he knew that Rex Fuller was upset and he said that he “ wanted to stay away a bit”.

595               Peter was one of the few Anangu who has visited the claim area after ceasing to live there. But his visits were brief and were limited to hunting, as is evident from the following exchange with Mr Besanko during his cross-examination:

Q “You didn't go to any of the other places on De Rose Hill to look after them, did you?

A To look after means that you have to stay there to look after but we were travelling and we were looking for meat.

Q You didn’t stay at any of the places on De Rose Hill Station?

A Yes, we didn’t stay there. We were frightened because he'll find us and hunt us away because he got that pastoral lease.

Q You didn’t stay at any of the places on De Rose Hill Station after you started living at Railway Bore?

A We didn’t stop or camp because we were looking for meat, we were hunting, and we were frightened for him. He might catch us camping there and then he’ll tell us to get out, that's his pastoral lease place.

Q You haven't looked after any of the places on De Rose Hill Station since you left in 1978?

A To look after you have got to be there living, camping and you're looking after it. But if we go and camp there he’ll hunt us away because he's got that place and we're frightened of him.”

 

There is some difficulty reconciling this statement with that contained in his written statement where he said that after Bobby De Rose’s death he “continued going back to visit Doug”. There is no indication in that passage of his evidence of an ongoing dispute or of any antagonism. In fact, it implies that a degree of friendship remained. The passage set out above was also inconsistent with his evidence that he went back to De Rose Hill to hunt with Snowy. It is difficult to sustain the idea that, at this point in time (ie the late 1970s and the 1980s), Peter De Rose or any other Aboriginal people had any reason to be afraid to enter the property to hunt or carry on traditional activities because of the conduct of Doug or Rex Fuller.

596               Peter regards himself as a Yankunytjatjara person because, as he claimed, he was born in Yankunytjatjara country. He claimed that he is connected to this country, not only because he was born there, but also because he grew up on it and because he has been taught all about it – including the Tjukurpa. He claimed that as Nguraritja, he has responsibilities for his country; he has to look after everything that is associated with the Tjukurpa. It is his obligation, as Nguraritja for De Rose Hill, to teach the people who have a right to know about the places on De Rose Hill; it is his responsibility to take appropriate persons and show them the places of significance. However, he gave little, if any, detail of how he had performed his duties; nor did he identify any one who had benefited from his teachings.

597               In his witness statement, Peter said that his country included Kumpari Kumpalytitja (site 55) and Kantja (site 29). These locations are in the south-west section of the claim area. Another area that he mentioned was Wayutularuru (site 63). It is outside the claim area but quite close to the north-west corner of De Rose Hill Station; it is now part of the AP Lands and is located within the boundaries of the former Kenmore Park Station. Peter next referred to Ngatiri (site 4), Wipa (site 5), Tjula (site 6), Arapa (site 8) and Kantitjula, all of which are on Tieyon Station to the north and north-east of De Rose Hill Station. His final reference was to Yura (site 19) (in the south east corner of De Rose Hill Station). I do not, however, regard these locations as being definitive of Peter’s claims. In his oral evidence, particularly when he was giving evidence on site, it became clear that there were other locations on and near to De Rose Hill Station which, in his opinion, were within his country.

598               Peter De Rose, of all the witnesses, established the strongest association with the claim area. Although his maternal relatives were Pitjantjatjara people (and there was no evidence about the identity of his biological father), his step-father, Snowy had told him that he (Snowy) and Snowy’s father were Yankunytjatjara men. Furthermore, of course, Peter was born on De Rose Hill and the oral evidence in the trial, as distinct from the writings of the ethnographers, points to the Station being in Yankunytjatjara country. He had isolated absences from the claim area but, by and large, Peter grew up, married and worked on De Rose Hill. He left the Station after Bobby’s death in 1978 and has not, since then, re‑established any meaningful association with the claim area. It is true that he has made the occasional hunting visit but I am satisfied that he has not attended to any of the duties or responsibilities of the Nguraritja in respect of any of the sacred or secret sites on or near the claim area.

599               Peter was aged about twenty-nine at the time of Bobby’s death. He was then married to his first wife, Jeannie, and, at the time when he left De Rose Hill, he had two children, Rita and Christine. He asserted that they were and are Nguraritja for the area of De Rose Hill through him. It was put to Peter in cross-examination that Rita had been born on 30 September 1969 and that Christine had been born on 21 June 1971, making them, at the time when he was giving his evidence, thirty-one and thirty years of age respectively. Peter was not familiar with dates but was prepared to say that those dates were probably correct. Peter said that his daughters were each married to Aboriginal men. Rita has three boys, all of whom are at school in Alice Springs. Christine has three girls, the two eldest being at school at Alice Springs, whilst the youngest is at home with her. Peter said that all his grandchildren are Nguraritja for his country because he is their grandfather. He agreed that he had not taken his daughters nor any of his grandchildren to any of the special sites on De Rose Hill Station that are accessible to women and children. Nevertheless, Peter maintained that he will teach his grandsons the Tjukurpa for his country because that is the Anangu way and when they become men he will take them and show them the secret and sacred places. These may be his intentions, but, so far, he has done nothing to implement them. His inactivity in respect of his children and grandchildren, his absence from the claim area, his failure to care for the secret and sacred places, his failure to give evidence of a substantial adherence to traditional laws and customs on his country which is beyond the boundaries of De Rose Hill Station and his failure (apart from one visit to Wipa) to engage in any cultural activities on any part of his country (whether within or without the boundaries of the Station) since 1978 have led me to the conclusion that Peter De Rose abandoned his connection to the claim area long ago.

Riley Tjayrany

600               Riley does not know his age, but it was suggested that it is in excess of seventy years. He said that he was born at the Walangarantja rock hole near Kunamata and that his mother, Minmilya, was also born around Kunamata. Kunamata is far to the west of the claim area in Pitjantjatjara country. He said that his mother was born in Pitjantjatjara country and that he, his mother and his father spoke Pitjantjatjara.

601               Riley is a very elderly man who is confined to a wheelchair. His first wife was the witness Cissie Riley; they had a daughter Jeannie who was born on Sundown Station where Riley was then working. Sundown is to the north of De Rose Hill Station and was at times, referred to as an “Outstation” which might mean that it is part of Mt Cavenagh Station. Jeannie subsequently married Peter De Rose. Mr Besanko put to Riley that he had information suggesting that Jeannie was born in 1951, at which time Riley would have been a young man of about twenty-one. Riley agreed saying:

“Yes, I was a Nyiinka, but I had a wife.”

602               Riley knew of the Sundown murders and he was able to recall that he had left Sundown and was working at Kalka (Kulgera) at that time. (The murders occurred in December 1957 when a man named Bailey came across three travellers who had camped for the night on Sundown. He murdered them in their sleep and was later hanged for his crimes).

603               Later, Riley married Marlene. Their first child was a boy, Pirpantji; later, there was a girl. His son now lives at Fregon and his daughter lives at Coober Pedy as does his eldest daughter, Jeannie. He could not remember his second daughter’s name:

“I forgot the name. I grew her up but I don’t know the name now.”

He was asked whether the children “now live whitefella way” and he said “Yes I think so”. He has married a third time but there are no children of that marriage. Riley said that his son, Pirpantji, is now a Wati, an initiated man.

604               In one part of his witness statement, Riley said that his father, Pirangalku, had been born at Waltjatjata and elsewhere he said he had been born at Langkukuru. Waltjatjata is in the Northern Territory, very close to the South Australian border and not far from the Western Australia border. There seems to be no doubt that it is in Pitjantjatjara country. In an attempt to clear up the question of his father’s birth, these two passages in his statement were drawn to his attention and he was asked to state where his father was born. His answer was, however, to name a third location – Iwarawara which, so he said, is west of Piltati. Piltati is shown on the map, Ex S1, as a rock hole near the Kanpi homeland about forty kilometres north-west of Kunamata. Although the exact location of his father’s place of birth remains in doubt, it was somewhere in Pitjantjatjara country. Kunamata is part of Riley’s country because he was born at a place near there and Piltati is also his country because:

“… they pretty close together and when the water runs out we go to Piltati, because they got a lot of water.”

The places that are close together and to which he was referring are Kunamata, Iwarawara, Piltati and also Walangarantja. Those four places are all close to Riley’s place of birth and that is why he refers to those places as his country. In his witness statement, Riley said that his mother’s mother had been born at Minari which, so he said was near Kanpi in Pitjantjatjara country. He did not know where his mother’s father had been born. But he did know that his father’s parents were both born at Kunamata. His father had also married another woman, Mayuru. Mayuru was his father’s first wife and Riley had seen her at Kunamata when he was a small boy.

605               As a small boy of about ten or eleven years of age, (which would mean sometime in the early 1940s) Riley travelled with his uncle, Billy Langka, to Kantja (site 29) on De Rose Hill Station; Billy had travelled to Kantja to visit relatives. Riley knew that Billy Langka’s relations, who were then living at Kantja, had come from the west but he did not know the names of the places. When he arrived there, the two white men, Mick and Tom O’Donoghue, were running sheep and the Anangu were shepherding the animals in return for rations. Other evidence suggested that only one of the two men was then at Kantja but Riley maintained that they were both there. Neither he nor Billy worked for the “whitefellas” and neither of them received rations. They relied for their food on their relations who were in receipt of rations from the “whitefellas”.

606               Riley recalled Doug Fuller coming to Kantja to shear sheep for the O’Donoghue brothers. He also recalled that there was a large Anangu camp at Kalkatja which was directly to the north of Kantja along the line of what is now the Stuart Highway. Ernie Baker, who was described by Riley as “a whitefella”, was at Kalkatja at that time with a number of camels. He travelled from place to place, trading rabbit skins and dingo scalps with the Aborigines for rations. Riley also referred to the big Anangu camp at Kumpalyitja (site 55) in the south west corner of De Rose Hill Station where pitur (wild tobacco) was available.

607               Riley was asked whether the Anangu at Kumpalyitja were “the same people who had been at the camp at Kantja”. He said in reply:

“No, they were Nguraritja staying there.”

On the other hand, there was a camp at Ilpalka (site 40) and he said that the people at that camp were the same as those who had been in the camp at Kantja. The people in the camps at Kumpalyitja and at Ilpalka were in receipt of rations from the “whitefellas”.

608               Kantja, Kalkatja and Kumpalyitja were all significant locations because of the presence of water. In addition to those places, Riley also went, as a child, to Ilpalka on the northern boundary of De Rose Hill Station. Watarkatjara (site 39) was another big camp with a soakage and “lots of bush tucker”; it was another location where Riley spent time as a child. The people at the camp at Watarkatjara had been the people who had previously been at Kantja and they also were getting rations from the “whitefellas”. Riley’s evidence on this subject, which I accept, satisfied me that there was a substantial Aboriginal presence in the claim area in the early 1940s.

609               In his witness statement and in cross-examination, Riley said that after he arrived at Kantja a tjati wanpa Inma came through following Alberga Creek. He said that it had come from a place called Papunya. Papunya was not placed on any of the maps but on Ex A2 there was a reference to it with a notation that it was 305 kilometres north-west of De Rose Hill Station. He agreed with the cross-examiner that the tjati wanpa Inma involved a special ceremony which included Aboriginal people “from a lot of different tribes”.

610               One of the Aboriginal people who was at Kantja when Riley arrived there was Tiger Baker, the father of George Baker. Tiger Baker was a Pitjantjatjara man from Pitjantjatjara country. Owen Kunmanara’s father was also at Kantja when Riley arrived. Mr Besanko put to Riley, during the course of his cross-examination, that Owen’s father was a Pitjantjatjara man. Riley disagreed, saying:

“No, he was Yankunytjatjara.”

Riley had named a man in his witness statement – Malupunu. Mr Besanko asked:

“Was that man a Pitjantjatjara man?”

Riley replied:

“No, he was a Wati Yankunytjatjara, a Yankunytjatjara man.”

Mintunkunu was another man to whom reference was made in Riley’s statement as a person present at Kantja when he arrived there. He agreed that he was a Pitjantjatjara man and had come from Pitjantjatjara country. Those answers were indicative of his alertness and, although there were isolated occasions of confusion, I am satisfied that it is generally safe to rely upon Riley’s evidence.

611               When he was a Nyiinka, Riley went to Mount Irwin on Tieyon Station to work with bullocks. Owen Kunmanara was at Mount Irwin at the same time and it was from Mount Irwin that Owen went off to be made a man. Riley could not say how long he worked at Mount Irwin but he said that it was a long time. Whilst he was working there he was not paid wages. He was only given rations for his work. In addition to Mount Irwin, he worked at Watju (Mt Cavenagh) at which point of time Snowy De Rose was working there. He also worked at Kalka (Kulgera Station) where he was paid wages which he used to buy clothes. He lived in wiltjas (wurlies) whilst working at Mount Cavenagh and Kulgera. Riley said that when he was at Mount Irwin he became homesick and decided to return to Kantja. However, when he ultimately returned, the place was empty: both the sheep and the people had gone. He followed their tracks to De Rose Hill Homestead which had just been established. This would have occurred in about 1944 at which time he would have been a teenager aged about fourteen. The sheep, Doug Fuller and all the Anangu from Kantja were there. Riley worked on De Rose Hill for a number of years. He dug wells and worked as a stockman; at one stage he also acted as camp cook. Riley could remember a number of people who were living around the homestead of De Rose Hill when he was there. He recalled Snowy De Rose and his wife, Katjiwala. He also mentioned Norman Yanima and the witnesses Minnie Nyanu and Edie Angkaliya. Owen Kunmanara was then the head stockman at the Station and Riley also recalled Johnnie Wimitja De Rose, Tim De Rose, Edie’s mother and her father, Tjaapan Tjaapan. Johnny Wimitja De Rose was a big boy, but he (Riley) was bigger and older than Wimitja. Riley’s brother, Whiskey Tjukanku, was also bigger and older than Wimitja. Riley believes that Peter De Rose was born on De Rose Hill Station but at that time he was living on Sundown Station. Interestingly, he said that he understood that Peter had been born near the big shed:

Q “Was Peter born near anything else that you know about?”

A Yes, by Utjany, the tree, behind the tree.”

Q Where was that tree from the shed?

A East from there, not far from the homestead house.”

That statement lent support to the evidence of Peter De Rose and the other witnesses that his mother gave birth to him under the ironwood tree: a tree which had grown not far from the De Rose Hill homestead.

612               Riley said that De Rose Hill was the main place in which he lived from the time when he arrived at Kantja until he left for the Indulkana community just after it was established. However, when giving oral evidence, he contradicted himself, saying that he had worked most of his time at Mount Cavenagh.

613               Riley recalled the establishment of Indulkana and Sister Forbes who, so it would seem, might have been the first resident nursing sister; he remembered visiting her. Riley said:

“I lived with my second wife Marlene at Granite Downs (Witjintitja) for a while. I then took Marlene as well as her son Pirpantji to De Rose Hill. After Peter De Rose had married my daughter Jeannie, I started travelling between Iwantja (Indulkana) and De Rose Hill, living more in Iwantja. Eventually when the shop was established I moved to Iwantja for good.”

614               The Indulkana Aboriginal Reserve was gazetted and established with a small staff by the South Australian Department of Aboriginal Affairs in 1968. There were about 150 Aboriginal residents. It was put to Riley that the shop was established in about 1971, but he said that he did not know the year. If the shop were established in 1971, it would mean that he went to live at Indulkana when he was in his early forties. Riley agreed that when he left De Rose Hill, a number of other older people also left. According to Riley, this was before the people were getting the pension. He is now in receipt of the pension which is paid to him at Indulkana: Sister Forbes had arranged for him to receive it.

615               Riley gave evidence about visiting De Rose Hill to hunt for meat after moving to Indulkana. However, he said that he turned back after coming across a locked gate on the Stuart Highway. He said that, although he would go to the boundary of De Rose Hill, he would not enter it as he was frightened he might get hunted away by Doug Fuller. Other than the fact that the Fullers did not appear very friendly, Riley did not provide any acceptable reason for this alleged fear. In any event, many years passed after he left De Rose Hill before any locks were installed. He could have entered the Station without difficulty during that earlier period of time if it had been his genuine desire to return. Whilst I am prepared to accept most of Riley’s evidence, I do not accept what he said about locked gates.

616               When Riley moved to Indulkana, he continued to work but it was no longer stock work. It was labouring work, including working on the pipelines, the roads and collecting firewood for the people. At one stage he was a member of the community council and for a period he was the chairperson. He was paid for the work that he did and agreed with Mr Besanko that he lived in a “whitefella” type house in Indulkana.

617               There was also an earlier period when Riley worked at Sundown. His explanation for leaving Sundown was interesting, as the following passage from his evidence in chief indicates:

Q “And after Jeannie was born did you go back to De Rose Hill?

A Yes.

Q Can you tell us why you went back to De Rose Hill at that time?

A I went there because it was a good place and I went there to work.”

He did not say that he went there because he was Nguraritja for De Rose Hill and wanted his child to grow up there and be Nguraritja for his country. His assertion that it was “a good place” did not suggest to me that there might have been some spiritual connection. Another passage in his evidence (during his cross-examination) also suggested that material considerations were more important to him than spiritual matters:

Q “Thank you. Around the time you left De Rose Hill and moved to Indulkana, did a number of other people leave too?

A Yes, we were working, then we left De Rose Hill and we went to Indulkana on business; then we stayed there.

Q Were a number of those people older than you?

A Yes.

Q Were a number of those people getting the government pension?

A No, we went before the pension and we went there and lived there.”

618               Riley gave some indication as to his understanding of the likely larger area of the claimants’ land by suggesting that Ernabella was not within its boundaries. He did not regard Ernabella as the same country, for example, as Kantja. He said:

“Other Anangu not from this country, for example from Ernabella, would say ‘so and so’ is from Kantja when they would visit Ernabella.”

It is interesting to compare that statement with the contents of par 25 of his witness statement. In that paragraph, Riley said that his country covered De Rose Hill, Amata (otherwise known as Musgrave Park) and Kunamata, which would be about 100 kilometres to the south west of Amata. Ernabella is much closer to De Rose Hill Station than either of those places. In addition, he named Iwarawara and Piltati as two additional locations. If I have understood his evidence correctly, he has lumped together the different parcels of country, each of which is “his country” but each of which “belongs” to him for different reasons. If that is correct, it means that he is Nguraritja for the locations in the west because that was where he was born but he is also Nguraritja for De Rose Hill in the east because he had grown up there. He was asked to explain why Amata was his country. His reply was contradictory:

A “My country is Walangarantja but Amata is not my country.

…

Q Why do you say that place Walangarantja is your country?

A That’s where I was born.”

He said that Iwarawara was part of his country because it was:

“…my younger father’s country and we go there, and also my father’s country and we say it’s our place too.”

In his witness statement, Riley included De Rose Hill as part of his country because, so he said, that was the area where he grew up, married and spent most of his life. He also added:

“Other people say I am Nguraritja for De Rose Hill.”

However, he went on to make this statement:

“I am really Pitjantjatjara (because of my parents) but because I spent a lot of the time in that country (De Rose Hill) and know about special places there they would say I am also Nguraritja for that country.”

619               He said it was the old men (the Tjilpi Tjuta) who had taught him about the country. He then added that the old men from Ernabella and Mimili used to teach him also. Riley asserted that he was able to talk for various places in and around De Rose Hill, including Wipa (site 5), Alalyitja (site 11), Kulpitjara (site 10) and Apu Maru (site 17). In addition to the old men, he said that Snowy De Rose and Tiger Baker had taught him about places on De Rose Hill, including the places that he had just mentioned. He said that they had taught him about the Tjukurpa. However, he explained that he could not give those details in mixed company. He asserted, therefore, that he was Nguraritja for those places. Although he is an active participant in Christian services at Indulkana – so much so that he distributes communion and is an elder of the Church – he claimed that he is still able to keep, and does keep, Aboriginal Law. Riley said he became a man in the De Rose Hill area but he did not say where. He said that he was told that he had a responsibility to look out for that country as he was a caretaker for that place. However, he did not say whether he agreed with that: nor did he say that he had ever attended to those responsibilities.

620               Riley Tjayrany did not satisfactorily explain why he has had no contact with places of importance on De Rose Hill Station between his leaving to live in Indulkana and the commencement of the field trips. He was asked in cross-examination:

Q “And have you done any of those things at De Rose Hill Station?

A Yes.

Q When have you done those things?

A We were seeing the place before from Indulkana, but now we were frightened to go there any more.”

That statement seems to suggest that there was a period when people could enter the land and that the fear (whether based in reality or not) came later. I infer that the main reason that Riley stopped living at De Rose Hill was that he preferred the facilities that were available to him in Indulkana, as opposed to living on the claim area. This conclusion is aided by the fact that he has done little, if anything, to visit or maintain connection with the claim area since moving permanently to Indulkana. I am satisfied that Riley has abandoned his connection to the claim area.

Whiskey Tjukanku

621               Tjukanku, the biological brother of Riley Tjayrany, was born at Urkatjura which, so he said, was near Officer Creek. In his witness statement, he referred to Harry Wintjin as his “number one brother” – his “number two brother” being Riley. Officer Creek runs north-south through Fregon, which is to the west of De Rose Hill Station. He said that his father was born at Pipalyatjara and that his mother was born at Kunamata, as was his father’s mother. Both those locations are well to the west of Fregon and both are in Pitjantjatjara country. He did not know where his mother’s parents had been born, but he said they were Pitjantjatjara people. Despite this strong Pitjantjatjara background, Tjukanku claimed that the place where he was born was on Yankunytjatjara land. In answer to the question:

“Why is that Yankunytjatjara land?”

He replied unhelpfully:

“Yankunytjatjara land is from Tjukurpa, Dreamtime stories.”

On the other hand, he said in his witness statement that, because of his mother and father, “I am Pitjantjatjara but maybe I am also Yankunytjatjara because I was born on Yankunytjatjara land”.

622               Tjukanku is a widower with five children. Another child died as a result of a car accident. He considers Urkatjura, his place of birth, to be his ngura and he claimed that he is Nguraritja for that place. However, he volunteered that a person can be Nguraritja for another place “if you grow up another place”. Tjukanku said that women are allowed to know the identity of people who are Nguraritja for various places. There is no homeland at the place where he was born but he now has a homeland at Mintabie.

623               Mr Besanko put to him that the lawyers for the claimants had suggested that he was born in 1939, making him sixty-two years of age at the time when he gave his evidence. He could only say that he did not know what his age was.

624               After his father died, his mother and his two older brothers had come east to Piramimi (which is another name for Mimili). He said that his mother had come east to visit her relations who were living at Kantja, but he also agreed that his mother was having difficulty finding food. That was another reason why she moved to Kantja. As a baby, he was taken from Urkatjura to Atutja which is on the Kenmore Road north of Mimili. He said that he was not then old enough to walk. Asked if he considered Atutja to be his place, he replied “Yes, that’s our place for Anangu Maruku – for black people”. Tjukanku said that the people at Urkatjura and the people at Atutja were a mixture of Pitjantjatjara and Yankunytjatjara people.

625               As a young boy, Tjukanku went from Atutja to Kantja, travelling with Angelina Wangka’s mother and father. When he first went there, the “whitefella” had already built a well with wooden planks down the sides and wooden poles above the ground so that a bucket could be lowered and pulled up with water. There were also some sheep yards there. Tjukanku said that, at Kantja, the Aboriginal people were working with Mick O’Donoghue’s sheep. At Kantja, the people spoke Yankunytjatjara; they made wiltjas and they ate bush tucker including rabbits, kangaroos, goannas and perentie (lizards). At that time they used spears to hunt and the women wore chaff bags or blankets as clothing. He named some of the people who were living at Kantja at that time and whose names he could remember. They included the witnesses Minnie Nyanu, her sister Eddie Angkaliya and Mabel Pearson.

626               Tjukanku and his family went with Ernie Baker and his camels from Kantja to Kalkatja, and from Kalkatja they travelled to Wipa. Kalkatja is in the centre north of De Rose Hill to the south of the homestead along the line of the Stuart Highway. They stayed at Wipa while Ernie Baker went on to Tieyon Station where he traded dingo scalps for some food for the Aboriginal people. From Wipa, they returned to Ngatiri and then went on to Ilpalka and back to Kalkatja where Ernie Baker distributed the supplies to the Anangu. At Kalkatja the Anangu were catching rabbits, skinning them and trading the skins to Ernie Baker in return for rations. From Kalkatja they went to the homestead area on De Rose Hill Station. Although still a boy, Tjukanku earned some money skinning rabbits and selling them to Ernie Baker. Tjukanku was of the opinion that he was a tjitji tjiranka when he heard Doug Fuller dynamiting and excavating for a well. He said that he and others were frightened by the noise as they thought it was Wanampi, the water serpent. That was in 1944 and if Tjukanku had been born in 1939, he would have been five years of age: that would be consistent with him being a tjitji tjiranka.

627               While still a child, Tjukanku worked as a stockman on De Rose Hill under Owen Kunmanara, who was then the head stockman. When he became a Nyiinka, he moved to Granite Downs to do station work. It was at Granite Downs that he became a Wati. Tjukanku was asked why it was that when he was a Nyiinka he wanted to work. His answer was “I wanted to ride the horses”; it was also, so he said, “a good way of getting food”.

628               In his witness statement he said that he stayed at Granite Downs for “a long time. I did not go back to work at De Rose Hill”. He reaffirmed that statement in his evidence in chief:

Q “When you were working at Granite Downs did you sometimes travel to De Rose Hill?

A No.”

Tjukanku qualified this answer slightly in re-examination. He explained that he went back to De Rose Hill twice: first when he was very young and next when he was a Nyiinka when the men took some fat bullocks belonging to Doug Fuller to Finke. However, after the episode with the fat bullocks, Tjukanku was clear in his evidence that he did not return to De Rose Hill again. On the basis of these answers, it meant that Tjukanku only spent time on De Rose Hill when he was a child and a youth - from about the time when he was a tjitji tjiranka up to the time he became a Nyiinka. Tjukanku nevertheless claimed that he had stayed at De Rose Hill for a long time, adding “I grew up, all camps there in soakage places, all there”. In re‑examination, he was asked to identify the soakage places of which he had spoken; he mentioned Watarkatjara (site 39), Ulupitja (site 59), Kalkatja (site 47), Kurkurtjunyl (site 35), Malanatjara (site 20), Yura (site 19), Kantja (site 29), Kumpalyitja (site 55), Aparakutjutjara (site 52), Inyata (site 13) and finally Alalyitja (site 11).

629               When Tjukanku finished working as a stockman at Granite Downs, he went to Oodnadatta and from Oodnadatta he went to Abminga where he stayed for a long time. In his witness statement Tjukanku said:

“When I went as part of the native title trips, I was taken by old men to see those malu places and other places. That’s when I saw some of those places for the first time, but I knew the stories for those places already.”

Earlier, he had said that when he became a Wati, the old men had told him about the Tjukurpa including Malu, Kalaya, Kurpany, Pakalira and Papa Itari.

630               Tjukanku said that the starting and finishing point for his story of the Malu, Kanyala and Tjurki Tjukurpa was not confidential and that women knew it; they could hear where the story starts and finishes for him. As far as I was able to understand, it could be that the Dreaming Track for Tjukanku starts at Yura; it was, on the other hand, quite clear that it finishes for him at Kulpitjara. He said that when he was a young man he had been taken by some of the old men to see the Malu places that were on the Dreaming Track. That was when he saw some of them for the first time. They travelled with camels and the places to which they went included Inyata (site 13), Alalyitja (site 11) and Kulpitjara (site 10). From there they went to Ilpalka (site 40) which is on the Kalaya Dreaming track. Tjukanku volunteered:

“They were explaining to me and pointing out to me and saying ‘this place is for the Yankunytjatjara people’.”

Later he volunteered further information:

“When we were at Ilpalka he pointed out to me and said ‘this is for Yankunytjatjara people’ and also to Wipa he said ‘Wipa is for Yankunytjatjara people’, and he’s pointing it from there.”

631               Additional places to which he was taken included Watarkatjara (site 39), Tjaapila (site 33), Tjintjirapila (site 30) and Kantja. At Kantja, the old men said to him “this is for Yankunytjatjara people’s country”. From Kantja they went to Warkuwa (site 29) and from Warkuwa they went to Kirara. When Tjukanku made that trip with Tiger Baker and Minyungu Baker he said that he was learning the Tjukurpa from them. In view of his evidence that he left De Rose Hill when he was a Nyiinka and never returned, it must mean that he was no more than a young boy when he was shown these locations. I find it highly unlikely, him being only a Nyiinka, that he would have been told much of the detail of the Dreamings.

632               Tjukanku also agreed that he had said in his witness statement that the old men had taken him to other places which he saw for the first time; they were places on the Kalaya Dreaming track. When the old men took him to those places, they told him some of the stories that related to the places. That was the first time that he had heard them; he said that it was “Tjakangka”, meaning that it was “according to custom, law”. When he was asked to name the old men who had taught him, he said that they were Tiger Baker and Minyungu Baker, both of whom were Pitjantjatjara men who had come from a long way out west.

633               He said that Tiger Baker used to live at Kalkatja on De Rose Hill Station. He had also lived at Ulupitja (site 59) and Watarkatjara (site 39). Tiger Baker married a Yankunytjatjara woman named Minnie who was also known as Nyuka. Tiger and Minnie married on De Rose Hill where their two sons, George Baker and Pannikan Baker, were born.

634               Tjukanku agreed that he had visited Ngatiri with Ms Susan Woenne-Green, Mr Craig Elliott and some other people, including Owen Kunmanara. He agreed that he heard somebody say on that occasion that the people who were Nguraritja for that place were all “finished now”. He also had a discussion with Susan Woenne-Green and Craig Elliott at Mintabie. He agreed that, on that occasion, he discussed with them the places where he might be Nguraritja. He said that he told them that he was Nguraritja for the place where he had been born but he agreed that he had also said to them that he had not been there. He agreed that Mr Elliott asked “should we be telling the judge you now are Nguraritja for De Rose Hill” and he agreed that he replied:

“I have been a little boy around Kantja.”

Tjukanku agreed that he said, with reference to Kantja, “that is not my place … but I grew up there”. But he also claimed that he had said to them that he can still be Nguraritja “because I grew up there”. These questions, which were put to Tjukanku during the course of his cross-examination, were based on a transcription of an audio cassette tape of an interview with Tjukanku on 20 October 1996 (Ex F7).

635               Tjukanku was asked in re-examination to explain what he meant when he said in answer to a question from Mr Besanko “the land tells me I am Nguraritja”? His reply seemed to stress the importance of the place of birth. He said:

“It is the land tell me I am Nguraritja because I am born on the dirt and I am Nguraritja for the land.”

636               During the course of his re-examination, he also said that his mother’s relatives, when she visited them at Kantja, spoke Yankunytjatjara. Tjukanku added that his mother’s relations had come from Ernabella and that “they were all the Yankunytjatjara people. Ernabella was the Yankunytjatjara place and they came to Kantja”.

637               At the end of Tjukanku’s re-examination, Mr Whitington sought leave to reopen his cross-examination based upon the several occasions when Tjukanku volunteered the fact that the country that he was speaking about was Yankunytjatjara country. Mr Whitington was seeking to investigate whether Tjukanku had talked to anybody about his evidence overnight. In my opinion it was not necessary to grant that leave. The several references to Yankunytjatjara country were quite out of character with the manner in which Tjukanku had given his earlier evidence on the preceding day. It seemed apparent to me that he had come to realise – or someone had explained to him – the importance of him making it clear that he had a base in Yankunytjatjara country. It would appear, from his evidence, that Whiskey Tjukanku came to De Rose Hill as a young child, left as a Nyiinka and did not return until the native title field trips commenced. The greater part of his working life was spent at Granite Downs. If he ever established a connection with the claim area, which I doubt, I am satisfied that he abandoned it long ago.

alec baker

638               Alec Baker said that he was born at Shirley Well, north of Fregon. He did not know his age but the records in Ex A15 gave his date of birth as 1 January 1932. Fregon is in the AP Lands to the west of De Rose Hill but south-east of Amata. He said that he has a homeland at Ulapinipini (site 22) on Granite Downs, to the south of De Rose Hill. He preferred to be called Mr Baker because of a recent death and I will observe that request. Mr Baker claimed that he is Nguraritja for both places, that is, Shirley Well and Ulapinipini. He also said that he could speak for Wantjapila (site 23) and Intalka (site 24) and that he had been taught the Tjukurpa for those places. Both those locations are to the south of De Rose Hill Station.

639               Mr Baker did not claim to be Nguraritja in respect of De Rose Hill. Rather, he said in his witness statement that he thought of Johnny Wimitja De Rose or Peter De Rose or Tim De Rose as “number one” Nguraritja for De Rose Hill because they were born on that land. However, Wimitja contradicted Mr Baker’s evidence. In his witness statement, he said that he had been born at Watju (Mount Cavenagh). Mr Baker added that Owen Kunmanara was also “number one”. He named Owen, even though Owen had not been born on the land, because he had been there very early in his life and had looked after the land “properly”. Mr Baker believed that, as Owen had done this for such a long time, he was Nguraritja and, so he added, “Senior people agree”.

640               Mr Baker said that his father was Moorilyinna George who had been born on the north side of Iltur. Moorilyinna is the name of a place inside the Kenmore Park boundary to the west of Indulkana. Iltur is many kilometres to the south west of De Rose Hill and is near the southern boundary of the AP Lands. His mother was born at Kunamata, which is well to the west of De Rose Hill in Pitjantjatjara country. However, in his witness statement, he said “I am Yankunytjatjara, but through my mother’s father I am also Pitjantjatjara”. In his oral evidence however, he agreed that both his mother and father were Pitjantjatjara people.

641               Mr Baker said that his family moved to Granite Downs Station where he grew up. He was a teenager and a Nyiinka there and continued to work as a stockman on that Station in the 1950s and the 1960s. In the late 1960s, he worked on the first buildings at Indulkana with Sister Dorothy Forbes. He married whilst living at Granite Downs and his first child (who has since died) was born on that Station. His four other children were born at Indulkana. He said that as a young “fella”, Snowy De Rose used to take him around. This was when Owen Kunmanara was working on De Rose Hill. He said that Snowy also took him to Sundown Station and around Mount Cavenagh. To get to those places they used to pass through De Rose Hill. He said that Snowy took him to many places on De Rose Hill, one of which was Kantja (site 29). He also visited Owen Kunmanara at Ulupitja (site 59) and Snowy took him to Tjaapila (site 33) where they went hunting together. When they hunted they used spears and dogs; it was before they had rifles. He said that Snowy told him “bits of stories” for that country but, so he said, he learnt more from his uncle, Horace. He also claimed that he “followed the Kalaya Dreaming and my uncle told me the story”.

642               In his witness statement, Mr Baker told the story of a confrontation with Doug Fuller. It was not long after he had been made a man and he and others were travelling in a large group through De Rose Hill from Granite Downs because they had been called for “business” at Ernabella. That business was a special business known as Tjilkatja. He said that it was a big group and it included Jimmy Bannington who was “the special boy” or “the Ulpuru”. The group had camped at a claypan, not far to the south of the De Rose Hill Homestead. In the morning some of the people who lived and worked on the Station joined the group:

“… men came out who were living near the homestead and Doug Fuller came and growled at everyone. He came with a rifle. He told us to go. He told the De Rose Hill Anangu “they will only eat your food”. I heard him saying this. He had a rifle and he fired many times into the air with his rifle.”

As many of the Aboriginal witnesses referred to this event, it will be convenient to refer to it as “the Jimmy Bannington incident”. During his oral evidence, Mr Baker modified his statement about the number of rifle shots. He said that Doug Fuller discharged his rifle over their heads only twice. He said that the people were frightened and that he and a number of the Aboriginal people ran away. After this incident Mr Baker said that the Tjilkatja party moved on to Kenmore Park. When the time came to return to Granite Downs the group took a different route, by-passing De Rose Hill because, as Mr Baker said, “we were frightened”.

643               Mr Baker said that, when he visited the Malu Dreaming track on the eastern side of De Rose Hill Station, as part of the preparations for the native title case, it was the first time that he had been on that Dreaming track. He was pressed by Mr Besanko to concede that, if Peter De Rose had not been born at any of the places on the Malu Dreaming track, he would not be Nguraritja for any of those places. However, Mr Baker would not agree, claiming that Peter was Nguraritja “from grandfathers and the maluku palyanu created the Tjukurpa and because of that he’s Nguraritja”. Mr Besanko pressed on, saying:

“Mr Baker, under old Aboriginal Law a person is only a Nguraritja for the place where they are born. Is that right?”

He replied:

“But they have other Tjukurpas – stories, Dreaming stories.”

Although the answer was not responsive to the question, my understanding was that he did not agree with the proposition. On the other hand, he agreed that although many men might know the Dreaming stories, those men would not necessarily be Nguraritja.

644               Mr Whitington, during the course of his cross-examination of Mr Baker, tried to establish the length of time that a person had to be upon the land before he could be classed as Nguraritja. However, Mr Baker – like the majority of Aboriginal witnesses – did not comprehend time in terms of days, weeks, months and years. He, and others like him, would be prepared to say that something had happened a “long time” ago or a “short time” ago but that would not necessarily mean that the periods translated into years or days. A “long time”, for example, might only be several weeks. It is thus very difficult to translate some of the evidence about times into conventional European terms.

645               In response to questions from Mr Whitington, Mr Baker quite freely agreed that the Aboriginal men who were involved in this case had been talking about the case amongst themselves, as they believed that it was important to establish that there are people who are Nguraritja for the area of De Rose Hill. He agreed that they had discussed among themselves how they might be Nguraritja and how other people might be Nguraritja. He also agreed that the men believed that it is important to show that De Rose Hill is on Yankunytjatjara country and that the men had discussed, during the preceding evening, how they could show that De Rose Hill was on Yankunytjatjara country. However, the value of this evidence diminished when it became clear that he had spent the previous evening in his camp at Ulapinipini with his wife. None of the men who had previously given evidence in the Court were with him at Ulapinipini. He said he had not talked to them. It was not clear whether he was giving second hand evidence or – worse – whether he was merely agreeing with the propositions that Mr Whitington put to him without considering whether those propositions were accurate.

646               Mr Baker agreed that, when giving evidence at Wantjapila he had told of two men, Billy Langka and Minyungu Baker, both of whom were Pitjantjatjara men, who had come from a long way out to the west. Billy Langka had married Nora Singer, a Yankunytjatjara woman who was the mother of the witness, Sadie Singer.

647               In my opinion, there was nothing in the claimants’ submissions that would justify a finding that Mr Baker was Nguraritja for De Rose Hill Station or any part of it. As has already been noted, he was familiar with the word “Nguraritja”. In his witness statement, he asserted:

“I am Nguraritja from my homeland (Ulapinipini) right through to Ernabella because uncle (Horace) gave me all those stories. Also for Wantjapila and Intalka.”

He was able to apply the word to several people but he excluded himself when he identified those whom he considered to be Nguraritja for De Rose Hill. In coming to the conclusion that Mr Baker is not Nguraritja for any part of De Rose Hill, I have not overlooked that, during the course of evidence in closed session, both Riley Tjayrany and Peter De Rose stated that Mr Baker was Nguraritja for a specific site. However, when Mr Baker gave evidence at that site he did not claim that he was Nguraritja for it. Riley nominated a second site on De Rose Hill during the course of restricted evidence. He named Mr Baker as one of the persons who was responsible for looking after that site; such a person would be Nguraritja for the site. Once more, that evidence was at variance with Mr Baker’s evidence. Furthermore, during open evidence, when under cross-examination, Riley made some statements that were inconsistent with Mr Baker being Nguraritja for sites on De Rose Hill. Thus he agreed that he had earlier said to the anthropologists, Dr Willis and Mr Elliott, that “Mr Baker was not really Nguraritja because he was not born on De Rose Hill”. I am not prepared, therefore, to rely on Riley’s evidence on this subject. Despite Mr Baker saying that he was not Nguraritja, the claimants’ submissions placed him as Nguraritja because of his geographical and religious knowledge and his long-term residency and physical association with the land. I do not see how I can accept that submission when the relevant person expressly refutes it. He has excluded himself from the group who would seek to have a determination of native title in their favour, and I so find.

witjawara curtis

648               Witjawara was born to the west of Amata; she said she is Pitjantjatjara because both her mother and father were Pitjantjatjara. She did not know her age but the records (Ex A15) gave her date of birth as 1 January 1931. She has two biological brothers, Ray Mungkuri and the witness, Roley Mintuma, and a sister, Kitty Miller (Alanenya). In her witness statement, she said she grew up around Ernabella but she also used to go to various other places, including De Rose Hill. For example, she went to Ilpalka (site 40) on De Rose Hill Station looking for maku (witchetty grubs). She spent a lot of time at Watarkatjara (site 39 on the Alberga Creek). She also used to go to Kantja on the way to Ernabella and she went to Wipa to get mingkulpa (wild tobacco). Her first son, Sandy, was born at Tiilkatjara (site 43) in the north-west section of De Rose Hill Station. She could not say when Sandy was born but it was after the homestead had been built at De Rose Hill. She believed that Sandy was born before Peter De Rose but after Tim De Rose; that would mean that he was probably born in about 1948 or 1949.

649               She said of Sandy’s birth place, that it was “right on Kalaya Tjukurpa”. Her second son, Bob, was born near the garage at the homestead. She claimed that Bob is also Kalaya Tjukurpa because of his place of birth; it is on the route that the Kalaya took when they went to Ilpalka from Tiilkatjara (site 43). She said that Sandy was born at the actual site of the Kalaya Tjukurpa whereas Bob was born on the track of the Kalaya Tjukurpa. Witjawara said that she smoked both her children after they were born. Sandy was smoked between Tiilkatjara and the homestead on the Kalaya track and Bob was smoked at the camp near the shed at the De Rose Hill homestead which was also on the Kalaya track. She spoke of smoking in these terms:

“The importance of smoking was so that they [the children] would grow up strong and healthy. Because of the smoke it also makes the child belong to that place. The mother then puts her breasts in the smoke so that she produces lots of milk.”

650               She went on to say that when a child is born on a Tjukurpa site or on a Tjukurpa track that Tjukurpa belongs to the child:

“Being born at that place they become boss for that place and the tjukurpa associated with that place. Boss for the whole of the story wherever it goes. Only men can talk about this in more detail. Women can only talk about the general story of where Kalaya went.”

Witjawara said that a woman cannot be the “boss” for the Kalaya Tjukurpa or for a Kalaya place. She had, however, heard “somethings about the Kalaya Tjukurpa from Katjiwala’s father, Paltatjiratja”. She agreed that Paltatjiratja was a Pitjantjatjara man and that he came “from a long way out west”. Witjawara said “they had ceremonies for Tjati wampa while she was at Watarkatjara (site 39). She added that Watarkatjara was a big place “where we sometimes lived for a big period”. She said that the people at Watarkatjara spoke both Pitjantjatjara and Yankunytjatjara. She talked of other people living at Ulupitja (site 59) and at Ilpalka (site 40) and she said of them that they spoke both languages.

651               Witjawara said that her family moved to the vicinity of De Rose Hill homestead when it was first built. As that occurred in 1944, and if Witjawara had been born in 1931, she would have then been about thirteen years of age. It was at De Rose Hill that she met and married her husband, Wally Curtis. She and her husband used to shepherd the sheep there. According to Witjawara, Wally’s mother was a Pitjantjatjara woman but his father was Yankunytjatjara. She recalled being at De Rose Hill when the bullocks first came. That was in about the late 1950s. Her husband later worked with the cattle.

652               Witjawara said that when she was working on De Rose Hill, she lived in wiltjas (humpies) which were made out of mulga branches. She said that Doug Fuller would give the Aboriginal people sheets of iron which would be used to provide some form of shelter. She recalled that a number of Anangu were living around the homestead at that time. Among those whom she named were the witnesses Minnie Nyanu, her sister Edie Angkaliya and Mabel Pearson. Johnny Wimitja De Rose was there as a small child and Snowy De Rose was there as a young unmarried man.

653               Witjawara claimed that her children’s Ngura is the whole area of De Rose Hill because they were born there. The word “Ngura’ means a country or area with which one has important associations, particularly if one has been born there or has spent a lot of time there. She claimed that the area of Kantja (site 29), Ilpalka (site 40), Wipa (site 5), Watju (or Mount Cavenagh), Kalka (Kulgera), Wapirka (Victory Downs) and Kenmore Park are all Yankunytjatjara Ngura. Of those places, only Kantja and Ilpalka are within the boundaries of De Rose Hill Station. The remaining names, other than Wipa, which is a most interesting geological formation on Tieyon Station – vaguely reminiscent of the famous “Devil’s Marbles” in the Northern Territory – are the names of pastoral stations to the west and north of De Rose Hill Station.

654               Questioned about her sons, Witjawara was asked in particular:

“Why do you say his country includes Wapirka?”

 

She replied:

“No, places where we sat down,”

suggesting that she was thereby excluding Wapirka from her answer. On the other hand, she included Kalka, Kenmore and Watju (Mt Cavenagh) as part of the boys’ Ngura because they were places where they had worked or sat down. Wipa was said to be part of their Ngura because “we used to go to Wipa”. Witjawara, having said that the Ngura for Sandy and Bob included Kantja and Ilpalka, was pressed to explain why that should be so, as both these places were some distance from the actual places of birth of the boys. First, she said that it was because they were born there but in cross-examination Ms Brown pointed out that neither had been born at Kantja or Ilpalka. Witjawara’s reply was:

“No, those places, they’re together. They’re next to each other.”

Witjawara’s answer pointed to the fact that it is not just the location of birth that is important; it is the location and the surrounding areas that are regarded as important. The size of those surrounding areas was, however, uncertain. In her witness statement, Witjawara had said that the many places that she had listed were included in her witness statement because:

“That is Yankunytjatjara Ngura.”

However, Witjawara acknowledged that her sons were not Yangkunyjatjara people; they were Pitjantjatjara. Asked why they were Pitjantjatjara people she replied “From mother and father”.

655               Mr Whitington questioned Witjawara about her reason for leaving De Rose Hill. His questions were based on some notes of an interview that she gave Mr Craig Elliott. Witjawara agreed that she had met with her sons and Mr Elliott at Mutitjulu to discuss the native title case:

Q “Thank you. Did you hear Robert or Bob say that he had not been back to De Rose Hill since he was a little boy?

A Yes.

Q Did you hear him say that the family went away from De Rose Hill for a holiday and ended up staying away for good?

A Yes.”

656               In confirming that her family left De Rose Hill Station for a holiday and ended up staying away for good, Witjawara’s evidence was not consistent with those parts of her witness statement which suggested that the Jimmy Bannington incident was the reason they left. In her witness statement, Witjawara Curtis said that she was at De Rose Hill homestead when Jimmy Bannington went through as a special boy (Ulpuru) on his way from Witjintitja (Granite Downs) to Tiilkatjara (site 43). Witjawara said that the men and women of De Rose Hill had joined the Tjilkatja, the ceremonial cycle, that was associated with man-making. She said that Doug Fuller came up in his car to the Anangu and she heard gunshots. Later, she saw that nine of her mother’s dogs had been shot and that other people’s dogs had also been shot. (She did not say that Doug had fired the gun, nor did she say that she had seen him shoot the dogs). She and her husband, together with their children, continued with the Tjilkatja party and the next day they arrived at the Kenmore Park homestead where the ceremony continued until it concluded at a place near Ernabella. She said that she never went back to De Rose Hill Station. However, her husband and son Sandy (when he was a man) returned to De Rose Hill to work and check up on some horses that they had left behind. She said in her witness statement that “they both worked on De Rose Hill for a short time, sold the horses and came back to Ernabella”.

657               Witjawara left De Rose Hill Station when Bob was about five years old. If Sandy was born in about 1948 or 1949, and if Bob was born a year or two after Sandy, and if Witjawara left De Rose Hill when Bob was five, it would mean that she left the Station in the mid 1950s. She agreed that until the time of the preparation of the native title claim, she had never returned to De Rose Hill. That is a gap of almost forty years. She stayed at Ernabella most of the time and then moved to Mutitjulu. Witjawara did not seek to establish any connection with the claim area. She did not hold herself out as Nguraritja for De Rose Hill. If however, it could be said that she was nevertheless Nguraritja because of her long association with the claim area, it is quite clear, in my opinion, that she has abandoned any connection that she might have once had with the claim area.

peter tjutatja

658               Tjutatja believed that he was born at Iranytjirany, which is to the north-east of Ernabella and that his mother and her father, Tjaanapa, were born at the same place. He claimed that his mother, Kalykulya, was a Yankunytjatjara woman. He believed that his mother’s mother was born at Kulpitjata, which is between Amata and Uluru. All those places are far to the west of De Rose Hill Station. Tjutatja said that his father, Mutjutjanu, had been born at Kirpiny; he was a Pitjantjatjara man who had come from the west, and who, as an old man, had taken Tjutatja back to Kirpiny so that he would know his father’s country. Mutjutjanu’s sister was Nelly Tjirpawa who married Jimmy Piti Piti. Tjutatja said that he, and everyone else in his family other than his father, spoke Yankunytjatjara. His father’s parents were both born at Pipalyatjara which meant that they were Pitjantjatjara people.

659               In par 38 of his witness statement, Tjutatja, who is a very old man, aged about ninety, stated that his country (Ngura) was Kalka (Kulgera), Witjintitja (Granite Downs), Ernabella, Urtjantjara (site 16), Wantjapila (site 23), and Indulkana. His country also extended to include a variety of other places, some of which were Watju (Mount Cavenagh), Wapirka (Victory Downs), De Rose Hill and Sundown.

660               He said that his uncles taught him all that he needed to know about his country and about the places of importance. He said that he was taught the Tjukurpa for the region, adding: “I am the keeper”, meaning, as I understand his evidence, that he was the keeper of the country – not the keeper of the Tjukurpa. He did, however, say that he is Mayatja (“boss”) for the Malu and Kalaya Inma. Tjutatja claimed that he is Nguraritja for all of the places that he identified in his witness statement. He accepted that he has a responsibility for those places and he accepted that it is and was his responsibility to look after those places. When he was asked what he had done to look after them he replied “clean the grass” and when asked at what places he had cleaned the grass he named Utjan (also called Urtjantjara), Iranytjirany, Kirpiny and Malara. None of those places is on or near De Rose Hill. Malara is near Pipalyatjara and is in Pitjantjatjara country.

661               Tjutatja said he grew up between Iranytjirany, Ernabella, Witjintitja (Granite Downs), Watju (Mount Cavenagh) and Kantja. At that stage of his life, there were:

“No house, no clothes, no store, no whitefellas. We were there (the whole area) a long time eating kangaroos which we got with spears. Ngintaka, euros and rabbits, tjiryla, goanna, bush onion, kunakanti, warkarti, wanganu – no flour.”

Tjutatja understood the meaning of the word “pension”; he said that his son, Sandy Panma Williams had told the pension people about his age. It was not clear from his evidence, however, by what means Panma came to know his age. Tjutatja agreed that he told Mr Craig Elliott that, at some time, “the welfare people” came to De Rose Hill and said to the Aboriginal people that they would henceforth have to go to Indulkana to get their pension. As a result of that, some of the people moved away from De Rose Hill.

662               I regarded Tjutatja as one of the better Aboriginal witnesses. He was far more responsive to questions than, for example, Whiskey Tjukanku, Alec Baker or Tim De Rose. He spoke up; he frequently corrected counsel’s pronunciation and he was able to volunteer information. There were one or two occasions when I was concerned about his ability to comprehend some of the questions that were asked of him, but for the most part, he was very alert for his great age. I was quite satisfied, for example, that Tjutatja comprehended the questions that were asked of him about the location of the Tjukurpa. I came to that conclusion because, following his willingness to agree that there were important Tjukurpa places at Wapirka and Watju, he quickly rejected the proposition that there were important places at Sundown. He said:

“No, no Tjukurpa there.”

663               Tjutatja travelled to Kantja with his father and some others when he was about ten or twelve years of age. If he was born in 1912, as is stated in Ex A15, this would mean that he travelled to Kantja somewhere between 1922 and 1924. He said that when he arrived at Kantja, there were Aboriginal people but “there were no whitefellas”; he said that he later saw the “whitefella” shearing sheep. Although Tom O’Donoghue first obtained a permit to search for water in the Agnes Creek area in August 1923, it is possible, but it cannot be assumed with certainty, that he went to the area immediately. It is, however, reasonable to assume, on the basis of Tjutatja’s evidence, that he and his family travelled from the west of Kantja sometime in the early to mid 1920s. Tjutatja said that there were many Anangu at Kantja when he arrived; they were camped on a sand dune to the south-west of the site. Subsequently, the Court visited that dune and noticed several Aboriginal artefacts, in particular, numerous pieces of kanti – sharp rocks that were used as cutting instruments.

664               Tjutatja said that, among the people whom he could remember as being as Kantja when he arrived there were his uncles, Tjaapan Tjaapan, Old Panma, Pampula (Bumble Foot) and Tjiminya. He also recalled that Paltjatjiratja, the step-father of Minnie Nyanu and Edie Angkaliya was at Kantja. Asked whether he could remember any other people who were camped there, Tjutatja replied “Wimitja mob”. Wimitja (Johnny Wimitja De Rose) was, so he said, “malampa” or a younger brother. These men, who had been named by Tjutatja, were said by him to be Nguraritja for the place. Asked why were they Nguraritja for that place he answered:

A “Because they become owner of this place.

Q Why are they an owner of this place?

A From the Tjukurpa, those stories.”

665               Tjutatja said that he is Nguraritja for Kantja. When asked why, he said:

“Because we got Inma Kalaya. Inma, songs, Kalaya the emu, and we own that and I am Nguraritja because of that.”

He also said that his children were Nguraritja for the same locations. He pointed to his son, Sandy Panma Williams, one of the witnesses in the case and one of the Aboriginal men who was present during the hearing at Kantja, saying that Panma and Tim De Rose were Nguraritja. This meant that his grandchildren will become Nguraritja in due course because they belong to the place – they own the Kalaya Inma and they will learn about them from him, their grandfather.

666               Tjutatja said that he and his family stayed at Kantja for “a long time”. They then travelled to other places such as Wantjapila (site 23) and Ilpalka (site 40). After Ilpalka the family moved to Tjinytjirapila (site 30) which is quite close to Kantja. From there they walked to Apu Maru (site 17). They then moved along the eastern boundary of what is now De Rose Hill Station to Alalyitja (site 11), Inyata (site 13) and Kulpitjara (site 10) before turning back to Ilpalka. There were people at the places to which he referred and he said that they spoke Yankunytjatjara, as did the people at Kantja. Tjutatja said that, in addition to Kantja, he is Nguraritja for Wipa and for Kirara because he knows the Kalaya Inma. He agreed in cross-examination that everybody “who knows Kalaya Inma for Kirara” is Nguraritja for Kirara. Tjutatja also said that he was Nguraritja for Iranytjirany, which is an indication that he regards his place of birth as a place of importance.

667               He said he travelled between Kantja and other places many times before he became a wati. He considered that he was then about fourteen years old and old enough to spear a rabbit.

668               Tjutatja went back to Kantja when he was a man with Panma. There was still a big camp of people and people were still speaking Yankunytjatjara. At that stage there was a “whitefella” at Kantja who had “lots of sheep”. Although Tjutatja stayed a long time at Kantja, he did not work for the white man; he spent his time hunting for kangaroo meat using a spear from the urtjan tree (the “spear bush”). Tjutatja said that Riley Tjayrany’s brother (whom he did not name) was working for the white man at that time.

669               Tjutatja referred to Tjaapan Tjaapan as Nguraritja for the area. In his evidence in chief, he identified Tjaapan Tjaapan as his mother’s brother, saying that he had been born on De Rose Hill or close by and was buried there. He said of Tjaapan Tjaapan:

“He is believed to have been Nguraritja for this region. Between Ernabella and De Rose Hill.”

However, when cross-examined about Tjaapan Tjaapan’s place of birth he appeared to agree that Tjaapan Tjaapan had been born at Katji Katji Tjara. Johnny Wimitja De Rose also believed that Tjaapan Tjaapan had been born at Katji Katji Tjara which is a location near Iranytjary. Peter Tjutatja identified four grandsons of Tjaapan Tjaapan who are still living; he said that they are the witnesses Sandy Panma Williams, Tim De Rose, Peter De Rose and Michael Mitakiki, but in European terms Panma would only be described as a grand-nephew.

670               In his witness statement, Tjutatja said that he was made a man at Ernabella and that, afterwards, he went to ceremonies at places like Indulkana and Granite Downs “learning as we went”. He first worked at Ernabella on the wells and bore sinking; he also did hand shearing and bag sewing. At Mount Irwin on Tieyon Station, he worked roping colts and at New Crown Station and Horseshoe Bend Station he worked with the bullocks. At this stage he was an older teenager. As a young Wati, before he married, he worked on De Rose Hill. At that stage, Doug Fuller had taken over the place. Mr Whitington asked him “was that the first job you had for Doug Fuller?” His reply was non-responsive but was nevertheless interesting for he said “Yes, we were friend for Doug Fuller”. Other people who were at De Rose Hill, and who were working at the time when Tjutatja started work, included Owen Kunmanara, Snowy De Rose, Tjutatja’s father, Mutjutjanu, Yakiti (also known as Mungkutja), Wintinna Mick, Riley Tjayrany (who was then a Nyiinka), Wantitja, Old Panma, Andy Pampula (Bumble Foot), Tjaapan Tjaapan and Johnny Wimitja De Rose.

671               Tjutatja was insistent that, when he first worked for Doug Fuller, he worked with the bullocks. Tjutatja’s evidence was that there were still sheep on De Rose Hill when he started working there, although he worked with the bullocks and not with the sheep. This could be correct because the cattle were phased in and the sheep were phased out over a period of time. Tjutatja said that he was older than Doug Fuller but that is unlikely. Doug was married with three children when he moved onto De Rose Hill Station.

672               Tjutatja left De Rose Hill and returned to Ernabella where he married Imuna who had come from Kunamata in the west; he had been ceremonially promised to her. From Ernabella he moved and worked at Kulgera, Wapirka (Victory Downs) and Watju (Mount Cavenagh). Their first child, Panma, was born at Victory Downs, as was their second child Yuminiya. Their third child, Kelly, a son, was born at Sundown Well. A fourth child, a daughter, Anyupa, was born at Ilumyuna which is on Victory Downs. Tjutatja said that his wife was a Pitjantjatjara woman and that his four children spoke Pitjantjatjara, taking after their mother. He was the only member of the family who spoke Yankunytjatjara.

673               When Panma was about eleven or twelve years of age, Tjutatja returned to work on De Rose Hill again. At that stage, other workers who were there included Johnny Wimitja De Rose, Owen Kunmanara, Minnie Nyanu, Edie Angkaliya and Riley Tjayrany; Michael Mitakiki was a boy and Peter De Rose was a small boy on the station. Tjutatja worked with the bullocks at De Rose Hill until his second child, Yuminiya, was about ten or eleven. He then left so that she could go to school at Ernabella. He also said, however, that another reason for his leaving was because there was no further work for him on the Station; he did not offer any criticism of the Fullers.

674               When his eldest son, Panma, became a Wati Pulka (senior man) and his youngest son, Kelly, was a Wati Katarara (young man), he went back to De Rose Hill with them to work with the bullocks. Peter De Rose, his parents Katjiwala and Snowy, Tim De Rose and Wimitja were there and Owen Kunmanara was “the boss”.

675               Tjutatja said that, as a young man, he worked in order to get paid as he needed the money to buy food. In that period of time, the people also trapped dingoes in the vicinity of Ilpalka and traded the scalps with Doug Fuller for flour, tea, sugar and treacle. They would get the scalps by catching the dingo pups in the springtime. This evidence strongly suggested that his presence in the De Rose Hill area was governed, to some degree, by matters of practical economics as distinct from traditional customs.

676               When he worked at De Rose Hill, he lived in a camp which was near the homestead. Once again, he showed his ability to comprehend the questions that were asked of him, because when it was put to him that the camp was near the homestead he replied:

“Yes, near the house, on that side – do you remember last time we had lunch there.”

677               Over the years Tjutatja worked as a stockman at a variety of stations. When he was a Wati he worked with the bullocks at Ernabella, Granite Downs, Indulkana, Kulgera, Mount Cavenagh and Victory Downs. He was head stockman at most of those places apart from De Rose Hill. In an attempt to find out for how long Tjutatja worked at the various stations, Mr Besanko asked him how many times cattle were branded, working on the premise that, on most occasions, there were brandings yearly. Tjutatja was not able to give numerical answers, but in respect of Granite Downs, he said “Many times they were branded”, indicating that he had worked at Granite Downs for several years. He gave much the same answer with respect to Kulgera, Victory Downs and Mount Cavenagh. In the case of Mt Cavenagh, he said that he worked their “Lots of times, many times”, perhaps suggesting that it might have been a longer period than at the other stations. In addition, he named Mount Cavenagh as his “place”. The major motivation for him moving so much appears to be for the work and the associated pay. This is apparent from the following passage of his evidence during his cross-examination:

Q “Yes. Were you getting money or rations for the work that you were doing?

A They were paying us with money, big money.

Q Were you going to these various places so that you could get work?

A Yes.

Q So that if the work stopped at one place, would you go to another place to see if you could get work there?

A Yes, I go to another place to get work, then I will go to De Rose Hill to get a job.”

Tjutatja stated that he returned to De Rose Hill many times for holidays when Yuminiya was at school at Ernabella. However, not long after giving that evidence, he contradicted himself, agreeing that he had told Mr Elliott he had not returned to De Rose Hill since leaving for Ernabella:

Q “Did you say to Mr Elliott that neither you nor Yuminiya had been back to De Rose Hill since the time you left to take her to school at Ernabella?

A Yes.

Q Is that true?

A Yes, I was working at Ernabella then.”

678               Tjutatja said that he was familiar with the Tjukurpa that were associated with De Rose Hill and with “all the aspects that senior men know about”. He referred to Pakalira, Kalaya and Malu, saying that he visited the sites on De Rose Hill that were associated with those Tjukurpa while he was living and working there. He said:

“I am Nguraritja ‘from the Tjukurpa’ – tjukuritja from Kalaya and Malu and also the dog-Papa. They are all miilmiilpa (sacred).”

He said that the old men had taught him the stories and that the Tjukurpa is passed on from generation to generation. It came from the ground and all things associated with it.

679               Tjutatja said that he learnt the stories for Iranytjirany, Watju and Wapirka whilst he was working at those places. Asked whether other older Aboriginal men at those places had taught him the Tjukurpa, he replied by naming Tjaapan Tjaapan, Old Panma and Jimmy Piti Piti. In re-examination, he expanded by saying that it was his father, Mutjutjanu, Old Panma, Tjaapan Tjaapan, Jimmy Piti Piti, Andy Pampula (Bumble Foot) and Langka Tjukur (also known as Billy Langka) who taught him the Tjukurpa for the places at De Rose Hill. Tjutatja’s comprehension was once again established when he was asked questions about Indulkana. He agreed that it was an important place and that it was “ a Tjukurpa, the Dreamtime stories”. He was then asked whether he learnt those stories whilst he was working at Granite Downs but he replied:

“No, not when I was working. I was living out bush and I learn.”

680               Tjutatja’s claim to being Nguraritja for De Rose Hill is, in my opinion, suspect. He was given the opportunity in cross-examination, in simple concise terms that could not have caused confusion, to identify his country. His answer did not say much for him being Nguraritja for De Rose Hill, even though his reasons for coming to De Rose Hill could be regarded as “traditional”:

Q “Why did you move to Kantja?

A We come for food, ngatji – begging for food”

681               The word “begging” does not, in my opinion, have any significance. It is well known that Aboriginal groups in the Western Desert moved from location to location as and when food and water supplies were exhausted. But then he said “We didn’t know before, then we come to Kantja and we learn to eat that at Kantja”. That comment seems to suggest that he did not go there looking for rations, but realised he could get them once he got there. It must be acknowledged that Tjutatja had a reasonably long association with the claim area even though he had been born elsewhere. However, like so many other witnesses, he left De Rose Hill, not in accordance with or because of Aboriginal culture but because of Western culture. In his case, it was the education of his daughter. In my opinion, De Rose Hill Station was merely one of several cattle Stations on which Tjutatja lived and worked during his lifetime. Non-Aboriginal factors such as work and wages and his daughter’s education, rather than Aboriginal law or customs, dictated his life and his lifestyle. I find that Tjutatja never did have the necessary connection to the claim area. Although I accept that he has returned to De Rose Hill on occasions to hunt, he has not otherwise retained any connection with the claim area through traditional laws and customs. However, if I am wrong and if he did once have that connection, I am satisfied that he abandoned it long ago.

682               Tjutatja said that he visited De Rose Hill with Ms Susan Woenne-Green, Mr Craig Elliott and other people in preparation for the native title case. However, he also said that after he finished working at De Rose Hill, and before he went back for the native title case, he had returned to visit De Rose Hill “living there and hunting for kangaroos”. He said that on an occasion when he went there for water, Doug Fuller saw him and “he was all right with me, he’s a good fella, he’s a good whitefella.”

TIM De Rose

683               Tim said that he was born near De Rose Hill homestead and that his mother had shown him his place of birth. It was on the south side of the homestead between it and a creek. He also said that his mother showed him where Peter De Rose had been born. He described it as a place that was north-west of the homestead between the homestead and the airstrip under an ironwood tree.

684               According to Ex A15, Tim was born in 1948, making him fifty-three years of age at the time when he gave his evidence. Tim’s younger sister is the witness Carlene Thomson, who was born at Finke. His mother, Edie De Rose, was a Yankunytjatjara woman. She lived and died at De Rose Hill but had been born, so he believed, somewhere to the east of the Station. Her father was Tjaapan Tjaapan. He also died at De Rose Hill and is buried there. According to his witness statement, Tim’s father was Billy Nungkya who was born at Kanpi which is in Pitjantjatjara country. Tim’s witness statement, as originally typed and filed in Court, stated that his father:

“… could have been either a Pitjantjatjara or a Yankunytjatjara man. I don’t know.”

The statement was however corrected, on the application of counsel for the claimants, so that it read that his father was a Yankunytjatjara man. Under cross-examination he was asked:-

“Are you not sure whether he was Pitjantjatjara or Yankunytjatjara?”

Tim replied:

“Yes, I don’t know, maybe Pitjantjatjara or Yankunytjatjara man, maybe his real language was Yankunytjatjara.”

685               Whether Billy Nungkya was Tim’s biological father became doubtful during the course of his cross-examination. Tim said that he did not know the name Frank De Rose. But then he said:

“Yes, my grandfather, Tjapany Tjapany [ie Tjaapan Tjaapan] used to say this name. This name Frank, he must be the white man.”

 

In response to a further question, he said:

“My mother asked Tjapany Tjapany what was my fathers’ name and he said this name, this name we’re using now.”

686               He claimed that he is Nguraritja for De Rose Hill because he was born there and because his maternal grandfather and grandmother were Yankunytjatjara people who lived there and are buried in the area. He spoke in particular of the site known as Papa Itari. He was working at De Rose Hill Station before the newly aligned Stuart Highway was constructed in about 1995. (The old highway had been further to the west). It was Tim’s opinion that the building of the new Stuart Highway caused damage to the Papa Itari Tjukurpa. He said that it spoilt the Tjukurpa. The spoiling was caused because the new road had been built across the depression. Nevertheless, despite the damage from the highway, the area was still an important place; the Tjukurpa still remained and it was still a Dreamtime story. Tim explained that he was Nguraritja for Papa Itari and that others who were also Nguraritja for the site included Pimpi Yaltjanki, Minyungu, Lucky Curtis, Sandy Curtis, Bob Curtis, George Baker, Sam Wilson and Peter De Rose. Tim said that Pimpi Yaltjanki is the daughter of Tilly Yaltjanki and Minyungu is the son of Jeannie Kampukuta Inpiti. According to Tim, Minyungu was born on De Rose Hill Station. Lucky Curtis, who is Angkaliya’s son, was also born on De Rose Hill Station as was Bob Curtis, George Baker and Sam Wilson. When asked how he knew that Bob Curtis was born on De Rose Hill Station, he said:

“I was at De Rose Hill Station and I seen those kids.”

He also knew that Sam Wilson was born on De Rose Hill Station because he was “at that place”, suggesting that he was present at the place of birth. Sandy Curtis, according to Tim was born on De Rose Hill Station at Tiilkatjara (site 43). Unfortunately, none of these people (who could be referred to as “the younger generation”) and whose evidence might have been of value in examining the questions of adherence to traditional laws and customs and of “connection” to the claim area, were called as witnesses.

687               Tim said that he had worked at De Rose Hill Station for a long time and that he had continued working there after he had been made a man at the ceremonies at Areyonga. Tim said that he and Peter De Rose were segregated as Nyiinkas at the same time and that they went through man-making ceremonies at Areyonga together. He and Peter worked on the bullocks when Owen Kunmanara was the head stockman of De Rose Hill. He said that while he was working at De Rose Hill, he had been taught the location of secret and sacred places by Owen Kunmanara. However, at that time, he was not told about the Tjukurpa; he said that he had only recently learnt about it.

688               On the first occasion when Tim left De Rose Hill Station, he went to Ernabella; he had been told that his Kunga Pikatja (his chosen wife) was there. He married her and went to live in her country at Docker River where they speak Pitjantjatjara. In re‑examination he was asked whether there were special rules about a promised wife. He referred to the “Waputju”, (the future father-in-law) saying that there was a rule, not only for Yankunytjatjara people, but also for all Anangu, including the Pitjantjatjara people. Tim said that this rule remains in force today, “but not as much. Young people today, they marrying not the promised ones, but it’s a strong law for marrying a promised one”. Tim had followed the law and had married his promised wife at Ernabella on the day that he met her. He was approached by his bride’s brother who said “My young sister here, you can marry her”. The law about a promised wife comes from a ceremony where a girl’s father is identified as the future father-in-law of a young boy. From that time, the boy knows that he has a promised wife who he will marry one day. However, the detail of the ceremony is a subject that cannot be discussed in front of women.

689               Tim said that he came back to De Rose Hill after Snowy’s accident and worked there as a stockman for a while. Other evidence has established that Snowy’s accident occurred on 18 June 1977 and that Bobby De Rose died on 15 February 1978, some eight months later. Tim said that he left De Rose Hill a short time after Bobby died. He would then have been about thirty years of age. Tim, like Peter De Rose, believed that Doug Fuller had delayed telling them about Bobby’s death.

“We were mustering cattle and we brought it there to truck, to put the cattle on the truck next day and I think he heard the news that day but he waited for next day to tell us.”

Tim gave, as his reason for leaving De Rose Hill in 1978, Doug Fuller’s failure to tell Peter De Rose about the death and funeral of Peter’s brother, Bobby. That was a subject that he had not addressed in his written statement. Tim never returned to De Rose Hill until 1994 when the native title claim was commenced. He went to Docker River with his family and has lived there ever since.

690               In his witness statement, Tim asserted that he and his children are Nguraritja for De Rose Hill. He claimed that his children know about De Rose Hill country and keep asking him when will they see it. He said that his children have rights to the country through him, through his mother, through his mother’s mother and through Tjaapan Tjaapan, his mother’s father. He claimed that, because he and his children are Nguraritja, they “have every right to go on that country, camp anywhere we want, get kuka (meat) and mai (plants) and kapi (water) without having to ask anyone”. Tim said that, as Nguraritja, he and his children can give strangers permission to enter onto De Rose Hill.

691               Tim was asked:

“Do you say that your children can give people permission or refuse people permission to go onto De Rose Hill and do things?”

He replied:

“No, the kids come and tell the father, say ‘Oh, there’s visitors,’ so the father get up and he’ll have a look then who they are.”

Later, a further qualification crept into his answers. It became clear that the children’s rights only existed if “they were staying at their own country, not from long way. If they living somewhere else they can’t do it”. A further answer from Tim explained, in my opinion, what he was endeavouring to say in his evidence. He added

“I’m living at Docker River and I can’t see, so some visitors that go into De Rose Hill and they be there and I wouldn’t know, I’m living in Docker River.”

692               In my opinion, the effect of his evidence was as follows. In the first place, he and his children are Nguraritja and Nguraritja have the right to give permission or to refuse permission to Aboriginal people to come onto their country. If, however, the Aboriginal person, or his or her children, are not living in the area then, from a practical point of view, they are not available to give or withhold permission. This became clearer when it was put to Tim that someone might telephone him whilst he was at Docker River and he could give permission by telephone. It also became clearer that the children would still defer to the father and consult with him before they said “OK”.

693               Mr Besanko asked Tim whether he agreed that being Nguraritja for a place meant that the Nguraritja had to look after the place. Tim agreed. However, when it came to questions dealing with the responsibility for cleaning a place, his answers were very difficult to understand. In the first place, he seemed to say that it was sufficient to look after the place by “going and seeing place if it’s alright”. He rejected the need to clean the place if it “got dirty”. Then, when the question was put once more that it was the responsibility of the Nguraritja to clean up those places that got dirty, Tim replied:

“No. They only can clean up the sacred secret places, but the water-points, tjukularock hole, they don’t do cleaning that.”

Tim was asked whether he had ever cleaned any of the secret sacred places on De Rose Hill station after he had become a wati and before he left the station. His reply was that he was working and living at De Rose Hill station at that time and “if I leave the work and go and clean the sacred sites, I will get the sack”. In answer to Mr Whitington, during the course of his cross-examination, Tim acknowledged that, since he left De Rose Hill station in 1978, he has not done anything to look after that country. But he added:

“…I didn’t want to come back. I was frightened if I go back I might get hunted out.”

694               Tim brought four of his six children with him to Ilintjitjara when this case commenced. He said that they wanted to come so that they could be with him. He was asked whether he had taken any of the children to any of the locations at which the Court had taken evidence and he replied that they had gone to Wipa. Asked why had he taken the children to Wipa his reply was:

“We want to come because we don’t know Wipa, we want to see it for the first time so we can know that place.”

That suggested that Tim knows very little about the full story of the sites on and near to De Rose Hill station.

695               He recognised Mr Craig Elliott, who was sitting near counsel for the claimants during the course of Tim’s evidence. He said that he could not remember ever speaking to him about the native title claim. He was then asked whether he remembered an occasion when Mr Elliott asked him about important places on De Rose Hill; he conceded that he “supposed” that he did say something to him. Mr Besanko put to Tim that he had told Mr Elliott that he knew the names of some of the places on De Rose Hill but that he did not know the Tjukurpa that was relevant to those places. Tim replied:

“No, I don’t know I said that, I can’t remember.”

Tim was pressed about what he might have said to Mr Elliott. Mr Besanko put to him:

“Q Mr De Rose, did you ever say to Mr Elliott that you didn’t know the Tjukurpa for the places on De Rose Hill?

A Maybe.

Q When you said that to Mr Elliott, that was true wasn’t it?

A Yes.”

696               On another occasion when he was giving evidence, Tim claimed that he first learnt the Tjukurpa stories for the places on De Rose Hill when he was a tjitji, a boy. He added “they used to tell me those places”. In response to a further question, he said that “they used to take me around and tell me ‘this is Kalaya Tjukurpa the emu dreamings’”. However, he agreed that you had to be a man to know the stories. As it was possible that Tim was confusing knowledge of the stories with knowledge of the places in giving his answers, an effort was made to explain that distinction to him. After the explanation, there came the further question:

Q “When did you first learn the stories for those places?

A I was staying long way and I never had a car to come for those places.”

In his evidence in chief, Tim had told his counsel that he had only learnt the Tjukurpa for the places on De Rose Hill not long ago. He was reminded of that during his cross-examination and he agreed that it was what he had said and that it was true. Mr Besanko then asked him:

Q “When you said that to Mr Elliott – that you didn’t know the Tjukurpa for the places on De Rose Hill – that was true?

A Yes I said that, but I don’t know what I was thinking, but I know the places on De Rose Hill.”

Tim agreed that he learnt more about the Tjukurpa after he had spoken with Mr Elliott. He was asked whether some of the men, who were witnesses in the case, had told him more about the Tjukurpa stories, but he responded that “They really haven’t teached me properly…”. His lack of comprehension was evident when the question was repeated:

Q “Did any of the men involved in this case tell you more about the Tjukurpa stories?

A Other people don’t know the Tjukurpa, dreaming stories”

 

697               Tim agreed that he had told Mr Elliott that he moved away from De Rose Hill because Doug Fuller would not allow his family to come and visit or to stop at De Rose Hill. He further agreed that he told Mr Elliott at the same time that he was too young to be told about the Tjukurpa on De Rose Hill by the old people; he was a boy and the old people cannot tell tjitji (children) the Dreamtime stories. I infer, because of his reference to his youth, that he was talking of the first occasion when he left Dr Rose Hill and not the occasion of Bobby’s death. This conversation between Tim and Mr Elliott had been identified as having occurred about the time when Tim’s youngest daughter, Priscilla, had started school.

698               Mr Whitington asked Tim in cross-examination:

“Did you also tell Mr Elliott that you had not seen business or heard Inma for De Rose Hill country?”

Tim’s answer was clear. He replied:

“Yes, when we were living at De Rose Hill Station there was only few people so I didn’t learn anything.”

699               In my opinion, Tim’s association with the claim area is tenuous. He was born on De Rose Hill Station and because of his birth he can rightly be regarded as Nguraritja. His mother Edie, and her father Tjaapan Tjaapan had lived and died on the Station. He had grown up and worked on the Station, but he had learnt only a little about the Tjukurpa. His marriage to his promised wife showed an adherence to traditional laws and customs but he went with her to her country. He did not take her back to De Rose Hill. Despite his short return to De Rose Hill in 1977 and 1978, it would seem that such connection as he may have had to the claim area through his birth and early years was thereafter abandoned in 1978 when he left the Station after Bobby’s death. He showed no interest thereafter in returning to the claim area until the start of the preparations for the native title claim.

Sandy Panma Williams

700               Panma, the son of Peter Tjutatja, said that he was born at Wapirka (Victory Downs) in the Northern Territory in a creek near the homestead. No evidence was led about his age but there was a reference in his witness statement to him spending time at De Rose Hill “with other kids”, such as Mitakiki and Mintuma. They have birth dates recorded in Ex A15 as 1944 and 1943 respectively, thereby suggesting that Panma would be about the same age – say about fifty-seven at the time of trial. He said that his given name was Tjantipila but, when working on stations, he was called Sandy. Later, because a person named Tjantipila had passed away, his father gave him the name Panma. He claimed to know his father’s place of birth, adding that it is “a very sacred place”; he said that it was on Yankunytjatjara country and that he, Panma, was a Yankunytjatjara person. On the other hand, he said that his mother was born at Kunamata, which is Pitjantjatjara country in the AP Lands well to the west of De Rose Hill.

701               Panma claimed to be Nguraritja for Wapirka (Victory Downs), Watju (Mount Cavenagh), Kalka (Kulgera), Tieyon and De Rose Hill. He said that his Tjukurpa is Malu (the Red Kangaroo). When asked by what right did he make that claim, he said it was because it was his father’s country and his father was Nguraritja for that country. He also said that he knew the Tjukurpa places on De Rose Hill and that he had been shown them by people who had worked there, including his father and Peter De Rose; they had told him the stories. Others who had told him the stories were Johnny Wimitja De Rose, Mitakiki and Owen Kunmanara. Panma claimed that De Rose Hill is his place “because I was there as a kid and went back many times, and my father had been travelling around there many times and later took me there”. He also said that he can visit De Rose Hill and that he does not have to seek permission from anyone; he can go there and hunt, camp and collect mai (plants and seeds). Other people have to seek permission, but, because he was born at a place associated with the Malu ceremony, he has “a right to that area”.

702               Panma, who presently lives at Ernabella, said that he had “lived there for a long time”. As a small child, he recalled staying at Wapirka (Victory Downs) where his father worked with the cattle. He recalled also his father droving cattle east to the railhead at Finke many times. The family, at various times, stayed at Sundown, Watju (Mount Cavenagh) and De Rose Hill. From Sundown, the family moved to Mount Cavenagh by which time he was much older. Panma called Snowy De Rose his “father” because he was “my uncle white fella way”. His biological parents took him, from time to time, to Snowy and left him with Snowy at De Rose Hill. As a small child he said that he and others “played around the house” and that Doug Fuller gave them apples and oranges and lollies. Panma never worked on De Rose Hill, nor did he ever go there as a Wati. He had heard the stories and the Tjukurpa, but the first occasion when he saw the special sites was during a field trip in preparation for this case. It is not possible to state precisely how long Panma has lived at Ernabella nor how long, prior to the field trips, since he had visited De Rose Hill. If however, he left De Rose Hill when he was a Nyiinka (which would mean in about 1959) aged, say, fifteen and did not return until about 1995 (when he would have been about fifty or so), it becomes a very long period of time:

703               Panma acknowledged Peter De Rose as Nguraritja for De Rose Hill, saying of him:

“He can go anywhere because he was born there. The place also belongs to him through his father, Snowy, and his father’s father and father’s mother. He also knows that country. He has seen a lot of places. His father showed him the places and sacred sites. His father taught him all that. He knows all the country and he is Nguraritja.”

704               It can be seen that Panma’s history reveals only minimal contact with the claim area. He lived there as a small child for an indeterminate number of years, probably leaving the area when he was a teenager and without having any meaningful knowledge of traditional laws and customs. I find that Panma does not now have, and never did have, a connection with the claim area through any traditional laws and customs. If I am wrong and, as a child, he enjoyed that connection through his father, Peter Tjutatja, I find that he has long ago abandoned that connection.

alan wilson (Mantjakura)

705               Mantjakura, who was born at Kunamata in Pitjantjatjara country, now lives at Amata (Musgrave Park), having grown up at Ernabella. He was about fifty-seven years of age at the time when he gave his evidence. He said that he is a Pitjantjatjara man and that he speaks Pitjantjatjara. As his father and Katjiwala were brother and sister, he and Peter De Rose are, in European terms, first cousins.

706               His parents were from the west of Pipalyatjara, and, according to his evidence, Pipalyatjara is a “Malu place”. He said that the Malu Tjukurpa came from his father’s land at Pipalyatjara and that he now has the responsibility for that Tjukurpa from Pipalyatjara right through to De Rose Hill and further north until it goes into Arrernte country. He said that because he was Nguraritja, he looks after the area around Pipalyatjara, caring for his father’s country. He said that “We are all relatives of the Malu Tjukurpa – all the men. It is the same law right through this country – Pitjantjatjara/Yankunytjatjara. Same for Ngaanyatjara/Ngaatjatjarra”. He added:

“The Malu made a boundary right through. Pitjantjatjara names for sites in Pitjantjatjara country, Yankunytjatjara names for sites in Yankunytjatjara country and Arrernte names in Arrernte country and so on.”

707               He was asked whether Arrernte country was to the north-west. His answer was not fully responsive. He said:

“No, I was talking about where Malu, Kanyala and Tjurki went, and they travelled through north, through another language group of people.”

When the matter was pursued, he agreed that one of those language groups was that of the Arrernte people. He explained that the Malu, Kanyala and Tjurki Tjukurpa reaches Arrernte country after having gone through De Rose Hill, Kalka (Kulgera) and Wapirka (Victory Downs).

708               The country of the Ngaanyatjara people is to the west of his father’s country, starting at a place called Wingelina. From there, it extends to Mantamaru and on to Warburton. Those three places are in Western Australia. Mr Besanko asked Mantjakura whether the Malu Tjukurpa goes through that country. His reply was:

“Yes, I know, but its different Malu – kangaroo – gone to west, towards Black Stone, then finds a tjitji, a boy, then he come back to Pilpiriny.”

Although that answer does not seem to be readily comprehensible, it suggested that the Malu, Kanyala and Tjurki Tjukurpa travels beyond his country where, presumably, other people would be responsible for it, for he went on to agree that, in the case of the Malu Kanyala and Tjurki Tjukurpa, there would be many men, speaking different languages, who would know about that Dreaming and they would live in a variety of areas. That supports the proposition that the Malu Tjukurpa is not a Dreaming that is exclusive to a defined group or clan of people. It was his evidence that, although the languages are different, it is the same Tjukurpa and the Tjilkatja cycle is also the same.

709               In speaking of the differences in the language of the Ngaanyatjara people and the Pitjantjatjara people, he said “I can hear it” – meaning that he could understand the Ngaanyatjara language even though it was a different language to Pitjantjatjara. In response to questions from Mr Whitington, Mantjakura claimed to know the boundary between Pitjantjatjara country and Ngaanyatjara country. At one stage he said:

“Yes, it come around south from here, through Wallatinna Station, and to Mount John and down to Indulkana.”

In an effort to improve upon that answer, Mr Whitington asked him once again. This time, however, the answer was less articulate:

“This way, come this way, and over there and gone that way.”

Whilst his answers have made it impossible to fix upon a boundary, they remain of some value because they indicated that, in his opinion at least, there is a boundary that separates the land of the one from the other.

710               Mantjakura said that the Tjukurpa makes all men, who know the Tjukurpa, responsible for taking care of the places along the track of the Tjukurpa:

“Yes, all the men can do that and look after it, and when they see it they get happy, then they are living happy way.”

711               Mantjakura said that he had the responsibility for the Malu Tjukurpa and, he added, “it is a lot of work”. It was difficult, however, to get him to identify the nature of that work. The subject of his work at secret or sacred sites on the track of the Malu Tjukurpa was examined by both Mr Besanko and Mr Whitington during the course of their respective cross-examinations. However, despite their efforts, little detail of the nature or the duration of the work was elicited. When he was pressed on the subject it became apparent that there might have been an accidental encroachment into a sensitive area and the matter was put to one side until evidence could be taken in closed session. The evidence of Mantjakura, nevertheless, remains valuable for it was a specific reference to an Aboriginal person’s active participation in the caring for secret and sacred sites.

712               Mantjakura had never been on De Rose Hill until he participated in a field trip that was conducted as part of the preparation for this case. He said that this was because “there was an unfriendly station owner”. He claimed that he knew about the Malu places to which he was taken when he was on the field trip but he had not seen them before his visit. Even if one accepts that he felt that he was denied access to De Rose Hill, his evidence failed to establish any wish or desire or justification for visiting De Rose Hill. He was born in the west, as were his parents, in Pitjantjatjara country. If he or any other witness regarded him as Nguraritja for the area of De Rose Hill, he failed to say so. His evidence was that he has the responsibility for the Malu Tjukurpa in Pipalyatjara; that was understandable considering his parents’ place of birth. However, in so far as he asserted that his responsibilities extend further, he failed to explain why they extended through De Rose Hill and further north into Arrernte country.

roley mintuma

713               Mintuma was born at Wapirka (Victory Downs) which is just inside the Northern Territory border. He is recorded in Ex A15 as having been born in 1943, which, if correct, would mean that he was about fifty-eight when he gave his evidence. His brother is Ray Mungkuri and his sister is the witness, Witjawarra Curtis. His mother was born near Wingelina which is in Western Australia. His father, who was born at Pukara, was Lirutja, the biological brother of Jimmy Piti Piti. Pukara is south-west of Pipalyatjara in the north-west corner of South Australia. Both his mother and his father were born on Pitjantjatjara country and, he added, that his mother’s mother was also born somewhere in the same area, thereby indicating an additional Pitjantjatjara connection.

714               Mintuma said that his mother and father brought him from Wapirka to De Rose Hill Station when he was a baby and before he could walk. He grew up on De Rose Hill Station where he lived with his parents in the Aboriginal camp that was to the north of the homestead. He recalled his mother and father working for Doug Fuller, looking after the sheep. In his witness statement, Mintuma mentioned several places such as Ilpalka, Wipa, Ngatiri and Nganka. Mr Besanko asked him, in cross-examination, if he went to those places to get dingo scalps. At first he agreed, but then he corrected himself and said:

“No, my mother used to take me when I was a boy to show the places.”

For example, his mother took him to Ilpalka when they had sheep at that location and she showed him the rock hole.

715               As a young boy, Mintuma worked for Doug Fuller, who called him Jackie Apple. Mintuma recalled Doug Fuller selling the last of his sheep to Ernabella at that time. That piece of evidence, based on Mintuma being born in 1943, suggested that the last of the sheep would have been disposed of in the late 1940s. At that stage, Doug already had some cattle and, as Mintuma grew older, he worked with them. He agreed with Mr Whitington that when the sheep were sold there was not as much work for the Aboriginal people to do on the station. He explained:

“Yes, there was no sheep work and so old people was sitting down in the camp, men and women, and we were working as young people. My brother, Ray, and Wimitja and Ray and at that time our head stockman was Kunmanara.”

 

716               Mintuma left De Rose Hill and went to Ernabella when he was a boy. At Ernabella, he and Michael Mitakiki became Nyiinkas. Mintuma later returned to work at De Rose Hill for a while before going to Ernabella where he was made a Wati. After that, however, he never returned to De Rose Hill. From Ernabella he went to a variety of places including Amata, Untgu, Arrernte and Darwin before returning to Ernabella where he “sat down at Ernabella then, in the camp”.

717               Despite his Pitjantjatjara background, Mintuma claimed that his Ngura is Yankunytjatjara. When cross-examined about some damage that had been caused to De Rose Hill sites, he said “I know the place and I think myself I am a Nguraritja”. Later, he was asked directly under cross-examination if he is Nguraritja for De Rose Hill. He replied “Yes I am Nguraritja. I grew up from a baby at that place”.

718               Mintuma said that his Ngura includes Wapirka (Victory Downs) because that was his place of birth; his Ngura also includes Kaltja, Wipa and Mount Cavenagh. He claimed those places because he “grew up on those places. My mother used to take me to those places and I seen it and I was growing up”.

719               In his witness statement, Mintuma talked of the responsibility of the Nguraritja; he said that if a stranger comes and damages a special Miilmiilpa place, it is the responsibility of the Nguraritja to send that person away. In his witness statement, he referred to Rex Fuller damaging places at Ilpalka and Apu Maru and agreed with the cross-examiner that it was the Nguraritja’s responsibility to stop him from damaging sites that are of importance to the Anangu. Mr Besanko reminded him of this passage in his witness statement and asked him:

Q. “Have you done anything to look out for those places which you say are your country?

A. Yes, I grew up there from a little baby and when I grow a big boy and become a man, I know the place and I think myself I am a Nguraritja and when we see the damage on our sacred places we get very sad about it.

Q. Have you done anything since you became a man to stop any strangers coming to any of the special places on your country?

A The Wati, man, when they see anybody spoil things like that, they get upset and they really get tjiturutjituru. Then to Wati Maruka to a black man, they can kill him.

Q. I am asking about you, Mr Mintuma, not about other people. Have you gone to any of the special places on what you say is your country to check and see if there has been any damage done to those places, since you have become a man?

A. All the men see that and we know, we understand the Tjukurpa and we get sad and upset. This is our Miilmiilpa and those people and come and spoil it.”

Making every allowance for the possibility that Mintuma might have had some difficulty in comprehending the questions that were asked of him, I regard his answers to these questions as deliberately unresponsive. The short answer is that he has not attempted to do anything by way of meeting such responsibilities (if any) as he may have, either on De Rose Hill or at any other place.

720               Mintuma was questioned about his knowledge of the sacred places on De Rose Hill:

Q. “Mr Mintuma, you say in your paper that when you were a wati you were told about places on De Rose Hill connected with the Tjukurpa.

A.                 No, no one told me.

Q.                Have you been told the Tjukurpa about the places on De Rose Hill Station?

A.                Yes, they only told me about the place number one, Puna, then Pika Tjurkutjara and Tiilkatjara.”

Mr Besanko attempted to ascertain whether Mintuma merely knew the names of the places or whether he knew the details of the Tjukurpa that was associated with those places. Mintuma’s evidence on that subject was as follows:

A. “No, when I was a boy I lived there. I didn’t learn about Tjukurpa. I didn’t know. Then I went away and I’ve become a man, then I didn’t learn and I don’t know the Tjukurpa for that place.

Q.                Can you tell us how it is that your paper says that you were told about places on De Rose Hill connected with the Tjukurpa when you were a man, and that you know the stories for those places?

A.                 My mother and father showed me a place called Ngatiri. I only know that place and Wipa, then another place, Ulupitja, and nobody told me about Miilmiilpa, sacred Tjukurpa, and only just recently I was hearing the people talking about that. Before that, I didn’t know, I didn’t know.

Q.                 Are you saying to us Mr Mintuma that whatever your paper might say, you only recently heard some things about the Tjukurpa, for places on De Rose Hill Station?

A.                When I was a boy I worked there and seen those places and I didn’t think they were important places. I didn’t think they had Tjukurpa. I was working there. Only today when I became a man, I hearing it then and knowing it and think, ‘Oh, this is a Miilmiilpa place’, sacred places.

Q. Yes, but have you been hearing that for the first time since this native title case started?

A. Yes. I only heard about it recently. I had an idea it was place Miilmiilpa. I only had idea but I didn’t know. Then when they were showing to me today, I listened to them and I was seeing those places.

Q. Yes. Was that when you went out on trips with the other men in the preparation of the case?

A. Yes, I knew there was a sacred place but I only seen first time when we were doing this work.”

Later he elaborated further:

“Only that time when we were doing the native title field work with all our white staff, and we travelled and we looking at those places. That’s the first time I heard about it.”

From this, it would appear that until the native title field trips, Mintuma had little or no knowledge of the Tjukurpa on the claim area. He identified Whiskey Tjukanku, Riley Tjayrany, Johnny Wimitja De Rose, Wapala (Peter De Rose) and Tim De Rose as the men who had explained the Tjukurpa to him during the field trips.

721               At De Rose Hill Station, he grew up with his brother Ray Mungkuri, Mitakiki, Johnny Wimitja De Rose, Peter De Rose (who was then a little boy) and Tim De Rose. If the ages that are referred to in Ex A15 are reasonably accurate, his inclusion of Wimitja as one of the boys might be incorrect for Ex A15 suggests that Wimitja is ten years his senior. The adults whom he remembered at De Rose Hill included Snowy De Rose, and Snowy’s wife Katjiwala.

722               Mintuma said that he has not gone back to De Rose Hill for a number of reasons. Doug Fuller’s willingness to shoot and kill the dogs that belonged to the Aboriginal people, the fights and arguments that Doug had with the Anangu and Doug’s refusal to allow relatives to visit were some of those reasons. He also complained about the Jimmy Bannington incident when Doug ordered the Tjilkatja party off the property. The Anangu had been waiting for the Tjilkatja party to arrive but Doug arrived with a gun and told the members of the party that they had to leave. He said “I heard he was shooting the dogs. I didn’t see it, but I ran away.” Mintuma thought that he was about ten years of age when this happened. If his estimate of his age is correct, it would mean that the Jimmy Bannington incident occurred in about 1953.

723               The circumstances under which Mintuma left De Rose Hill Station are both interesting and significant. In response to a proposition, during his cross-examination, that, when he left De Rose Hill with his parents and went to Ernabella he never returned to De Rose Hill, Mintuma said:

“Yes, I was working as Nyiinka and when [he] was shooting the dogs, so we got scared and my family left and they took me to Ernabella, then I become a man and I didn’t go back to De Rose Hill. I forgot about that place.”

 

I find it difficult to accept that an Aboriginal person, who regarded a particular piece of country as his Ngura, would ever forget it.

724               According to Mintuma, his father and Doug Fuller often argued. For example, he said:

“They’ll fight over the dogs and my father wanted to pull out and Doug give him a ration so they can stay on and keep on working for him.”

That statement did not suggest that Mintuma’s father had a meaningful connection with the land at De Rose Hill Station. As for Mintuma, the most that can be said for him is that he lived and worked at De Rose Hill for some years, but that he left the Station as a Nyiinka and, but for a short period before he left to be made a Wati, did not return until preparations were on foot for this case. If he were in his late teens or early twenties when he left (which would mean that he might have left somewhere between 1962 through to 1964) and if his first field trip was (say) in 1995, that would represent a gap of over thirty years. In that interval, he exhibited no interest in the claim area. To use his own words: “I forgot about that place”. Mintuma said that his Ngura includes Wapirka (Victory Downs), Watju (Mount Cavenagh), Kalka (Kulgera), Wipa and De Rose Hill. It was put to him by Mr Besanko in cross-examination that he had only been at some of these places for a short time. Mintuma’s reply was:

“Yes, because they will run out jobs and then we go back. I will only work if they give me the job.”

That response did not suggest that Mintuma’s connection to these other areas was other than work related.

725               In my opinion, Mintuma’s antecedents so closely resemble those of Sandy Panma Williams that it is appropriate for me to make the same findings. Mintuma’s contact with the claim area was also minimal but, perhaps, a little longer than Panma’s. He, like Panma, left the claim area without having any meaningful knowledge of traditional laws and customs. I find that Mintuma does not have, and never did have, a connection with the claim area through any traditional laws and customs. If I am wrong and, as a child and young man, he enjoyed that connection through, for example, his work-related association with De Rose Hill Station, I find that he has, long ago, abandoned that connection.

mabel pearson

726               Mabel Pearson was born near Ernabella but she does not know when. However, her birth date, as recorded in Ex A15, is shown as 1935. Her parents were both born at Cave Hill, a location which she agreed in cross-examination was north-east of Amata (Musgrave Park). Her mother is buried at Kalka (Kulgera); her father is buried at Watju (Mount Cavenagh). She agreed that both her parents were Pitjantjatjara as was her father’s mother. Her mother’s mother was born near Officer Creek in an area which is to the west of the claim area. However, it was said that she is buried near De Rose Hill homestead. Her mother’s father was born near Kenmore Park. She initially said that her country is Kenmore Park, De Rose Hill, Wapirka (Victory Downs), Watju (Mount Cavenagh) and Kalka (Kulgera) through to Finke in the east. She claims to be Nguraritja for all those places because of her mother and father and because of her grandfather, her grandmother and her other family connections.

727               The places, in respect of which she claims to be Nguraritja, were described by her as places “where family members were born, where they were smoked as children, where I travelled around, and where I was taught by my grandmother about that country as well as where family members are buried”. She said that her family therefore has connections with that country “through all these things”. However, in a lengthy piece of cross-examination it became clear that, although Mabel regarded herself as Nguraritja for the Ernabella area, she agreed that she was not Nguraritja for De Rose Hill Station. She also claimed that she is Ngura Waltja (spelt elsewhere as Ngura Walytja, and meaning, as I understood her evidence, the owner of a place, or a person who belongs to and cares for a place, but someone of lesser status than Nguraritja) for the Ernabella and Amata areas. Carlene Thompson and Cissie Riley told a different story however. They said that the two terms meant the same thing. Mabel said that she could have become Nguraritja forthose areas if she had “grown up in, and learnt about, that country”. Her evidence suggested that, whilst she considered that the place of a person’s birth was important, it was not determinative of a person’s country.

728               At first, Mabel worked at Mount Cavenagh. She then went to De Rose Hill with her mother’s mother when she was “a big girl”. They moved to a soakage near Watarkatjara (site 39 on the Alberga Creek). At that stage there was no homestead or white people on the present site of De Rose Hill homestead. There were “whitefellas” at Kantja (site 29) but she only knew this from what the old people had told her. She was then a kungkawara (a teenage girl or young woman). She remembered sometime later secretly watching with others as Doug Fuller and Roy Coulthard sunk the first bore at the homestead site.

729               Mabel moved around with her grandmother to places like Ilpalka (site 40), Wipa (site 5), Ngatari (site 4) and Warura (site 2). While they were doing this, her grandmother taught her how to collect bush tucker. She learnt how and where to collect seeds and how to prepare them.

730               There was a big camp at Ilpalka because of the water and the Anangu would camp there on their way to Wipa. At one stage, Mabel was shepherding nanny goats at Kantja (site 29). That was the time when one of the white men had his sheep at that location. The next place to which she referred was Ulupitja (site 59) on the Ulupitja Creek. It is in the central west area of De Rose Hill Station.

731               Later, Mabel worked at Kenmore where she cleaned and washed. She fell pregnant to the station owner and her child, a son, was named George Kenmore. He was born halfway between Kenmore and Mount Cavenagh and she smoked him when she left Kenmore and went back to Mount Cavenagh. She stayed at Mount Cavenagh for about a year and then went to Kulgera to work, washing and cleaning. She said that “the welfare” took her and George to St Mary’s, the Anglican Mission in Alice Springs; she thought that he was going to school but he never returned. Happily, however, when he was a young man, George found her. He now lives in Adelaide but visits her every year. She considers that George is Ngura Waltja for Kenmore Park because he was conceived in that country and was born and smoked in that country. She also said that he can claim that country through his grandparents as they were Nguraritja. However, as George was taken away to St Mary’s when he was a small child and before he was taught about his country, that, so she explained, is why he is not Nguraritja. Her other son, David, is, according to Mabel, Nguraritja for the same area. He has the same connections as George but, additionally, he has knowledge about the country through the Tjukurpa that George lacks. Whether her interpretation of Ngura Waltja and Nguraritja is or is not correct is not the issue of primary concern. The matter of greater importance is the fact that there is apparent disharmony and contrary views among claimant witnesses about a most relevant aspect of the application for a determination of native title. The claimants had advanced Mabel as one who was Nguraritja for the claim area but she has repudiated that claim.

732               Mabel said that she kept going back to De Rose Hill to visit her grandmother who was then living in the camp near the homestead and, for a while, she (Mabel) worked at De Rose Hill shepherding sheep near the homestead before returning to Kulgera. She thought that she might then have been in her twenties; she recalled that Snowy and Katjiwala were there and Peter De Rose was a baby.

733               Subsequent to her meeting and marrying her second husband, Pompey, whom she had met at Kulgera when she was working for Roy Coulthard, she worked at Victory Downs and Tieyon. This was after George had been taken away to Alice Springs. Pompey had been a police tracker at Finke but he had moved to Kulgera after a police station was built there. Her second son, David, was born at Kulgera. When Pompey retired from the police force they moved to De Rose Hill where he worked with the cattle for a short time. However, she acknowledged that Pompey was not a good worker because he used to drink. Ultimately, Doug Fuller sent them away. They then moved to Indulkana which had not long opened as an Aboriginal Community centre. This means that she left De Rose Hill Station in about 1968 or perhaps in 1969.

734               It is not possible to establish, with confidence, the extent of Mabel’s connection with the claim area. Her evidence about her grandmother teaching her how to collect bush tucker exhibits a connection through traditional customs but the connection lacked duration. She initially claimed that she was Nguraritja for De Rose Hill but under cross-examination, she accepted that she was not Nguraritja for the Station; her evidence on the subject was rather confusing. What is clear is that De Rose Hill was but one of several pastoral stations at which she worked in her younger years. The most that can be said is that her first contact with De Rose Hill was as “a big girl” – perhaps in her late teens – and her last contact was when she and Pompey moved to Indulkana. As there is evidence that Indulkana was opened in 1968, she would have then been aged about thirty-three. In that intervening period of time, she had worked at a variety of places. Finally, there is no evidence of her attempting to maintain any connection with De Rose Hill since she and Pompey moved to Indulkana over thirty years ago.

735               Mabel Pearson was put forward by the applicants as Nguraritja on the basis of her physical association with the country; others have claimed on the same ground. I accept that physical association can be one of the grounds for being Nguraritja. Witnesses have also said they are Nguraritja for a particular country because “senior people agree” (ie other Nguraritja acknowledge them as such). Although this was not explicitly stated in evidence (ie no witness said that Mabel was Nguraritja) it is a fair implication from her evidence that other people did consider her Nguraritja for De Rose Hill. Ultimately, however, whether she is Nguraritja or not according to the laws observed by the group to which she belongs does not necessarily mean that she has native title rights pursuant to s 223 of the NTA. I am doubtful that Mabel ever had a sufficient connection with the claim area to satisfy the requirements of that section. But if I am wrong, I find that her long absence from the claim area means that she has, long ago, abandoned her connection.

owen kunmanara

736               Owen Kunmanara does not know how old he is. In his witness statement he described himself as “very old”, adding that he has had “a good life”. The information in Ex A15 suggested that he was born in 1910; if that is correct he was ninety-one years of age when he gave his evidence. The evidence of other witnesses and the information about their ages pointed to him being much older than any other witness, with the exception of Peter Tjutatja.

737               He said that some “whitefella” had helped him with the pension, adding however:

“He seen me, where I worked that welfare man. So welfare knock me off because I was doing too much work, knock off old man.”

738               He is a remarkable man; sprightly, interesting, sometimes irascible, and with a mischievous sense of humour that got the better of the legal profession on more than one occasion. He described himself as a Yangkunyjatjara man, saying that he was born at Wirmalya (which is near Kulgera and which he described as a Seven Sisters site). He believed that his father was born near Punuwatatja, otherwise known as Fregon, which is to the west and that his mother was born at Uluru (Ayres Rock). Owen said that his father’s Tjukurpa was the Honey Ant Dreaming and he claimed that Fregon is his place because it was his father’s place. Owen said that under the old Aboriginal Law, a son would take his place from his father.

739               Asked whether he knew a place called Ngari, Owen responded by saying that it was his place and that there was a homeland “on the other side”. He would not, however, agree to the proposition that his father had been born at Ngari, repeating that his birth was at Fregon and that the place “is a Tjukurpa, Honey”. Owen claimed that he is Nguraritja for Ngari because it was his father’s Dreaming place. He also claimed that he owned the “Honey Ant’s dreaming” through his father. He agreed that, on another occasion, he had told Ms Susan Woenne-Green and Mr Craig Elliott that his own country was “Ayres Rock” way. In agreeing to that, he said that it was his mother’s place. He explained that his mother’s place is also his country, as is his father’s country. He agreed that he also has a homestead near Amata, which is near Ngari. Owen was asked what was his permanent residence. His reply was:

“I move around anywhere – Finke, Ayres Rock, Indulkana – because I am a single man.”

740               Owen said that he grew up at Wapirka (Victory Downs) but from there, when still a boy, he went to Aparawatatja. Later he went to Uluru (Ayres Rock) which, so he said, was Mamu Tjukurpa country; Mamu means “devil”. He said that as a “big boy” he was at various places, including Mulga Park, Cave Hill and Amata (Musgrave Park). After some time, he moved on to other places including Papalangkuntja (Blackstone) in Western Australia, Ernabella, Uluru and Mount Cavenagh.

741               In this period of his life, Owen said that his father hunted malu (the red kangaroo) with spears whilst the children looked for small lizards; there were “no diseases, no clothing, no blankets – just fires to keep us warm”. While the men hunted, the women collected wangunu to make flour. Owen said that he, his family and other families had travelled east, visiting stations such as Horseshoe Bend, Old Crown and Mungkulpi. During those travels, he and his family moved from place to place with Peter Tjutatja’s family; he grew up with Peter, describing himself and Tjutatja as “level”.

742               Mr Whitington asked Owen about Tjutatja. The exchange between counsel and witness showed that Christianity has had an influence on the Anangu people; it also showed Owen’s impish sense of humour:

Q “All right. You say that you and Peter Tjutatja are level.

A Yes, he’s a good man.

Q Yes, he’s a very good man, but you say in your paper that you are level.

A Yes, through Jesus we are level.

Q Through Jesus you are level – did he say?

A Yes, him, Jesus is our boss today, our blood – all over the place is our blood.

Q But when you say in your paper that you are level, do you mean you are the same age?

A Yes, and he’s a little bit cranky now. He lose his memory a bit.”

743               Owen said that his first contact with white people was with surveyors who were doing “trig” work for the Government at Puta Puta which was just to the east of Pipalyatjara. They gave him a pair of trousers and a shirt to wear. It would appear that he was then a young teenager because he said that this occurred before he “grew a beard”. Asked what he was doing in that area he responded by saying:

“That was our place, like Anangus we stopped there. We can’t fly in the sky.”

Asked whether that area was part of his father’s country he said:

“Yes, Wati’s place. Nothing to do with the whitefellas.”

Pipalyatjara was also the country of Owen’s paternal grandfather. On two occasions he referred to his grandfather as “poor thing” but his reason for saying that was not explored. It seems reasonably clear, however, that it indicates that the person is dead. Owen then went on to say that it was his father’s country, as was another place which he named Untiri. There was something about that subject that unsettled Owen for, when Mr Whitington asked whether Untiri was near any other place that Owen could name, he said:

“No, I am not going to. That’s all I can say. I can’t say it a hundred times.”

744               Mulga Park is a cattle station out to the west on the road to Uluru. For some reason which was not disclosed, Owen said that he could not talk about it, but he did say that he had stayed at Mulga Park when he was a boy. He said it was “our country for Aboriginal people and they hunted in the area for bush tucker”. Owen first worked at Tieyon Station when he was a tjitji tjapu (a small boy without a beard). He started with the horses but, when his beard started to grow, he worked with the stock. He moved from place to place, naming numerous other stations where he worked, before returning to Mount Irwin on Tieyon Station where, so he said, he worked for fifteen years. He said that it was at Mount Irwin Outstation where he learnt about cattle. At Mount Irwin he received wages and he used the money to buy food, tobacco, cigarette papers and also a tent. After Mount Irwin, Owen then worked at Kenmore Park. He also received wages and used the money to buy rations. Asked whether the owner of the Station gave him food, he responded, saying that “we used to get rations ourself with money”. He lived in a house at Kenmore Park, as did all the working men, but at Mount Irwin he had lived in a humpy. After spending an unspecified amount of time at Kenmore Park, he moved to Granite Downs, having “got sick of work”.

745               Owen said that he spent five Christmases at Granite Downs, during which time he was made a man, before he went for a “good walk” to Finke. He said that he was made a man at Amaroona, adding that he went down to Iwantja (site 25) “where we finished that business”. When he was made a man, he was working with the bullocks, mustering and branding. He claimed that he spent a long time at Finke “maybe nine Christmas – lot of time working houses”. (He was engaged in some form of construction work for the community, working with cement and digging septic pits). For this he said that he was paid “big money, community money”. Asked what he did with his money, he said that he used to “keep my money in the bank, never chuck it away”. He used the money to buy food, clothing, shoes and boots.

746               From Finke, Owen moved to Macumba Station because he had heard that there was work at that Station. At Macumba he lived in a house with the other stockmen. He was then, and has remained, a bachelor. He received wages and used the money to buy food, clothes, another tent and a suitcase for his clothes. He thought he might have spent as many as five or six Christmases at Macumba. After Macumba, he went to Todmorden Station because “I was sick at Macumba, too much work”. He thought he might have spent up to five Christmases at Todmorden; once again, he was earning money and putting it in the Commonwealth Bank. From Todmorden he moved to Erldunda, a long way to the north in the Northern Territory. He was there a long time – he estimated nine Christmases – and he said that many of his family was there. He was still depositing his money in the Commonwealth Bank. From Erldunda he went to Ayres Rock but he did not work there. He said that he was:

“Sitting down. Yes, just sitting down, getting bush tucker, bush meat.”

 

The estimates of time that Owen gave in respect of his work at various stations cannot possibly be right; without knowing his estimate for the time that he spent on Kenmore Park, the other periods of time total forty-nine years and he is yet to commence a lengthy period of employment at De Rose Hill Station.

747               From Ayres Rock he went back to Finke, but again he was sitting down – “nothing to do”. From Finke he went by train to Port Augusta to visit people who were either friends or family. Some of those people were Arabunna people who had a different language. They were, however, related to him because they had married Yankunytjatjara people. He did not work at Port Augusta; he said:

“No, sit around, nothing to do, not worrying, go anywhere.”

748               From Port Augusta he went to Maree and Leigh Creek before returning to Finke again where he did some work cleaning up rubbish. From Finke he moved on to Horseshoe Bend, a pastoral station, where he worked breaking in colts. After some incidental stops he ended up at De Rose Hill Station where Bull George was then the head stockman. He started working at De Rose Hill breaking in horses. Not long afterwards, however, Bull George retired and Owen was given the position as head stockman. At that stage, he spoke well of Doug Fuller, saying that he “would give many people rations”. He also added that he, Owen, “was a good boss”. He claimed that he “looked after things there”.

749               Owen agreed that, after he left work at De Rose Hill, he worked on another station called Patapa which is near Leigh Creek and which was run by Rex Fuller’s sister, Pauline and Richard, her husband. Owen said that he could go there any time: “I can sit down, my place”. From Patapa, he moved to Atutja which was near Mimili. He was asked whether he continued to work and he answered that he was “Sitting down with the shepherd kuku, meat, getting meat with spears”. From there he moved to Oodnadatta and by that time he was receiving a pension from the Government. He described himself as being, at that stage, an “old man”. If it be accepted that he was then sixty-five years of age and if it be further accepted that he was born in 1910, it would seem that he moved to Oodnadatta in about 1975. He now lives at Indulkana but he still maintains a bank account with the Commonwealth Bank at Marla. He was asked why he stopped being head stockman at De Rose Hill. His answer was to this effect:

“New man was put on and I felt lonely, there a long time.”

He later added to that answer saying that he was “sick of work, I went and lived Anangu way, Aboriginal way”.

750               In the course of giving an answer, Owen volunteered that he worked at thirteen stations before De Rose Hill. He said that he was at De Rose Hill for a long time:

“All these kids grew up, Peter, Tim.”

There can be no doubt that that statement was a reference to Peter De Rose and Tim De Rose. When Owen first went there, he said that Doug Fuller was there with his wife and with his son Rex; he did not mention the daughters, Pauline and Kay. He could not say how long he was at De Rose Hill Station other than to say it was a long time. “I seen kids growing up with my food, I grew up a lot kids”.

751               There were several camps around the De Rose Hill homestead. Initially, Owen lived in a camp and got rations, which included some bullock meat. However, he would go hunting for kangaroo meat as the bullock meat was mostly leg bones. After a while he left the camp and lived by himself. By doing that he had “no argument with anybody and that’s a real good way”. He said that there were lots of arguments and fights in the camp and he wanted to stay away from them.

752               In his witness statement, Owen said that he travelled on “business” frequently. He named the business as the Malu, Kanyala, Tjurki; Owen described it as a “heavy Law” saying of it that it was the Law under which “we make boys into men”. Iranytjirany in the west was, so he said, a “big important place” for the Malu, Kanyala and Tjurki Tjukurpa. He described that Dreaming as coming from the west, going into the ground at Iwantja (site 25) and surfacing again at Ilintjitjara (site 21). From there, the Tjukurpa travels along the eastern boundary of the Agnes Creek lease (through various places including Yura, Apu Maru, Malu Kapi to name a few) before going on to Umbeara in the north. Owen said “beyond there it is Arrernte people’s responsibility”. Owen identified the Malu Kanyala and Tjurki Dreaming as the creation story that was for “everybody”. He also said that the emu or Kalaya Dreaming was for “every man, for every Wati”.

753               Owen said that the old men, who are now dead, taught the younger people so that they would know how to live and keep the Law. He gave the names of some of those old people: Kunungkuru, Andy Pampula (Bumble Foot), Tjunkiliri, Kutanya and Wantitja. He made particular reference of Kunungkuru, describing him as “an old fella” from whom he learnt when they went hunting for meat with spears.

754               Owen proudly proclaimed that he had worked such a long time at De Rose Hill that he had earned himself a house on the Station at Yuta (or Utah, site 32). Yuta is a site on De Rose Hill Station on the Agnes Creek lease near where it borders the Paxton Bluff South lease. Owen was proud of his house at Yuta; he agreed that he used to keep his gear in it, together with his rations and his meat because he used to do his own killing. On the other hand, he would not use the house at night. Instead, he slept outside, keeping his possessions in the house. He agreed that Doug Fuller and another “whitefella” helped him build the house (which might also be called a shed); they put down a cement base and they put up the walls and the roof. It was put to him that it was something that Doug Fuller “did for you without payment”. Owen’s answer was to the point:

“I earned that from working.”

755               Owen said that he is Nguraritja for Yuta where he had lived with Riley Tjayrany. Owen said that his place is around Ernabella and Fregon, but then he added “… here I worked and earned, Yuta”. When he gave his evidence, Owen did not state where he was then residing. However, as one of the applicants in these proceedings, he swore an affidavit on 29 November 1994 giving “Indulkana Community” as his “usual address”. I infer therefore that he is not now living at Yuta and that he has not lived there for quite some time. I cannot however be more specific. In re-examination, Owen was asked why did he stop living in the house at Yuta. He replied, saying that he went away “going to men’s business”.

756               Owen claimed that he is Nguraritja for the places on the Dreaming tracks. However, he said that he is too old now and he cannot do much. It is his family’s responsibility to take care of those places. Owen said that he was Nguraritja for the places on the Honey Ant’s Dreaming track through his father, that he was Nguraritja for the Seven Sisters Dreaming track because he was “born on the track and that he was Nguraritja for the Malu, Kanyala and Tjurki Dreaming track”. No evidence was led that would enable me to identify the tracks of the Honey Ant and the Seven Sisters Dreamings, however. The scope of Owen’s beliefs was best explained in the following question and answer:

Q “So you consider yourself Nguraritja for all lands you considered to be properly Aboriginal lands. Is that right?

A Yes, it is our land. The Dreamtime gave it to us, this land.”

757               At age ninety-one, Owen exhibited little affection for Rex Fuller. He said of him:

“He learnt running that place from Anangu. He had no idea. I had the ideas.”

It may be accepted that Rex does not share Owen Kunmanara’s views, and the independent evidence supported a finding, which I make, that Rex is a competent and responsible pastoralist; it would appear that he is an excellent manager. I doubt that he got his sophisticated watering and paddock system from Owen. I think that Owen’s statement implies a fair degree of personal hostility towards Rex.

758               Alec Baker considered that Owen was Nguraritja for the whole of De Rose Hill Station. Peter De Rose, during the course of restricted evidence, referred to Owen as being Nguraritja for another nominated locality. Curiously however, Owen did not, either in his written statement, or in his oral evidence assert that he was Nguraritja for the claim area. Owen, arguably, has limited his claim to being Nguraritja for the site at Yuta and for the places on his Dreaming tracks. Although he called De Rose Hill “our country”, he did not claim to be Nguraritja for the Station or for some larger area of which De Rose Hill Station is a part. Yet he had worked on the Station as its head stockman for many years and, for a time at least, had enjoyed the additional benefit of some undefined right of residence at Yuta. Then again, the following extract from his witness statement might suggest that he was claiming Nguraritja status for the claim area. He said:

“Malu, Kanyala, Tjurki – heavy law that one. It is under that law that we make boys into men. And it’s our land. The sky and the land are ours. If Rex got out of the way we could go in there.”

759               Owen remembered going to the Ilpalka Rock Hole with Mr Craig Elliott as part of the preparations for the native title case. He agreed that he told Mr Elliott that “the right people for that place all passed away”. He said during his cross-examination:

“Yes, poor things, they weak in the heart and they finish up.”

760               I cannot find, with certainty, when Owen left De Rose Hill Station; nor can I say whether, and to what extent, he has ever returned to the claim area. Despite his own evidence to the contrary, his physical association with De Rose Hill and the evidence of the Aboriginal witnesses who regard him as Nguraritja, might be sufficient to justify a finding that there was a time when he was the Nguraritja for the claim area. However, that was quite some time ago and there was no evidence that pointed to Owen having maintained the necessary connection through the traditional laws and customs. As a matter of probability, I feel that I am able to find, at the least, that there was no evidence that he has returned to De Rose Hill since he became entitled to the old-age pension. That is an absence of up to twenty-six years if he was ninety-one when he gave his evidence. The disconcerting feature about Owen and his relationship to De Rose Hill – indeed his relationship to pastoral stations in general – was that it was highly orientated to European work practices and wages. More than once, he proudly told of his habit of depositing his money in the bank. He chose to live separately from the community so as to avoid fights and arguments. He has shown no interest in De Rose Hill for an undefined but substantial period of time. I find that he has abandoned such connection as he may have had to the claim area.

michael mitakiki

761               Mitakiki believed that he was born in 1944 at Wapirka (Victory Downs) and that shortly after his birth he was taken to Ernabella. It was put to him that he had told Mr Craig Elliott that he was born at Ernabella. He disagreed, saying that he had told Mr Elliott that he had been born at Wapirka. He believed that both his mother and his father are Pitjantjatjara people. His mother, Tjampawa, was born at Kunamata and his father, Barney Tjalkaliri, was born at Mount Davies near Pipalyatjara. His mother’s parents were Lirutja and Nantjuni. Nantjuni, his maternal grandmother, was born Wingelina in Western Australia. Mitakiki agreed that his mother’s parents both spoke Pitjantjatjara as well but he knew nothing about his paternal grandparents, other than that his grandmother was born at Pukara. He agreed that his father had been born on Pitjantjatjara land but there was confusion about his mother’s country. It was put to him that Kunamata was in Pitjantjatjara country but he disagreed, saying that it was Yankunytjatjara land from Aparatjara. His father died at Amata but his mother is still alive and is living at Katjikuta, which is near Amata and which, according to Mitakiki, is on Yangkunyjatjara land. He agreed that both his parents spoke Pitjantjatjara and that he now also speaks Pitjantjatjara. He agreed that he has spoken Pitjantjatjara since he was a boy growing up on De Rose Hill, but he added:

“… before I used to speak Yankunytjatjara but I been listening to Pitjantjatjara people and now I speak Pitjantjatjara.”

With one and possibly two Pitjantjatjara parents, it seems hard to understand that he would have initially spoken Yangkunyjatjara. I am satisfied that Mitakiki should properly be described as a Pitjantjatjara man and I so find.

762               Mitakiki remembered growing up at De Rose Hill near the homestead with his parents and his mother’s parents. Other children at De Rose Hill who he could recall included Roley Mintuma (Tjampawa’s younger brother and, in European terms, Mitakiki’s uncle), Peter De Rose, Tim De Rose and Carlene Thompson. He remembered Snowy De Rose and his wife Katjiwala, together with Edie De Rose and Norman Yanima as adults in the camp at the homestead at the time when he was growing up. The adults were shepherding the sheep at different parts of the Station. They mustered them on horseback at shearing time and yarded them to protect them from the dingoes. He said that Doug Fuller would pay the workers their money by putting it in glass bottles with their names on each bottle. With that money they could buy rations such as flour, milk, sugar, bullock meat and salt meat. He said the Aboriginal people lived in wiltjas near the homestead.

763               Mitakiki’s mother and father both worked at De Rose Hill Station and he described himself as growing up to be a “big boy there”. He was asked where did he go after he left De Rose Hill. His answer was:

“Yes, took me away to become a Nyiinka.”

The identity of the person or persons who took him away was not clear, but he said that he was taken to Ernabella and that he stayed at Ernabella whilst he was a Nyiinka. After Ernabella, he returned to De Rose Hill where he stayed for “quite a few years” working before returning to Ernabella where he was made a man. He did not return to De Rose Hill to live after he had been made a man.

764               Mitakiki said that, when he was at De Rose Hill Station, everyone would go at Christmas time to Ilpalka (site 40), the site of a large rockhole not far to the east of the homestead. He said that they would collect bush food such as kuka (game) and ami (plants and seeds). On other occasions, his family would go on holidays to places such as Kalka and to places on the eastern boundary of De Rose Hill Station such as Malu Kapi (site 12), Alalyitja (site 11) and Kulpitjara (site 10). Further north, Wipa (site 5), was also a place that the family would visit on holidays.

765               Mitakiki married Mona in 1969 when he was living at Amata. His wife’s country is Warakuna which is in the Northern Territory on the far side of Docker River. They have a son Daniel, who was born in 1970 and a son Darryl, who was born in 1972. They have two other boys, Lee and Stephen, whose ages were not given, but all four boys were born at Amata. Mitakiki has lived at Amata for a considerable period of time. In that time, he has worked for the community, describing his work as “doing the rubbish run”. He has a homeland at Amata and when asked how long he has had it, he replied “tjaka” which means that when you get married you acquire your own home. He regards his homeland as an important place, “Miilmiilpa”. By reference to a grassed area near where the Court was sitting, it suggested that he regarded the area as his homeland as somewhat bigger than a football oval.

766               Mitakiki said that, when he was a boy, his uncle Snowy used to tell him about the Malu track and the sites on De Rose Hill. He said that he had heard of the places when he was a boy. Mr Besanko asked him:

“Do you know the names of all of the Malu, Kanyala, Papa Itari and Pakalira sites?

Mitakiki replied:

“Yes, they used to tell me about it, they teach me, my kamuru – uncle – Panma’s father and Snowy and Ilypilyitja and Wally.”

In addition to those men, there were other old men, who have since passed away, and they also told him of the places. One of those was Paltatjiratja, the grandfather of Wapala (Peter De Rose). Mitakiki’s evidence on this subject was difficult to understand. It was hard to know whether he merely knew the names of the places and that they were Miilmiilpa, or whether at some unspecified stage (but perhaps as recently as the native title field trips) the old men had told him the stories of the Tjukurpa. It is, however, clear that he was claiming to know the names of the places and it was also clear that he was claiming to know the “water points”.He was asked when had he first heard about this native title claim, but he could not answer except to say that he had “Only sought of heard about it”.

767               Mitakiki agreed that, as a boy, he was not told the stories for the different places:

“No, that one, they don’t tell the story – full stories to boys. They will only say the kangaroo went along here and they create this water place and like that. They don’t tell you deep. They only tell you about the places, that’s all.”

When he was questioned about the Kalaya Tjukurpa track, the position cleared somewhat. As a boy, he had been told that there was a Kalaya Tjukurpa and that certain places were important places. He then added, in response to a further question:

“Yes. When I became a man and not long ago I been hearing more deeper stories and meanings.”

The summary of Mitakiki’s evidence about the Tjukurpa would seem to be that, as a child, he had been told about the Malu Tjukurpa, the Kalaya Tjukurpa and the Papa Itari Tjukurpa but the Pakalira Tjukurpa was so secret and so sacred that the name had not even been mentioned when he was a boy. Mr Besanko moved to question Mitakiki about the Inma for the various Tjukurpa. It quickly became obvious that this was a very sensitive subject and that Mitakiki did not wish to answer questions about the Inma in the presence of women save for the Inma for the Kalaya Tjukurpa. In deference to his feelings, the subject of the songs was dropped.

768               Mitakiki has lived and worked at Amata ever since his marriage. The only time when he has been back to De Rose Hill has been for the purpose of preparing the current claim that is before the Court. During that time, he was taken to sites on De Rose Hill and told about them by the Tjilpi Tjuta (the old men) such as Riley Tjayrany, Owen Kunmanara and a third man who has recently died and who, therefore, cannot be named. Mitakiki knows the names of the sites of significance that are on, or close to, the claim area. He also said that he had earlier heard stories about the sites and that, before going on the field trip, he had been taken to places outside De Rose Hill on “business”. That, so he said, involved visiting places nearby that were associated with the different Tjukurpa that went through De Rose Hill.

769               It transpired however, that those visits occurred prior to him going to live at Amata. It was put to him in cross-examination:

“You haven’t been back to any of the other places since you moved to Amata? Is that right?

The question was overly assertive, but Mitakiki’s answers satisfied me that he understood the nature of the question. He answered it openly and without being pressured. He replied:

“A Yes, I used to think about that Malu Dreaming places that went through there and come around.

Q I need to know, Mr Mitakiki, whether you’ve been back to any of those places since you moved to live in Amata?

A No, I lived at Amata, the other people’s country, but I got married and I was living there.”

770               It was put to Mitakiki that, as Nguraritja,it was his responsibility to look after the special places. His answers were confused. He agreed that the responsibility existed but his answers continuously referred to him taking his sons and other young men to the places. However, as he conceded, he had not yet done that.

771               Without knowing Mitakiki’s age when he became a Wati, and without knowing when he first made a field trip to De Rose Hill Station, it is not possible to state with certainty the length of his absence from the claim area. However, on the basis that he was born in about 1944 and was made a man (say) twenty years later in 1964 and returned to De Rose Hill in about 1995 to prepare for the case, it would seem that he was absent for over thirty years during which time he showed no interest in the claim area. I am satisfied that if he ever had a relevant connection with the claim area as required by s 223 of the NTA – and that is open to doubt – he abandoned it long ago.

JOHNNY WIMITJA DE ROSE

772               Wimitja, who said that he was born in 1933 at Watju (Mount Cavenagh), claimed that he is a Yankunytjatjara man. His mother, Nellie Tjirpawa was, so be believed, born at Aparatjara (in the west). She is dead and he thought that she is buried either at De Rose Hill or Indulkana. His father was Jimmy Piti Piti who was born at Katji Katji Tjara which is near Iranytjirany. Jimmy Piti Piti is buried at De Rose Hill, across the creek, not far from the homestead. Wimitja said that his paternal grandparents were Kurta and his wife Upitja. Although he knew Upitja, he never knew his grandfather, Kurta. According to Peter De Rose, Wimitja and Snowy De Rose were biological brothers and Tilly Yaltjangki is their biological sister (although Wimitja, in his evidence, referred to her as his niece).

773               Wimitja knew the place that is called Pipalyatjara. He had been there to watch football. He said that he had heard that Kurta’s country was near Pipalyatjara. He volunteered that it was at a place called Kulpitjara which, so he said, is on Yankunytjatjara land. There is a site number 10 called Kulpitjara on De Rose Hill Station but Wimitja was referring to a place of the same name that is near Amata in the west. Wimitja said it was Peter Tjutatja who had told him that Kulpitjara was Kurta’s country. I do not accept that Kulpitjara is on Yankunytjatjara land. The evidence of most of the witnesses places Pipalyatjara in Pitjantjatjara country and Kulpitjara is sufficiently close to Pipalyatjara to place Kulpitjara in Pitjantjatjara country.

774               Wimitja said that he grew up on Mount Cavenagh but then moved to De Rose Hill with his family, together with Carlene Thompson’s grandfather and the latter’s family. Wimitja admitted that he did not have any comprehension of time, even though he had referred to periods of time when answering questions about his length of stays on particular stations. When they moved to the homestead area at De Rose Hill, there were three main buildings and Doug Fuller was the station owner. There was also a well. Other Anangu, who were there at that time, were Bull George’s “mob”, Carlene Thompson’s father and grandfather, Andy Pampula (Bumble Foot), the Baker family, Mitakiki’s family and the Yanima family. Other children who were at the station at that time included Wapala (Peter De Rose), Tim De Rose and Michael Mitakiki. Ray Mungkuri was also there but he was a bigger boy.

775               Wimitja started working with the bullocks on De Rose Hill before he was a Nyiinka. He said that there were still some sheep on the property at that time and he helped his father shepherding them. He could remember the time when the last of the sheep were taken to Ernabella. While still at De Rose Hill, Wimitja became a Nyiinka and was separated from the main camp. That was about the time when Snowy married Katjiwala. Wimitja was made a man at Indulkana, but went back to De Rose Hill and continued to work with the bullocks. He recalled Peter De Rose being born near the homestead very soon after he had been made a man; he said that Peter was born under the Kalaya ironwood tree.

776               In his witness statement, Wimitja had said that he moved to De Rose Hill when he was a big boy of about thirteen to fourteen years but when that was put to him in cross-examination he contradicted the statement by saying “I was a man when I went there”. This is, in my opinion, the more likely position. If the records in Ex A15 are reasonably accurate, Wimitja is fifteen years older than Peter De Rose. If, as Wimitja said, Peter was one of the children when he first went to De Rose Hill Station, it is probable that Wimitja could then have been, as he said in his evidence, a man. If he had been only thirteen or so, Peter would not have been born.

777               Wimitja said that he did not live in a wiltja (a humpy); he only had his swag. He and the others would sleep in the open but, if it rained, they would move into the shearing shed. There were, however, many wiltjas in the area of the homestead for the old men, the women and the children; none of those now remain however. The main use of the wiltja was to give protection from the wind, but the usual practice was for the people to sleep in the open between fires. Wimitja agreed that the Anangu would move camp from time to time and that, when they did so, they would dismantle the wiltjas and, sometimes, burn them. He also agreed, when asked in cross-examination, that the word “wiltja” was a Pitjantjatjara word, whilst “kanku” was the Yankunytjatjara word for a humpy or a shelter. It was of interest that the word that he, and several other witnesses, repeatedly used, during the course of their evidence, was “wiltja”.

778               Wimitja agreed that Doug Fuller used to distribute rations to the families and, when it was put to him that he also gave the people meat from time to time, he replied “yes, he used to give bullock head, bones and legs.” Wimitja worked with the bullocks with Owen Kunmanara. He named others who were then doing fencing work; they included Mitakiki’s father Barney, Bull George and Wally Curtis. While he was at De Rose Hill looking after the bullocks, the Tjilpi Tjuta (the old men), who have since passed away, such as Andy Pampula (Bumble Foot), Langka and Billy Kuluru, showed him the Tjukurpa sites in the area of De Rose Hill and parts of Tieyon. He was taught about the Tjukurpa for those places including the Pakalira, Papa Itari and Malu Kanyala and Tjurki Dreamings.

779               Wimitja spoke highly of Doug Fuller in the early days. He said in his witness statement:

“In the earlier days when I first went to De Rose Hill, Doug Fuller liked Aboriginal people. He would organise the workers to go out and work. He didn’t do the bullock work himself. He did the work on the windmills and troughs and let the Anangu workers do the other work without having to be chasing around. He trusted people to go out and do the work. This was appreciated by us.”

780               However, in later times, Wimitja had a serious falling out with Doug. His account of the story was that Doug had promised him a holiday after a long spell moving cattle to the railhead at Finke. When Wimitja got back to the homestead, however, Doug told him to go to Kenmore Park to pick up some stray cattle. Wimitja did not want to go. An argument eventuated and, according to Wimitja, Doug hit him twice across his back with a piece of wire. Wimitja, in turn, jumped off his horse and hit Doug on the side of the face. Doug hit back and Wimitja told him that he was leaving. He took his horses and rode to Kulgera Station and did not go back to De Rose Hill. Wimitja agreed that at the time of the fight, he was a young man and Doug was much older and much smaller. Wimitja also agreed that he was “a pretty big strong fellow”. Mr Whitington put to Wimitja that he knocked Doug Fuller to the ground and that Doug Fuller was almost unconscious, but Wimitja replied “no he got up, he was still alive”. Wimitja remembered Mrs Fuller coming out of the homestead with a rifle and pointing it at him. He did not remember Doug saying “for Christ’s sake don’t shoot him”. He said, instead, that Doug took the rifle from her “and hit her with the rifle”. At first, Wimitja said that he was not scared of the rifle because Doug was holding it in order to make sure that Mrs Fuller did not shoot him. However, in answer to the proposition that Doug invited him to stay and continue to work, Wimitja said:

“No, I refused to stay. I decided to go because I wasn’t ready – I was a bit scared of the rifle.”

781               Wimitja said that there was another reason why he did not want to go to Kenmore Park to pick up the stray cattle; he wanted to join the Tjilkatja party. He said that when he got back from Finke, he was told that the Ulpuru (the special boy) and two or three men from Ernabella had passed through De Rose Hill and were possibly at Indulkana. He did not say who was the special boy but I am satisfied that Wimitja was referring to the occasion when it was Jimmy Bannington. Wimitja was then a young man (a Wati) of about twenty years of age. He believed that the men would be coming back through De Rose Hill with the Tjilkatja party and he wanted to be there when the party arrived. However, he missed them; they had not returned to De Rose Hill for the local Watis and supporters to join in. Wimitja claimed that he had been told that “the whitefella fired shots from his rifle. That is why everyone left”. That would have been the Jimmy Bannington incident. Wimitja did not personally observe any of this and his evidence can only be received as a statement of his belief. Likewise, it can only be accepted as a statement of his belief when he asserted that the Tjilpi Tjuta (the senior men) from De Rose Hill decided that the Tjilkatja should not travel through De Rose Hill any more.

782               Wimitja gave a brief summary of his knowledge about the Tjilkatja ceremony. He said it started when Ulpuru was chosen to be made into a man. It could start anywhere; for example, it could start at Ernabella. The party would then go to other camps where Nyiinkas were known to be. When it got to its final destination – for example – Indulkana, the Tjilkatja party would stay there for two to three weeks. The party would then retrace its steps, returning to the last community through which it had passed. When the party got to that place, the women of that camp would provide food for the members of the Tjilkatja party. Having eaten, the men would send the women and the Nyiinkas away, but the Ulpuru would stay with the men. The next day, the party would leave for the next camp and the program would be repeated until the party reached its starting point. A day later the party finished. If the men’s Law that dealt with the Tjilkatja cycle was broken, the Watis present could decide the appropriate punishment which, in an extreme case, could be death for the person who broke the Law. Wimitja went on one Tjilkatja trip when he was living at De Rose Hill. At that stage he had been a Wati for about two years. Since leaving De Rose Hill he has been on other Tjilkatja trips.

783               Wimitja said that he returned to the Station a few days after his fight with Doug to collect his belongings and to see his mother. After a short stay, he left and worked for a short while at Kulgera before going on to Alice Springs where he worked for some time before going to Queensland. When Wimitja left De Rose Hill Station, both Peter De Rose and Tim De Rose were there as children. He was of the opinion that his fight with Doug occurred about five or six years before the Sundown murders. As the Sundown murders occurred in December 1957, this points to Wimitja having left De Rose Hill Station in about 1952. Mr Whitington put to Wimitja that he had a paper from the station in which Doug Fuller had written that “Emu” (the name which Doug Fuller gave to Wimitja) worked at the station in the two years before the Sundown murders. Wimitja nevertheless maintained that his fight with Doug had occurred a long time before the murders. The probabilities are that Wimitja’s memory is not correct. Exhibit F31 was the affidavit of Doug Fuller to which was attached certain Station records. They showed that “Emu” (that is, Johnny Wimitja De Rose), was recorded as an Aboriginal worker on the Station in 1955 and in 1956. In my opinion, it is more likely than not, and I find, that the fight between Wimitja and Doug occurred in about 1956. That would also have been the year of the Tjilkatja party and the arrival of Jimmy Bannington, the Ulpuru or special boy.

784               When Wimitja returned from Queensland, he went to Ernabella where he saw Tim and Peter. By then they were both men and both were working at De Rose Hill Station. He knew other men who were working on the Station at that stage, including Wally Curtis and Ilypilyitja. Mr Besanko pressed Wimitja to explain why he had not gone back to De Rose Station at about the time when he saw Peter and Tim at Ernabella so that he could look at the sacred sites. His answer was non-responsive. He merely said that he was working at Ernabella. After his return from Queensland, Wimitja eventually started work at Mt Cavenagh which, so he said, is part of his Ngura. He said he worked there for a long time “two or three years”. From Mount Cavenagh, he went back to Ernabella where he worked “on the housing” and after many years at Ernabella he went to Amata where he worked on the rubbish truck and later on the road gang at Umuwa. Whilst working on the road gang, Wimitja took ill. He returned to Amata and he has not worked since.

785               Wimitja said that his Ngura (country) is Watju (Mount Cavenagh) and Kalka to the north, De Rose Hill, Lambina and Witjintjitja to the east and the south and Indulkana and Iranytjirany to the west. He claimed this country because of the Malu Tjukurpa, because he was born and smoked at Mount Cavenagh, because he was taken to Wapirka (Victory Downs) as a child and because he grew up on and, later, as an older child, learnt about that country. He also claimed to be Nguraritja and, as Nguraritja, he said that he can do things on that country that other people cannot do. He does not need to ask for permission to take water or to camp or make a fire or collect wood for the fire, or collect food, such as kuka and mai. Wimitja said that his country included De Rose Hill because “I grew up as a child and I became a man at that place”. That was why he is Nguraritja for those special places on De Rose Hill. He agreed that, as Nguraritja, he had a responsibility to look after the sacred sites but he was quick to say “but I left there in fear of the white man”. Wimitja was pressed to answer why he had not gone back to the sites to look after them and to clean them. His response was “no, white man is pikati.” The word “pikati” means angry or violent. Later, however, when cross-examined by Mr Whitington, a different story emerged. Wimitja conceded that Doug had asked him not to leave; he had wanted him to stay on at De Rose Hill.

786               Unlike most of the other Aboriginal witnesses, Wimitja did not even make use of the field trips to visit the claim area. In his witness statement, he said that he would like to check up on all of the places at De Rose Hill. However, he added “but we are frightened to go onto locked country”. In answer to Mr Collett, during his evidence in chief, he added “other people are scared too”. He was asked to explain how he knew that other people wanted to check on those places, but his answer was non-responsive. He said:

“Yes, we do want to go and see the sacred areas of that area.”

787               Wimitja named Panma, Peter Tjutatja, Mitakiki, the old man Pannikan (who is Owen Kunmanara), Alec Baker, Whiskey Tjukanku and Tim De Rose as some of the people who would like to check up on the sacred places. His reference to Mr Baker is an obvious error in view of Mr Baker’s evidence that he does not claim to be Nguraritja for the claim area. Asked why he wanted to check up on the country, Wimitja replied: “That’s our country. We’ve always checked it before. We’ve always had a look at it before. But we are scared of white man”. Because of his memory of previous incidents, such as the shooting of dogs, the telling of people to move off, not allowing visitors and the fight that he had with Doug immediately before he left the Station, Wimitja said that he does not feel welcome. He said, referring to Rex Fuller:

“The bloke over there doesn’t want people there. You’d get hunted off.”

788               Despite his protestations, however, and having regard to his total lack of interest (as became evident from his evidence) I do not accept that Wimitja wishes to return to De Rose Hill to visit any place of significance.

789               Wimitja was asked whether there were special places at Mount Cavenagh Station. His answer was “yes, maybe. Yes, maybe, I’m not aware. I don’t know”. Bearing in mind that he had earlier said that Mount Cavenagh was part of his Ngura, that was a surprising answer, assuming always that he fully understood the question. I am satisfied, however, that he did understand it because the next question from Mr Besanko was: “Are there special places at Kulgera Station?” Wimitja clearly understood the significance of that question because he answered by saying: “Yes, where the kangaroo passes”.

790               He was then asked whether he had been back to see any of those special places at Kulgera since he worked there and he said that he had: “I’ve seen those places and those places are cleaned by other men”. He was then asked to state when had he gone back to see those places; he replied by saying that it was when he was employed on the cattle station – he used to move around on the station and see the places. However, it ultimately became clear that he had not been back to Kulgera to see the special places since he stopped working at that station. He was asked to explain why he had not been back, but his answer was unresponsive:

A “These stories are stories belong to the men. These stories belong to the men, they’re our stories, men’s stories.

Q Are you Nguraritja for the places on Kulgera Station?

A They’re our stories, not just mine they belong to all the men.

Q But they belong to you too do they?

A Yes, I’m a man and they belong to me too.

Q Wimitja, I thought you told us earlier that the Nguraritja liked to go back and look at the land?

A Yes. Before we always go back and see those lands and look after them but now, white man have taken over those lands and it makes it very difficult for us to go back to do what our forefathers were doing.

Q Have you ever tried to go back and look at the special places on Kulgera Station?

A Whitefellas will tell us off because it is their land now.

Q Have you ever asked the whitefellas whether you can go back and look at the special places?

A Maybe he will tell us off and not to go there because he has cattle on the station.

Q Have you ever asked a whitefella whether you can go to the special places on Kulgera Station?

A The kangaroo story, we can’t go and see.

Q Why not?

A The white man might think we’re just going there to shoot kangaroos and they might think that we’re going to go there and shoot their cattle too. Maybe that’s why they don’t let us go there.”

791               Wimitja was asked whether there were special places on Lambina Station. He said that he did not know. He was asked whether he was Nguraritja for Lambina Station and he answered that he “might be”. He added that his older brother, Snowy, had been a traditional owner of the land which is represented by Lambina Station. Wimitja was asked, once again, whether he was or was not Nguraritja for places on Lambina Station. Again he answered uncertainly: “Yes, I am Yankunytjatjara. I am probably traditional owner”. Asked once again whether he knew of any special places on Lambina Station he said: “I can’t speak about that. Those are sacred areas”. He added that Lambina Station was only for men and he made some reference to the emu Tjukurpa. On the third occasion when he was asked about special places at Lambina Station, he replied with certainty: “Yes there is at Lambina Station but I’m not going to speak about them, that’s all”. He said that he knew the places and had been to the places on Lambina Station that were special. He had seen them as a young man when he was working on De Rose Hill. When it was holiday time, he had visited those places, but he has not seen them since those days. In re-examination, Wimitja said that he had only been to Lambina Station on one occasion. On that occasion, he had gone with his older brother, Snowy. Snowy had told him about the places on Lambina and had also told him that women were not allowed to know about them. I do not consider that this was a case of a witness being caught out in a lie or being evasive or contradictory. Rather, I feel that Wimitja, for some reason, did not want to talk about the special places on Lambina Station. Rather than saying that, however, he endeavoured to avoid the subject by initially saying that he did not know anything about them. I do not believe that he tried to mislead the Court.

792               Wimitja said that there are special places on Granite Downs Station which George Baker had shown him. He had been to them when he was a man travelling through that area. This, like Lambina Station, was at a time when he was employed at De Rose Hill but was on holidays. However, he has not been back to those special places since then. Wimitja was pressed to give an explanation why he had not been back to visit or inspect the special places. However, the only clear response that came was to the effect that it was the responsibility of all Yankunytjatjara men and not just him. The country belonged to all traditional owners and they all had a responsibility. It was not clear from his answers, however, whether he was indicating that all Yankunytjatjara men were Nguraritja for the land. That question was put to him on several occasions but his answers failed to respond to the questions. I can understand his statement that caring for the land is the responsibility for all Nguraritja but I cannot understand why he has personally failed to attend at any of the special places over so many years. It savours strongly of an abandonment of his personal interests in them.

793               Wimitja did not recognise the name Craig Elliott nor did he not recognise Mr Elliott who was sitting in Court. He said he did not remember speaking to a man about the native title claim and saying to that man that when the old people were telling the stories for their country he didn’t listen because he was too busy working on the station. On the contrary, he said that the old people told him the stories and he learnt from them. When cross-examined on this topic, Mr Elliott confirmed that Wimitja had told him at Malu Kapi on 27 July 1997 that he had not listened to the old people and the stories because, as Mr Elliott had noted in his diary “he was too busy working on Stations”. I accept what Mr Elliott said in his evidence and I have no reason to question the accuracy of his note.

794               Wimitja left De Rose Hill Station in the mid 1950s when he was in his early twenties. He had lived and worked on the Station since first arriving there as a young man. It is obvious that in that short space of time, he would not have matured sufficiently to have acquired advanced knowledge in matters of traditional laws and custom. That is not to say that he did not have any connection with the claim area, but, whatever he might have had by way of a connection has, in my view, been clearly abandoned after an absence of forty years. The fact that Aboriginal people, of whom Wimitja was one, were prepared to leave De Rose Hill Station and go – not to another part of the Station where they would be less likely to run into Doug Fuller but – to a different location altogether says little for their connection to the claim area. There were several locations on the Station where there were soakages and other natural watering points; it was not necessary for the Anangu to live in the vicinity of the homestead if they wished to remain on their land. The fact of the matter was that it was the work and wages that brought the Anangu into contact with Doug – not their traditional laws and customs – and when they fell out with Doug, it was work and wages which caused them to leave the Station and to look for alternative work. Their attachment to their land was not sufficient to hold them.

cissie Riley

795               Cissie Riley said that she was born at Iwantja (site 25) which is a location that is near to Indulkana and not far south of De Rose Hill. She described her mother, who was born at Wayutapiti near Amata, as Yankunytjatjara and her father, who was born near Docker River, as Pitjantjatjara. Cissie said that her father was a Kalaya and that the Kalaya Tjukurpa goes through Docker River.

796               Cissie was the youngest of three daughters; she had no brothers. After her marriage, Cissie’s mother moved to her husband’s country in the Docker River area, and their first child, and probably their second child, were both born at Docker River. Cissie said that her parents “came east”: her mother was pregnant with Cissie at that time. Whilst Cissie was still a baby, her family travelled through De Rose Hill Station to Kalka (Kulgera). From what she has been told, she believes that she travelled in a wagon whilst her father was moving a flock of sheep to Kulgera. According to Cissie, her grandmother, Alutja, told her that, because she travelled through the claim area from Iwantja to Kulgera as a baby, she became Nguraritja for De Rose Hill. She claimed that her mother told her that “Ngura Walytja, the place belongs to me”. She also said that her grandmother told her about “the Inma, Tjukurpa, about wangunu, how to gather seeds”. Cissie said that her maternal grandmother was Ngariltja Nguratja, the sister of Alutja. Her maternal grandfather was Kanti Palyatjara. She added, when giving his name, that he was Alutja’s husband which means, if her evidence has been correctly understood, that Kanti Palyatjara had two wives who were sisters. Cissie said that Kanti Palyatjara and her grandmother had come from Wamitjara which was near Iranytjirany.

797               Cissie did not know how old she is and she did not know the time span that is represented by a year. The records, Ex A15, stated that she was born in 1926, making her seventy-five at the time when she gave her evidence. She knew, however, what Christmas meant and when she was asked how many Christmases had she spent at De Rose Hill, she answered, saying: “Two”. That does not seem correct. The rest of her evidence suggested that she had lived and worked on De Rose Hill for a much longer period of time.

798               When Cissie was a baby, her parents shepherded sheep, first at Witjintitja (Granite Downs) and later at Kalka (Kulgera). Speaking of Kalka, Cissie said “I grew up there. I learnt to crawl and started to walk there.” When Cissie was a teenager she moved to Watju (Mount Cavenagh) with her family. Her father worked on that Station as did Cissie; she milked the cows. Her sister, Topsy, was married to the station owner and they had a son, Jimmy. As she described it, Topsy “took off” and Cissie was left to look after Jimmy. However, not long after, Jimmy was taken away, presumably by the authorities, and never returned. Cissie then moved to Tieyon to join her parents once more.

799               When Cissie first moved to De Rose Hill Station, she went to Kantja; it was at the time when there were sheep at that site. It was not clear from her evidence how long she stayed there but, at some stage, she moved to the De Rose Hill homestead site to help Doug Fuller dig a bore. That probably would have been in 1944 when Cissie was aged about eighteen. Cissie said that she stayed at De Rose Hill “a long time”. She saw Doug move the sheep from Kantja to the homestead site and she saw the eventual introduction of cattle to replace the sheep.

800               Cissie married Riley Tjayrany and they had a daughter Jeannie. Jeannie subsequently married Peter De Rose. Jeannie was born at Sundown which is north of De Rose Hill Station. Later, when Jeannie was still a baby, Cissie returned to De Rose Hill. In addition to Jeannie, Cissie said that she and Riley “brought up” Ronnie Riley and Douglas Yanima, both of whom had been born near the homestead. She described the boys as sons of her cousin. Cissie said that she had been present at the birth of Douglas Yanima and that he had been born near the homestead at De Rose Hill Station. Mr Whitington put to her that his instructions from Doug Fuller were to the effect that Doug had found Douglas Yanima abandoned in a shed. Cissie would not agree. She insisted that she was present and that she helped at his birth. Mr Whitington asked Cissie whether Douglas’ mother had put him in the shed and she replied: “No, I had the little one in my hands. She went to the sky.” Poignantly, that statement meant that the mother had died and that is why she and Riley brought up Douglas Yanima as their son. Clearly, such an event would not be easily forgotten. I accept Cissie’s evidence.

801               In her witness statement, Cissie Riley had said that she was on De Rose Hill at the time of the Jimmy Bannington incident and she agreed that people have talked a lot about the Tjilkatja story over the years while they have been preparing for the native title case. She then said:

“I did not see what happened. I only heard. I saw Doug going towards the camp near the dam not far from the homestead. He went by himself towards the camp in a motor car and he was looking very angry. I heard the shots being fired.”

When cross-examined by Mr Whitington, however, she repudiated that statement. She was at home and other people had told her what had happened. This contradiction could mean that Cissie was an unreliable witness; or it could also mean that it was a case of misunderstanding on the part of the person who prepared her statement. Either way, it calls for a measure of caution when assessing Cissie’s evidence.

802               Cissie claimed that she is Nguraritja for De Rose Hill because she lived there with her grandmother as a child before there was a homestead on the property. Although she grew up mainly at Mount Cavenagh, she later lived at De Rose Hill with Riley. She laid out the basis of her claim in her witness statement, saying:

“I am Nguraritja for De Rose Hill and other Anangu say this. I was born at Iwantja and as a baby and child I travelled through the country. I lived at De Rose Hill when I was a child. I know that country and some of the Tjukurpa for that country belongs to me.

I am also Nguraritja for here at Iwantja, because the Tjurki started from here and travelled through De Rose Hill and because my mother gave birth to me here. Also because my father was Kalaya I know the Kalaya story for the country around De Rose Hill.”

803               In talking of the Tjurki, Cissie said that it was part of the Malu, Kanyala and Tjurki Tjukurpa. She agreed that it was a Dreaming for men and she also agreed that there were things about that Dreaming that women are not allowed to know. It is difficult to understand how she therefore relies on the Tjurki as part of her claim to be Nguraritja. The confusion is apparent from the following passage of her evidence:

Q “I am asking you about the Malu, Kanyala and Tjurki Dreaming at the moment.

A No, that is only for Watis, men.

Q Did someone tell you that the fact that Malu, Kanyala and Tjurki Dreaming started at Iwantja made you Nguraritja for that place?

A Yes.

Q Who told you that.?

A Where I was born.

Q Is that really why you think you are NguraritjaforIwantja, because that was the place where you were born?

A Yes.”

804               Cissie was asked: “You don’t own the Kalaya stories, do you Cissie?” She answered, saying, “Yes”. I take that to be an example of an elderly Aboriginal woman, in a very strange environment, endeavouring to be helpful to a person whom she considers to be in a position of authority. She did not mean by answering “yes” that she owned the Kalaya stories; she was intending to indicate that she agreed with the proposition that was put to her. That became apparent when regard is had to the next few questions and answers.

Q “Those stories, are they stories that you own, or are they for the men?

A Wati, for men.

Q And there are things about the Kalaya stories that you do not know?

A Yes. Only for men.”

805               In her witness statement, Cissie said that she stayed at De Rose Hill until the big fight between Doug and Snowy. That was in 1977, by which time Cissie would have been about fifty-one years of age. However, when cross-examined on that subject and asked whether she left De Rose Hill after the fight, she replied: “No, I stayed there”. Nevertheless, she must have left the Station within a few months because she was at Indulkana at the time when Bobby De Rose died in 1978 and she has lived at Indulkana ever since.

806               As she left De Rose Hill after Snowy’s accident but before Bobby’s death, it means that she left the claim area about twenty-three years ago. At the time of the fight, she and Riley had separated. Riley had married Marlene and they were living at Indulkana. Cissie did not give a specific reason why she left the homestead nor did she offer a suitable explanation for making no effort to return to it. She merely said that she went to Indulkana for a holiday. Mr Besanko asked her whether she lived in a house at Indulkana and she replied: “No, outside on the ground”. On each occasion when she gave evidence, Cissie chose to sit on the ground as she was uncomfortable sitting on a chair. She claimed that she would return to De Rose Hill with Wapala (Peter De Rose) and a “big mob” from Indulkana if native title were granted over the claim area.

807               Cissie Riley spoke of seeing the Tarkapilara Inma performed near the homestead and said that she had passed on information to her granddaughters and taught them about ceremonies and customs. Cissie said that the women would sing and the men would perform Tarkapilara. It would appear from her evidence that she believes that the song starts at either Wapirka (Victory Downs) in the north or Ernabella in the south and that it travels through De Rose Hill from one place to the other to visit people. Cissie was one of the few Aboriginal witnesses who gave evidence that she had passed on information to the younger generation. She said that she had taught her granddaughters the story of the Seven Sisters Tjukurpa and that she had taken them to special places.

808               Cissie’s evidence and her antecedents gave her a much stronger claim to be called Nguraritja for De Rose Hill than many of the Aboriginal witnesses. But, she, like so many, elected to leave their country and take up residence elsewhere; she made no attempt to return to De Rose Hill and although she was deeply steeped in Aboriginal culture, I have been unable to associate it presently with the claim area so as to give that measure of connection that is required by s 223 of the NTA. I have therefore come to the conclusion that Cissie has abandoned any connection that she may have once enjoyed to the claim area.

minnie nyanu

809               Nyanu was born near Mimili sometime in the early 1930s. Her mother, Ilpulya, a Pitjantjatjara woman, died on De Rose Hill Station and is buried there. Nyanu’s biological father was also Pitjantjatjara but her mother married Peter Paltatjiratja, Katjiwala’s father, and it was Paltatjiratja who “grew [Nyanu] up”. Edie Angkaliya, Nyanu’s biological sister, said that her step-father, Peter Paltatjiratja had come from Ernabella. On the other hand, Riley Tjayrany, who was questioned about Paltatjiratja, said that Paltatjiratja spoke Pitjantjatjara and that he had come from Pipalyatjara. The probabilities are that Riley, being closer in age to Paltatjiratja was correct and I so find.

810               Nyanu described Jeannie Kampukuta Inpiti as their cousin (although Kampukuta referred to Nyanu as her older sister). Nyanu said that the three of them, together with Katjiwala, “grew up together.” Minnie said that, as a teenager, she travelled east with her parents and Angkaliya, Kampukuta and Katjiwala. They went first to Witjintitja (Granite Downs), then to Iwantja and later to Kantja. She said in her witness statement that “Yankunytjatjara people were living at Kantja when we arrived” and that her father and mother then spoke Pitjantjatjara. She recalled that there was a tank, some stock-yards and a house at Kantja. The two white men, Tom and Mick O’Donoghue and Mick’s Anangu wife, Lilly Shilling, were then living at Kantja. Nyanu also said that, whilst she was at Kantja, her family were given rations of flour, sugar, tea and blankets by the white man who ran sheep and goats in the area. He had yards at Kantja and some of the remnants of the yards still remain to the north of the creek. Nyanu named several Anangu who were living at Kantja when her family arrived; they included the witnesses Peter Tjutatja, Riley Tjayrany and Whiskey Tjukanku. She also said that the “whitefella”, Ernie Baker, would visit from time to time, with his camels. Nyanu said:

“Our family lived at Kantja a long time and felt that we belonged there.”

811               It was apparent from Nyanu’s evidence that the only permanent European presence in the De Rose Hill area during her teenage years was that of the O’Donoghue brothers. Apart from them, there were only occasional itinerants such as Ernie Baker. The Aboriginal people ranged over a wide section of the claim area and adjoining areas. Nyanu talked of trips and holidays and camping at a variety of locations which are now within the boundaries of De Rose Hill Station and of other places such as Ilkuwaratjara (now a homeland on Victory Downs), Wipa (on Tieyon Station) and Kuruya (which is east of Wipa). When travelling to those places, the Anangu would collect kuka (game), mai (food from plants), ili (wild figs) and kaltu-kaltu, wangunu, warkarti and kunakante (which are different forms of seeds).

812               Nyanu married Billy Ilpilitja, who later, in a polygamous union, also married her sister, Angkaliya. Billy worked on various stations, including De Rose Hill. Their two children were, however, both born and smoked on Watju (Mount Cavenagh). Nevertheless, Nyanu said:

“We always went back to De Rose Hill because that was home.”

813               Nyanu was able to name several Anangu who were at De Rose Hill homestead when she was there. They included Witjawara Curtis and her husband Wally, Witjawara’s mother and father, Umatji and Lirutja, Riley, Tjukanku, Nora Singer, Mitakiki and his parents, Roley Mintuma, Ray Mungkuri, Snowy and Katjiwala De Rose, Edie De Rose, Owen Kunmanara, Nyanu’s sister Edie Angkaliya and Kampukuta and her husband.

814               Nyanu confirmed Peter De Rose’s evidence about his place of birth. She said that she and her sister, Edie, were present at his birth and that it occurred “under the tree where Kalaya stood”. She was also present three days later, when Peter was smoked “west of the homestead in the bush”.

815               Nyanu moved from De Rose Hill to Ernabella with her family. She said in her witness statement that the move took place:

“…when a measles outbreak occurred, not long after the Sundown murders.”

As the Sundown murders occurred in December 1957, the move to Ernabella would have probably occurred sometime in 1958. Thereafter, her further movements do not offer any support for an ongoing connection with De Rose Hill Station. She said that the family lived at Ernabella “for a long time and then moved to Amata”. She has recently moved:

“… to Mutitjula because our daughter Margaret moved to live here. I have grandchildren living here.”

She went on to explain that her Ngura includes numerous places, either because of her place of birth or smoking or because she had lived there. De Rose Hill homestead, Kantja and other locations on De Rose Hill Station were included in her list. She explained:

“Even though I left De Rose Hill a long time ago I often think about De Rose Hill and about going back to visit but we haven’t got a car.”

816               The outbreak of measles might be thought to be the dominant reason for Nyanu and her family leaving De Rose Hill Station. However, some of her answers to questions during the course of her cross-examination suggest that work and the availability of rations, rather than matters of culture and tradition were also important factors. For example, rather than moving on from Kantja, for traditional reasons, the family stayed because of the availability of work and rations. Later, Nyanu agreed that she had earlier told Mr Craig Elliott that she had left De Rose Hill when the rations and the work finished. The conclusion at which I have arrived is that such connection as Nyanu might have had with the claim area has been long abandoned. She left De Rose Hill sometime in 1958, over forty years ago. Her claim that the lack of a car is her reason for not visiting her land is preposterous. I do not accept that explanation.

edie angkaliya

817               Angkaliya’s evidence about her parents, her early childhood and the family’s move to Kantja did not differ in material respects from the evidence of her sister, Minnie Nyanu, although her memory centred on some events that Nyanu had not recalled. These were not important matters, however, and it is understandable that different people would have different recollections about events in their lives that might have occurred as long as sixty years ago.

818               Angkaliya said in cross-examination that her sister was “much older” than her; I assume that she was there referring to Nyanu. She said that she was only a small child when she came to Kantja but her older sister was a young woman and that she (Angkaliya) was still a small child when she left Kantja. Angkaliya said that, after leaving Kantja, she went to the homestead at De Rose Hill Station. She said that the Aboriginal people at the homestead spoke Pitjantjatjara. In re-examination, Angkaliya said that even though the people spoke Pitjantjatjara, they also spoke Yankunytjatjara, both at Kantja and at the homestead. Angkaliya named three women, Wuuta, Wanywa and Upitja, who were related to each other. She said that they were “sisters” and that they were “our grandmothers”.

819               Angkaliya and her husband Billy Ilpilitja (whom she called Long Billy) had seven children, but three of them died at childbirth. The first of the surviving children, Lucky, was born under two ironwood trees to the north-west of the De Rose Hill homestead in about 1960. In speaking of those trees, Angkaliya said in her witness statement:

“Those trees are supposed to be two Kalayas. They were going to Wipa as part of Kalaya Tjukurpa. You have to ask the men what it means for Lucky.”

Her remaining three children were born at Wapirka, Ernabella and Alice Springs.

820               Angkaliya said that she and her family “walked off” De Rose Hill and went to Kenmore when Lucky was only a small boy. She said that it was “after the Sundown murders”. No better estimate of time was given but her identification with the murders pointed to their leaving sometime within the ensuing few years: probably no later than the early 1960s. She added that they “walked off” because Doug was shooting and poisoning the Aborigines’ dogs.

821               In her witness statement, Angkaliya said:

“I was at the homestead and people were saying that Doug fed the old man Yarku’s (Warda’s brother) dog with poison meat and it died in his camp. I did not see that happen. I was just told that people saw the dog was getting drunk/dizzy. Other dogs were poisoned. Tjaapan Tjaapan, Ngankampi and other old men had dogs poisoned. Doug would put poisoned meat out at night and in the morning the owners would see their dogs dead.”

That passage of her evidence was the subject of objection as it was quite clear that Angkaliya did not see Doug poison any dog. However, I received it as evidence, not as to the truth of the assertion, but because it afforded an explanation for her family leaving the Station. The weight that can be given to that statement is, however, another issue because in her witness statement she also said:

“We also left De Rose Hill because our mother died so we went to Kenmore. It is the custom to move away from the place where family members die.”

822               In cross-examination, she used derivatives of the word “worry” to describe her reaction to the death of her mother. I took that to mean “sorrow”. It is not possible to know whether the family would have moved if only one of those factors had existed. The death of her mother might well have amounted, by itself, to a justifiable reason, in Aboriginal tradition, for leaving a particular location but it was not made clear that it would justify a movement of such large dimensions.

823               Angkaliya said that her Ngura (country) was Midi where she was born and smoked and Mimili “because my mother and father took me around there”. She then referred to De Rose Hill as her “place” (or her Ngura) asserting that it was her place because:

“… I grew up there, I was married there, had children who were born there, and have my mother and first child buried there.”

As best as I can calculate, Angkaliya and her family left De Rose Hill Station almost forty years ago. She has made no attempt to return there save, perhaps, for the preparation of this case. Allowing for her claim that one of her reasons for leaving the claim area was the killing of the dogs – and accepting the truth of that statement – it does no more than mean that the death of some dogs had a greater influence on her than such connection as she might have had through tradition and custom to the claim area. That does not, in my opinion, suggest a strong connection. But if there was such a connection to the claim area I am satisfied that it was abandoned long ago.

carlene thompson

824               Carlene gave evidence-in-chief and her witness statement was received as Ex A35. Unfortunately, however, before she could be presented for cross-examination, a very close relative died and she was unable to continue with her evidence. In assessing what she has had to say I must bear in mind that her evidence was not tested in cross-examination.

825               Carlene said that she is Ngura Walytja and Nguraritjafor De Rose Hill because she grew up there. She said:

“I believe that Manta grew me up. That’s why I am ngura walytja and Nguraritja.”

However, having made that claim, she went on to acknowledge:

“I can go anywhere on that country, but at the moment I don’t know where the important places are. I would not know how to find my way around. I was not taught about all of the places. If I went back and learned where I can go and where I cannot go, I could go all around that country.”

826               Carlene said that she was born at Finke and that she is a Yankunytjatjara woman. She does not know her age but Ex A15 gives her a birth date as 1 January 1950. Edie De Rose was her mother and Tim De Rose is her older brother. She cannot recall her father as he died when she was a small child. Carlene said that after her father died she, Tim and their mother lived on De Rose Hill Station, where they all worked. Tim worked as a stockman, their mother worked in the garden and Carlene, when she was old enough, worked in the homestead and milked the cows. She referred to Snowy De Rose as “Uncle Snowy” and said of him that he lived at Watju (Mount Cavenagh) but that:

“… he visited his family at De Rose Hill. His place was Wapirka, Watju and De Rose Hill. He moved between these three places.”

She also recalled the occasion when she travelled with Snowy from De Rose Hill to Wapirka (Victory Downs) and Ernabella. That was the occasion when Peter De Rose and her brother Tim were going through “the business” and the party travelled together from Ernabella to Areyonga.

827               Although Carlene was at De Rose Hill when she first met her husband, Punch, she said that they almost immediately moved to Ernabella and that they have lived there ever since. She has not returned to De Rose Hill. She said that when she heard about the native title claim she was “happy” because, so she said:

“… that country does belong to us: to me, my brother, my family, my mother, uncle, grandfathers. It is Yankunytjatjara land. It belong to all Yankunytjatjara because Yankunytjatjara have always lived in that country. Ernabella, is Yankunytjatjara country. Pitjantjatjara is further west.”

That statement represents a simple, concise claim for a determination of native title in favour of the Yankunytjatjara people. However, it is not the claim that the applicants made in their application, nor is it the claim that was advanced in their further and better particulars and in their statement of facts and contentions (where the claimants were said to be those Aboriginal people who were, for any reason, entitled to call themselves Nguraritja for the claim area).

828               The evidence does not permit me to state when Carlene and her husband left De Rose Hill nor does it permit me to find the reasons for their leaving. The probabilities are that she would have married in her late teens or early twenties and if she was born in about 1950, it would mean that she left De Rose Hill at least thirty years ago. Her evidence failed, in my opinion, to establish that she ever had any meaningful connection with the claim area. As she conceded in her witness statement:

“… I don’t know where the important places are.”

Nevertheless, if she ever did have any such connection, I am satisfied that she abandoned it long ago.

maggie ward

829               Maggie did not know how old she was but it was suggested that she was fifty-six and she did not disagree. She is a daughter of Cissie Riley’s eldest sister, Tuli. She said that Tuli had been born at Docker River (and that accorded with Cissie’s evidence) and that Tuli was a Pitjantjatjara woman. However, Maggie said that her father, Jimmy Brumby, was a Yankunytjatjara man and that she, Maggie, was also Yankunytjatjara. Maggie said that she was born at Waltjarr, a rock hole near Mulga Park on the western side of Wapirka (Victory Downs Station) in the Northern Territory and, according to her, Mulga Park is her country and it is Yankunytjatjara country.

830               The claimants’ reason for calling Maggie Ward as a witness was puzzling. She did not claim to be Nguraritja for De Rose Hill. In her witness statement it was recorded that the Nguraritja for the Station included Carlene Thompson, Carlene’s brother Tim De Rose, Douglas Wallatina, Tiger Baker’s two sons, Lucky Curtis, Puna Yanima, Peter De Rose and Peter’s sister, Lorna. However, under cross-examination, Maggie denied that she had named those people as Nguraritja.

831               Maggie had also listed in her witness statement an extensive definition of Yankunytjatjara land saying that it extended as far west as Pipalyatjara. In the north, she had said that it extended into the Northern Territory to include Watju (Mount Cavenagh), and Wapirka (Victory Downs), to Tieyon and Finke in the north-east and to Abminga, over 180 kilometres to the east. She also had said that it included Oodnadatta and Coober Pedy, both of which are several hundred kilometres to the south of De Rose Hill. However, all that changed in cross-examination. She claimed that she was not responsible for that description. In particular, she said that Pipalyatjara was not part of Yankunytjatjara country; she agreed with Mr Besanko that it was Pitjantjatjara country. She would not agree that she had ever made a statement to the effect that Pipalyatjara was part of Yankunytjatjara country. On the other hand, she maintained that Oodnadatta, Coober Pedy, Finke, Erldunda and Amata were all within Yankunytjatjara country. However, according to Maggie, that was not her country. Hers was a much smaller area which was generally to the north of De Rose Hill Station, extending into the Northern Territory.

832               Her counsel’s attempts to save the situation were unsuccessful. His first question in re-examination was to ask Maggie how she was “feeling about sitting here and talking in Court”. Her answer was “palya”, meaning “okay”. He sought to soften her contradictions in her cross-examination by asking whether being in Court was easy or hard. Her reply was:

“No, it’s all right. Other people mix it up and that’s no good.”

He then asked her whether she knew who was Nguraritja for De Rose Hill and she replied “Don’t know”. After those three answers, he graciously concluded his re-examination.

833               Maggie did most of her growing up at Watju (Mount Cavenagh) but, so she said, she used to travel to De Rose Hill to visit her aunt Cissie (who at that time was already married to Riley Tjayrany), Edie De Rose, the two sisters Minnie Nyanu and Edie Angkaliya and Snowy De Rose and his wife Katjiwala. She said that, at that time, Owen Kunmanara was training Peter De Rose to be a stockman. However, apart from a reference to these visits and a comment that “De Rose Hill has many sacred places that women can’t talk about”, Maggie seemed to have no meaningful connection with De Rose Hill or with any location within its boundaries. I consider that it is obvious from this summary of her evidence that she does not now have, and never has had, any connection (of any nature) with the claim area.

Lilly Yupuna Baker

834               Yupuna, who was born at the Watatjara Rock Hole near Mimili, did not know her date of birth. She had been told that her parents came from the west, passing through Ernabella before the mission was established. As the mission was established in November 1937, and as Yupuna said in her witness statement that she had been told that she was born shortly afterwards – say in 1938 - it would suggest that she was about sixty-three years of age when she gave her evidence. She married an Anangu man, Ernie Baker but he is not to be confused with the European man of the same name. Yupuna explained:

“A whitefella called Ernie Baker who looked after my husband as a child gave him his whitefella name.”

However, prior to her marriage, at a time when she was living on De Rose Hill Station, she left and went to Marla to live with the “whitefella” Ernie Baker. She stayed with him until he died. It was after his death that she then married her Aboriginal husband of the same name. Yupuna agreed that, when she travelled with the “whitefella” Ernie Baker, he would have rations which he would distribute to the Aboriginal people. It was suggested to her that she would eat bush tucker if Ernie Baker did not have enough rations to distribute. Yupuna partially agreed, saying:

“He used to go and get his rations, bring them back, but we used to eat grass.”

In re-examination, Yupuna said that in addition to eating grass seeds (wangunu) they also would eat kaltu-kaltu, kunakanti and wakati when they were travelling with Ernie Baker. They also ate bush meat, which included milpale or goanna, rabbit and kalamira or langka which is a kind of lizard. Asked who would hunt the animals she replied “our father and mothers” and then she added “Paltatjiratja’s wife”, (Ilpulya).

835               In her witness statement, Lilly Yupuna Baker said that the Maku (witchety grub) is her story because she was born at Mimili. There is a song for Maku and it is sung in the hope that they will increase. She also said that there was an Inma Kirara which is a general song for any location. Yupuna identified Kirara as another place where there was a rock hole; she said that the Inma for that rock hole was a song that women can hear but only the men can sing it. Yupuna referred to Paltatjiratja as her grandfather and said that he and his wife had taught her the Tjukurpa for the important Kalaya places, such as Kantja and Ilpalka. She knew, for example, that Tjaapila, to the north east of Kantja, was where the Kalaya stopped before going on to Ilpalka. She was questioned about this, it being suggested that the Tjukurpa was for men only. She replied:

A “Yes, some are for Wati, but the trees and that, many people talk about them.

Q Yes. The Inma for those places, is that only for men or is it for women too?

A Men sing it in front of the women.”

836               Yupuna said:

“If we went to a place like Ilpalka we would come back to our camp and sing Inma for that place. Inma Kirara is a general song for Ilpalka.”

Yupuna said that she did not know of a special Inma for De Rose Hill, but she had heard a story or an Inma about two grubs. She said that “grandmothers used to sing it and we used to hear it”. These were, said Yupuna:

“Pitjantjatjara, Tjuta. All of them were Pitjantjatjara.”

It was not a song for men only. Men could sing it as well and it was a song that could be sung at any location and at any time. She was asked whether the people still sang that song and in a somewhat disjointed answer she said:

“No, old ones are songs like tarkapilaranytja.”

 

837               Yupuna described how the Anangu in those days moved from place to place. Before the advent of wells, the people only had soakage water to drink:

“When those soakages were dry then we would go to another place like Ilpalka. We also lived at Ulupitja where there was a soakage.”

Yupuna described these places as “big places” because “this is where the Kalaya Tjukurpa was”. These events that she had described in her witness statement occurred “long before the station came along”.

838               According to Yupuna, her family first stayed at Ernabella before moving to Kulpitjara when she was about eight or nine years old. The family then moved to Witjintitja (Granite Downs) where Yupuna did housework. She said that when she was “just a young girl” her family moved to a big camp to the east of Railway Bore, called Aruwa; from Aruwa they moved to Tieyon and later to Kalkatja (site 47) on De Rose Hill Station. Yupuna said of Kalkatja:

“There were Anangu already sitting down there. I remember those there at that time were Peter Paltjatjiratja (Katjiwala’s father) and his wife Ilpulya, with Katjiwala, Nyanu, Angkaliya and Kampakuta. Also there at that time were Snowy De Rose’s mother and father, Edie De Rose’s father, Tjaapan Tjaapan, Sadie’s mother and father Nora Singer and Langka, together with Nora’s mother and father. Snowy’s father and Katjiwala’s father knew the country before we came to Kalkatja.”

839               At about the time when Yupuna and her family moved to Kalkatja, Yupuna started work at De Rose Hill Station. According to Yupuna, at that point of time there was no house at the De Rose Hill homestead site; later a shed was built on the site and that was where she worked, living in a camp near where the house is now built. She said that at Kalkatja “the men had no rifles just spears and digging sticks for maku (the witchetty grub), tjala (honey ant), rabbit and goanna”. There was no way of knowing how old Yupuna was when she arrived at Kalkatja or when she started work on the Station. However, based upon her statement that she had done housework at Granite Downs sometime before, she must have been, at least, twelve years of age and probably older. If, therefore, she was born in 1938, it would mean that she arrived at Kalkatja and started work somewhere about 1950. That does not tally with her later evidence that there were two white men at Kantja when she was at Kalkatja. That was an obvious reference to the O’Donoghue brothers but they were long gone from the district by 1950. Nor does her evidence on this subject tally with Doug Fuller’s evidence that the homestead was built in 1944. One possible explanation could be that Yupuna is much older than I have earlier indicated.

840               Yupuna said that she was working at De Rose Hill as a kungkawara, a young girl in her teenage years, at the time of the Maralinga bomb tests. This would probably have been in about 1956 during which time the two major tests at Maralinga took place. If, in fact, she had been born in 1938, it would also mean that she was then aged about eighteen, but as I have already indicated, I am uncertain about her year of birth and her estimates of her age at the time when particular events occurred.

841               Yupuna said that she, Katjiwala and Mabel Pearson used to look after Doug’s goats. According to her, the sheep came later and, when they arrived, she helped look after them whilst Inyika took over the care of the goats. I think that her memory has let her down. There was no other evidence that suggested that the sheep came later. Probably, the goats and the sheep were both on the Station and she first looked after the goats, later switching over to look after the sheep.

842               Yupuna said that her parents and some of the older people left De Rose Hill and went to Witjintitja. She, however, stayed on working for some time before eventually joining Ernie Baker, the white man.

843               Yupuna claimed that she is Nguraritja for De Rose Hill. She said:

“The reason people say I am Nguraritja for De Rose Hill is because I stayed and grew up there. Because I grew up there as a child until I was a young girl. There were nothing there, no homestead, and we walked all over and lived off the bush tucker. I was taught about the country by my grandmother and grandfather. This was before the shed was built, before the homestead. I went from Witjintitja as a small girl to Tieyon and Nyinnga but I went to De Rose Hill as a young child, grew up there and worked there for many years and that’s why I know the Tjukurpa there. I know all about the bush tucker and where to find it. That is the food we lived off before white-man’s mai (flour) – that came later. Because of all of that, that’s why I am Nguraritja for that country. That’s why I am there when people have meetings on De Rose Hill – because I am Nguraritja.

My children are Nguraritja for De Rose Hill but they weren’t born on De Rose Hill, they were born elsewhere. Because I am Nguraritja for De Rose Hill my children are Nguraritja. They get the country through me.”

844               Yupuna had to agree that none of her children have ever been on De Rose Hill. However, she insisted that, despite that fact, they, and their children and their children’s children, would still be Nguraritja for De Rose Hill, tracing their rights and interests back to Yupuna’s interest as Nguraritja. Yupuna summed up the position:

A “I believe that myself. I stayed there at Rose Hill and grew up there, and my children are still Nguraritja for that place.

Q Did anyone ever speak to you about who was or was not Nguraritja for De Rose Hill?

A No, I’m thinking that myself. I stayed there, I grew up there, and my kids are Nguraritja.”

845               Later in her evidence, she said that her mother had told her that she had been born “over there. She told me Watatjara”. That led on to her saying that she was also Nguraritja for Watatjara. Yupuna agreed with the proposition that she was Nguraritja for her parents’ places in the west but, as she conceded, she did not know where they were and had never seen them. However, she remained Nguraritja for them, as did her children and her children’s children. Her husband, Ernie Baker, had been born at Kunamata. In a manner that was consistent with her earlier evidence, Yupuna maintained that her children were Nguraritja for his birth place and so also were their children and their children’s children.

846               In cross-examination, Yupuna made mention of an occasion when she visited De Rose Hill with her daughter “not long ago for honey ants”. However, after some further questioning, it would seem that it was not on De Rose Hill where they had searched for the honey ants but on some other location that was close by.

847               It is not possible to state, with any degree of certainty, when Yupuna left De Rose Hill Station nor for how long she had previously lived on the Station. Events are reasonably clear but dates and times are not. She had agreed in cross-examination that she had left the Station before the birth of Toby, her first child, and as she also accepted that he was born in 1956; that gives some indication of the time when she might have left. However, it does not happily fit in with her evidence that she was still working on De Rose Hill when the Maralinga tests took place.

848               It is clear, however, that there has been only one occasion, prior to the field trips, when she returned to De Rose Hill. That occurred when her son Toby, was “grabbed” by the Tjilkatja party for his initiation. In her witness statement, Yupuna said:

“My son and Jimmy Bannington ‘went through’ together.”

Yupuna travelled with the party as it passed through De Rose Hill. Although Yupuna accepted that Toby was born in July 1956 on Granite Downs Station, there was no evidence of Toby’s age when he joined the Tjilkatja party. But if he was about (say) fifteen, it would mean that the Tjilkatja party passed through De Rose Hill Station in about 1971. That is contrary to the evidence of Johnny Wimitja De Rose which suggested that the Jimmy Bannington Tjilkatja incident occurred in about 1956. It is also contrary to Roley Mintuma’s evidence which pointed to the incident having occurred in 1953. I am prepared to accept Yupuna’s evidence with respect to major events but I have reservations about some of her details. For example, I am prepared to accept that her son Toby was “grabbed” but in view of the evidence from Wimitja and Mintuma, it could not have been at the time of the Jimmy Bannington incident. On the other hand, if that finding is incorrect and Toby was grabbed at the time of the Jimmy Bannington incident then Toby could not have been born in 1956; he would have been born up to fifteen years earlier. As that seems unlikely, the only remaining solution is that there were two different Tjilkatja parties. If the O’Donoghue brothers were still at Kantja when she first arrived on De Rose Hill that would have been some time in the early 1940s. All of this could mean that Yupuna spent, perhaps, fifteen years on the station. It would also mean that, apart for the Tjilkatja party, about forty years passed before she returned to De Rose Hill for the site visits. She did not show any degree of association with the claim area until the preparations for this case began. Yupuna presently lives at Indulkana and has lived there for a long time. In my opinion, she has failed to establish that she has the required connection to the claim area. If I am wrong and if she did at some stage in her life have the necessary connection, I am satisfied that she abandoned it long ago.

jeanNie kampukuta inpiti

849               Kampukuta, who was orphaned at an early age, said in her witness statement that she was born at Ungkalpalangu which is to the west of Mimili and east of Kulitjara. That, on my assessment, would be Yankunytjatjara country. However, when cross-examined, she said that she was born at Wataru or Mount Lindsay. That is west of Amata and Fregon, but east of Iltur. West of Amata was probably, in those days, Pitjantjatjara country. Kampukuta’s mother’s name was Ungkutjuru and it was her understanding that her mother had been born at Iltur. Kampukuta’s father, whose name was Tjinkumakunu, was born at Wataru. Kampukuta agreed that her mother and her father both spoke Pitjantjatjara.

850               Contrary to what Minnie Nyanu and Edie Angkaliya had said, Kampukuta claimed that she moved to the east to Witjintitja (Granite Downs) when she was a small tjirangka (a young girl) with Peter Mungkuri. She then said in her witness statement:

“Later he brought me to my other father Ngankanpi who was living at Kantja. Ngankanpi and Kunatitja, his wife, grew me up.”

Nevertheless, Kampukuta regards Minnie Nyanu and Edie Angkaliya as her sisters in the Anangu way. They grew up together and were cared for by Ilpulya, the mother of Nyanu and Angkaliya. Ilpulya also came from the same area where Kampukuta had been born and Ilpulya was a Pitjantjatjara woman. Kampukuta referred to Ilpulya as “Nyanu and Edie’s mother”, indicating that her reference to Nyanu being her sister was a description in Aboriginal terms. She said that Ilpulya and her adoptive father, Ngankanpi, taught her about the Tjukurpa for Kantja; at the same time, Ilpulya also taught her about the foods that were available in the area.

851               Kampukuta described herself as a tjitji tjirangka when she came to Kantja. The O’Donoghue brothers were already there when she arrived. She said in her witness statement that she stayed there “for a very long time” and that she worked “with the goats”. She knew that there was an Inma called Tarkapilara that had come from Ernabella to De Rose Hill; she knew that it was an Inma where the men danced and the women sang. She would not agree, however, that she had told Ms Woenne-Green that her father had brought that Inma to De Rose Hill from Ernabella. On the other hand, she did agree that she had told Ms Woenne-Green that her mother had learnt the song from her father.

852               Kampukuta moved from Kantja to the De Rose Hill homestead where she looked after the sheep for Doug Fuller. It was at De Rose Hill that she married Kunmanara Kulyuru and gave birth to their first child, Sammy Minyungu. She believes that Minyungu is Nguraritja for De Rose Hill because he was born there. She did not make that claim for her other four children, however – presumably because they were born elsewhere. Her second child Renee, a daughter, was born at Iranytjirany. By the time of Renee’s birth she had moved away from De Rose Hill. Ms Brown put to Kampukuta in cross-examination that there were papers suggesting that Renee was born in 1956. Kampukuta agreed that that was correct.

853               Kampukuta said, at first, that her son, Sammy Minyungu, was born near Tim De Rose’s birth place, south of the De Rose Hill homestead. Kampukuta was pressed on this subject, it being put to her that Sammy had been born at Tieyon, otherwise known as Tjayiwara. However, she insisted that he was born at De Rose Hill. Kampukuta agreed that she had talked to Ms Woenne-Green and Mr Craig Elliott about this case at Amata in April 1998. She identified both Mr Elliott and Ms Woenne-Green who were then sitting in the Court. She also agreed that her daughter, Renee, was present with her when she talked with them. Ms Brown put to Kampukuta that she had said to Mr Elliott and Ms Woenne-Green “listen, I went to Tjayiwara already pregnant with Minyungu. He was born at Tjayiwara and soon after we went back to De Rose Hill”. At first she said that she remembered saying that and that it was true, but then she said once again that Minyungu had been born on De Rose Hill. She was pressed, saying that she had told Mr Elliott and Ms Woenne-Green that she had gone to Tjayiwarra to get mingkulpa and it was whilst she was on Tieyon that Minyungu had been born. It was then put to her:

“Do you remember that’s what you said?”

Kampukuta proceeded to answer by saying:

“Yes, I can but …”

At that point she was cut off with an interjection which, in turn, led to an objection. In the end Kampukuta’s answer was lost. The qualification, by the use of the word “but”, did not surface. Instead she agreed with the simple proposition:

“So your son Sammy Minyungu was born at Tieyon wasn’t he?

Yes.”

Thereafter, confusion reappeared once more. The cross-examination continued:

Q “He wasn’t born near Tim De Rose’ birth place at De Rose Hill.

A Minyungu, Sammy was born at Rose Hill. He was born at Rose Hill.

Q Kampukuta, Sammy was born at Tjayiwara, like I read out to you before?

A Yes, maybe.”

In her witness statement, Kampukuta said “I am Nguraritja for De Rose Hill because I stayed there for a long time and my first son was born there”. I do not think that a finding could be made with confidence about the place of Sammy Minyungu’s birth nor would I be prepared to find that he is Nguraritja for any part of De Rose Hill.

854               Kampukuta was asked by Ms Brown in cross-examination why she was Nguraritja for De Rose Hill. She replied:

“Child is born and the mother also is Nguraritja.”

But then she immediately agreed with the proposition which was put by Ms Brown that if the child was not born on De Rose Hill, then the mother would not be Nguraritja for that locality. Without him being born on De Rose Hill, Kampukuta appeared to be saying that she had no claim to be Nguraritja for De Rose Hill. However, even though Kampukuta appeared to rest her claim to De Rose Hill based on it being Minyungu’s place of birth, she might still be regarded as Nguraritja because of her long association with the land.

855               An interesting exercise occurred with respect to Kampukuta’s comprehension about the questions that were put to her in cross-examination. Counsel made a mistake; he put to Kampukuta that Rosie Ilypulya’s mother was a Ngaatjatjara woman. Kampukuta disagreed. Counsel persisted, saying that Nyanu, Ilypulya’s natural daughter, had said in her witness statement that Ilypulya was a Ngaatjatjara person. Kampukuta could not be shifted:

“No, not Ngaatjatjara, like how we speaking.”

It was then that counsel checked his papers, realised his mistake, and noted that there had been an amendment to Nyanu’s statement. It remains necessary to be careful at all times, but that episode, small as it might have been, nevertheless gave confidence that Kampukuta was not overawed by the occasion and was not agreeing with anything and everything that was put to her by the cross-examiner.

856               Kampukuta did not explain in her witness statement when she left De Rose Hill. She said that “when Nyanu’s son was old enough for business we took him to Ernabella”, but in cross-examination she also said that she went to Ernabella and stayed there because of the Health Services. She agreed that, after she stopped living at De Rose Hill, she never went back there to work nor did she go back to visit, even though Doug Fuller had attempted to induce her to return to work. She said that “we heard Doug Fuller wanted us to go back to De Rose Hill. He used to ask us by letter …”. She concluded by saying:

“We wanted to go back to De Rose Hill but could not organise a lift so we just stayed at Ernabella.”

I can no more accept that explanation than the explanation of Minnie Nyanu; it is equally preposterous.

857               Her first visit to De Rose Hill was for the purpose of preparing for the native title case. Such an attitude says little for maintaining any connection with the land. Like so many other Aboriginal witnesses, Kampukuta has, in my opinion, abandoned any claim to ever having had a connection to De Rose Hill Station.

Tillie Yaltjangki

858               Tillie was the younger sister of Snowy and Johnny Wimitja De Rose. Her birth has been recorded as 1 January 1949, making her fifty-two at the time when she gave her evidence. Her mother was Nellie Tjirpawa and her father was Jimmy Piti Piti. Both are buried on De Rose Hill near the homestead. Although Tillie was born at Watju (Mt Cavenagh) she said that she “grew up mainly at De Rose Hill”, living in a camp with her mother near the homestead. According to Tillie, her mother looked after the sheep while her two brothers, Snowy and Wimitja, worked as stockmen. Other Anangu who were then living on De Rose Hill Station included Snowy’s wife, Katjiwala, Edie (Tim De Rose’s mother), Owen Kunmanara, Riley Tjayrany and his wife Cissie, Mabel Pearson and Angkaliya.

859               Tillie remembered Doug Fuller and his wife and she recalled that Rex was a little boy who went away to school. She said that after her marriage, she and her husband moved between De Rose Hill and Indulkana. They also travelled to a variety of places during their holidays, living on bush tucker and collecting dingo scalps. These could be traded for money. Tillie said that during these travels she was “told some things about Kalaya”. Tillie claimed that her Ngura was the same as her father’s (Jimmy Piti Piti) and that it included several areas of which De Rose Hill Station was one. She believed that she is Nguraritja for that country. She concluded her witness statement by saying:

“My father knew everything about De Rose Hill country including Tjukurpaand Miilmiilpa [sacred] places. That is all part of Yankunytjatjara country.”

Tillie claimed that when her son, Tiger, was newly born, the gates on De Rose Hill were locked. She then added:

“That was the time my family and other Anangu left De Rose Hill and moved to Indulkana.”

She said that she was living at Indulkana when Snowy had his accident and, as that occurred in 1977, the effect of her evidence was that the gates were locked in 1977 or some time earlier. Tillie said that she and her husband (who died recently) had wanted to return to De Rose Hill but they were frightened because of the locked gates. I reject her evidence about the locked gates and I reject her evidence that she was frightened. The locked gates could not have been her reason for leaving the claim area or her reason for not returning. They were not locked until sometime in the early 1990s When asked by her counsel, during her evidence in chief, why she left De Rose Hill, she made no mention of locked gates, saying instead:

“Pimpi [one of her children] was small and she got sick and I went.”

I find that I cannot place any reliance on Tillie’s evidence. The health of her child was her reason for leaving. Perhaps she is, as she claimed, now frightened about returning to De Rose Hill because of the lock gates, but the error in her evidence has made it impossible for me to rely on what she has said. She did not go back to De Rose Hill until the native title field trips. I cannot accept that she has retained a connection with the claim area through the acknowledgment and observance of traditional laws and traditional customs.

sadie singer

860               Sadie Singer, who was named as one of the applicants, is, in many respects, different from the other Aboriginal claimants. Although well versed in Aboriginal culture, she has had a long and continuing exposure to a western lifestyle. She is quite fluent in English and, limiting my observations to the witnesses in this case, she had the rare ability to appreciate both Aboriginal and European concepts. That, unfortunately, did not mean that she was thereby an impressive witness; in some respects I found her evidence difficult to accept. In particular, I seriously doubt that she has any affinity with De Rose Hill. In my opinion, she joined in this native title claim, not because she believed that she holds communal, group or individual rights and interests in and over the claim area, but because she believes that her participation in the case would somehow advance the cause of other Aboriginal people.

861               Sadie emphasised the importance, to an Aboriginal person, of his or her place of birth. For example, she said:

“While I was growing up in Coober Pedy my parents told me about the place I was born and that it was important for both men’s and women’s law. They also took me to Lambina and they showed me the place I was born.”

Later she said that she “was thinking in my mind about getting Lambina back for my kids and grandchildren …” thereby indicating, in my opinion, that it was Lambina that was the place of primary importance to her. However, she then added:

“… now that I have learnt about my grandfather’s country at De Rose Hill I have been thinking about that country and its importance for my family.”

The use of the word “now” would normally suggest that her knowledge of the importance of De Rose Hill Station was of recent acquisition, but that is not so. She had elsewhere said in her statement that she “started learning about De Rose Hill and the stories for that country when I came back from Coober Pedy”. She came back to Iwantja from Coober Pedy when she was twenty-one, almost thirty years ago.

862               Sadie believes that she was born on Lambina Station on 28 October 1950. Her father, Billy Langka, was, so she believes, a Pitjantjatjara man (as were his parents); he was born near Kunamata in the far north-western corner of the state. On the other hand, she had been brought up to believe that her mother, Nora Singer, was a Yankunytjatjara woman who had been born at Wantjapila. According to the scale on the map, Ex A1, Wantjapila is about thirty kilometres south of the southern boundary of De Rose Hill Station. Sadie also believed that both her maternal grandparents were Yankunytjatjara people; she had been told that her grandmother had been born at Kantja and that her grandfather had been born at Kirara – which is only a short distance south of De Rose Hill.

863               Sadie’s family moved to Coober Pedy when she was three years of age. Prior to then, her father had worked for rations on various stations, including De Rose Hill. Sadie said, understandably, that she had no memory of De Rose Hill from those days. At Coober Pedy, Sadie went to school until she was sixteen. She then worked for about three years in a combination store and motel, cleaning, washing and ironing. When she was about twenty-one, she left Coober Pedy and went to live in the Anangu camp at Iwantja with her parents. At that stage of her life, she had five children but only the eldest three were with her. The younger two had been taken into care by the authorities. Sadie has six children, two of whom gave evidence in this case: Bernard, the eldest, who was born in the Port Augusta Hospital and Tanya, the youngest, who was born in the Alice Springs Hospital.

864               From Iwantja, Sadie moved to Tieyon where a cousin, Maringka, taught her about bush tucker. She learnt to gather kampurarapa (wild raisins) and mingkulpa (wild tobacco), where to look for tjala (honey ants), maku (witchetty grubs) and milpali (goannas). Maringka also took her to places where senior women taught her Inma. Sadie next moved to Fregon where she stayed for about four years. She then went with her partner, George, to Ernabella and from Ernabella they moved to Iltur where George had been appointed a Community Adviser. Some three years later they returned to Fregon. The next move was to Indulkana in 1983 and, finally, in 1996, she moved to Railway Bore, a small Aboriginal homeland on AP lands, a few kilometres south of De Rose Hill Station. Despite its proximity to De Rose Hill, the move to Railway Bore was not apparently motivated by some desire to be close to the claim area. When asked by her counsel why the family had moved to Railway Bore, she replied:

“We moved there because we like to live quiet, in peace.”

865               Sadie worked in several capacities at Indulkana. First, she was part of the Arts and Craft Centre working on lino cuts, batiks and silk screens. She then acted as a Community Warden working with petrol sniffers, as a Health Worker at the clinic and finally as a Police Aide. This involvement in western-style work was probably one of the reasons why Sadie arranged for her children to be sent to Adelaide for their education.

866               I accept Sadie’s evidence that she has become, over the years, a senior law woman and that she is well versed in bush medicine. However, I do not regard that knowledge as necessarily having any special connection to De Rose Hill. For example, her counsel asked her:

“Have you been taught about the law for those women’s places on De Rose Hill?”

She answered:

“Not really but some of them I know, they taught me that women’s law there.”

Sadie said that she first learnt about the stories for De Rose Hill when she joined her parents at Iwantja after leaving Coober Pedy. She said, for example, that her father told her about her maternal grandfather’s Kalaya Dreaming – how the Kalaya had travelled from Kirara to Kantja to Ilpalka and then onto Wipa. However, even though her parents had told her that she was Nguraritja because of her mother and mother’s parents, Sadie never saw those places at that time; she saw them for the first time when she visited them as part of her preparation for the native title claim. In fact, Sadie has never spent any time on De Rose Hill since she was a child of tender years: her knowledge of the country is based substantially on what her mother, Nora, has told her. The most that could be said for Sadie is that she might have a connection to the claim area through traditional laws and traditional customs because some of her ancestors had the required connection. There are, however, two difficulties about accepting such a proposition. The first is that, apart from knowing the names of her ancestors, I know little or anything about their connections to the claim area. The second is that Sadie has not exhibited any physical connection to the claim area and there was nothing about her evidence which, in my view, indicated the feeling of a spiritual connection. I cannot accept that her evidence (or any of the evidence in the trial) has established, as a probability, that she had sufficient knowledge of any rights and interests that were connected to the claim area and that were possessed under traditional laws acknowledged and traditional customs observed.

tanya singer–ducasse

867               Tanya, the youngest child of Sadie Singer, was born on 14 January 1977 in the Alice Springs Hospital. She lived, first, at Fregon for two years and them at Indulkana, before going to college in Adelaide for her secondary schooling. Upon completing her education at the age of eighteen, she returned to the Indulkana area, living for the last six years at Railway Bore while working as a community agent for the Department of Social Security and as an Aboriginal Education worker in secondary classes. She also does some broadcasting for the local radio station.

868               Tanya said that, as a child, she accompanied her mother and her grandmother when they collected bush tucker and when they performed Inma. She said that throughout her primary school life, she also participated in Inma, some of which was connected with the Tjukurpa. In addition to being taught what could be collected as bush tucker, Tanya said that she was taught where to find water, how to prepare medicines and how to cook food. She also said inter alia:

“If we need to get kangaroo, we will go along the railway access track north of Railway Bore to De Rose Hill. We find honey ants around Emu Rock-hole and Railway Bore.”

869               It was not certain, from her witness statement, what place she was referring to as “Emu Rock-hole” but in her oral evidence she identified it as Warkuwa, which is north of Kirara but still to the south of De Rose Hill. It was her evidence that the search for kangaroos occurred about two kilometres inside De Rose Hill without any problems with locked gates.

870               Despite her lack of physical connection with the claim area, Tanya asserted that she is Nguraritja for the land. She said that the old people had told her “how nana’s dad walked on the land and that it was his country and how it was connected with the Kalaya …”. She went on to say how the old people had told her that “this is our family’s country”; they told her that she and her children were Nguraritja. Tanya said that being Nguraritja brought with it rights and privileges but also responsibilities. As a bald statement, that assertion is consistent with what other Aboriginal witnesses said during the course of their evidence. However, in discussing responsibilities, Tanya limited her comments to the passing on of knowledge of the Tjukurpa and keeping “the sites forever so they are not destroyed”. The difficulty that I have in accepting this assertion from her personal point of view is that she gave no evidence of having done anything to protect or care for any sites of significance. I find it impossible to accept that she has now – or ever has had – any spiritual connection with De Rose Hill or any part of it. I accept that she has involved herself, in addition to her European education, in Aboriginal culture and practices but her evidence did not relate that culture and those practices to De Rose Hill in such a way as to establish that she had the required connection to the claim area for the purposes of the NTA.

bernard singer

871               Bernard Singer, the son of Sadie Singer and the older brother of Tanya Singer-Ducasse, was born in the Port Augusta Hospital on 5 December 1966. Bernard said that he had been brought up in Coober Pedy but that when he was seven, he moved to Fregon where he lived with Maringka Burton, his mother’s cousin. He stayed at Fregon until he was thirteen when he went to college in Adelaide for his secondary schooling. He spent two years in college before returning to Fregon where he stayed for a further three years. At the age of eighteen, Bernard moved to Indulkana “to get made into a man”. Since then he has lived mostly in Indulkana. He did, however, live at Railway Bore in 1999 with his family for about a year; his family as he described them, extended to his siblings, their spouses and their children as well as his wife and their children. He said that there were probably about fifteen people in the group that he referred to as “family”.

872               Bernard has several positions of responsibility within the Indulkana community. He is vice chairman of the local community body and he is also the regional councillor for the Nulla Wimila Kutju Regional Council of ATSIC. The area of responsibility of that regional council is very extensive. It extends from Port Augusta into the AP Lands to the Western Australian and the Northern Territory borders but it does not include De Rose Hill Station as it stops at the eastern boundary of the AP Lands. In addition, Bernard actively works with the young people at Indulkana, involving them in work and sporting activities as part of the Community Development Employment Program (“CDEP”). Before commencing his work with CDEP approximately twelve months ago, he worked as the Anangu coordinator at the Indulkana School for several years. In about 1986 Bernard attended a drug and alcohol course in Brisbane. The purpose of the course was to train young people, such as Bernard, so that they might assist in controlling the use of drugs and alcohol in their communities.

873               Bernard referred to Whiskey Tjukanku, Riley Tjayrany and Peter De Rose as his “uncles”, saying of them and some others who are now dead that they had taught him about his family’s country. He said that he has accompanied them when they went on Wati business. He named several places where they had taken him, including Intalka and Iwantja, both of which are situated to the south of De Rose Hill Station. He said that his “uncles” had taken him on Wati business to places as far away as Warburton in Western Australia; he added that they would take him “anywhere the business is going Tjukurpa connects”. He named Malu and Kalaya as Tjukurpa and said he had been taught stories for places that connect the Tjukurpa to De Rose Hill. Bernard was not, however, prepared to speak in any detail about the Tjukurpa. He said in his witness statement:

“It is best that I don’t say any more about those places or the stories in this statement because it may be bad for me. But if old elders said it or allowed me to say more about what I have been taught then I would so.”

874               In his oral evidence he added that this was because “you’ve got to be old Tjilpi to learn Tjukurpa and culture”. He did however, feel free to say that in addition to the Kalaya Dreaming going through De Rose Hill, Malu also goes through the Station area. He said that he had been taught that the Kalaya Tjukurpa travels from Kirara to Wipa and that he had also been taught the version of the Dreaming that only Watis know.

875               Bernard listed in his witness statement his understanding about events of the past as told to him by the old men. He said:

“During my time I have not been on to De Rose Hill for business at the tjukurpa places I have been told about on De Rose Hill. Business does not happen on De Rose Hill at the moment because of what happened in the past. I have been told for many years by many people living on AP Lands, including my uncles that have taken me through the business, that old Doug shot billycans during ceremonial time somewhere west of the De Rose Hill homestead. People are worried about conducting business on De Rose Hill because something like that might happen again. The old people have told me that they want to go on to teach more about those places on De Rose Hill before they pass away.”

These statements that Bernard attributed to unspecified other people were received, not for the truth of the statements, but as statements of his belief. However, I have no reason to doubt the authenticity of his beliefs. Bernard said that it was part of Anangu culture for young men, such as himself, to look after the Tjilpis (the old men). Looking after them includes hunting for them, getting their firewood and showing them respect. An important aspect is to keep the culture strong by assisting the Tjilpis to pass on details of the culture to younger people.

876               Bernard, like his sister Tanya, claimed to be Nguraritja for De Rose Hill because of his mother’s association with the land through her family. He said “I am connected from Kirara to Wipa through Kalaya Tjukurpa”. Relying on the significance of birthplace, he also claimed to be Nguraritja for the Lambina area because it was his mother’s place of birth. According to Bernard, being Nguraritja means that you can hunt on your land and you can carry out ceremonial business. However, you also have to care for your country and keep the culture (that is the Tjukurpa), for that country “strong”.

877               Bernard said that he had, over the years, spent much time hunting and camping on De Rose Hill, first with Snowy De Rose and his family and later, with Peter De Rose. He said that a group would go as a family. There might be as many as three or four motor vehicles. On these hunting trips, they would also collect maku (witchetty grubs) and different woods with which to make artefacts. According to Bernard, this changed when the Fullers began to padlock gates. Bernard’s hunting trips to De Rose Hill have been impeded by the padlocks. He told of one occasion when he and his cousin, David Lapi Wanga, were on De Rose Hill when they were approached by a white person, a stranger whom he could not identify. The stranger told them that they were not to hunt and they were to “get out”. This incident occurred to the north of Kantja. On that occasion, he and his cousin had gained access to the property through a grid.

878               Bernard retains a strong affinity with Aboriginal tradition but it is not an affinity that is meaningfully connected with De Rose Hill. He is aware that there are secret and sacred aspects of the Tjukurpawhich he cannot discuss. He is also aware that a part of Aboriginal culture demands respect for the Tjilpis and that even though he is a Wati, there are still things that he is yet to be told. These are however, matters of general application that have no special or unique significance to De Rose Hill – the Station is but one of many pieces of land through which the Tjukurpatravels. I do not see how Bernard could be treated differently from his mother and his sister. Sadie Singer’s entitlement to be regarded as a claimant in this mater is very suspect. She has had no personal connection with the claim area. She was not born there; she has never lived there or worked there. I doubt that she is Nguraritja for the claim area and she most certainly has never had the necessary connection through traditional laws and traditional customs to the claim area. The same observations can be made about her daughter, Tanya Singer–Ducasse, and her son, Bernard Singer. I have concluded that even though he might be Nguraritja for the claim area (an issue which I do not have to decide) he has not satisfied me that he has the necessary connection to the claim area.

mona tur

879               Mona Tur was born at Hamilton Bore in 1936. Hamilton Bore is near Hamilton Creek which is quite a distance to the east of the eastern boundary of De Rose Hill Station. Lambina homestead is immediately to the south of Hamilton Creek and Mrs Tur was of the view that Hamilton Bore would be to the south of the homestead. Her mother was an Anangu woman but her father was a European who was then working on the railway. Her adoptive Aboriginal father, Liritja, sometimes known as Mulla Tjatjara, was a Yankunytjatjara man from the Musgrave Ranges. She said that, as a child, she moved with her Anangu family between numerous station properties in the north-west of the State, including De Rose Hill before ultimately settling in Oodnadatta. So far as Mrs Tur could recall, her family went to Oodnadatta because there was then a drought. She said the situation was so bad that she could recall eating mice and wild dogs. She explained that, in those days, her biological father could not live with his family as it would have been an offence for him to consort with an Aboriginal woman. Mrs Tur has always believed that she is an Antikirinya person because of what her mother, her grandmother and her grandfather have told her.

880               Mrs Tur, who presently lives in Adelaide, said, and I have no reason to doubt her evidence, that she returns regularly to Oodnadatta and Coober Pedy (both of which are south of De Rose Hill, but outside the boundaries of the Station properties that she has included in her Ngura). She also visits Mimili and Indulkana. On those occasions, she takes part in ceremonies and she continues her “associations with my land and my people”. She added, and I accept, that she is very much involved in Antikirinya women’s ceremonial life.

881               Mrs Tur said that, when she was about nine years of age (that is, in about 1945) she was involved in Aboriginal ceremonies at Angle Pole which is just outside Oodnadatta. The ceremony was called Irkapiri (or Tjilkala) and it referred to the event when young men, who have been out in the bush, were brought back into the main camp to finish a ceremony. Mrs Tur was asked to describe the manner in which she took part in the ceremony. She said:-

“Well, it was a very sacred ceremony, and I was told – I was just taken from where all the women were lying down with all our heads and everything covered and I was taken to sit on the lap of a man while he went through the smoke to become my adopted brother.”

That man’s name was Katatji Mick. The word Katatji had a special meaning:

“It meant the avenger – the man who has to make sure the law is kept within the communities.”

882               When she was placed on the lap of Katatji Mick, her eyes were covered. This apparently signified that, having sat through the smoke, she and her mother were adopting him as her brother and her son respectively through the “ceremony of life”. She was next taken back to where the women were gathered “and then there were a lot of singing and a lot of other ceremonies going on”. Mrs Tur said that she could remember many other aspects of the ceremony, but they were matters upon which she could not talk. She said that she was also involved in other ceremonies while she was at Oodnadatta. She said, for example, that she was involved with “Inma which is the corroboree for all people for teaching our Wapar and they would carry on every night”. She said that the Wapar is the Dreaming that has been handed down from generation to generation “and it is our religious belief”. She added that the Pitjantjatjara word for Wapar was Tjukurpa. She said that whilst she was at Oodnadatta there was a particular Inma for the Wapar Ngintaka (perentie). Mrs Tur said that she had participated in women’s secret ceremonies from the time when she was about five years of age. However, she could not name or describe those ceremonies because they were sacred. She was asked how she would describe the people who had attended the ceremony at Angle Pole and who had participated in the Inma while she was living at Oodnadatta. Her answer was to refer to them as “Anangu Antikirinya”.

883               When she was eleven, Mrs Tur was placed in the United Aborigines Mission at Oodnadatta, where her biological father visited her fortnightly. She said that the missionaries who were in charge were very understanding people; they did not stop the children from participating in their Aboriginal culture. In particular, the missionaries allowed the children to join in the Inma with their family members so that they would never forget their Wapar (Tjukurpa). Mrs Tur’s evidence about these ceremonies and her participation in them was of interest for two reasons. First, it was direct evidence of the existence of and her participation in social, cultural and traditional Aboriginal ceremonies. On the other hand, it served as a reminder that the evidence related to events that occurred fifty or sixty years ago. The case for the claimants would have been better assisted by evidence of such events if they had occurred in the last decade. I am quite sure that there are, throughout the country, numerous Aboriginal people who still hold to their traditional laws and customs who actively participate in ceremonies, songs and dances, but the evidence in this case on that subject was sporadic and irregular. It was not possible to stand back and review the evidence and conclude that any of the claimants in this action have (or have had in the last twenty years or so) a lifestyle that incorporates identifiable patterns of social, cultural or traditional significance.

884               After a period in the mission, Mrs Tur, when aged fourteen, moved to the home of Mr and Mrs Bagshaw, a European family in South Australia where she did housework. She stayed with the Bagshaws, who encouraged her to maintain contact with her family, until she was eighteen. She travelled north to visit her mother in most years and on occasions her mother would visit her at the Bagshaws’ home. After leaving the Bagshaws, she then spent the next two and a half years at the Singleton Bible School, followed by six years working as a cook at children’s hostels.

885               Mrs Tur married in 1965 and has two daughters who were born in 1968 and 1971. In 1973, at the age of thirty-seven, Mrs Tur commenced studying and working as an interpreter in the Courts. Her mother tongue was Antikirinya and, although she could communicate with Pitjantjatjara people, she had to study that language because, as she said, “there were some dialectical differences”. She commenced studies in Pitjantjatjara, going to a summer school at the University of Adelaide’s Department of Continuing Education. It was also in 1973 that she worked with the late Dr Cath Ellis in the Department of Ethno-Musicology at the University of Adelaide, acting as an Interpreter. In 1984, Mrs Tur commenced teaching Pitjantjatjara at the Underdale Campus of TAFE; she continues to do this. In that year, she also resumed her work as an interpreter in the Courts after a break of some years because of illness. She has worked with the Courts in Port Augusta and Coober Pedy on behalf of Pitjantjatjara and Antikirinya people and is still doing that work. Between 1990 and 1995, she worked with the Magistrates’ Court Circuit on the AP Lands and from 1996 to 1998, she was an Aboriginal liaison officer for the Department of Correctional Services, based at Marla. From 1987 to 1998, she taught the Antikirinya language at schools as part of an Aboriginal Cultural Studies course. She is, in my opinion, well qualified, both as a result of her studies as well as her practical experience, to speak authoritatively about these languages.

886               According to her beliefs, her country (her “Ngura” or her “Manta”) extends to Amata (Musgrave Park) in the north west, Fregon in the south west, Mimili (Everard Park) in the south south-west, Indulkana and Witjintitja (Granite Downs) in the south, De Rose Hill to the north and, in addition, several stations further south and south east of Granite Downs including Todmorden, Wintinna, Welbourne Hill, Mount Sarah and Lambina. Mrs Tur was asked to explain the meaning of the words “Ngura” and “Manta”. Her answer was as follows:

“The Ngura means that I was born in that country. The manta is the land that I was born in, and that’s where many of my relatives were also born …”

Mrs Tur was familiar with the word Nguraritja and agreed that it was derived from the word “Ngura” which she had used in her evidence.

887               Mrs Tur knew some, but not all of the claimants in this present action. For example, she knew Peter De Rose and referred to him as a cousin in the Aboriginal way, but she did not know Peter Tjutatja, Tim De Rose, Tillie Yaltjangki, Witjawara Curtis, Minnie Nyanu, Edie Angkaliya or Carlene Thompson. On the other hand, Owen Kunmanara, Roley Mintuma, Bernard Singer, Cissie Riley and Yupuna Baker were all related to her. As for Riley Tjayrany and Whiskey Tjukanku, she referred to them as her sons, which is very surprising having regard to their advanced years. Sadie Singer was an auntie and Tanya Singer-Ducasse was a cousin. Kampukuta was also an Auntie, as was Maggie Ward, but she was not sure whether she had any connection with Alan Wilson. In each case, her reference to any form of relationship was a reference to an Anangu relative in the Anangu way. As a generalisation, Mrs Tur agreed that there were people on the western extremities of South Australia who are described as Pitjantjatjara people and that there are people known as Yankunytjatjara people to the east of the Pitjantjatjara. She was asked whether those whom she regarded as being related to her in the Anangu way were Antikirinya or Pitjantjatjara people. Surprisingly, she said that they were all Antikirinya. That answer contradicts the evidence of many of the Aboriginal witnesses who were at pains to identify themselves as Yankunytjatjara people.

reasons for leaving

888               Counsel for the claimants, during the course of final submissions, submitted that “significant changes have taken place in the physical and social environments in which [the claimants] live”. That is correct. Those changes commenced with the presence of the early explorers and travellers who introduced the Anangu to rations, clothes and work. More extensive changes were brought about in the 1930s with the north-west area being taken up as sheep runs and cattle stations. Then there was the establishment of the mission at Ernabella in 1937 and the later establishment of the community centre at Indulkana in 1968. It was submitted that the claimants, as well as their predecessors, were affected by a number of natural and historical events which included periods of severe droughts, floods, epidemics, interaction with doggers, the introduction of sheep and cattle into the region with the subsequent despoiling of water sources, devegetation and the depletion (and in some cases, the extinction) of indigenous flora and fauna species, the provision of government rations to Aboriginal people on pastoral stations, the establishment of Mission stations, constraints on movements and relocations by police and other government agencies, and changed work practices on pastoral stations in the region. I believe that each of these factors is a material factor that must be considered when investigating whether an application for a determination of native title should succeed. First and foremost, however, it must be recognised that natural calamities such as droughts, floods and sickness may well be matters that militate against the Aboriginal claimants. Far from evoking an attitude of sympathy and leniency to an application, they may constitute the very reason for explaining why the Aboriginal people have left a particular area and, in so doing, have broken their connection with that land. This is and will continue to be an ongoing problem in the pursuit of native title. Aboriginal claimants must be ready to maintain and assert their rights and interests in relation to land and waters where those “rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by” the Aboriginal people. Thus it is that many native title claimants will have to overcome such matters as the introduction of livestock, the availability of rations, the establishment of Missions and the other matters to which reference has been made. Neither the common law nor the provisions of the NTA constitute a bulwark against the presence of these European influences. Any of them, may, in a given case, have such an effect as to break the necessary connection with the claim area. Even so, counsel for the claimants have submitted that those changes that have occurred:

“… have not disrupted the traditional spiritual beliefs of the claimants concerning the origins and character of the land, or caused the loss or cessation of the ceremonial life which is the religious expression of those beliefs.”

In so far as that submission infers that the claimants continue to maintain traditional spiritual beliefs concerning the origins and character of the claim area, it would be true of a few of the older claimants; but in so far as it also infers that there has been no cessation of the ceremonial life which is the religious expression of those beliefs, it must be rejected. The summaries of the evidence of the claimants have shown, in respect of all of them, a lack of any physical or spiritual connection with the claim area, and an abandonment of any such connection with the claim area as may have once existed.

889               Counsel submitted that there had been difficulties between the claimants and the Fullers “particularly towards the end of their time of De Rose Hill Station”. However, counsel fell short of asking the Court to make formal findings about the identity of the aggressor in the Snowy De Rose incident and about the events surrounding the receipt of the telegram that told of the death of Bobby De Rose. Rather, counsel said:

“We make the point that whatever precisely happened in those incidents – and it is open to argument – whatever the rights and wrongs, it’s beyond doubt that a strained relationship and a sense of fear and hostility emerged.”

I am not able to accept that submission in the terms in which it was presented. If, for example, the conduct of the Fullers was unimpeachable (and I do not say that it was), it would be unreasonable to lay any blame at their door even though the claimants inappropriately and unreasonably perceived a “strained relationship” and “a sense of fear and hostility”. The fact that Snowy’s accident was settled with the payment of a sum of money, suggests that Doug Fuller might have been at fault; but no evidence was led about the detailed circumstances of the accident and, in particular, I do not know whether payment was made with a denial of liability or whether payment was made after an agreed apportionment of liability. As for the telegram, the preponderance of evidence points more in favour of Doug Fuller than against him. It would, however, be more appropriate to find, as I do, that the claimants, having raised the allegation that Doug deliberately delayed telling Peter about Bobby’s death, have failed to make good that allegation.

890               Mr Collett, when presenting a section of the claimants’ final submissions, was at pains to make it clear that it was not part of the claimants’ case that they had been “hunted away”. Rather, he submitted that the changing circumstances in the pastoral industry, in combination with the disagreeable character of Doug Fuller, induced the Aboriginal people to leave the claim area. Notwithstanding their physical departure, however, Mr Collett submitted that the claimants still retained a spiritual connection with their land which would be sufficient to justify a determination of native title in their favour in respect of the claim area.

891               The native title rights and interests that are protected by the NTA are rights and interests in relation to land or waters where, among other things, the people concerned, by traditional laws and customs, have a connection with the land and waters. However, a mere connection with the land or waters is insufficient; it must be a connection “by” – meaning “because of” or “as a result of” traditional laws acknowledged and traditional customs observed.

892               Although the majority in the High Court in Ward rejected the submission that physical occupation of the land was a necessary requirement for there to be connection with the land and waters, the majority [at par 64] found that it was not necessary to express a view on what is the nature of the “connection” that must be shown to exist or when a spiritual connection with the land will suffice. Most obviously, one could envisage a retention of a spiritual connection where Anangu have been forcibly dispossessed of their land but that has not been suggested here.

893               There were many reasons why the Aboriginal people left De Rose Hill Station. The conduct of Doug Fuller was a factor but it was not, in my assessment of all the evidence, a major factor. Johnny Wimitja De Rose left because of his fight with Doug Fuller even though Doug asked him not to leave. Peter and Tim De Rose left because of their belief (most probably an erroneous belief) about the delay in Doug handing over the telegram. But Tim first left when he married and went to live in his wife’s country at Docker River. After an absence of many years, he had returned to the Station only a few months before Bobby’s death. Riley Tjayrany chose to leave because he was attracted to the newly established community at Indulkana. His brother, Whiskey Tjukanku left De Rose Hill Station as a Nyiinka to work on Granite Downs Station. Peter Tjutatja left so that his daughter could have a Western education. It was faintly suggested that Sandy Panma Williams left the claim area because of the conduct of Doug Fuller when he frightened Panma, Mitakiki and Clem Toby. But at that time Panma was only a Nyiinka; he had not started to work; and, as he acknowledged in his witness statement, although he was frightened at the time, he continued, at least for a while, to visit De Rose Hill Station. Roley Mintuma left the claim area when he went to Ernabella to be made a Wati; he never returned. Owen Kunmanara left because, he said, he was sick of work.

894               From a reading of his witness statement, it would appear that the reasons why Mitakiki left De Rose Hill were two-fold. In the first place, it was to become a Wati but, secondly, it was to work at Amata where he helped his brother on construction work for the new community. There was no suggestion that anything had happened at De Rose Hill Station that might have been the cause of him leaving. However, during the course of his evidence in chief, Mitakiki was asked by his counsel:

“Was there any reason why you did not go back to De Rose Hill Station?”

Mitakiki replied:

“Because they shot my grandfather’s and grandmother’s dogs.”

That was a most important omission from his witness statement. I do not accept that the shooting of the dogs was his reason for leaving. It is not clear whether Witjawara Curtis left De Rose Hill because of Doug Fuller shooting her family’s dogs (as she said in her witness statement) or whether she left for a holiday and ended up staying away for good (as she said in her oral evidence). Either way, her contradictory evidence means that I cannot rely on what she has said. Cissie Riley did not offer a reason for leaving De Rose Hill Station other than to say that she went on a holiday and did not return. Minnie Nyanu left, either because of a measles outbreak or because of a lack of rations and work. In either case, Aboriginal traditional laws and customs and their connection to the claim area were not sufficient to hold her. Her sister, Edie Angkaliya, left because of her reaction to the stories about Doug shooting the Aborigines’ dogs but also because of the death of her mother. The evidence of Carlene Thompson did not reveal why she left De Rose Hill Station whilst Maggie Ward disclaimed any suggestion that she was Nguraritja for the claim area. Lilly Yupuna Baker left the Station to live with “the whitefella” Ernie Baker whilst Jeannie Kampukuta Inpiti went to Ernabella because of the Health Services. The final witness to whom I will refer is Tillie Yaltjangki. She left the Station because her child, Pimpi, was sick.

895               The evidence showed Doug Fuller to be a simple and predictable character. He was mostly well disposed towards his Aboriginal workers and their families, but he was a strict disciplinarian and would not hesitate to physically assault people when he, in his sole judgment, thought it appropriate to do so. He would not tolerate Aboriginal people who wished to visit friends and relatives who were living on the station. He, of course, knew nothing of native culture, nor did he care about the customs and traditions of the indigenous people; only those who worked for him and their families were, in his assessment of the situation, entitled to be on “his property”. Hence, he was quick to assert his “rights” and he would not hesitate to resort to the occasional use of firearms to make his point. Dictatorial though his conduct may have been, it was, in the main, directed towards those whom he regarded as trespassers. I do not understand that any of those so-called “trespassers” have been advanced by the claimants as Nguraritja for the claim area. Even allowing for his shooting of the dogs, his conduct was not such as to justify a claim from the resident Aboriginal people that he was the cause of them having to leave their land. His son Rex, possessed of a somewhat dour and unfriendly personality, like his father, neither understood nor cared about Aboriginal custom and culture. However, those weaknesses in his character and attitude cannot be converted into justifiable causes for the Aboriginal people leaving the claim area.

896               There were, in my opinion, two main reasons why the Aboriginal people left De Rose Hill Station and both of those reasons deny the presence of a continuing native title connection with the claim area. The first of those reasons was the opening of the community centre at Indulkana in 1968. It was like a magnet, offering easy accessibility to food and water coupled with the community facilities that were available. Part of this “magnet”, was the later grant of pension rights and the attraction of “the sit down money” as it was called. Indulkana became the location for pension payments. The second reason for leaving De Rose Hill was that the opportunities for work began to dry up. When the country was initially opened up to run sheep, there was a lot of work for the Aboriginal people as they were used as shepherds. With the switch from sheep to cattle, the work of the station became less labour intensive. Unlike the sheep, the cattle were not easy prey to the dingoes and they did not have to be protected to the same extent as the sheep. In addition, there were the changes to the Pastoral Award in 1968 which required station owners to pay award rates to their Aboriginal employees. Then there was the subsequent introduction of the brucellosis campaign. It led to the demise of the “open range” and the erection of fencing on the pastoral properties. The combined effect of these features meant that the opportunities for Aboriginal stockmen were substantially reduced. Of the two factors, the factor of greatest significance was the loss of work. That resulted in the Aboriginal people leaving De Rose Hill; they did not attempt to stay in the area and maintain a physical or spiritual connection with the land in accordance with the traditional laws acknowledged and the traditional customs observed. In a lifestyle that was more in line with European practice, the loss of employment in one location led to a re-location in another place, preferably in the hope of obtaining paid work. The movement of the Aboriginal people away from De Rose Hill Station was not associated with their Aboriginal lifestyle, traditions or customs; it was governed by aspects of European social and work practices.

conclusion

897               I have concluded that I should accept the evidence that a person may become Nguraritja for any one of the reasons that were identified by Mr Elliott. If I were to insist on strict biological descent I would, in effect, be adhering to a view that only birth coupled with ancestral connection would create the status of Nguraritja. Although I am bound to proceed upon the premise that the claimants for native title must establish “a substantial degree of ancestral connection”, I see no reason why their traditional laws and customs should not allow for a person to become Nguraritja if he or she is born on the land (irrespective of the parents’ place of birth). Likewise, there would be nothing offensive or contradictory to there being a substantial degree of ancestral connection if the traditional laws and customs allowed for adoption or allowed for a person to be “incorporated” into the status of Nguraritja because of his or her long association with the land or because of his or her geographical and religious knowledge of the land. It seems to me, therefore, that it would be open for me to hold that those persons who are found to be Nguraritja for the claim area have the potential to be the persons who are entitled to apply for a determination of native title over the claim area. That, of course, is not the end of the matter. The claimants must still prove that their rights and interests are possessed under traditional laws and customs acknowledged and observed: see par 223(1)(a) of the NTA; they must also prove that those laws and customs have a connection with the claim area: see par 223(1)(b); and finally, they must prove that their rights and interests are recognised by the common law of Australia: see par 223(1)(c).

898               I am satisfied that there was a time (somewhere in the early part of the twentieth century and before) when a group of Aboriginal people possessed, occupied, used and enjoyed the claim area to the exclusion of all others. I am also satisfied that the particular Aboriginal people, who were the traditional owners of the claim area at that time, were those who were recognised and accepted by the others as Nguraritja.

899               There were several passages in the evidence of the Aboriginal witnesses (which I accept) that pointed strongly to the Nguraritja once having had a connection with various parts of the claim area (and other locations in close proximity to the claim area). There were, for example, the fascinating stories that were associated with the Papa Itari Tjukurpa and the Kalaya Tjukurpa. Roley Mintuma said in his witness statement that when he was a boy “there was regular ceremony for entertainment performed at the creek near the homestead by old people who have passed away”. Both Riley Tjayrany and Witjawara Curtis, in their witness statements, referred to a Tjati Wampa Inma being performed on the claim area. Kampukuta knew that there was an Inma called Tarkapilara that had come from Ernabella to De Rose Hill. Johnny Wimitja De Rose also gave evidence of ceremonies having been performed at Tiilkatjara. There was also some support from Rex Fuller for the performance of ceremonies. In his first witness statement, he said:

“Generally, the Aboriginal camps were relatively peaceful. Normally they would sort of sing at night time. In fact if there was no singing going on you would suspect some sort of trouble was brewing.”

The nature of the “singing” and its details were not, unfortunately, the subject of exploration by any of the parties.

900               The rock-art that was observed at Inyata (site 13), the songs, dances and ceremonies that were performed for the Court at Wantjapila (site 23), Alaylitja (site 11) and Maku (site 1), the significance of the rock pools at Kirara (site 26) and Ilpalka (site 40) and the restricted stories concerning events that were associated with Wipa (site 5) are all examples of facts or events which would have, at one stage, answered the requirement of connection with the claim area that is found in par (b) of the definition of “native title” and “native title rights and interests” in subs 223(1) of the NTA.

901               The evidence that was led about the lifestyle, culture and traditional laws and customs of the claimants who once resided on De Rose Hill was, however, limited. There were examples of “smoking” babies; there was the evidence of a Tjilkatja party passing through the Station and there were instances of Nyiinkas being “grabbed” for the “business”. As to that, however, the “business” was never conducted on De Rose Hill. Whilst not overlooking such matters as the references to collecting bush tucker or the protocol for preparing a kangaroo for butchering and cooking and the most important evidence about the different Tjukurpas, when one stands back and attempts a summary of the evidence of the twenty-six Aboriginal witnesses, it becomes apparent that there were substantial gaps in the evidence about communal and social life and religious, social and ritualistic activities. There was mention of the identity of other people who were present on the claim area at different times; there was also evidence of the identities of members of older generations who have passed on information about the Tjukurpa. But, on the whole, there was no sufficient evidence that would point to the presence, at any time, of a social, communal or political organisation on or near the claim area. Apart from a reference to trading in red ochre, there was no evidence from any Aboriginal witness about any economic or commercial contact with other Aboriginal people.

902               The colonization of the country and the subsequent European expansion have done much to disenfranchise many indigenous people. In some cases, and this litigation is one such case, the connection that the Aboriginal people enjoyed with the claim area was one that was orientated towards European-style work practices. The men were employed as stockmen and the women performed domestic duties for the Fullers. The lives of most of the Aboriginal witnesses, whilst they resided on De Rose Hill, were dominated by the work that they did for the Fullers.

903               Many of the Aboriginal witnesses exhibited sensitivities about various subjects during the course of their evidence. For example, Mitakiki became very concerned when he was asked questions about an Inma. He would not discuss the subject in the presence of women. The findings that I have made do not mean that the Aboriginal witnesses have lost their culture – far from it. Time and again, events occurred which made it plain that there were subjects that had particular significance to them. An obvious example was their respect for the memory of a person who has recently died and the use of the title “Kunmanara” for another person of the same name. Cissie Riley still follows the old lifestyle – sleeping under the stars in preference to a house and sitting on the ground rather than in a chair. Angkaliya said that she still prepares bush tucker. Tanya Singer-Ducasse is making determined efforts to learn about bush tucker, bush medicine and the songs and dances that are for the women. The Aboriginal men, on several occasions, sang secret and sacred songs at locations some of which I have named and which can readily be identified by anyone who has access to the restricted transcript of the trial. Two very remarkable ceremonies were performed – one at the base of a small cliff and another well to the north of the claim area. The first of those might have had general application in Aboriginal culture but the second, because of the topography, was explicitly site specific. These examples are only a few of the many examples that could be listed to show that the Aboriginal witnesses still retain knowledge of their traditional laws and customs. But that is not sufficient. The extent to which evidence was lead on the continuance of traditional laws and customs was inadequate and such evidence as was lead on that subject did not reveal the necessary connection with the claim area.

904               There was, of course, much evidence about the Kalaya Tjukurpa, less (but still quite substantial) evidence about the Malu, Kanyala and Tjurki Tjukurpa and, although the details of the Papa Itari Dreaming were spelt out in detail, evidence of this Dreaming was limited to a few witnesses – principally Tim De Rose and Peter De Rose. Virtually no information was given about the Pakalira and the Seven Sisters Dreamings even though they were said to be Dreamings that were relevant to the claim area. The evidence about the Tjukurpa, as well as the songs, dances and ceremonies that were demonstrated for the Court, showed that these matters have not been forgotten. But that evidence and those demonstrations did not otherwise establish, as a matter of probability, that a particular individual still maintained a spiritual connection to the claim area.

905               The evidence in this trial about the culture, traditional and social activities of the Aboriginal people was significant in two respects. In the first place, the physical activities that would have been tangible evidence of a spiritual connection to the claim area occurred long ago; the participants in those activities are now either dead or are limited to the older witnesses. Ongoing physical connection with the claim area ceased in 1978 when Peter and Tim De Rose left because of Doug’s alleged delay in telling them about Bobby’s death. But cultural, traditional and social activities had ceased before then. Secondly, there was inadequate evidence from members of the present generation about their connection to the claim area. I am aware, of course, of the evidence of Bernard Singer and his sister, Tanya, but where were the other Aboriginal people of their generation? Where, in particular, were the three applicants Rini Kulyuru, Puna Yanima and Julie Tjami? It would seem from what little evidence there was about them, that they could be described as belonging to the present generation. Many of the Aboriginal witnesses referred to the fact that they had children, but apart from Bernard Singer and Tanya, none of that younger generation came forward to assert a claim that they were entitled to a determination of native title in their favour over De Rose Hill Station.

906               The evidence has revealed different periods of time relating to Aboriginal people and the claim area. In the first place there was archaeological evidence that pointed to Aboriginal occupation going back some hundreds of years. Next, it is clear that there were migratory movements of Pitjantjatjara people from the west from as early as 1886, according to the evidence of Dr Foster, but continuing into the late 1930s and early 1940s according to the evidence of the Reverend Edwards and many of the Aboriginal witnesses. There was the arrival in the 1930s of the O’Donoghue brothers, followed by the establishment of the Station by Doug Fuller in 1944 and the subsequent emphasis on stockwork for the men and domestic work for the women. The dates when the Anangu started to leave the Station are not clear; probably it would have been some time in the 1950s. Thereafter, the Aboriginal witnesses gradually moved away from the claim area until 1978 when Peter and Tim De Rose left. Finally, apart from some occasions of hunting, there has been a complete absence of contact with the claim area thereafter. Not only does that establish a loss of physical connection with the claim area, but the evidence in this case failed to establish the retention of any spiritual connection with the claim area.

907               One of the most persistent themes in the evidence of the Aboriginal witnesses was to the effect that they would like to return to De Rose Hill but that they are too frightened to do so. The consequence of that proposition, if it were to be accepted, would be that the Anangu have been deprived of visiting sacred and secret sites and they have been deprived of conducting ceremonies on the claim area. However, it is to be borne in mind at all times that the pastoral property of De Rose Hill Station is but part only of the claimants’ land. Where was the evidence from the Anangu witnesses that, during the period when they were supposedly deprived of access to De Rose Hill, they visited sacred and secret sites on other parts of their country and conducted ceremonies on those other parts of their country? The answer is that there was little or no such evidence from them. At different stages of the trial, songs and dances were performed at different locations. Some, but not all, of those activities were site specific. However, no evidence was led, either in open or restricted hearings, from the Aboriginal witnesses that those songs and dances – or like songs and dances – have been performed in the last twenty years on parts of their country other than De Rose Hill. It would be a difficult exercise, having regard to the evidence that was given in this trial, to define the outer limits of the claimants’ territory and, for the purpose of these reasons, it is not necessary to do so. It is sufficient to note that the former Kenmore Park abuts De Rose Hill Station to the west and the former Granite Downs abuts it to the south. Both those stations are now part of the AP Lands; both those stations – or at least some greater part of them – would presumably form part of the claimants’ country. The likelihood of the Anangu claimants having difficulty in gaining access to those parts of their country that are on either of those properties would be remote. Despite that, however, the Anangu witnesses failed to establish any meaningful connection with any part of their country which was outside the leasehold boundaries of De Rose Hill Station. I can only conclude from this that the adherence to (as distinct from knowledge of) traditional laws and traditional customs has eroded away.

908               There were other factors about this claim that I found disturbing. For example, with the possible exception of Riley Tjayrany, the claimants did not have any concrete perception about their intended use of the claim area if they were to be successful in this litigation. I expected to hear evidence of the manner in which they would use their land for traditional purposes if it were to be returned to them. No such evidence was forthcoming. Whilst I accept that Aboriginal society does not mark out boundaries to land in Western style, I thought it significant that there was no consensus among the witnesses that would allow one to obtain a general understanding of the outer perimeters of their country. They were at pains to emphasis that locations on Tieyon and Mt Cavenagh Stations were of great significance to them, yet they failed to include these areas in their claim. Finally, and perhaps most importantly, there was a total failure to make any attempt to care for any of the secret sacred sites.

909               In Yorta Yorta at first instance, Olney J, the trial judge, found against the Aboriginal claimants. He held that there was a need on their part to establish a continuous connection between the claimant community and the claim area from the date of acquisition of sovereignty by the Crown to the time of trial. His Honour was of the view that if there happened to be a gap in the evidence, that gap could demonstrate a loss of connection. After having regard to the particular facts of that case, his Honour concluded that the movement and disposition of Aboriginal people in the relevant area during the nineteenth century had resulted in the loss of connection and in the loss of traditional laws and customs. That view was upheld by the Full Court by a majority comprising Branson and Katz JJ, with Black CJ dissenting. There is a contrary view to the effect that the proper approach should be to ask whether the claimants continue to acknowledge traditional laws and observe traditional customs and, if they do, whether the laws and customs, as so acknowledged and observed, remain connected to the particular land. The question of a spiritual connection would assume far greater importance if this contrary proposition were to become the correct approach. As it is, I am bound by the decision of the majority in Yorta Yorta; the question that I have to ask is whether there is, having regard to the facts of this case, that continuous connection between the claimants and their predecessors in title on the one hand, and the claim land on the other hand, from the date of acquisition of sovereignty by the Crown to the present time. In my opinion, the evidence did not make out that connection. I should add however, that even if the less rigorous test were to be adopted, I would be compelled to conclude that the claimants failed to convince me, as a matter of probability, that they continue to acknowledge traditional laws and observe traditional customs in connection with the claim area.

910               Since at least 1978 there has been a material change in the circumstances of the claimants. They, their witnesses and the other Aboriginal people who were said to be Nguraritja for the claim area, have been scattered to the four winds. There was no evidence that they – or even a significant number of them – meet with each other or participate in communal or group ceremonies, discussions or projects. In the language of subs 223(1) of the NTA, there was no evidence that amounted to communal or group acknowledgment of traditional laws or a communal or group observance of traditional customs. That is not to deny the possibility of some individual rights but, as an aggregate of individuals who claim to be Nguraritja for the claim area, there was no evidence of them having, in the last twenty years or so, participated in ceremonies, songs, dances or other cultural activities. Even the evidence of hunting on the claim area in that period was insubstantial and limited to the participation of a few individuals such as Peter De Rose, Bernard Singer and one or two others. Indeed, there was almost no evidence from the witnesses that they have, in the last twenty years or so, participated elsewhere (ie outside the boundaries of De Rose Hill) in any such traditional Aboriginal activities.

911               The claimants have submitted that the Aboriginal people, who are properly described as Nguraritja in respect of the claim area, still maintain a spiritual and physical connection with the land. I have concluded that there is not now, and there has not been, any such physical connection to the claim area for the last twenty years or so. I realise that an ongoing physical connection is not necessary; a spiritual connection to a relevant piece of land can still be used to identify a retention of native title. I accept that many of the witnesses, notably Peter De Rose, have claimed that they have retained some affinity with the land. However, their actions belie their words. The occasional hunt for kangaroos, whilst no doubt traditional, stands out in isolation. No other physical or spiritual activity has taken place in the last twenty or so years. The Nguraritja are presently individual people who, if they did once form part of a community or a group, no longer do so. There is not now and there has not been for many many years, an Anangu community or a group of Anangu who could properly be described as having, as a community, or as a group, a physical or a spiritual connection with the claim area. In my opinion, it is appropriate to conclude that there is a lack of connection between the claimants and the claim area; the claimants have lost their physical and spiritual connection and, because of that loss, there has been a breakdown in the acknowledgment of the traditional laws and in the observance of the traditional customs; that breakdown is fatal to their claim.

912               The evidence in this case did not reveal anything like the cohesive society which Blackburn J described in Milirrpum v Nabalco at 267:

“The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence.”

That is not to say that the measure of achievement in Milirrpum is a standard that must be achieved in every case; far from it. But it constitutes a working example of the type of communal or group rights and the degree of connection with the land that would go towards establishing the entitlement to a determination of native title.

913               The ultimate burden of proof rests on the claimants: Coe v Commonwealth (1993) 118 ALR 193 per Mason CJ at 206. Although there may be an evidentiary burden on a respondent who is alleging extinguishment because of abandonment to raise the issue, it is not for the respondents to prove that extinguishment has occurred – the claimants must establish that extinguishment has not occurred; they must show that there currently exists native title rights and interests and they will fail if the rights and interests that they once possessed have been abandoned. In the present case there are certain incontrovertible facts. The first of them is that the last of the claimants physically left De Rose Hill Station in 1978. The second is that none of those who identified himself or herself as Nguraritja for the claim area has, since that time, lived together or joined together as a cohesive community or group. Thirdly, most of the claimants, having left De Rose Hill Station (for whatever reason) have made no attempt, until the native title field trips, to return to the claim area. Finally, in the last twenty years or so, no claimant has attended to or cared for any sacred site on the claim area and no ceremony of any nature has been organised or performed on the claim area. That failure is exacerbated by the fact that the claimants, through their various advisers, must be taken to have known of the rights of access to the claim area that they have always enjoyed, first through the terms of the pastoral leases and, more recently, in the last decade or so, through the provisions of the 1989 Pastoral Act.

914               The claimants have been unable to prove that they have retained a connection to the claim area by traditional laws and customs acknowledged and observed by them sufficient to satisfy s 223(1)(b). There was insufficient evidence that any of the claimants had combined their work duties on De Rose Hill Station with their responsibilities as Nguraritja for the land and waters. The evidence revealed that many of the Aboriginal witnesses chose to work on the various stations in the north-west area of the State so that they could earn money and obtain rations rather than caring for the land in the traditional ways of the Nguraritja. Native title has ceased to exist because those who have asserted title have not established to my satisfaction “the present subsistence of the necessary connection required by par (b) of s 223(1) …” (Ward, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [26]).

915               As a consequence of the failure of the claimants to satisfy me that they now have any connection with the land and waters within the claim area, I determine that no native title exists in the claim area. The application for a determination of native title is therefore dismissed.

a suggested determination

916               Should the decision at which I have arrived (namely that those claimants who once had a relevant connection with the claim area have all abandoned that prior connection) be reversed on appeal and should the claimants be otherwise successful in their application for a determination of native title, it would then be necessary to consider the nature of the determination that should be made in their favour. As I have earlier noted, the claimants have revised the nature of the determination that they seek in light of the decision of the High Court in Ward. The State, although arguing that the claimants’ application should be dismissed, proffered, in the alternative, a proposed determination that was not as far reaching as that proposed by the claimants. The Fullers, although not proffering suggested terms for a determination, nevertheless submitted critical comments on the terms that were proposed by the claimants.

917               The determination that I would consider most appropriate (if it were to be found that the claimants, or some of them, are entitled to a determination) is based, in part, on the proposal that was advanced by the State but I have made certain amendments, most notably to give, as the claimants have proposed, certain controls to the claimants over their members and other Aboriginal people. However, the rights that would remain available to the claimants would have to be recognised as being of a transitory and subsidiary nature only. The suggestion by some of the witnesses that they would like to establish a homeland or run cattle on the claim area would be inconsistent with the Fullers’ rights to operate a cattle station on the claim area. Thus the right to erect wurlies and shelters would have to be effected in such a manner as would not interfere with the operation of the Fullers’ pastoral activities. And any native title right to burn the claim area in accordance with tradition and custom would be wholly inconsistent with the Fullers’ rights. Even these remaining rights, although not extinguished, must give way to the superior rights of the pastoralists. I have also amended the State’s proposal to make it clear that native title does not exist in respect of the areas that are occupied by any homestead, buildings, cattle yards, airstrips or man-made waters.

918               The claimants, in their supplementary submissions, correctly noted that the majority in Ward in the High Court had observed that where:

“… native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land and waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.” [51]

919               However, despite those comments by the majority, the claimants, inappropriately in my opinion, sought, in subpar 3(i) of their proposed amended determination, a right to the “non-exclusive possession, occupation, use and enjoyment of the land and waters” of the claim area so that they might participate in the activities there listed.

920               Putting to one side the inappropriate use of that expression, the particular rights and interests that are listed in par 3 of the claimants’ proposed amended determination are, I find, rights and interests that would be consistent with what one would expect to find under traditional laws acknowledged and traditional customs observed of Aboriginal people. If therefore, it were to be established that the claimants were entitled to a determination of native title, I would accept the claimants’ submission that such a determination would create in the claimants, entitlements to have access to the claim area, to move around the claim area and to hunt, prepare and consume game for food. It would also include the right to gather and use plants for food and for bush medicine, to gather wild tobacco and to collect resin for the manufacture of implements and weapons. It would, furthermore, include the right to access and use water that is to be found in soakages, rockholes, waterholes and springs (but not in man-made waters), and the further right to gather and use timber, stone and ochre from the claim area. Timber could be used for shelter, fuel and the manufacture of weapons; it could also be used in the manufacture of implements such as digging sticks, coolamons and other vessels and for ritual and artistic purposes. Stone could be used for implements, for tools, for weapons and for ritual and artistic purposes. The entitlement could also include the right to hold meetings, to conduct religious activities and ceremonies on the land and to participate and to invite others to participate in those activities and ceremonies. However, the doing of any activity in giving effect to the rights and interests granted to the pastoral leaseholder would prevail over the native title rights even though it will not extinguish them: s 36I of the SA (NT) Act.

921               The claimants would seek to include in their proposed amended determination references to the 1989 Pastoral Act and the South Australian Heritage Act. I do not consider that it would be appropriate to include in any determination of native title a reference to those statutes; they provide, independently of the NTA, certain rights for the benefit of Aboriginal people. However, they are rights which, because of their independence, should not form part of any determination under the NTA.

922               The proposed determination would therefore be in the following terms:

“THE COURT DETERMINES:

1. Native title exists in relation to the land and waters covered by Crown Least Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease No. 2190A (“the claim area”).

2. A person who holds the group rights comprising native title is a person who is Nguraritja for the claim area because:

(a) it is his or her country of birth;

(b) he or she has a long-term physical association with the claim area:

(c) he or she possesses an ancestral connection to the claim area; or

(d) he or she possesses geographical and religious knowledge of the claim area.

and such person is recognised as Nguraritja by the other Nguraritja.

3. Subject to paragraphs 4, 5, 6, 7 and 8 below:

(a) The nature and extent of the native title rights and interests in relation to the claim area are the rights to access and use the land and waters of the claim area for the following purposes in accordance with traditional laws acknowledged and the traditional customs observed of the native title holders:

(1) the right to hunt on the claim area, to gather and use the products of the claim area such as food, medicinal plants, wild tobacco, timber, stone and resin, and to use the natural water resources on the land,

(2) the right to live on the claim area, to camp, to erect shelters and to move about the claim area;

(3) the right to engage in cultural activities on the claim area, to conduct ceremonies and to hold meetings thereon, to teach the physical and spiritual attributes of locations and sites on the claim area and to participate in cultural practices relating to births and deaths on the claim area;

(4) the right to make decisions about the use and enjoyment of the claim area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;

(5) the right to control the use and enjoyment of the claim area and the resources of the claim area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;

(6) the right to grant access to the claim area to Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;

(7) the right to refuse access to the claim area to Aboriginal people who are governed by the traditional laws and customs acknowledged and observe by the native title holders;

(8) the right to be acknowledged as the holders of the native title in respect of the claim area in accordance with traditional laws and customs.”

(b) The native title rights and interests are held, and are exercisable, in accordance with the traditional laws and customs of the native title holders.

(c) The rights that are described in subpars (4), (5), (6) and (7) hereof do not apply to or affect:

(i) any pastoral leaseholder or his or her employees, agents and invitees who have rights of access to and use of the claim area for pastoral purposes; or

(ii) any person who has a statutory right of access to the claim area.

4. Native title rights and interests do not exist in respect of those parts of the claim area being:

(a) any house, shed or other outbuilding or airstrip and the land within a radius of one kilometre; and

(b) any dam or any other constructed stock watering point and the land within a radius of 500 metres therefrom.

 

5. Native title rights do not exist in minerals as defined in s.6 of the Mining Act 1971 (SA) or petroleum as defined in s.4 of the Petroleum Act 2000 (SA).

 

6. Native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth, including the common law.

7. The native title rights and interests are subject to regulation, control, curtailment or restriction by the valid laws of Australia.

8. The nature and extent of other interests to the claim area are as follows:

(a) the interests of Douglas Clarence Fuller and R D Fuller Pty Ltd as the Crown lessees of Crown Lease No. 2133, Crown Lease No. 2138A, and Crown Lease No. 2190A;

(b) the present and reversionary interests of the Crown in right of the State of South Australia under the leases that are identified in par (a) hereof;;

(c) the other interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;

(d) the rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;

(e) the rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the State or the Commonwealth) as required in the performance of their statutory or common law duties;

(f) the rights and interests of members of the public arising under statute or the common law.

9. The relationship between the native title rights and interests in the claim area that are described in paragraph 3 and the other rights and interests that are referred to in paragraph 8 (“the other rights and interests”), is that the other rights and interests (and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests) co-exist with the native title rights and interests except to the extent that the other rights and interests conflict with the native title rights and interests. In the case of conflict, the native title rights and interests yield to the other rights and interests, which prevail over the native title rights and interests to the extent of the conflict but do not extinguish them.

10. Liberty to any party to apply to a single judge of the Court in connection with the establishment of a prescribed body corporate.”

923               I have made no order as to costs. Should any party wish to apply for costs in respect of the trial or any part of it, they are to make their application within fourteen days of this date. For that purpose there will be liberty to apply.

section 251B of the nta

924               There is one further matter to which I wish to direct attention. It was not a matter that was raised by counsel. Normally, I would have drawn it to the attention of counsel and invited them to make further submissions. However, as I have concluded that the application must be dismissed, it seems pointless to incur the parties in extra costs by calling the matter on again. It concerns the apparent failure of the claimants to prove that they possessed the necessary authority from the native title claim group to present this application to the Court.

925               Peter De Rose was identified as the registered native title claimant in the application for a determination of native title over the claim area. He made the application on behalf of the nine other living applicants and also on behalf of:

“Those other Aboriginal persons acknowledged in accordance with traditional laws and customs to be owners of the claim area predominantly through historical, spiritual and ancestral relationships to the land.”

Subsection 61(4) of the NTA states that the persons who authorise the applicant to make the application must be identified by either naming them, or “describing those persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons”. The word “persons” in subs 61(4) clearly refers to those people who comprise the native title claim group and not only those persons who have been named as applicants. So much can be implied from the operation of subs 61(1) which requires the authorisation of the applicants by all persons having native title interests in the land (ie the native title group). In turn, subs 61(4) requires sufficient detail to enable the court to identify properly the members of the native title claim group.

926               In their principal submissions, the claimants identified the native title claim group in the following terms:

“The application is made by the named individuals on their own behalf and on behalf of other individuals who fulfil the criteria of nguraritja according to traditional law and custom.”

 

Therefore, to identify who is a member of the native title claim group that seeks a determination of native title over the claim area, it is necessary to examine the rules that govern the right to be called Nguraritja for the claim area. In Attachment E to their final submissions, the claimants adopted the findings of Mr Craig Elliott, who identified the four major reasons by which Aboriginal people could be Nguraritja under traditional laws and customs. The individual might have been born on the claim area or, even though not born there, he or she might have had a long-term physical association with the claim area. Then again, he or she may have had an ancestral association with the claim area. Finally, the person might have geographical and religious knowledge of the claim area to such a degree that the person will qualify as Nguraritja. I find that, for an Aboriginal person to be Nguraritja under traditional laws and customs as described by the claimants, the person must satisfy at least one of the four criteria listed above. But there is one further factor that is an essential criteria to being Nguraritja: the individual must be acknowledged as Nguraritja for his or her land by the other Nguraritja. I am satisfied that these factors are the major criteria by which people may be Nguraritja for De Rose Hill. Other circumstances (for example, giving birth to a child on a site) may bolster a claim for the parent, but would not, without more, ground a claim.

927               Some other methods were put forward by the different witnesses. For example, Owen Kunmanara suggested in his witness statement that he is Nguraritja for Yuta (site 32) because it had been given to him by Doug Fuller. A “gift” of land by a pastoralist is not a traditional method by which an Aborigine could become Nguraritja.

928               By an application of the above criteria it is possible, in my view, to conclude who is, and who is not Nguraritja for the claim area. It is not necessary that every single applicant be personally named, although they do need to be identified by a set of appropriate criteria: see Risk v National Native Title Tribunal [2000] FCA 1589 at [43]; Ngalakan People v Northern Territory of Australia [2001] FCA 654 at [53]; Russell v Bissett-Ridgeway [2001] FCA 848 at [18-19]. Notwithstanding the terms of the Table in subs 61(1) of the NTA – which requires authorisation by all persons – I do not think that the word “all” is be taken to include literally every single person. For example, infants and people with mental disabilities might be Nguraritja, but, because of their incapacity, they would be unable to give approval. Then again, the whereabouts of other persons might not be known. The word “all” should be taken to mean “all” those who are reasonably available and who are competent to express an opinion. In the circumstances, I am satisfied that the applicants have adequately established a method by which the members of the potential native title claim group may be identified.

929               But there then arises the question whether the applicants possessed the necessary authority from the native title claim group.

930               Section 61 is the section that identifies the applications that may be made to this Court under the NTA and the persons who may make those applications. Its relevant provisions are set out in par 7 of the reasons.

931               The second note that follows after par (1) of s 61 states that the person or persons will be the applicant. The second note is in these terms:

“Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.”

932               It is therefore necessary to consider the detail of the provision of s 251B:

“For the purpose of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.” (original emphasis)

933               Arguably, there was no sufficient evidence of any meeting – formal or informal – at which such approval was obtained. Furthermore, it might be said that there was no evidence of any communication between the known members of the group which would have amounted to a form of authorisation to make the claim for a determination of native title. If those observations are accurate, it raises the question whether the application for a determination of native title was flawed from the outset. As the matter was not raised during the course of the trial and as I have not had the benefit of argument from counsel, I refrain from expressing an opinion.

I certify that the preceding nine hundred and thirty-three (933) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated: 1 November 2002

Counsel for the Claimants:	Mr J Basten QC, Mr KR Howie SC, Mr AC Collett and Mr R Bradshaw.
Solicitor for the Claimants:	Mr TJ Wooley (Aboriginal Legal Rights Movement)
Counsel for the State of South Australia:	Mr AJ Besanko QC, Mr GF Barrett QC, Ms R Webb, Ms GA Brown and Ms E Strickland
Solicitor for the State of South Australia:	The Crown Solicitor for the State of South Australia
Counsel for Douglas Clarence Fuller and RD Fuller Pty Ltd:	Mr RJ Whitington QC, Mr CH Goodall, Mr JP Keen and Dr MA Perry
Solicitor for Douglas Clarence Fuller and RD Fuller Pty Ltd:	Mrs RH Craddock
Dates of Hearing:	4, 5, 8-13 June 2001, 3-7, 9-13, 17-27 July 2001, 2, 27-29 August 2001, 3-7, 10, 11, 13, 17-21, 24-28 September 2001, 2, 3, 10-12, 15-19, 30 October 2001, 22 November 2001 and 18-22 February 2002
Additional written submissions were received:	18 September 2002, and 2, 3 and 10 October 2002
Date of Judgment:	1 November 2002